Fair Work Ombudsman v IE Enterprises Pty Ltd

• Jurisdiction: Australia Federal only
• Court: Federal Court
• Judgment Date: 11 February 2021
• Neutral Citation: [2021] FCA 60
• Date: 11 February 2021

Federal Court of Australia

Fair Work Ombudsman v IE Enterprises Pty Ltd [2021] FCA 60

File number(s):	VID 75 of 2020
Judgment of:	ANDERSON J
Date of judgment:	11 February 2021
Catchwords:	INDUSTRIAL LAW – penalty determination – contraventions of ss 45, 323(1), 535(1), 536(1), 536(3) and 557A the Fair Work Act 2009 (Cth) – failure to pay minimum rates and accord other entitlements in accordance with the Fair Work Act 2009 (Cth) and the General Retail Industry Award 2010 – consideration of principles governing the imposition of civil penalties – deliberate and systematic conduct that had significant impact on employees ; Held: penalties proposed by the Fair Work Ombudsman reasonable and appropriate
Legislation:	Fair Work Act 2009 (Cth) ss 3, 45, 323(1), 536(3), 539(2), 557(1), 557A
Cases cited:	A & L Silvestri Pty Ltd v Construction, Forestry, Mining and Energy Union [2008] FCA 466 Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining, and Energy Union (Syme Library Case) (No 2) [2019] FCA 1555 Australian Building and Construction Commissioner v J Hutchinson Pty Ltd T/A Hutchinson Builders [2019] FCA 667 Australian Competition and Consumer Commission v TPG Internet Pty Ltd (2013) 250 CLR 640 Australian Ophthalmic Supplies Pty Ltd v McAlary Smith [2008] FCAFC 8 Commonwealth of Australia v Director, Fair Work Building Industry Inspectorate (2015) 258 CLR 482 Director of Consumer Affairs Victoria v Gibson (No 3) [2017] FCA 1148 Director of Consumer Affairs Victoria v Hocking Stuart (Richmond) Pty Ltd [2016] FCA 1184 EZY Accounting 123 Pty Ltd v Fair Work Ombudsman [2018] FCAFC 134 Fair Work Ombudsman v Australian Workers’ Union [2020] FCA 60 Fair Work Ombudsman v AJR Nominees Pty Ltd (No.2) [2014] FCA 128 Fair Work Ombudsman v Blue Impression Pty Ltd (No 2) [2017] FCCA 2797 Fair Work Ombudsman v Cuts Only The Original Barber Pty Ltd [2014] FCCA 2381 Fair Work Ombudsman v Construction, Forestry, Mining, Maritime and Energy Union [2019] FCAFC 69 Fair Work Ombudsman v EA Fuller & Sons Pty Ltd & Anor [2013] FCCA 5 Fair Work Ombudsman v Group Property Services (No 2) [2017] FCA 557 Fair Work Ombudsman v Han Investments Pty Ltd [2017] FCA 623 Fair Work Ombudsman v IE Enterprises Pty Ltd [2020] FCA 848 Fair Work Ombudsman v Jetstar Airways Ltd [2014] FCA 33 Fair Work Ombudsman v Lohr [2018] FCA 5 Fair Work Ombudsman v Mai Pty Ltd & Anor [2016] FCCA 1481 Fair Work Ombudsman v NSH North Pty Ltd trading as New Shanghai Charlestown [2017] FCA 1301 Fair Work Ombudsman v Siner Enterprises Pty Ltd and Anors (No 2) [2018] FCCA 589 Fair Work Ombudsman v Yogurberry World Square Pty Ltd [2016] FCA 1290 Kelly v Fitzpatrick [2007] FCA 1080 Markarian v The Queen (2005) 228 CLR 357 Pattinson v Australian Building and Construction Commissioner [2020] FCAFC 177 Ponzio v B & P Caelli Constructions Pty Ltd [2007] FCAFC 65 Rocky Holdings Pty Limited v Fair Work Ombudsman [2014] FCAFC 62 Singtel Optus Pty Ltd v Australian Competition and Consumer Commission [2012] FCAFC 20 Tomvald v Toll Transport Pty Ltd [2017] FCA 1208
Division:	Fair Work Division
Registry:	Victoria
National Practice Area:	Employment and Industrial Relations
Number of paragraphs:	82
Date of hearing:	28 January 2021
Counsel for the Applicant:	Ms Fiona Knowles
Solicitor for the Applicant:	Fair Work Ombudsman
Counsel for the Respondents:	The Respondents did not appear

ORDERS

		VID 75 of 2020
BETWEEN:	FAIR WORK OMBUDSMAN Applicant
AND:	IE ENTERPRISES PTY LTD (ACN 151 469 877) First Respondent ; EYAL ISRAEL Second Respondent

order made by:	ANDERSON J
DATE OF ORDER:	11 february 2021

THE COURT ORDERS THAT:

1. Pursuant to the declarations and orders made by Justice Anderson on 18 June 2020 (Default Orders):

1. the First Respondent pay pecuniary penalties in an amount of $215,000 for its contraventions as declared in orders 1(a) to (k) of the Default Orders, pursuant to subsection 546(1) of the Fair Work Act 2009 (Cth) (FW Act);

2. the Second Respondent pay pecuniary penalties in an amount of $41,000 for his involvement in the First Respondent’s contraventions, as declared in orders 2 and 1(a) to (e) and (g) to (k) of the Default Orders, pursuant to subsection 546(1) of the FW Act;

3. pursuant to subsection 546(3) of the FW Act, the First Respondent and the Second Respondent pay their respective penalty amounts to the Consolidated Revenue Fund of the Commonwealth within 28 days of these Orders.

2. The Applicant has liberty to apply on seven days’ notice in the event that any of the preceding orders are not complied with.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

ANDERSON J:

INTRODUCTION

1. On 18 June 2020, I granted partial default judgment and made various declarations and orders against the Respondents in this proceeding: see Fair Work Ombudsman v IE Enterprises Pty Ltd [2020] FCA 848.

2. This judgment concerns the civil penalties which the Fair Work Ombudsman (FWO) seeks against the Respondents as a consequence of the contraventions found to be proven by the Court in these proceedings.

3. Ms Fiona Knowles of counsel appeared on behalf of the FWO. There was no appearance by or on behalf of the Respondents, nor was there any submissions filed by the Respondents. I am satisfied on the evidence tendered by the FWO that the Respondents have been put on notice of this penalty proceeding. That evidence includes:

1. an affidavit of a Senior Lawyer employed by the Fair Work Ombudsman, Ms Claire Toner, sworn 16 April 2020 (First Toner Affidavit);

2. a second affidavit of Ms Toner sworn 15 June 2020 (Second Toner Affidavit);

3. a third affidavit of Ms Toner sworn 15 June 2020 (Third Toner Affidavit); and

4. a fourth affidavit of Ms Toner sworn 27 August 2020 (Fourth Toner Affidavit), (collectively, the Toner Affidavits).

4. The FWO seeks the imposition of the following penalties (which are detailed in Annexure A to this judgment):

1. $215,000 against the First Respondent, IE Enterprises Pty Ltd, trading as Uncle Toys (Uncle Toys); and

2. $41,000 against the Second Respondent, Mr Eyal Israel.

5. For the reasons that follow, Orders will be made which impose those penalties on each of the Respondents.

BACKGROUND

6. Uncle Toys engaged eight employees to work on a casual basis at its “pop up” kiosks during the 2017/2018 Christmas season for varying periods from 23 October 2017 to 2 January 2018 (Assessed Employment Period). Uncle Toys sold toys and other recreational goods at shopping centres in Victoria. At all relevant times, the Second Respondent, Mr Israel, was the sole director of Uncle Toys and responsible for its overall direction, control, and management.

7. On 18 June 2020, this Court handed down its liability decision in default. The Court made:

1. declarations that, consequent upon its default, Uncle Toys had committed eleven contraventions of the Fair Work Act 2009 (Cth) (FW...