FWO secures maximum penalty against Roofing employer for non-compliance

FWO secures maximum penalty against Roofing employer for non-compliance

FWO secures maximum penalty against Roofing employer for non-compliance

The Fair Work Ombudsman (FWO) has secured the maximum penalty available against an employer for breaching s 716 (5) of the Fair Work Act 2009, in that he failed to comply with a Compliance Notice issued against him. The case highlights the additional penalties employers will incur if they fail to respond to actions initiated by the Fair Work Ombudsman (FWO).

The Compliance Notice arose following allegations of award underpayments by Mr T, which triggered an investigation by the FWO.

The FWO found that an employee engaged under the Plumbing and Fire Sprinklers Award 2020 had been underpaid a gross amount of $1,406.34, together with relevant superannuation contributions based on the underpayment.

Mr T failed to comply with the Compliance Notice issued to him, nor did he engage in the subsequent proceedings against him in the Federal Circuit and Family Court of Australia. On 24 February 2023, the Court entered default judgements against him for the underpayments.

Judge Douglas Humphreys accepted evidence from the FWO that they had extensively tried to engage with Mr T to resolve the matter, but he had failed to make any payments regarding the entitlements owed to his former employee.

In determining an appropriate penalty, Judge Humphreys noted that the Court had earlier imposed a penalty of $6300 against Mr T in 2022, together with orders for the payments of amounts in respect of underpayments to two employees. As of 7 October 2022, the Court was advised that he had not paid any of the outstanding payments, and the pecuniary penalty remained outstanding.

In the present matter, Judge Humphreys was scathing of Mr T’s actions, noting,

“the respondent has expressed on multiple occasions to the FWO an intention to make payments to rectify the non-compliance but has not done so … In terms of cooperation, contrition and corrective action, the Court notes the respondent has not displayed one iota of contrition or remorse. By failing to engage with the Court has put the respondent to considerable further additional time and expense in having to obtain default judgement”.

In summary, Judge Humphreys commented, “Noting the previous failure to comply with a Compliance Notice and to pay both the compensation and the civil penalty ordered in the previous matter, the Court is of a view that this second offence is a continuing serious and wilful disregard of Mr T’s responsibilities under the Act”.

Consequently, Judge Humphreys imposed the maximum allowable penalty of 100%, $6,600.

Fair Work Ombudsman v Tipene [2023] FedCFamC2G 296 (21 April 2023)

For questions about award entitlements, dealing with the FWO, or other employment questions, please contact Dean Cameron at Workforce Advisory Lawyers – We Know Employment Law on 0417 622 178, 1300 WAL LAW or via email to dean.cameron@workforceadvisory.com.au

Disclaimer: This information is provided as general advice on workplace relations and employment law. It does not constitute legal advice, and it is always advisable to seek further information regarding specific workplace issues. Liability limited by a scheme approved under professional standards legislation.

Ref: 331.0523

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