Fair Work Ombudsman v Spotless Services Australia Ltd (No 2) [2022] FCA 383

Federal Court of Australia

Fair Work Ombudsman v Spotless Services Australia Ltd (No 2) [2022] FCA 383 File number: WAD 636 of 2017

Judgment of: COLVIN J

Date of judgment: 12 April 2022

Catchwords: INDUSTRIAL LAW - consideration of appropriate pecuniary penalties for contravention of s 119(1) of the Fair Work Act 2009 (Cth) - where employer did not pay redundancy payments to certain terminated employees - where employer failed in its reliance on the 'ordinary and customary turnover of labour' exception in s 119(1)(a) - whether reasonableness of legal argument should discount penalty - whether consistency requires penalty to be calculated in same manner as applied to similar contravention by other company in the same group - consideration of deterrence and other factors

Legislation: Fair Work Act 2009 (Cth) ss 119, 557

Cases cited: Australian & International Pilots Association v Qantas Airways Limited [2009] FCA 500 Australian Building and Construction Commissioner v Powell (No 2) [2019] FCA 972 Australian Competition and Consumer Commission v TPG Internet Pty Ltd (No 2) [2012] FCA 629 Berkeley Challenge Pty Ltd v United Voice [2020] FCAFC 113; (2020) 279 FCR 249 Commonwealth of Australia v Director, Fair Work Building Industry Inspectorate [2015] HCA 46; (2015) 258 CLR 482 Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Telstra Corporation Ltd [2007] FCA 1607 Compass Group (Australia) Pty Ltd v National Union of Workers [2015] FWCFB 8040; (2015) 253 IR 32 Construction, Forestry, Mining and Energy Union v Hail Creek Coal Pty Ltd (No 2) [2018] FCA 480 Director of Consumer Affairs Victoria v Alpha Flight Services Pty Ltd [2015] FCAFC 118 Fair Work Ombudsman v Spotless Services Australia Ltd [2019] FCA 9 Fashion Fair Pty Ltd v Department of Industrial Relations (Inspector Rouse) (1999) 92 IR 271 Flight Centre Limited v Australian Competition and Consumer Commission (No 2) [2018] FCAFC 53; (2018) 260 FCR 68 Pattinson v Australian Building and Construction Commissioner [2020] FCAFC 177; (2020) 282 FCR 580 Singtel Optus Pty Ltd v Australian Competition and Consumer Commission [2012] FCAFC 20 Trade Practices Commission v CSR Ltd [1990] FCA 762 Transport Workers' Union v Veolia Environmental Service (Australia) Pty Ltd [2013] NSWIRComm 22 United Voice v Berkeley Challenge Pty Limited (No 2) [2018] FCA 1189 United Voice v Berkeley Challenge Pty Limited [2018] FCA 224 Universal Music Australia Pty Ltd v Australian Competition and Consumer Commission [2003] FCAFC 193; (2003) 131 FCR 529 Visy Paper Pty Ltd v Australian Competition and Consumer Commission [2005] FCAFC 236