Amin v Ractors Pty Ltd (in liquidation)
[2023] FedCFamC2G 946
•20 October 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
Amin v Ractors Pty Ltd (in liquidation) [2023] FedCFamC2G 946
File number: MLG 1492 of 2022 Judgment of: JUDGE RILEY Date of judgment: 20 October 2023 Catchwords: INDUSTRIAL LAW – penalties for involvement in 14 contraventions – underpayments and record keeping breaches – corporate employers in liquidation – director not participating in proceedings – no remorse or corrective action – vulnerable employee. Legislation: Corporations Act 2001 s.471B
Fair Work Act 2009 ss.50, 535, 536, 539(2), 546, 557(1)Fair Work Regulations 2009 r.3.42
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 r.13.05(2)(c), 17.05(2)(a)
Cases cited: Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (CFMEU) (2018) 262 CLR 157; (2018) 351 ALR 190; (2018) 92 ALJR 219; (2018) 273 IR 211; [2018] HCA 3
Australian Building and Construction Commissioner v Pattinson (2022) 175 ALD 383; (2022) 399 ALR 599; (2022) 314 IR 301; [2022] HCA 13
Commonwealth of Australia v Director, Fair Work Building Industry Inspectorate (2015) 258 CLR 482; (2015) 326 ALR 476; (2015) 90 ALJR 113; (2015) 255 IR 87; [2015] HCA 46
Community and Public Sector Union v Telstra Corporation Limited (2001) 108 IR 228; [2001] FCA 1364
Fair Work Ombudsman v Grouped Property Services Pty Ltd (No 2) [2017] FCA 557
Fair Work Ombudsman v NSH North Pty Ltd t/as New Shanghai Charlestown (2017) 275 IR 148; [2017] FCA 1301
Kelly v Fitzpatrick (2007) 166 IR 14; [2007] FCA 1080
Mason v Harrington Corporation Pty Ltd [2007] FMCA 7
Plancor Pty Ltd v Liquor, Hospitality and Miscellaneous Union (2008) 171 FCR 357; (2008) 177 IR 243; [2008] FCAFC 170
Ponzio v B & P Caelli Constructions Pty Ltd (2007) 158 FCR 543; (2007) 162 IR 444; [2007] FCAFC 65
Rajagopalan v BM Sydney Building Materials Pty Ltd [2007] FMCA 1412
Rocky Holdings Pty Ltd v Fair Work Ombudsman (2014) 221 FCR 153; (2014) 243 IR 244; [2014] FCAFC 62
Division: Division 2 General Federal Law Number of paragraphs: 75 Date of hearing: 16 August 2023 Place: Melbourne Advocate for the Applicant: Nicholas Grealy Solicitor for the Applicant: The Construction, Forestry, Maritime, Mining and Energy Union Advocate for the First, Second and Third Respondents: No appearance ORDERS
MLG 1492 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: KHAIRUL AMIN
ApplicantAND: RACTORS PTY LTD (IN LIQUIDATION) (ACN 604 133 262)
First RespondentSTRAIGHTLINE CONSTRUCTION CO PTY LTD (IN LIQUIDATION) (ACN 639 915 183)
Second RespondentTARKAN GULENC
Third Respondent
ORDER MADE BY:
JUDGE RILEY
DATE OF ORDER:
20 OCTOBER 2023
THE COURT ORDERS THAT:
1.Within 28 days, pursuant to s.546 of the Fair Work Act 2009, the third respondent pay the applicant pecuniary penalties as follows for the third respondent’s involvement in the first and second respondents’ contraventions as set out in the declaration made on 31 May 2023:
(a)$10,656 for failing to pay the applicant the minimum hourly rate as required by cl.24 and Schedule B of the Straightline Contractors Pty Ltd and the CFMEU (Victorian Construction and General Division) Enterprise Agreement 2016-2018 (“the agreement”);
(b)$10,656 for failing to afford the applicant the opportunity to work ordinary hours as required by cl.33.1 of the agreement;
(c)$10,656 for failing to pay the applicant overtime rates as required by cl.36.3 of the agreement;
(d)$10,656 for failing to pay the applicant rostered days off as required by cl.35.2 of the agreement;
(e)$2,664 for failing to pay the applicant overtime meal allowance as required by cl.36.4 of the agreement;
(f)$10,656 for failing to make a copy of employee records available for inspection or copying on request;
(g)$10,080 for failing to provide payslips in respect of payments made to the applicant on or around 2 April 2020, 16 April 2020, 23 April 2020, 30 April 2020, 7 May 2020, 14 May 2020, 21 May 2020 and 28 May 2020, as required by cl.29.2 of the agreement;
(h)$10,656 for failing to record the employer’s name on payslips issued to the applicant by the first respondent from pay period ending 30 June 2019 to pay period ending 28 March 2021;
(i)$10,656 for failing to make superannuation contributions for the applicant of at least $215 per week for the pay periods 25 May 2020 to 12 July 2020, 28 September 2020 to 4 October 2020, 8 March 2020 to 4 April 2021, 12 April 2021 to 18 April 2021 as required by cl.21.2 of the agreement;
(j)$2,664 for failing to pay the applicant site allowance as required by cl.5 of Appendix C of the agreement;
(k)$10,656 for failing to pay the applicant fares and travel pattern allowance for each day worked as required by cl.25.5 of the agreement;
(l)$10,656 for failing to pay the applicant fares and travel pattern allowance on rostered days off as required by cl.35.6 of the agreement;
(m)$2,520 for failing to pay the applicant for Melbourne Cup Day 2019 as required by cl.39.1 of the agreement; and
(n)$10,656 for failing to pay the applicant four weeks annual leave per annum and leave loading as required by clause 38 of the agreement.
AND THE COURT NOTES THAT:
A.Pursuant to r.17.05(2)(a) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021, the court may vary or set aside a judgment or order made in the absence of a party.
Note: The form of the order is subject to the entry in the court’s records.
Note:This copy of the court’s reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE RILEY:
INTRODUCTION
This matter concerns the penalties to be imposed for the third respondent’s contraventions of the Fair Work Act 2009 (“the Act”).
The applicant is Mr Amin. He is a Rohingya refugee. The first respondent (“Ractors”), formerly known as Straightline Contractors Pty Ltd, and the second respondent (“Straightline Construction”) are in liquidation. The third respondent (“Mr Gulenc”) was a director of Straightline Construction until 4 August 2020 and the sole director of Ractors from 4 August 2020. As Ractors and Straightline Construction are in liquidation, the proceeding against them is stayed pursuant to s.471B of the Corporations Act 2001.
Mr Amin was an employee of Ractors from around 24 June 2019 to 18 April 2021 and an employee of Straightline Construction from around 19 April 2021 to 2 May 2021. He was employed as a labourer on a permanent full-time basis.
Mr Amin commenced these proceedings on 28 June 2022 against Ractors and Straightline Construction. The matter was listed for first return on 28 July 2022. Mr Gulenc contacted my chambers by email on 22 July 2022 requesting an adjournment of the directions hearing. In the absence of Mr Amin’s consent to the proposed adjournment, the parties were advised that the matter remained listed for directions on 28 July 2022. Mr Gulenc wrote to my chambers again by email on 27 July 2022 to advise he was unable to attend the directions hearing. He stated in his email that he was “completely unprepared” for the hearing but requested that he be kept informed of “the next stage of the case”. Mr Gulenc did not attend the directions hearing on 28 July 2022. He has not corresponded with the court since or attended any of the numerous court events.
At the third return on 17 October 2022, Mr Amin’s solicitor informed the court that Ractors had been placed into liquidation and Straightline Construction had received a winding up notice. Mr Gulenc did not appear. The matter was adjourned on that occasion, and on other occasions, at Mr Amin’s request, due to the expected liquidation of Straightline Construction.
On 10 February 2023, Mr Amin filed an application in a proceeding seeking leave to:
(a)join Mr Gulenc as the third respondent to the proceeding; and
(b)file an amended statement of claim.
The application was listed for hearing on 13 February 2023. On that occasion, Mr Gulenc did not appear. The court adjourned the application to 6 March 2023 to allow time for the respondents to be served.
Mr Gulenc did not appear at the hearing of the application in a proceeding listed on 6 March 2023. The court granted leave to Mr Amin to join Mr Gulenc as the third respondent to the proceedings and file an amended statement of claim. The matter was adjourned for directions on 27 March 2023.
On 27 March 2023, Mr Amin’s solicitor informed the court that Straightline Construction had been placed under external administration. Mr Gulenc did not appear. Orders were made for Mr Gulenc to file material and the matter was adjourned for further directions on 17 April 2023.
Mr Gulenc did not appear at the directions hearing on 17 April 2023 or file material in accordance with the orders made on 27 March 2023. The matter was adjourned to 17 May 2023 to enable Mr Amin to file an application for default judgment.
Mr Amin filed an application for default judgment on 16 May 2023.
At the hearing on 17 May 2023, the matter was adjourned to 31 May 2023 for hearing of Mr Amin’s application for default judgment. Mr Gulenc did not appear on 17 May 2023. The reason for the adjournment was to allow time for Mr Gulenc to be properly served.
On 31 May 2023, the court entered default judgment for Mr Amin pursuant to r.13.05(2)(c) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021.
The orders and declarations made on 31 May 2023 were as follows:
THE COURT ORDERS THAT:
1. Pursuant to r.13.05(2)(c) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (“the rules”), judgment be entered for the applicant by reason of the third respondent’s failure to:
a. comply with order 3 made on 27 March 2023, which constitutes a default for the purposes of r.13.04(2)(c)(iii) of the rules; and
b. attend the hearing on 31 May 2023, which constitutes a failure to defend the proceeding with due diligence for the purposes of r.13.04(2)(b)(vii) of the rules.
UPON THE ADMISSIONS WHICH THE THIRD RESPONDENT IS TAKEN TO HAVE MADE, CONSEQUENT UPON DEFAULT PURSUANT TO R.13.04(2) OF THE RULES, THE COURT DECLARES THAT:
2. The third respondent was involved, within the meaning of s.550 of the Fair Work Act 2009 (“the Act”), in contraventions by the first and second respondent of:
a. s.50 of the Act by failing to pay the applicant the minimum hourly rate as required by cl.24 and Schedule B of the Straightline Contractors Pty Ltd and the CFMEU (Victorian Construction and General Division) Enterprise Agreement 2016-2018 (“the agreement”);
b. s.50 of the Act by failing to afford the applicant the opportunity to work ordinary hours as required by cl.33.1 of the agreement;
c. s.50 of the Act by failing to pay the applicant overtime rates as required by cl.36.3 of the agreement;
d. s.50 of the Act by failing to pay the applicant rostered days off as required by cl.35.2 of the agreement;
e. s.50 of the Act by failing to pay the applicant overtime meal allowance as required by cl.36.4 of the agreement;
f. s.535 of the Act and r.3.42 of the Fair Work Regulations 2009, by failing to make a copy of employee records available for inspection or copying on request;
g. ss.50 and 536(1) of the Act by failing to provide payslips in respect of payments made to the applicant on or around 2 April 2020, 16 April 2020, 23 April 2020, 30 April 2020, 7 May 2020, 14 May 2020, 21 May 2020 and 28 May 2020, as required by cl.29.2 of the agreement;
h. s.536(2) of the Act by failing to record the employer’s name on payslips issued to the applicant by the first respondent from pay period ending 30 June 2019 to pay period ending 28 March 2021;
i. s.50 of the Act by failing to make superannuation contributions for the applicant of at least $215 per week for the pay periods 25 May 2020 to 12 July 2020, 28 September 2020 to 4 October 2020, 8 March 2020 to 4 April 2021, 12 April 2021 to 18 April 2021 as required by cl.21.2 of the agreement;
j. s.50 of the Act by failing to pay the applicant site allowance as required by cl.5 of Appendix C of the agreement;
k. s.50 of the Act by failing to pay the applicant fares and travel pattern allowance for each day worked as required by cl.25.5 of the agreement;
l. s.50 of the Act by failing to pay the applicant fares and travel pattern allowance on rostered days off as required by cl.35.6 of the agreement;
m. s.50 of the Act by failing to pay the applicant for Melbourne Cup Day 2019 as required by cl.39.1 of the agreement; and
n. s.50 of the Act by failing to pay the applicant four weeks annual leave per annum and leave loading as required by clause 38 of the agreement.
THE COURT ORDERS THAT:
3. Pursuant to s.545(2)(b) of the Act, the third respondent pay $49,229.59 to the applicant within 28 days.
4. Pursuant to s.545(2)(b) of the Act, the third respondent pay $1,470.04 to the applicant’s nominated superannuation fund within 28 days.
5. Pursuant to s.547(2) of the Act, the third respondent pay interest to the applicant in the amount owed pursuant to orders 3 and 4 above within 28 days, with the interest to be calculated in accordance with the applicable pre-judgment interest rate prescribed by the Federal Court of Australia.
6. The matter be adjourned to 16 August 2023 at 10am for penalty hearing (with an estimated hearing time of half a day).
7. By 4pm on 14 June 2023, the applicant file and serve any affidavit relating to penalty.
8. By 4pm on 28 June 2023, the third respondent file and serve any affidavit relating to penalty.
9. By 4pm on 5 July 2023, the [applicant] file and serve any affidavit in reply relating to penalty.
10. By 4pm on 9 August 2023, the applicant file and serve written submissions relating to penalty.
11. By 4pm on 14 August 2023, the third respondent file and serve written submissions relating to penalty.
12. Within seven days, the applicant ensure that a copy of this order is served on the third respondent by:
a. email at [email protected]; and
b. post at 16-18 Sunshine Street, Campbellfield, Victoria 3061.
AND THE COURT NOTES THAT:
A. Pursuant to r.17.05(2)(a) of the rules, the court may vary or set aside a judgment or order made in the absence of a party.
The reasons for those orders and the declarations were given orally at the time.
Mr Gulenc did not comply with orders 3, 4, 5, 8 and 11 of the orders made on 31 May 2023. Nor did he appear at the penalty hearing on 16 August 2023. The penalty hearing proceeded in his absence. I am satisfied that he has been properly served throughout the proceedings.
MATERIAL RELIED UPON
At the hearing before this court, Mr Amin relied upon:
(a)his application filed on 28 June 2022;
(b)his amended statement of claim filed on 17 March 2023;
(c)the affidavit affirmed by Nicholas Grealy on 9 June 2023;
(d)his affidavit affirmed by Mr Amin on 13 June 2023;
(e)his written submissions on penalty filed on 9 August 2023;
(f)the affidavit of service affirmed by Nicholas Grealy on 15 August 2023; and
(g)the table of economic loss or damage emailed to chambers on 16 August 2023.
Mr Gulenc has not filed any material or attended court at all, so he did not rely on anything.
PENALTIES FOR BREACH OF CIVIL REMEDY PROVISIONS
Section 546(1) of the Act provides that this court may order a person to pay a pecuniary penalty for a breach of a civil remedy provision. Subsection 546(2) of the Act provides that the penalty cannot be more than the amount calculated in accordance with s.539(2) of the Act for an individual, and five times that amount for a corporation. Subsection 539(2) of the Act expresses the maximum penalty in terms of penalty units. Mr Amin did not suggest that the contraventions in this case were serious contraventions, as defined. Therefore, the maximum penalty for each contravention was 60 penalty units.
Relevantly, the value of a penalty unit was $210 until 30 June 2020 and $222 from 1 July 2020. The value of a penalty unit at the time of the Melbourne Cup Day 2019 contravention, and at the time of the payslip contraventions, was $210. Therefore, the maximum penalty for those contraventions was $12,600. The value of a penalty unit at the time of the overtime meal allowance contravention, the failure to make records available on request contravention, and the failure to pay annual leave and annual leave loading was $222. Therefore, the maximum penalty for those contraventions was $13,320.
The other contraventions occurred over a period that included both the lower and the higher values for a penalty unit. The principle to be applied in such cases was considered by Katzmann J in Fair Work Ombudsman v Grouped Property Services Pty Ltd (No 2) [2017] FCA 557. In that decision, her Honour concluded that the higher value of a penalty unit should be applied, or at least be taken into account: [398]. I am bound to adopt her Honour’s reasoning. I consider that the appropriate value to use in fixing the penalties for the contraventions that occurred in periods with different values for a penalty unit is $13,320.
Mr Amin seeks penalties at a range of 70% to 80% of the maximum penalties. That works out to be $8,820 to $10,080 for the Melbourne Cup Day contravention and $9,324 to $10,656 for each of the other contraventions.
THE PURPOSE OF CIVIL PENALTIES
In Australian Building and Construction Commissioner v Pattinson (2022) 175 ALD 383; (2022) 399 ALR 599; (2022) 314 IR 301; [2022] HCA 13, the plurality of the High Court said that:
[9]… Under the civil penalty regime provided by the Act, the purpose of a civil penalty is primarily, if not solely, the promotion of the public interest in compliance with the provisions of the Act by the deterrence of further contraventions of the Act. In that context, the penalties fixed by the primary judge were appropriate because they were no more than might be considered to be reasonably necessary to deter further contraventions of a like kind by Mr Pattinson, the CFMMEU or others. They represented a reasonable assessment of what was necessary to make the continuation of the CFMMEU’s non-compliance with the law, amply demonstrated by the history of its contraventions, too expensive to maintain.
[10]The Full Court’s critical error was that it was distracted by a concern, drawn from the criminal law, that a penalty must be proportionate to the seriousness of the conduct that constituted the contravention. The power conferred by s 546 of the Act is not subject to constraints drawn from the criminal law and there is no place for a “notion of proportionality”, in the sense in which the Full Court used that term, in a civil penalty regime. Further, and relatedly, their Honours were misled by the view that the Act required that the maximum penalty be reserved for only the most serious examples of the offending comprehended by s 349(1), and that this principle could prevent the court from imposing the maximum penalty even though a penalty in that amount might reasonably be considered to be necessary to deter future contraventions of a like kind. Nothing in the text, context or purpose of s 546 requires that the maximum penalty be reserved for the most serious examples of misconduct within s 349(1). What is required is that there be “some reasonable relationship between the theoretical maximum and the final penalty imposed”. That relationship is established where the maximum penalty does not exceed what is reasonably necessary to achieve the purpose of s 546: the deterrence of future contraventions of a like kind by the contravenor and by others.
…
[15]Most importantly, it has long been recognised that, unlike criminal sentences, civil penalties are imposed primarily, if not solely, for the purpose of deterrence. The plurality in the Agreed Penalties Case said:
[W]hereas criminal penalties import notions of retribution and rehabilitation, the purpose of a civil penalty, as French J explained in Trade Practices Commission v CSR Ltd , is primarily if not wholly protective in promoting the public interest in compliance:
“Punishment for breaches of the criminal law traditionally involves three elements: deterrence, both general and individual, retribution and rehabilitation. Neither retribution nor rehabilitation, within the sense of the Old and New Testament moralities that imbue much of our criminal law, have any part to play in economic regulation of the kind contemplated by Pt IV [of the Trade Practices Act] … The principal, and I think probably the only, object of the penalties imposed by s 76 is to attempt to put a price on contravention that is sufficiently high to deter repetition by the contravenor and by others who might be tempted to contravene the Act.”
(citations omitted)
PROPORTIONALITY
In Pattinson, the High Court addressed the question of proportionality as follows:
[40]Nothing in the text, context or purpose of s 546 of the Act suggests that the Full Court’s “notion of proportionality” inheres in the court’s task, pursuant to s 546, to fix a penalty which it considers to be an “appropriate” penalty. The discretion conferred by s 546 is, like any discretionary power conferred by statute on a court, to be exercised judicially, that is, fairly and reasonably having regard to the subject matter, scope and purpose of the legislation. In a civil penalty context, Burchett and Kiefel JJ in NW Frozen Foods Pty Ltd v Australian Competition and Consumer Commission said:
“[I]nsistence upon the deterrent quality of a penalty should be balanced by insistence that it ‘not be so high as to be oppressive’. Plainly, if deterrence is the object, the penalty should not be greater than is necessary to achieve this object; severity beyond that would be oppression.”
[41]It may therefore be accepted that s 546 requires the court to ensure that the penalty it imposes is “proportionate”, where that term is understood to refer to a penalty that strikes a reasonable balance between deterrence and oppressive severity. It is in this sense that the Full Court in Australian Competition and Consumer Commission v Reckitt Benckiser (Australia) Pty Ltd used the term “proportionality”, when their Honours said:
“If it costs more to obey the law than to breach it, a failure to sanction contraventions adequately de facto punishes all who do the right thing. It is therefore important that those who do comply see that those who do not are dealt with appropriately. This is, in a sense, the other side of deterrence, being a dimension of the general deterrence equation. This is not to give licence to impose a disproportionate or oppressive penalty, which cannot be done, but rather to recognise that proportionality of penalty is measured in the wider context of the demands of effective deterrence and encouraging the corresponding virtue of voluntary compliance.” (emphasis added)
[42]However, the Full Court’s “notion of proportionality” derived from Veen (No 2) is something quite different. That notion cannot be reconciled with the decisive statements in the Agreed Penalties Case that civil penalties are not retributive, but rather are protective of the public interest in that they aim to secure compliance by deterring repeat contraventions. To introduce considerations drawn from theories of retributive justice into the application of s 546 of the Act undermines the primary significance of deterrence.
…
[46]It does not follow, as the Full Court suggested and as the CFMMEU argued in this Court, from the rejection of the Full Court’s “notion of proportionality” that s 546 must be taken to require the imposition of a penalty approaching the maximum in relation to any and every contravention by a recidivist offender. It is important to recall that an “appropriate” penalty is one that strikes a reasonable balance between oppressive severity and the need for deterrence in respect of the particular case. A contravention may be a “one-off” result of inadvertence by the contravenor rather than the latest instance of the contravenor’s pursuit of a strategy of deliberate recalcitrance in order to have its way. There may also be cases, for example, where a contravention has occurred through ignorance of the law on the part of a union official, or where the official responsible for a deliberate breach has been disciplined by the union. In such cases, a modest penalty, if any, may reasonably be thought to be sufficient to provide effective deterrence against further contraventions.
[47]The penalty that is appropriate to protect the public interest by deterring future contraventions of the Act may also be moderated by taking into account other factors of the kind adverted to by French J in CSR. For example, where those responsible for a contravention of the Act express genuine remorse for the contravention, it might be considered appropriate to impose only a moderate penalty because no more would be necessary to incentivise the contravenors to remain mindful of their remorse and their public expressions of that remorse to the court. Similarly, where the occasion in which a contravention occurred is unlikely to arise in the future because of changes in the membership of an industrial organisation, a modest penalty may be appropriate having regard to the reduced risk of future contraventions.
…
[50]This Court’s reasoning in the Agreed Penalties Case is distinctly inconsistent with the notion that the maximum penalty may only be imposed in respect of contravening conduct of the most serious kind. Considerations of deterrence, and the protection of the public interest, justify the imposition of the maximum penalty where it is apparent that no lesser penalty will be an effective deterrent against further contraventions of a like kind. Where a contravention is an example of adherence to a strategy of choosing to pay a penalty in preference to obeying the law, the court may reasonably fix a penalty at the maximum set by statute with a view to making continued adherence to that strategy in the ongoing conduct of the contravenor’s affairs as unattractive as it is open to the court reasonably to do.
(citations omitted)
APPROACH TO DETERMINING PENALTY
Bromwich J summarised the proper approach to determining penalty in cases such as this in Fair Work Ombudsman v NSH North Pty Ltd t/as New Shanghai Charlestown (2017) 275 IR 148; [2017] FCA 1301 at [36] as follows:
(1)Identify the separate contraventions, with each breach of each obligation being a separate contravention, and each breach of a term of the Award being a separate contravention.
(2)Consider whether each separate contravention should be dealt with independently or with some degree of aggregation for those contraventions arising out of a course of conduct, noting that s 557 of the FW Act provides that two or more contraventions of a given civil remedy provision are to be taken to be a single contravention if committed by the same person and arising out of a course of conduct by that person.
(3)Consider whether there should be further adjustment to ensure that, to the extent of any overlap between groups of separate aggregated contraventions, there is no double penalty imposed, and that the penalty is an appropriate response to what each respondent did.
(4)Consider the appropriate penalty in respect of each final individual group of contraventions, taken in isolation.
(5)Consider the overall penalties arrived at, including by reference to those which may be proposed by the FWO (as permitted by Commonwealth v Director, Fair Work Building Industry Inspectorate [2015] HCA 46; 258 CLR 482 (CFMEU Civil Penalties Case) at [64]) and what is proposed by the respondents, and apply the totality principle, to ensure that the penalties for each respondent are appropriate and proportionate to the conduct viewed as a whole, making such adjustments as are necessary: see Kelly v Fitzpatrick [2007] FCA 1080; 166 IR 14 at [30]; Australian Ophthalmic Supplies Pty Ltd v McAlary-Smith [2008] FCAFC 8; 165 FCR 560 at [23]. [71] and [102].
A convenient checklist of the factors that the court might consider in determining penalty include the matters that were identified by Mowbray FM in Mason v Harrington Corporation Pty Ltd [2007] FMCA 7 at [26]-[59] and adopted by Tracey J in Kelly v Fitzpatrick (2007) 166 IR 14; [2007] FCA 1080 at [14]. That list is as follows, (with paragraph letters inserted):
(a)The nature and extent of the conduct which led to the breaches.
(b)The circumstances in which that conduct took place.
(c)The nature and extent of any loss or damage sustained as a result of the breaches.
(d)Whether there had been similar previous conduct by the respondent.
(e)Whether the breaches were properly distinct or arose out of the one course of conduct.
(f)The size of the business enterprise involved.
(g)Whether or not the breaches were deliberate.
(h)Whether senior management was involved in the breaches.
(i)Whether the party committing the breach had exhibited contrition.
(j)Whether the party committing the breach had taken corrective action.
(k)Whether the party committing the breach had cooperated with the enforcement authorities.
(l)The need to ensure compliance with minimum standards by provision of an effective means for investigation and enforcement of employee entitlements.
(m)The need for specific and general deterrence.
The court must, of course, be mindful of the caution expressed by the High Court at paragraph 19 of Pattinson as follows:
It may readily be seen that this list of factors includes matters pertaining both to the character of the contravening conduct (such as factors 1 to 3) and to the character of the contravenor (such as factors 4, 5, 8 and 9). It is important, however, not to regard the list of possible relevant considerations26 as a “rigid catalogue of matters for attention”27 as if it were a legal checklist. The court’s task remains to determine what is an “appropriate” penalty in the circumstances of the particular case.
FN 26:See also Re HIH Insurance Ltd (in prov liq) and HIH Casualty and General Insurance Ltd (in prov liq); Australian Securities and Investments Commission v Adler (2002) 42 ACSR 80; [2002] NSWSC 483 at [126]; Kelly v Fitzpatrick (2007) 166 IR 14; [2007] FCA 1080 at [14].
FN 27:Australian Ophthalmic Supplies Pty Ltd v McAlary-Smith (an inspector pursuant to s 84(2) of the Workplace Relations Act 1996 (Cth)) (2008) 165 FCR 560; 246 ALR 35; [2008] FCAFC 8 at [91].
The court will consider the circumstances of the case under the various headings suggested by Mowbray FM, and then consider whether any other matters are relevant.
Step 1: identifying the breaches
As stated above, Mr Gulenc was involved in the breaches by Ractors and Straightline Constructions of:
(a)s.50 of the Act by failing to pay Mr Amin the minimum hourly rate as required by cl.24 and Schedule B of the Straightline Contractors Pty Ltd and the CFMEU (Victorian Construction and General Division) Enterprise Agreement 2016-2018 (“the agreement”);
(b)s.50 of the Act by failing to afford Mr Amin the opportunity to work ordinary hours as required by cl.33.1 of the agreement;
(c)s.50 of the Act by failing to pay Mr Amin overtime rates as required by cl.36.3 of the agreement;
(d)s.50 of the Act by failing to pay Mr Amin rostered days off (“RDOs”) as required by cl.35.2 of the agreement;
(e)s.50 of the Act by failing to pay Mr Amin overtime meal allowance as required by cl.36.4 of the agreement;
(f)s.535 of the Act and r.3.42 of the Fair Work Regulations 2009, by failing to make a copy of employee records available for inspection or copying on request;
(g)ss.50 and 536(1) of the Act by failing to provide payslips in respect of payments made to Mr Amin on or around 2 April 2020, 16 April 2020, 23 April 2020, 30 April 2020, 7 May 2020, 14 May 2020, 21 May 2020 and 28 May 2020, as required by cl.29.2 of the agreement;
(h)s.536(2) of the Act by failing to record the employer’s name on payslips issued to Mr Amin by Ractors from pay period ending 30 June 2019 to pay period ending 28 March 2021;
(i)s.50 of the Act by failing to make superannuation contributions for Mr Amin of at least $215 per week for the pay periods 25 May 2020 to 12 July 2020, 28 September 2020 to 4 October 2020, 8 March 2020 to 4 April 2021, 12 April 2021 to 18 April 2021 as required by cl.21.2 of the agreement;
(j)s.50 of the Act by failing to pay Mr Amin site allowance as required by cl.5 of Appendix C of the agreement;
(k)s.50 of the Act by failing to pay Mr Amin fares and travel pattern allowance for each day worked as required by cl.25.5 of the agreement;
(l)s.50 of the Act by failing to pay Mr Amin fares and travel pattern allowance on rostered days off as required by cl.35.6 of the agreement;
(m)s.50 of the Act by failing to pay Mr Amin for Melbourne Cup Day 2019 as required by cl.39.1 of the agreement; and
(n)s.50 of the Act by failing to pay Mr Amin four weeks annual leave per annum and leave loading as required by clause 38 of the agreement,
and Mr Gulenc was involved in each of those breaches.
Step 2: single course of conduct
Section 557(1) of the Act provides that:
For the purposes of this Part, 2 or more contraventions of a civil remedy provision referred to in subsection (2) are, subject to subsection (3), taken to constitute a single contravention if:
(a) the contraventions are committed by the same person; and
(b) the contraventions arose out of a course of conduct by the person.
Mr Amin relied upon Rocky Holdings Pty Ltd v Fair Work Ombudsman (2014) 221 FCR 153; (2014) 243 IR 244; [2014] FCAFC 62 in support of the proposition that ss.557(1) does not operate to consolidate multiple contraventions of s.50 where the contraventions are each based on contraventions of different terms or obligations of an industrial instrument, as is the case here.
Step 3: grouped breaches
The common law allows for further grouping, where the contraventions arose from one transaction or decision. However, there were no submissions that any of the contraventions should be grouped, so they will not be.
Step 4: the appropriate penalty for the breaches
a. the nature and extent of the conduct which led to the breach
In relation to the failure to pay the minimum rate, Mr Amin said in his written submissions at subparagraph 16(a)(i) that:
The failure to pay the correct minimum rate spanned much of Mr Amin’s employment and had consequences for the calculation of other entitlements, particularly overtime and leave entitlements.
In relation to the failure to afford the opportunity to work ordinary hours, Mr Amin said in his written submissions at subparagraph 16(a)(ii) that:
The failure to provide ordinary hours occurred sporadically throughout the employment.
In relation to the failure to pay overtime, Mr Amin said in his written submissions at subparagraph 16(a)(iii) that:
The failure to pay prescribed overtime rates spanned much of the employment.
In relation to the failure to pay RDOs, Mr Amin said in his written submissions at subparagraph 16(a)(iv) that:
The failure to afford Mr Amin rostered days off was consistent throughout the employment and resulted in a loss of the non-economic benefit of recreation time. It ignored the rostering structure provided by the Agreement wherein workers were compensated for additional time worked by affording them a full day off each fortnight.
In relation to the failure to pay overtime meal allowance, Mr Amin said in his written submissions at subparagraph 16(a)(v) that:
Overtime meal allowance was not paid in six pay periods.
In relation to the failure to make records available, Mr Amin said in his written submissions at subparagraph 16(a)(vi) that:
Records were not made available despite a request by Amin through his union. This had the effect of making Amin’s claim more challenging to quantify and pursue.
In relation to the failure to provide payslips, Mr Amin said in his written submissions at subparagraph 16(a)(vii) that:
Payslips were not provided in respect of payments made to Amin on eight occasions.
In relation to the failure to record the employer name on payslips, Mr Amin said in his written submissions at subparagraph 16(a)(viii) that:
The employer name was not recorded on payslips from 30 June 2019 to 28 March 2021.
In relation to the failure to make superannuation contributions, Mr Amin said in his written submissions at subparagraph 16(a)(ix) that:
Superannuation was not paid in accordance with the enterprise agreement on several occasions spanning several months during the employment.
In relation to the failure to pay site allowance, Mr Amin said in his written submissions at subparagraph 16(a)(x) that:
Site allowance was not paid on eleven occasions.
In relation to the failure to pay fares and travel pattern allowance on days worked, Mr Amin said in his written submissions at subparagraph 16(a)(xi) that:
Fares and travel pattern allowance was consistently not paid throughout the employment and was only correctly paid twice.
In relation to the failure to pay fares and travel pattern allowance on RDOs, Mr Amin said in his written submissions at subparagraph 16(a)(xii) that:
Fares and travel pattern allowance was not paid on rostered days off.
In relation to the failure to pay Melbourne Cup Day, Mr Amin said in his written submissions at subparagraph 16(a)(xiii) that:
One public holiday not worked was not paid correctly.
In relation to the failure to pay annual leave and leave loading, Mr Amin said in his written submissions at subparagraph 16(a)(xiv) that:
Amin never accrued annual leave or annual leave loading in his employment, never took leave and was not paid leave upon termination as was required by the industrial instrument.
I accept Mr Amin’s submissions on these points. More generally, the contravening conduct concerned one employee. It lasted the entire duration of the employee’s employment by Ractors and Straightline Construction. The nature of the contravening conduct and the breach of 14 separate obligations consisted of:
(a)not paying correct entitlements;
(b)not keeping proper records; and
(c)not providing payslips.
b. the circumstances in which that conduct took place
In his written submissions, Mr Amin said that:
17.Mr Amin was a vulnerable employee, which is a significant factor in assessing penalty. He was a Rohingya refugee who had suffered considerable hardship. He had limited education, was unfamiliar with his workplace rights and the Australian industrial relations framework, and at the time of his engagement had limited fluency in the English language, being illiterate in English. He had not previously worked in the construction industry and was ignorant of annual leave, personal/carer’s leave and what a union was. He was frightened of asserting his rights because he feared termination of employment.
18. It is open to infer that Gulenc was aware of Amin’s vulnerability from his dealings with him, and that that vulnerability was exploited. Amin’s language proficiency and consequent vulnerability would have been obvious. The evidence of Amin indicates that the businesses managed by Gulenc employed about fifteen Rohingya employees, and that on one occasion at a staff meeting Gulenc gave an instruction to Amin to avoid providing payslips to the union only ‘after the Aussie guys left’. The circumstances of the contravening indicate an exploitative employment relationship.
(citations omitted)
I accept those submissions. In addition, Mr Amin has had very limited formal education. He did not attend school as a child in Burma (Myanmar). As a 14 year old, he went to Bangladesh and worked on a beef farm. He was able to save enough money to fund three years of schooling in Bangladesh. He can read Bangla but not Burmese.
c. the nature and extent of any loss or damage sustained
The amount of economic loss or damage for each contravention was calculated by Mr Amin as follows:
(a)$8,522.51 for the failure to pay the minimum hourly rate;
(b)$5,721.80 for the failure to afford ordinary hours;
(c)$10,993.05 for the failure to pay prescribed overtime;
(d)$46.14 for the failure to pay the prescribed overtime meal allowance;
(e)$1,470.04 for the failure to pay prescribed superannuation contributions;
(f)$326.60 for the failure to pay the prescribed site allowance;
(g)$12,573.73 for the failure to pay fares and travel pattern allowance on days worked;
(h)$1,330.83 for the failure to pay fares and travel pattern allowance on RDOs;
(i)$21.60 for the failure to correctly pay Melbourne Cup Day; and
(j)$9,693.33 for the failure to pay annual leave and leave loading.
That totals $49,229.59 in earnings plus $1,470.04 in superannuation, making a total of $50,699.63 over a period of about three years, or about $16,000 per year. No economic loss or damage was directly incurred in respect of the failure to afford prescribed RDOs, provide employee records, provide payslips or record the employer’s name on payslips.
In his written submissions, Mr Amin said that:
19. Of the contraventions that resulted in financial loss, the economic loss or damage amounted to a total of $49,229.59 in earnings together with $1,470.04 in superannuation. This is a significant sum.
20. The failure to provide hours of work had a particular emotional and practical impact on Amin, given his significant responsibilities in supporting his family in Burma.
21. Amin had difficulty in attending to personal expenses because of the contraventions and suffered stress as a result of his challenges in supporting his family.
22. The contraventions in relation to payslips and employee records were also serious. As has been observed, ‘[w]ithout proper pay slips employees are significantly disempowered, creating a structure within which breaches of the industrial laws can be easily perpetrated’. In the circumstances Amin was unable to ascertain whether he was paid correctly. The failure to record the employer identity on the payslip was significant given that the employer changed part way through a career in which, to Amin’s knowledge, he simply worked for a company called ‘Straightline’ with Gulenc as the manager.
(footnotes omitted)
d. whether there had been similar previous conduct
There is no evidence before the court of similar previous conduct.
e. whether the breaches arose out of the one course of conduct
This point has already been addressed.
f. the size of the business enterprise involved
In his written submissions, Mr Amin said at paragraph 25 that:
No information was provided by Gulenc in relation to the size of the enterprise(s). Amin describes a business employing about forty to fifty employees during his employment.16 …
FN 16: Affidavit of Khairul Amin, 13 June 2023, [41].
The respondents might have conducted a small business, being a business that, according to ASIC, employs fewer than 100 employees, has an annual turnover of less than $50 million and assets of less than $25 million. However, as Tracey J said in Kelly v Fitzpatrick (2007) 166 IR 14; [2007] FCA 1080 at paragraph 28:
No less than large corporate employers, small businesses have an obligation to meet minimum employment standards and their employees, rightly, have an expectation that this will occur. When it does not it will, normally, be necessary to mark the failure by imposing an appropriate monetary sanction. Such a sanction “must be imposed at a meaningful level”
(footnote omitted)
Similarly, in Rajagopalan v BM Sydney Building Materials Pty Ltd [2007] FMCA 1412, the court said at paragraph 27:
Employers must not be left under the impression that because of their size or financial difficulty that they are able to breach an award. Obligations by employers for adherence to industrial instruments arise regardless of their size. Such a factor should be of limited relevance to the Court’s consideration of penalty.
g. whether or not the breaches were deliberate
In his written submissions, Mr Amin said that:
26. Taken together, the extent and variety of the contraventions indicate an intention to ignore the provisions of the enterprise agreement and the FW Act as desired.
27. Gulenc’s personal intentions in relation to the contravention can be inferred on the basis of the extent of his involvement. Gulenc hired Amin and had him sign documents which, though unreadable to Amin, presumably set his rate of pay together with other conditions. He did not discuss the rates or other entitlements with Amin. Gulenc remained responsible for overseeing the terms and conditions of Amin’s employment.17
28. Gulenc was cognisant of his contravening conduct, as was evident in his instruction to Amin to refrain from providing payslips to the union and to contact him if any such request was made.18 This was clearly a scheme to avoid scrutiny of unlawful conduct.
29. Although there is no direct evidence of the state of mind of Gulenc because no evidence was filed in the proceedings by any of the Respondents, it can be inferred that Gulenc deliberately engaged in avoidance of obligations under the relevant industrial instrument and the FW Act.
FN 17:Affidavit of Khairul Amin, 13 June 2023, [53], [58].
FN 18:Affidavit of Khairul Amin, 13 June 2023, [51].
I accept those submissions.
h. whether senior management was involved in the breach
In his written submissions, Mr Amin said at paragraph 30 that:
Gulenc was a senior manager and was involved in the contraventions. He was director of the Second Respondent until 4 August 2020 and sole director of the First Respondent from that date.19 He was General Manager of the Second Respondent.20 He had direct management responsibilities at all relevant times in both companies. He was in control of the timing and quantity of payments to Amin.
FN 19: Affidavit of Nicholas Grealy, 9 June 2023, pp. 17 - 24.
FN 20: Re Straightline Construction Co Pty Ltd [2022] VSC 708, [13], [44], [112].
I accept those submissions.
i. contrition, corrective action and co-operation with the authorities
In his written submissions, Mr Amin said at paragraph 31 that:
The contraventions have not been acknowledged by Gulenc and no evidence has been adduced as to any corrective measures undertaken. Gulenc has evinced practically no disposition to co-operate with the Court or the Applicant’s union, being the Construction, Forestry, Maritime Mining and Energy Union.
I accept those submissions. A discount is normally given for co-operation and contrition. However, Mr Gulenc has demonstrated neither of those things. He has not participated in these proceedings at all. He has not taken corrective action, which can be a sign of contrition. He has not expressed any remorse for his conduct.
j. the need to ensure compliance with minimum standards
The respondents in this case breached Mr Amin’s minimum entitlements.
k. the need for specific and general deterrence
As well as the statements made in Pattinson above, in Commonwealth of Australia v Director, Fair Work Building Industry Inspectorate (2015) 258 CLR 482; (2015) 326 ALR 476; (2015) 90 ALJR 113; (2015) 255 IR 87; [2015] HCA 46, French CJ, Kiefel, Bell, Nettle and Gordon JJ said at paragraph 55:
No less importantly, whereas criminal penalties import notions of retribution and rehabilitation, the purpose of a civil penalty, as French J explained in Trade Practices Commission v CSR Ltd, is primarily if not wholly protective in promoting the public interest in compliance:
“Punishment for breaches of the criminal law traditionally involves three elements: deterrence, both general and individual, retribution and rehabilitation. Neither retribution nor rehabilitation, within the sense of the Old and New Testament moralities that imbue much of our criminal law, have any part to play in economic regulation of the kind contemplated by Pt IV [of the Trade Practices Act]. ... The principal, and I think probably the only, object of the penalties imposed by s 76 is to attempt to put a price on contravention that is sufficiently high to deter repetition by the contravenor and by others who might be tempted to contravene the Act.”
(footnotes omitted)
Similarly, in Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (CFMEU) (2018) 262 CLR 157; (2018) 351 ALR 190; (2018) 92 ALJR 219; (2018) 273 IR 211; [2018] HCA 3, Keane, Nettle and Gordon JJ said at paragraph 116:
As has been observed, the principal object of an order that a person pay a pecuniary penalty under s 546 is deterrence: specific deterrence of the contravener and, by his or her example, general deterrence of other would-be contraveners. According to orthodox sentencing conceptions as they apply to the imposition of civil pecuniary penalties, specific deterrence inheres in the sting or burden which the penalty imposes on the contravener. Other things being equal, it is assumed that the greater the sting or burden of the penalty, the more likely it will be that the contravener will seek to avoid the risk of subjection to further penalties and thus the more likely it will be that the contravener is deterred from further contraventions; likewise, the more potent will be the example that the penalty sets for other would-be contraveners and therefore the greater the penalty’s general deterrent effect. Conversely, the less the sting or burden that a penalty imposes on a contravener, the less likely it will be that the contravener is deterred from further contraventions and the less the general deterrent effect of the penalty. Ultimately, if a penalty is devoid of sting or burden, it may not have much, if any, specific or general deterrent effect, and so it will be unlikely, or at least less likely, to achieve the specific and general deterrent effects that are the raison d'être of its imposition.
(footnotes omitted)
In relation to specific deterrence, Gray J observed in Plancor Pty Ltd v Liquor, Hospitality and Miscellaneous Union (2008) 171 FCR 357; (2008) 177 IR 243; [2008] FCAFC 170 at paragraph 37 that:
… Specific deterrence focuses on the party on whom the penalty is to be imposed and the likelihood of that party being involved in a similar breach in the future. Much will depend on the attitude expressed by that party as to things like remorse and steps taken to ensure that no future breach will occur. …
In relation to general deterrence, Lander J noted in Ponzio v B & P Caelli Constructions Pty Ltd (2007) 158 FCR 543; (2007) 162 IR 444; [2007] FCAFC 65 at paragraph 93:
… In regard to general deterrence, it is assumed that an appropriate penalty will act as a deterrent to others who might be likely to offend. The penalty therefore should be of a kind that it would be likely to act as a deterrent in preventing similar contraventions by like minded persons or organisations. If the penalty does not demonstrate an appropriate assessment of the seriousness of the offending, the penalty will not operate to deter others from contravening the section. However, the penalty should not be such as to crush the person upon whom the penalty is imposed or used to make that person a scapegoat. In some cases, general deterrence will be the paramount factor in fixing the penalty…
(footnotes omitted)
Similarly, in Community and Public Sector Union v Telstra Corporation Limited (2001) 108 IR 228 at 230-231; [2001] FCA 1364, Finkelstein J said at paragraph 9:
… even if there be no need for specific deterrence, there will be occasions when general deterrence must take priority, and in that case a penalty should be imposed to mark the law’s disapproval of the conduct in question, and to act as a warning to others not to engage in similar conduct ….
In his written submissions, Mr Amin said that:
37.General deterrence is critically important in this matter. It ought be communicated to employers and managers that failures to comply with minimum obligations in industrial instruments and legislation will not be tolerated. This is particularly so in the case of vulnerable workers who are prone to suffer significant exploitation.25
…
39. There is no evidence before the Court of any contrition or remorse on Gulenc’s behalf or any steps that may be taken to avoid future contraventions. There has been no apology or acknowledgement of responsibility.
40. On the contrary, Gulenc’s failure to participate in these proceedings communicates a total disregard for his obligations under the FW Act.
41. It may be considered that the need for specific deterrence is lessened given that both corporate respondents are in liquidation.
42. On the other hand, a personal name extract obtained from the Australian Securities and Investments Commission in relation to Gulenc indicates that he has held as many as eleven directorships in the past, suggesting that he is an experienced businessperson who may well engage in activities as a director, manager or employer in future.27
43. The extent of Gulenc’s current business activities is unknown although there is some evidence to suggest ongoing operations under the ‘Straightline’ name.28 The website <straightline.net.au> records the ABN 39 162 839 554, which is the ABN of Straightline Excavations Pty Ltd, a company which is under external administration and of which Gulenc was director. The website shows a blog post dated May 2023 and lists the email address <[email protected]>, which appears to be related to the email address used by Gulenc to communicate with the Court in this matter, <[email protected]>. When process servers have attended the business address of the Respondents, they have been advised that Gulenc was unavailable.
44. The fact that the corporate respondents are in liquidation and the extent of Gulenc’s ongoing business activity is unclear should result in a modest deduction of the penalty that would otherwise be ordered to achieve specific deterrence. This deduction should, however, be outweighed by the need to deter the cavalier approach taken by Gulenc to serious contraventions.
FN 25:Fair Work Ombudsman v Terrence Cyril Thomas t/as Over the Top Happy Cleaning Services [2013] FCCA 536, [42], [47]-[48].
…
FN 27:Affidavit of Nicholas Grealy, 9 June 2023, pp. 17 - 24.
FN 28:Ibid, pp. 28 -31.
I accept those submissions. In my view, there is a considerable need for specific deterrence in this case. ASIC records show that Mr Gulenc is 52 years old. He could be expected to have 10 or 15 years of working life ahead of him. ASIC records also show that he has been a director of 11 companies, many of which are or have been under external administration. It is reasonable to expect that Mr Gulenc will continue working through corporate structures. His complete disregard of these proceedings demonstrates his cavalier attitude to his responsibilities. There is also the usual need for general deterrence.
Other issues
I do not consider that there are any other relevant issues in this case.
Step 4: the appropriate penalty
The appropriate penalty range was set out in Mr Amin’s written submissions as follows:
50. The penalties for Gulenc should generally be at a high range of 70% to 80% of the maximum. The conduct was serious and there are few mitigating factors. The contraventions continued for a long period of time. There was no indication of remorse. There was no admission of liability or cooperation, and Gulenc has not participated meaningfully in the proceedings.
51. The contraventions would have been more serious had there been evidence of contraventions affecting more employees, or evidence of previous contraventions. In effect, there is an absence of some factors that would be aggravating, rather than any real redeeming feature of the contraventions.
52. Three of the contraventions, being the failure to pay the prescribed rate on Melbourne Cup Day 2019, the failure to pay overtime meal allowance in six pay periods, and the failure to pay site allowance on eleven occasions, were not at the level of seriousness of the more systemic, ongoing breaches or the breaches in relation to employee records or payslips. A penalty of 20% of the maximum is appropriate in respect of those contraventions given their relatively low level.
53. Considering in particular the range and extent of the contraventions and Gulenc’s failure to participate in the proceedings, Gulenc should be ordered to pay penalties to Amin as follows:
Contravention Penalty Unit Maximum Penalty Penalty for Gulenc Failure to pay minimum rate $222 $13,320 $9,324 – $10,656 Failure to afford ordinary hours $222 $13,320 $9,324 – $10,656 Failure to pay prescribed overtime $222 $13,320 $9,324 – $10,656 Failure to afford prescribed Rostered Days Off $222 $13,320 $9,324 – $10,656 Failure to pay prescribed overtime meal allowance $222 $13,320 $2,664
Failure to provide employee records $222 $13,320 $9,324 – $10,656 Failure to provide payslips [$210] [$12,600] [$8,820 – $10,080] Failing to record Employer name on payslips $222 $13,320 $9,324 – $10,656 Failure to pay prescribed superannuation $222 $13,320 $9,324 – $10,656 Failure to pay prescribed site allowance $222 $13,320 $2,664 Failure to pay fares and travel pattern allowance on days worked $222 $13,320 $9,324 – $10,656
Failure to pay fares and travel pattern allowance on RDOs $222 $13,320 $9,324 – $10,656 Failure to correctly pay Melbourne Cup Day $210 $12,600 $2,520 Failure to pay annual leave and leave loading $222 $13,320 $9,324 – $10,656 (footnotes omitted)(Mr Amin’s figures for failure to provide payslips were corrected0
I accept those submissions. I consider that the higher amount should apply in each case, due particularly to the need for specific deterrence of Mr Gulenc, and his complete lack of remorse or corrective action. As has been said many times, penalties should be set at a level that means that they are not treated as just a cost of doing business. The total penalty would therefore be $124,488.
Step 5: the totality principle
In relation to the check that is required by the totality principle, I consider that the aggregate penalty indicated above is appropriate for the whole of the contravening conduct engaged in by Mr Gulenc.
There will be orders accordingly.
I certify that the preceding seventy-five (75) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Riley. Associate:
Dated: 20 October 2023
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