Australian Building and Construction Commissioner v SWAT Building Pty Ltd (in Liq)
[2020] FCCA 1360
•29 May 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
AUSTRALIAN BUILDING AND CONSTRUCTION COMMISSIONER v SWAT BUILDING PTY LTD (IN LIQ) & ANOR [2020] FCCA 1360
Catchwords:
INDUSTRIAL LAW – Penalties – corporate employer in liquidation – sole director having accessorial liability – belated admissions – no evidence of genuine remorse – long term failure to pay the unpaid wages – need for general and specific deterrence.
Legislation:
Corporations Act 2001, s.471B
Fair Work Act 2009, ss.44, 45 323, 340(1)(a)(i), 536(1), 541(1), 546(1), 546(3)(a), 547(2), 547(3), 557Other material:
Building and Construction General On-Site Award 2020, cl. 19.3(b), 32.2(a), 36.2
Cases cited:
Australian Competition and Consumer Commission v Dataline.net.au Pty Ltd (2006) 236 ALR 665; (2008) ASAL 55-176; (2007) ATPR 42-138; [2006] FCA 1427
Australian Competition and Consumer Commission v Chaste Corporation Pty Ltd (in liq) [2005] FCA 1212
Australian Ophthalmic Supplies Pty Ltd v McAlary-Smith (2008) 165 FCR 560; (2008) 246 ALR 35; [2008] FCAFC 8
Community and Public Sector Union v Telstra Corporation Limited (2001) 108 IR 228; [2001] FCA 1364
Construction, Forestry, Maritime, Mining and Energy Union v Asbestos Removalist Pty Ltd & Anor [2019] FCCA 529
Fair Work Ombudsman v Bedington [2012] FMCA 1133
Fair Work Ombudsman v Fed Up Deli & Catering Pty Ltd (in liq) & Anor [2012] FMCA 738
Fair Work Ombudsman v Tiger Telco Pty Ltd (in liq) [2012] FCA 479
Kelly v Fitzpatrick (2007) 166 IR 14; [2007] FCA 1080
Mason v Harrington Corporation Pty Ltd [2007] FMCA 7
Mornington Inn Pty Ltd v Jordan (2008) 168 FCR 383; (2008) 247 ALR 714; (2008) 171 IR 455; [2008] FCAFC 70
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
SDAEA v Arora; SDAEA v Arora Markets Pty Ltd & Ors [2018] FCCA 85
Applicant: AUSTRALIAN BUILDING AND CONSTRUCTION COMMISSIONER
First respondent: SWAT BUILDING PTY LTD
(IN LIQUIDATION)
(ACN 166 871 012)
Second respondent: ILIAS LYMBERATOS
File number: MLG 3942 of 2019
Judgment of: Judge Riley
Hearing date: 21 April 2020
Date of last submission: 21 April 2020
Delivered at: Melbourne
Delivered on: 29 May 2020 REPRESENTATION
Counsel for the applicant: Rachel Walsh
Solicitors for the applicant: Corrs Chambers Westgarth
Advocate for the first respondent: No appearance
Solicitors for the first respondent: None
Advocate for the second respondent: Ilias Lymberatos Solicitors for the second respondent:
None
ORDERS
(1)Pursuant to s.545(1) of the Fair Work Act 2009 (Cth) (“the Act”), within 28 days, the second respondent pay to the applicant $13,673.36 on behalf of Stephen Fleming (“Mr Fleming”).
(2)The applicant pay:
(a)a. $12,713.39 to Mr Fleming; and
(b)b. $959.61 into Mr Fleming’s nominated superannuation account,
within 14 days of receiving those amounts (“the payments”) from the second respondent.
(3)Pursuant to ss. 547(2) and 547(3) of the Act, within 28 days, the second respondent pay pre-judgment interest on the payments to the applicant, on behalf of Mr Fleming, fixed in the amount of $906.55 (“the interest”).
(4)The applicant pay the interest to Mr Fleming within 14 days of receiving it from the second respondent.
(5)Pursuant to s.546(1) of the Act, a penalty of $54,000 be imposed on the second respondent for his involvement, within the meaning of s.550 of the Act, in the first respondent’s contraventions of the Act.
(6)Pursuant to s.546(3)(a) of the Act, the second respondent pay the penalty to the applicant within 28 days.
(7)Pursuant to s.546(3)(a) of the Act, in the event that the second respondent does not pay to the applicant some or all of the payments or the interest within 12 months, the applicant remit to Mr Fleming the commensurate amount of the penalty.
(8)The applicant pay to the Commonwealth Consolidated Revenue Fund the balance of the penalty, after compliance with order 7.
(9)The applicant have liberty to apply on seven days’ notice in the event that any of these orders is not complied with.
FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNEMLG 3942 of 2019
AUSTRALIAN BUILDING AND CONSTRUCTION COMMISSIONER Applicant
And
SWAT BUILDING PTY LTD (IN LIQUIDATION) (ACN 166 871 012) First respondent
And
ILIAS LYMBERATOS Second respondent
REASONS FOR JUDGMENT
Introduction
1.This matter concerns the penalties to be imposed for certain contraventions of the Fair Work Act 2009 (“the Act”).
2.The applicant, the Australian Building and Construction Commissioner (“the ABCC”), is a statutory regulator in relation to employment matters in the building industry.
3.The first respondent, SWAT Building Pty Ltd (“SWAT”), went into liquidation on 16 December 2019. The proceeding against SWAT is stayed by operation of s.471B of the Corporations Act 2001.
4.The second respondent, Ilias Lymberatos, was at all material times the sole director of SWAT.
5.SWAT employed Stephen Fleming on a full-time basis from about 27 December 2015 to 22 March 2017 as a tradesperson’s labourer. SWAT and Mr Fleming were covered by the Building and Construction General On-Site Award 2010 (“the Award”).
6.Mr Lymberatos accepted that he had accessorial liability for SWAT’s actions and omissions in relation to Mr Fleming.
The hearings on 25 and 27 March 2020
7.The matter was listed for a liability hearing on 25 March 2020, when the hearing proceeded by telephone, due to the COVID-19 pandemic. The ABCC was represented by counsel, SWAT did not appear, and Mr Lymberatos appeared for himself.
8.The matter was adjourned until 27 March 2020 to enable Mr Lymberatos to consider his position. During the adjournment, the ABCC and Mr Lymberatos had discussions which resulted in the ABCC not pressing certain allegations and the ABCC and Mr Lymberatos agreeing that he was liable in relation to the remaining allegations. The appearances on 27 March 2020 were the same as on 25 March 2020.
9.It is well-established that the insolvency of SWAT does not prevent the court making findings and orders against Mr Lymberatos, on the basis that SWAT breached its obligation under the Act and Mr Lymberatos is accessorily liable for those breaches. See, for example, Australian Competition and Consumer Commission v Chaste Corporation Pty Ltd (in liq) [2005] FCA 1212; Fair Work Ombudsman v Tiger Telco Pty Ltd (in liq) [2012] FCA 479 (per Bromberg J); Fair Work Ombudsman v Fed Up Deli & Catering Pty Ltd (in liq) & Anor [2012] FMCA 738 (per Jarrett FM); Construction, Forestry, Maritime, Mining and Energy Union v Asbestos Removalist Pty Ltd & Anor [2019] FCCA 529 (per Judge Hartnett, as her Honour then was); and SDAEA v Arora;SDAEA v Arora Markets Pty Ltd & Ors [2018] FCCA 85 (per Judge Driver).
10.There has been authority in the past to the effect that it is not appropriate for a court to make declarations based on admissions. However, there is more recent authority that in certain cases it is appropriate for the court to make declarations in such circumstances.
11.In particular, in Australian Competition and Consumer Commission v Dataline.net.au Pty Ltd (2006) 236 ALR 665; (2008) ASAL 55-176; (2007) ATPR 42-138; [2006] FCA 1427, Kiefel J, as her Honour then was, considered at paragraphs 52 to 59 the rationale for the previous approach taken by the courts. Her Honour came to the view that the previous approach may no longer be warranted, particularly in public interest cases such as this, and particularly if the declarations are preceded by a statement that they are made upon admissions.
12.In all the circumstances of this case, I was satisfied on 27 March 2020 that it was appropriate to make the declarations sought by the ABCC and Mr Lymberatos in the following terms:
1.On 22 March 2017 the first respondent contravened s.340(1)(a)(i) of the Fair Work Act 2009 (“the Act”) by taking adverse action against Stephen Fleming (within the meaning of s.342(1)(item 1(b)) by injuring Mr Fleming in relation to his employment by not paying him his lawful entitlements to compassionate leave, annual leave, minimum wages, overtime, a paid rostered day off and superannuation contributions because Mr Fleming exercised a workplace right by making an inquiry in relation to his employment concerning the non-payment of his wages for the previous five weeks.
2.The first respondent contravened s.536(1) of the Act by failing to provide payslips to Mr Fleming within one working day of paying an amount to Mr Fleming in relation to the performance of work.
3.The first respondent contravened s.44 of the Act by failing to pay Mr Fleming his base rate of pay for his ordinary hours of work falling on the public holiday on 13 March 2017 in accordance with s.116 of the Act.
4.The first respondent contravened s.44 of the Act by failing to make a payment in lieu of notice of an amount equating to two weeks of wages to Mr Fleming in accordance with s.117(2)(b) of the Act.
5.The first respondent contravened s.44 of the Act by failing to pay Mr Fleming his basic rate of pay for the period he took as annual leave on 17 March 2017 in accordance with s.90(1) of the Act.
6.The first respondent contravened s.44 of the Act by failing to pay Mr Fleming an amount equating to the period of untaken annual leave that Mr Fleming had accrued upon his termination in accordance with s.90(2) of the Act.
7.The first respondent contravened s.45 of the Act by failing to make superannuation contributions for the benefit of Mr Fleming equating to 9.5% of Mr Fleming’s ordinary time earnings in accordance with cl.32.2(a) of the Building and Construction General On-Site Award 2010 (“the Award”).
8.The first respondent contravened s.45 of the Act by failing to pay the minimum hourly award wage to Mr Fleming for the period from 15 February 2017 to 22 March 2017 in accordance with cl.19.3(b) of the Award.
9.The first respondent contravened s.45 of the Act by failing to pay the applicable overtime rates of pay for hours worked by Mr Fleming for the period from 15 February 2017 to 22 March 2017 in excess of his ordinary award hours in accordance with cl.36.2 of the Award.
10.The first respondent contravened s.323 of the Act by failing to pay in full amounts payable to Mr Fleming for the performance of work.
11.Pursuant to s.550(2) of the Act, the second respondent was involved in the contraventions listed in declarations 1 to 10.
12.Pursuant to s.550(1) of the Act, the second respondent is taken to have contravened the civil remedy provisions referred to in declarations 1 to 10.
13.In addition, on 27 March 2020, orders were made adjourning the matter for a hearing on penalty and other relief to 21 April 2020, and giving the parties leave to file affidavits and written submissions on the question of penalty and other relief.
The hearing on 21 April 2020
14.At the hearing on 21 April 2020, there were the same appearances as previously.
15.Neither party filed any new affidavits. However, the ABCC continued to rely on:
a.the affidavits affirmed by Mr Fleming on:
i)7 November 2018; and
ii)27 January 2020; and
b.the affidavits affirmed by Erin Estelle Richardson on:
i)1 March 2019;
ii)3 March 2020; and
iii)27 March 2020.
16.Mr Lymberatos did not seek to challenge any of that evidence. He did not at any stage file any affidavits of his own. He filed a defence on 3 April 2017 in which he admitted many of the allegations against him, but not all of those in respect of which he eventually consented to declarations being made as set out above.
17.On 8 April 2020, the ABCC filed written submissions relating to penalty and other relief. Mr Lymberatos did not file any written submissions on penalty and other relief.
18.At the hearing on 21 April 2020, Mr Lymberatos said that everything contained in the ABCC’s written submissions was perfectly true. He said that he did not wish to respond to the ABCC’s outline of submissions. The court invited Mr Lymberatos to comment on the well-known list of factors in Kelly v Fitzpatrick (2007) 166 IR 14; [2007] FCA 1080 at [14]. However, he said that he did not wish to. Nevertheless, Mr Lymberatos said that he did wish to make some general comments about his behaviour.
19.Mr Lymberatos told the court, from the virtual bar table, that:
… over my 20 years of employing people, I’ve employed hundreds of people and never really done the wrong thing. I was in a bad space ... I can’t change that. I feel very remorseful that it happened, that I made some wrong decisions and acted with my heart rather than my brain.
… the Acts are there to be followed and … if you breach them … you just have to cop it on the chin …
… I can ramble on for the next half an hour and talk to you about my wife’s MS and all these other things that are going through my personal life, but really at the end of the day, you know, there’s no excuse. There’s no excuse.
… I didn’t act as a director of the business should act at the most important time, and that is at the point in time of a person’s termination, and I totally disrespected and ignored what he may be going through as well as a human being with his family and his life, his children, and I only thought of myself and that’s very, very bad.
Background facts
20.The background facts of the matter were set out in the affidavit affirmed by Mr Fleming on 7 November 2018. Mr Fleming’s evidence was not challenged and I accept it. Mr Fleming said that:
2.I am 52 years old.
…
4.I worked for SWAT Building Solutions Pty Ltd (SWAT) between 27 December 2015 and 22 March 2017.
5.I was employed as a labourer. My duties included:
(a)Cleaning windows;
(b)Onsite cleaning;
(c)Moving materials;
(d)Traffic management;
(e)Installing cladding;
(f)Jack hammering concrete;
(g)Installing hand rails on balconies;
(h)Installing safety rails around buildings;
(i)Grinding concrete floors and walls for correction;
(j)Labouring for sub-contractors;
(k)Picking up supplies;
(l)Sweeping floors;
(m)Collecting rubbish;
(n)Pouring concrete; and
(o)Performing any 'odd jobs' as may be required;
…
8.To the best of my knowledge Lou [ie, Mr Lymberatos] commenced SWAT as a family business approximately five years ago. Before I commenced working for Lou, I had known him for approximately 18 years as a friend.
…
13.In or around September 2015, Lou asked me to come and work for him, because he had lots of work. Lou made this offer in a social setting, when we were at dinner together with our respective wives.
…
32.I was initially paid weekly after I submitted my time sheets. Lou would generally deposit the pay into my account on a Friday and I would generally receive the pay shortly afterward.
33.As time went on, the payments became less regular, sometimes stretching out to two weeks.
…
35.Lou asked me to open a CBUS account for superannuation purposes. …
36.During my employment with SWAT, I received statements from CBUS, and after around four or five months, I noticed that no contributions were being made by SWAT to my superannuation account.
37.To the best of my recollection, on or around April or May 2016, I raised the issue of superannuation with Lou, and I asked him when the contributions would be made. He said words to the effect of: ‘They [the contributions] should be in soon.’
38.However, he did not make those payments. …
…
44.However, I never received any superannuation directly from SWAT.
…
46.My father in law passed away on Thursday 24 November 2016. As a result, I took Friday 25 November and Saturday 26 November as leave. 26 November 2016 is not listed on my hand-written notes as a day of leave. I cannot recall why I did not list this as leave.
47.I called Lou on Sunday 27 November to ask if I could have the following Monday and Tuesday off to arrange the funeral.
48.Lou said words to the effect of: ‘You have already had two days off and if you have any more days off you would have had a week’. We then ended the call.
49.Later that day, Lou and I had the following SMS text message exchange:
Lou wrote:
‘Steve sorry to say but if you are not at work tomorrow morning at Fairfield our working relationship will come to an end. Pls confirm if you are coming or not so I can arrange someone else to be at Fairfield’
I wrote:
‘Very disappointed but I'll be there Kim's not happy but I still need funeral day off and Saturday can only work till 12.00’ [Kim is Mr Fleming’s wife.]
Lou wrote:
‘Don't worry about working any more Saturday's and Kim needs to understand we are a business that supports 8 families without my workers on site we will let all these families down and let me remind you how much time I've been given you off for your different functions This year and how many times we have invited you to our company functions if you are all disappointed then maybe it's time to bring this to an end because there's obviously no appreciation.’
I wrote:
‘So Do you want me to work tomorrow’
Lou wrote:
‘Lose the attitude of disappointment and appreciate who we are and what we are trying to achieve and what we have given you in the process Your call’
I wrote:
‘I'll be at Fairfield’
…
51.Between 15 February 2017 and 22 March 2017, I was not paid for the work I performed for SWAT. I first brought this up with Lou at the start of March 2017.
…
53. In reply, he said words to the effect of ‘I will pay you soon’.
54.… I did not receive any payslips from SWAT.
55.At approximately 5:00 pm on Wednesday 22 March 2017, I went to Lou's house to hand in my time sheet, because I missed giving it to his son, Christian, who was at Footscray that day. We had a conversation out the front of his house about the jobs for the following week. At some point in that conversation, I asked Lou when I would be paid for the previous five weeks.
56.Lou said words to the effect of: ‘You didn't need to ask me that in front of these two guys; you could have asked me in private’ and walked inside.
57.Lou's other son, Lucas, and another worker who I knew by the name of ‘Scans’ were with me out the front of Lou's house when this conversation occurred.
58.About an hour later, Lou rang me and stated that I was 'disrespectful' and ‘not loyal’, and then said words the effect of ‘our working relationship has come to an end as of today’. He said he would pay what he owed me with two weeks' notice and then hung up. During this conversation Lou's tone was abusive, loud, and abrupt.
59.Lou did not give me any verbal notice before he dismissed me. He had also never raised any concern about my performance. I called Lou back several times over the next few weeks but did not get a response.
60.As of early April 2017, I had not received any of the money Lou owed me, or any notice payment.
21.Subsequently, Mr Fleming repeatedly asked Mr Lymberatos for the money he was owed. Mr Lymberatos variously said that he would pay Mr Fleming soon, or, falsely, that Mr Lymberatos had already paid Mr Fleming. Mr Lymberatos and Mr Fleming participated in a mediation at Fair Work Australia in May 2017. Mr Lymberatos, on behalf of SWAT, agreed to pay Mr Fleming his outstanding wages. However, he did not do so. SWAT and Mr Lymberatos have still not paid Mr Fleming his outstanding wages.
Approach to determining penalty
22.In general, the proper approach to determining penalty in cases such as this is as follows. The first step for the court is to identify each separate contravention involved.
23.Where there are multiple contraventions, the second step is to consider whether any of the various contraventions constituted a single course of conduct, such that multiple breaches should be treated as a single breach.
24.The third step is for the court to consider the extent, if any, to which two or more contraventions have common elements. A person should not be penalised more than once for the same conduct. The penalty imposed by the court should be an appropriate response to the contravenor’s conduct.[1] This is a separate process from the application of the totality principle.[2]
[1] Australian Ophthalmic Supplies Pty Ltd v McAlary-Smith (2008) 165 FCR 560; (2008) 246 ALR 35; [2008] FCAFC 8 at [46] (Graham J).
[2] Mornington Inn Pty Ltd v Jordan (2008) 168 FCR 383; (2008) 247 ALR 714; (2008) 171 IR 455; [2008] FCAFC 70 at [41]-[46] (Stone and Buchanan JJ).
25.The fourth step is for the court to consider the appropriate penalty for each breach, treating multiple breaches arising from a course of conduct as a single breach, and taking into account any common elements shared by the various breaches.
26.The fifth step is for the court to apply the totality principle. This requires the court to consider the aggregate penalty overall, and determine whether it is an appropriate response to the conduct which resulted in the breaches.[3] The court in this step makes an “instinctive synthesis”.[4]
[3] See Kelly v Fitzpatrick (2007) 166 IR 14 at [30] (Tracey J) (Kelly); Ophthalmic, supra at [23] (Gray J), [71] (Graham J) and [102] (Buchanan J).
[4] Ophthalmic, supra at [27] (Gray J) and [55] and [78] (Graham J).
27.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.
28.The court must, of course, be mindful of the caution expressed by Buchanan J in Australian Ophthalmic Supplies Pty Ltd v McAlary-Smith (2008) 165 FCR 560; (2008) 246 ALR 35; [2008] FCAFC 8 at [91] as follows:
Check lists of this kind can be useful providing they do not become transformed into a rigid catalogue of matters for attention. At the end of the day the task of the Court is to fix a penalty which pays appropriate regard to the circumstances in which the contraventions have occurred and the need to sustain public confidence in the statutory regime which imposes the obligations. There is no suggestion in the present case that the learned magistrate made any relevant error in her identification of the matters which she should consider in fixing penalties.
29.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
30.The first respondent breached the provisions mentioned in the declarations set out above, and the second respondent was involved in those breaches. The breaches in summary are as follows:
a.s.340(1)(a)(i) of the Act: adverse action: injury in employment by not paying lawful entitlements to compassionate leave, annual leave, minimum wages, overtime, a paid rostered day off and superannuation contributions because Mr Fleming exercised a workplace right by making an inquiry in relation to his employment concerning the non-payment of his wages for the previous five weeks;
b.s.536(1) of the Act: failing to provide payslips;
c.s.44 of the Act: failing to pay the base rate of pay for ordinary hours of work falling on the public holiday on 13 March 2017; underpayment: $280;
d.s.44 of the Act: failing to give pay in lieu of two weeks’ notice; underpayment: $2,800;
e.s.44 of the Act: failing to pay basic rate of pay for annual leave on 17 March 2017; underpayment: $280;
f.s.44 of the Act: failing to pay for untaken, accrued annual leave upon termination; underpayment: $2,240;
g.s.45 of the Act: failing to make superannuation contributions in accordance with cl.32.2(a) of the Award; underpayment: $959.61;
h.s.45 of the Act: failing to pay the minimum hourly award wage from 15 February 2017 to 22 March 2017; underpayment: $6,720;
i.s.45 of the Act: failing to pay the overtime rates of pay for 15 February 2017 to 22 March 2017; underpayment: $393.75; and
j.s.323 of the Act: failing to pay in full amounts payable for the performance of work.
31.The total underpayments amounted to $13,673.36.
Step 2: single course of conduct
32.Section 557 of the Act provides for multiple contraventions arising from the same course of conduct to be treated as a single contravention. The ABCC submitted that the course of conduct provision did not apply in this case at all, and especially not to the adverse action contravention to which the course of conduct provisions do not apply in any event. Mr Lymberatos did not oppose the ABCC’s position. It seems to me to be correct. The individual contraventions were the result of independent decisions, and none of them should be treated as arising from a single course of conduct.
Step 3: grouped breaches
33.In addition, contraventions can in some circumstances be grouped. However, neither the ABCC nor Mr Lymeratos suggested that any of the breaches should be grouped. It does not seem to me that there should be any grouping in this case.
Step 4: the appropriate penalty for the breaches
a. the nature and extent of the conduct which led to the breaches
34.The nature and extent of the conduct which led to the breaches is summarised above. In addition, the ABCC submitted that:
37.… SWAT and Mr Lymberatos have engaged in flagrant and deliberate wage theft from Mr Fleming on repeated occasions and over a sustained period of time. …
38.The contravening conduct in this matter represents a failure to provide basic and important conditions and entitlements under the FW Act.
39.The fundamental nature of the contravening conduct displays Mr Lymberatos’ lack of care about, understanding of and regard for SWAT’s statutory obligations in respect of Mr Fleming’s rights to exercise his workplace rights and be paid his entitlements and to make inquiries.
35.Mr Lymberatos told the court that the ABCC’s submissions were perfectly true. I accept the ABCC’s submissions on this point, and its submissions as set out below.
b. the circumstances in which that conduct took place
36.In relation to the circumstances of the contraventions, the ABCC submitted that:
43.The surrounding circumstances of the conduct seem to aggravate the contraventions. Mr Fleming was a 52-year-old unskilled worker, relatively naïve in matters of workplace rights and objectively more vulnerable to exploitation by an unscrupulous employer … Mr Fleming and Mr Lymberatos were previously friends…
44.After Mr Fleming asserted his rights, Mr Lymberatos became abusive towards Mr Fleming and Mr Fleming’s wife…
45.After Mr Fleming asserted his rights, Mr Lymberatos also sought constantly to delay and prevaricate (with the effect of aggravating and prolonging the effect of the contraventions on Mr Lymberatos) rather than taking action to remedy the contraventions…
46.There clearly was an element of opportunism and exploitation to the conduct of SWAT and Mr Lymberatos.
c. the nature and extent of any loss or damage sustained
37.The ABCC submitted that:
47.The total of the unpaid entitlements was $13,673.36 being a significant portion of Mr Fleming’s annual income. In Stratton Finance Pty Ltd v Webb [2014] FCAFC 110; 254 IR 233, the Full Court acknowledged that a loss of $27,000 over six years was significant to one person. A similar conclusion should be reached here. The interest payable on this figure between the date the Statement of Claim was filed until the date of the penalty hearing is $1,057.78.
38.I accept that the underpayment in this case was a significant portion of Mr Fleming’s annual income and a significant amount of money for him.
39.In addition, obviously, Mr Fleming’s termination of employment, particularly as it was for unlawful reasons, had a significant impact on him.
d. whether there had been similar previous conduct
40.The ABCC did not point to any previous conduct of a similar nature by SWAT or Mr Lymberatos. Mr Lymberatos told the court that he had done nothing wrong in 20 years of employing people. In the absence of evidence to the contrary, I accept that claim.
e. whether the breaches arose out of the one course of conduct
41.This point has already been addressed.
f. the size of the business enterprise involved
42.In relation to the size of SWAT’s business, the ABCC submitted that:
52.SWAT was a builder carrying on business at multiple building sites …
53.At all material times, Mr Lymberatos was the Managing Director and Company Secretary of SWAT…
54.No reduction should be afforded to Mr Lymberatos because of the size of the business, which was not insubstantial … or the subsequent financial difficulties of SWAT. Insolvency, either personal or corporate, is not a refuge from sanction: Cotis v MacPherson (2007) 169 IR 30 at [12], [16].
43.Relevantly, Tracey J said in Kelly v Fitzpatrick (2007) 166 IR 14; [2007] FCA 1080 at [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” (citation omitted)
44.Similarly, in Rajagopalan v BM Sydney Building Materials Pty Ltd [2007] FMCA 1412, this court said at [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
45.In relation to whether the breaches were deliberate, the ABCC submitted that:
56.The contraventions were clearly deliberate and calculated to financially hurt Mr Fleming to his personal detriment. Mr Lymberatos made a deliberate decision on multiple occasions to deny Mr Fleming his minimum statutory entitlements and not pay him anything in respect of the last 5 weeks of his employment.
57.There is no other explanation for Mr Lymberatos’ actions, other than he wished to punish Mr Fleming for making inquiries about the payment of his minimum entitlements, as is clear from the adverse action taken against Mr Fleming.
58.In this respect, note the following timing:
(a)Mr Lymberatos became aggressive towards Mr Fleming immediately on Mr Fleming seeking leave to deal with his father-in-law’s death and funeral and immediately removed Mr Fleming from (the more highly-paid) Saturday work in response to that request…
(b)When Mr Lymberatos refused him leave, Mr Fleming replied that his wife (Kim) was not happy but I still need the funeral day off…, to which Mr Lymberatos texted Don’t worry about working Saturdays and Kim needs to understand we are a business that supports 8 families without my workers on site we will let all these workers down…: … Mr Lymberatos later linked the termination of Mr Fleming’s employment to this exchange, telling Mr Fleming’s wife You’re the reason that Stephen lost his job …
(c)Mr Lymberatos’ again became aggressive immediately when Mr Fleming made his inquiry about the lack of pay for the previous five weeks and then terminated the employment and continued not to pay Mr Fleming what he was owed: … Note in particular that Mr Lymberatos treated Mr Fleming’s inquiry about the missing pay as a personal affront, telling Mr Fleming that You didn’t need to ask me that in front of these two guys; you could have asked me in private immediately before terminating the employment ...
h. whether senior management was involved in the breaches
46.In relation to whether senior management was involved in the breaches, the ABCC submitted that:
64.Mr Lymberatos was the “directing mind and will” of SWAT. The Commissioner repeats his submissions made above regarding the nature and extent of Mr Lymberatos’ contravening conduct. There is no evidence before the Court that the contraventions were attributable to any other person or agent.
i. contrition, corrective action and co-operation with the authorities
47.In Mornington Inn Pty Ltd v Jordan (2008) 168 FCR 383; (2008) 247 ALR 714; (2008) 171 IR 455; [2008] FCAFC 70, Stone and Buchanan JJ held at [75]:
A conventional consideration in assessing a discount in a criminal case for a plea of guilty is the stage in the proceedings at which the plea is entered. Normally, the maximum discount for this factor, sometimes thought to be 25%, is reserved for a plea made at the first reasonable opportunity …
48.In Fair Work Ombudsman v Bedington [2012] FMCA 1133 Jarrett FM held at [87]:
The cases indicate that a discount on the penalty to be imposed is appropriate where there has been co-operation and admissions early in the course of an investigation or soon after the commencement of proceedings. Such discounts range as high as 30% in some cases. …
49.In relation to contrition, remorse and co-operation, the ABCC submitted that:
65.There has been no acceptance of wrongdoing by Mr Lymberatos and he has not expressed any suitable or credible regret for the contravening conduct. There is no evidence before the Court that SWAT or Mr Lymberatos implemented any corrective action after the contravening conduct occurred (or was brought to his or SWAT’s attention by the Commissioner) in order to prevent such conduct occurring again. Instead, as noted above, Mr Lymberatos has delayed and prevaricated throughout and has thereby extended the harm done to Mr Fleming.
66.Other than filing a defence, in which some contraventions were admitted and others denied, Mr Lymberatos failed to actively participate in these proceedings until the hearing of the Commissioner’s application for default judgment. Mr Lymberatos and SWAT denied paragraphs 3(c), 10, 11, 12, 15, 16, 17, 21, 22, 23, 24, 27, 28, 29, 30, 31, 32, 33, 34, 37, 38, 39, 40, 47, 49, 50, 51, 52, 71, 72, 73, 84, 85, 87, 88, 94, 95, 100, 101, 102, 103, 104, 106, 108, 109, 111, 112, 113, 114, 115, 116 and 117 of the Statement of Claim.
67.It was not until the day of the hearing of the Commissioner’s application for default judgment that Mr Lymberatos approached the Commissioner, in an open communication, and agreed to the Court making the declarations …
68.In Fair Work Ombudsman v Bedington [2012] FMCA 1133 Jarrett FM held at [87]:
The cases indicate that a discount on the penalty to be imposed is appropriate where there has been co-operation and admissions early in the course of an investigation or soon after the commencement of proceedings.
69.Admissions were not made “early” in this case. There has only been late recognisance by Mr Lymberatos. Accordingly, no discount should be applied to the penalty on the basis of contrition, corrective action or cooperation ...
50.Mr Lymberatos told the court that he was very remorseful. However, he has done nothing to demonstrate that. He did not give Mr Fleming a written apology. He did not arrange for SWAT to pay Mr Fleming the underpaid amounts, which have been outstanding for over three years. Although SWAT went into liquidation six months ago, on 16 December 2019, Mr Lymberatos, through SWAT, had ample time before liquidation, after this matter was drawn to its attention, to remedy its underpayments to Mr Fleming.
51.The ABCC seeks in this proceeding orders that Mr Lymberatos pay Mr Fleming compensation equivalent to the amounts SWAT underpaid him. The court explained to Mr Lymberatos on 21 April 2020 that, if he paid Mr Fleming the outstanding amounts, even at this late stage, it would be to his credit in determining penalty.
52.When asked if he was going to pay Mr Fleming the amount he was owed, Mr Lymberatos said, Absolutely.
53.When asked when he would pay those amounts, Mr Lymberatos said:
Well, your Honour, this is something that has to go hand in hand with the penalties that no doubt will be imposed upon me. I don’t know at this point in time the quantum amount of penalties. I’m very clear about the amount owing to Mr Fleming, but it’s all dependent upon that. As you are well aware, you know, my business has gone into liquidation as a result of the large amounts of money in the vicinity of $1.6 million that has been owing …
54.When the court explained that his remorse could be demonstrated by paying Mr Fleming the amount he was owed, Mr Lymberatos said:
… I totally agree, your Honour. If that’s going to make a difference, then obviously I will need to bring that to an end within the next 14 days which is the only period of time I have where I will be able to pull out some money from the project that we’re currently working on. … It’s at that pointy end now.
55.The court indicated that it would not necessarily delay judgment for 14 days, but, if it did, and if Mr Lymberatos did pay Mr Fleming the amounts underpaid prior to judgment being delivered, Mr Lymberatos should notify the court and the ABCC of that fact, so the payment could be taken into account. No information to the effect that Mr Lymberatos has paid Mr Fleming the outstanding amounts has been provided to the court.
56.In all the circumstances, I do not consider that Mr Lymberatos has demonstrated genuine remorse.
57.As noted above, Mr Lymberatos has not taken corrective action, by ensuring that SWAT or he personally paid Mr Fleming the outstanding amount, although Mr Lymberatos had ample opportunity to do so.
58.Mr Lymberatos eventually co-operated with the ABCC by agreeing to the declarations set out above being made. However, that occurred only a few hours before the hearing of an application for default judgment. By that time, the ABCC had already been put to unnecessary trouble and expense. Consequently, Mr Lymberatos can only be given limited credit for co-operation with the authorities.
j. the need to ensure compliance with minimum standards
59.In relation to minimum standards, the ABCC submitted that:
71.Employers should understand that wilful non-payment of statutory entitlements will be viewed seriously by enforcement authorities, including the Court. The contraventions in this case involved flagrant wage theft and denial of minimum safety net entitlements. …
72.Further, it is important that employers and senior management comply with minimum standards in respect of employees seeking to exercise workplace rights.
60.I accept those submissions.
k. the need for specific and general deterrence
61.The ABCC submitted that:
27.The High Court has now confirmed that effective deterrence (general and specific) is the primary - if not the only - objective in fixing penalties for civil contravention matters: The Non-Indemnification Personal Payment Case at [19]; The Broadway on Ann Case at [13].
28.In this respect, in Commonwealth v Director, Fair Work Building Industry Inspectorate (2015) 258 CLR 482 at 506; [2015] HCA 46 (the Civil Penalties Case), the majority (French CJ, Kiefel, Bell, Nettle and Gordon JJ) at [55] cited the following passage of French J in Trade Practices Commission v CSR Ltd (1991) ATPR 41-076 at 52, 152; [1990] FCA 762 with approval:
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.
29.Although the High Court was there referring to the purpose of civil penalties generally, the case before it concerned the imposition of civil penalties for unlawful industrial action in contravention of a precursor to the BCIIP Act establishing a legislative scheme with similar objectives to the current scheme. It is therefore of particular relevance in this case.
30.To achieve the purpose of general deterrence, the penalty must be sufficiently high that it sends the message to Mr Lymberatos and to others that this sort of unlawful conduct is unacceptable and will be met with serious consequences.
31.Courts exercising industrial jurisdiction have identified a range of factors that may be relevant to the circumstances of a particular case when assessing the appropriate penalty: Plancor Pty Ltd v LHMU (2008) 171 FCR 357 (Plancor) at [57]. In light of the High Court's approach in the Civil Penalties Case, these factors should now be viewed through the prism of effective deterrence (both general and specific).
32.The Courts have, however, warned against the use of checklists because they give rise to the risk of transforming the process of instinctive synthesis into the application of a rigid catalogue of matters for attention: Merringtons at [89]-[91], cited with approval in Plancor at [58]. Further, in making its assessment, the Court must determine a penalty that is proportionate to the contravening conduct: The Non-Indemnification Personal Payment Case at [22]; Construction Forestry Mining Maritime & Energy Union v Australian Building & Construction Commissioner (No 2) [2019] FCA 938 at [23].
62.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 [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. …
63.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 [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…(citations omitted)
64.Similarly, in Community and Public Sector Union v Telstra Corporation Limited (2001) 108 IR 228 at 230-231; [2001] FCA 1364, Finkelstein J said:
… 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 ….
65.In relation to general and specific deterrence, the ABCC submitted that:
75.The Commissioner submits that there is a high need for both general and specific deterrence in the present case. It is well-established that the need for specific and general deterrence is a factor that is relevant to the imposition of a penalty. See: Pangaea [26]-[59].
…
78.The contraventions in this case concern the minimum entitlements of an employee in the building industry seeking to exercise a workplace right to the payment of his entitlements. The Commissioner submits that penalties in this case should be imposed on a meaningful level so as to deter other employers from committing similar contraventions.
…
80.Here, there is no evidence before the Court of remorse on the part of Mr Lymberatos for his involvement in the contravening conduct. Mr Lymberatos should be left in no doubt that failing to comply with minimum obligations will not be tolerated. Although SWAT is in liquidation, it is possible that Mr Lymberatos will operate another business in the future or perform work as a manager where issues of employee entitlements under the FW Act arise.
Other issues relating to penalty
66.I do not consider that there are any other issues relevant to penalty in this case.
Step 4: the appropriate penalty
67.The ABCC submitted, and Mr Lymberatos in effect conceded, that:
9.Subsection 546(1) of the FW Act provides that the court:
may, on application, order a person to pay a pecuniary penalty that the court considers is appropriate if the court is satisfied the person has contravened a civil remedy provision.
10.Section 539 of the FW Act provides that:
A provision referred to in column 1 of an item in the table in subsection (2) is a civil remedy provision.
11.The provisions that the Court has now declared to have been contravened in this case (being ss 44, 45, 323, 340, and 536 of the FW Act) are provisions referred to in column 1 and therefore are civil remedy provisions as defined.
12.Subsection 546(2) of the FW Act provides that:
(a)if the person is an individual, the pecuniary penalty must not be more than:
the maximum number of penalty units referred to in the relevant item in column 4 of the table in subsection 539(2).
(b)if the person is a body corporate, the pecuniary penalty must not be more than:
5 times the maximum number of penalty units referred to in the relevant item in column 4 of the table in subsection 539(2).
13.The maximum penalty units for each contravention is 60 units for an individual and 300 units for a body corporate as prescribed by the table in s 539 of the FW Act.
14.Section 12 of the FW Act provides that penalty unit has the meaning given by s 4AA of the Crimes Act 1914 (Cth). At the time of the contraventions, s 4AA of the Crimes Act prescribed a penalty unit to be $180 dollars.
15.Thus, the maximum penalty that can be imposed on Mr Lymberatos for each contravention is $10,800. The Court having declared 10 contraventions, the maximum penalty overall is $108,000.
…
82.The Commissioner seeks that penalties be imposed within the penalty range of 50%-70% for each of the ten contraventions.
83.This equates to a penalty range of $5,400 - $7,560 per contravention.
68.In my view, the appropriate penalty for each contravention in this case is $5,400. The principal reasons for this are that:
a.neither SWAT nor Mr Lymberatos have apologised to Mr Fleming;
b.on the contrary, Mr Lymberatos was abusive towards Mr Fleming and his wife and sought to humiliate them;
c.neither SWAT nor Mr Lymberatos have paid Mr Fleming the amount he was owed, notwithstanding ample opportunity to do so;
d.although there were some admissions in the respondents’ defence, meaningful admissions were only made in the hours before the ABCC’s application for default judgment was due to be heard;
e.Mr Lymberatos has not demonstrated any genuine remorse;
f.this case involves the modern day scourge of wage theft;
g.Mr Lymberatos is still working as a builder, and consequently, there is a need for specific deterrence;
h.there is a need for general deterrence in the building industry and amongst employers more broadly;
i.the contraventions were the result of deliberate actions by Mr Lymberatos; and
j.SWAT and Mr Lymberatos had a previously unblemished record.
Step 5: the totality principle
69.On this topic, the ABCC submitted that:
81.Having fixed an appropriate penalty for each contravention or group of contraventions, the Court should take a final look at the aggregate penalty, to determine whether it is an appropriate response to the conduct which led to the breaches, and is not oppressive or crushing: Kelly at [30]; Merringtons at [23] [71] and [102].
70.As there were 10 contraventions, the total penalty for Mr Lymberatos would be $54,000.
71.Mr Lymberatos did not give the court any information about his financial circumstances, apart from saying that he was expecting to be paid for his current project shortly. In the absence of any detail from Mr Lymberatos, I am unable to give any discount in relation to his financial circumstances.
72.Regarding the check that is required by the totality principle, I consider that a total penalty of $54,000 is an appropriate penalty for the whole of the contravening conduct engaged in by Mr Lymberatos.
73.The ABCC sought orders that the penalty be paid to the Commonwealth Consolidated Revenue Fund. In the absence of any request for the penalty to be paid elsewhere, that order seems reasonable. However, the ABCC also sought orders that, in the event that Mr Lymberatos did not pay the compensation discussed below, the ABCC be able, at its discretion, to pay Mr Fleming a commensurate amount from the penalty.
74.I am not sure that the ABCC would have the power to disburse monies payable to the Commonwealth Consolidated Revenue Fund in that way. It seems to me to be preferable to order that the penalty be paid to the ABCC in the first instance, and that the ABCC pay an amount equivalent to the amount of the compensation to Mr Fleming if Mr Lymberatos has not paid it within 12 months. I say 12 months because enforcement action may be necessary. The balance should then go to the Commonwealth Consolidated Revenue Fund.
Compensation
75.In addition to the penalty, the ABCC also sought orders that Mr Lymberatos pay by way of compensation the amounts that SWAT underpaid Mr Fleming. In this regard, the ABCC submitted that:
88.The failure to pay the correct amount of wages and entitlements is a failure by SWAT. This Court and the Federal Court have held that a person found to be involved in a contravention can be held liable for all of the amounts the subject of the primary contravenor’s breach: Veeraragoo v Goldbreak Holdings Pty Ltd (No.2) [2018] FCA 1448 (Veeraragoo), per Colvin J at [50], Fair Work Ombudsman v NoBrace Centre Pty Ltd (In Liquidation) (ACN 121 556 447) & Ors (No.2) [2019] FCCA 2970 (Nobrace in Liquidation) at per Kelly J at [221]; Fair Work Ombudsman v Nobrace Centre Pty Ltd & Anor (No.2) [2019] FCCA 2144 (Nobrace) at [51]; and Manousaridis J in Fair Work Ombudsman v Northcoast Security Services Group Pty Ltd & Ors (No.3) [2020] FCCA 521 (Northcoast) at [137].
89.Section 545(1) of the FW Act is in broad terms. It empowers the Court to make any order that the Court considers appropriate in relation to the contravention of a civil remedy provision. Section 550(1) provides that a person involved in a contravention of a civil remedy provision is taken to have contravened the provision.
90.The ability of a Court to order an accessory to pay compensation was considered by the Federal Court of Australia in Veeraragoo. Once the jurisdictional requirement of demonstrating that a person has contravened the FW Act has been met, the court may then make any order that it ‘considers appropriate’. This phrase has been construed as imposing a requirement that before an order of the type sought can be made, the court must first have considered that it is appropriate to do so: Veeraragoo at [43] citing Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union [2018] HCA 3 at [103]. Where, for example, an order for compensation is sought, the court must consider it to be appropriate to make an order of that kind.
91.Justice Colvin considered the terms of the relevant statutory provisions in the FW Act relating to accessories and the power to pay compensation, and held that the Federal Court had the power to order an accessory to pay compensation, noting that:
(a)Before making an order, a Court must have formed the view that an order providing for the payment of compensation is appropriate in the particular circumstances of the matter; and
(b)Compensation should be ‘confined to that which is referable to the contravening conduct’ of the accessory: at [51].
92.Justice Colvin ordered the accessory to pay compensation. The factors relevant in that matter were that:
(a)the employing entity was in administration which meant that the relevant employee would not recover the amount from the employer;
(b)the accessory was the General Manager of the relevant business, and was personally involved in the contravening conduct;
(c)the relevant contraventions flowed from the accessory’s conduct and occurred with his full knowledge and support; and
(d)the accessory was in charge of the business and he had an interest in the trading businesses.
93.The same factors apply here.
94.Judge Blake applied Veeraragoo and made similar orders to the ones sought by the Commissioner in Nobrace. Kelly J also considered and applied Veeraragoo in No Brace in Liquidation as did Manousaridis J in Northcoast.
95.The position in Veeraragoo and the cases which have applied it is similar to the present case. In this matter, the Court is not able to make any order against SWAT as it is in liquidation and the proceeding against it is stayed. Mr Lymberatos was responsible for the management of the business of SWAT and was the controlling mind of SWAT: see Fleming (1) at [7] and SEF-1. Mr Lymberatos had knowledge of the underpayment and the failure of SWAT to rectify the underpayment: see Fleming (1) at [51]-[73] and SEF-10. It is Mr Lymberatos’ failure to take steps to pay Mr Fleming that have resulted in the present situation. Mr Lymberatos was involved in and caused all of the contraventions: cf. No Brace in Liquidation at [219]-[220].
76.For the reasons expressed by the ABCC, I consider that it is appropriate in this case to order Mr Lymberatos to pay the amount of wages and superannuation that SWAT failed to pay to Mr Fleming as compensation. That amount totals $13,673, and is made up of:
a.$12,713.39 in unpaid wages; and
b.$959.61 in superannuation.
77.In addition, the ABCC sought that Mr Lymberatos pay Mr Fleming pre-judgment interest of $1,057.78 on the sum of $13,673. However, the interest calculation is about $150 out, largely because it was calculated on the basis of three periods of 182 or 183 days, rather than on the basis of three periods consisting of:
a.137 days, being the period from 13 February 2019 (when the proceeding was commenced) to 30 June 2019, when the Federal Court pre-judgment interest rate was 5.5%pa;
b.183 days, being the period from 1 July 2019 to 31 December 2019, when the Federal Court pre-judgment interest rate was 5.25%pa; and
c.149 days, being the period from 1 January 2020 to 29 May 2020 (when judgment will be handed down), when the Federal Court pre-judgment interest rate was 4.75%pa.
78.The amounts for each period work out to be:
a.$282.26;
b.$359.89; and
c.$264.40.
79.Those amounts total $906.55. Mr Lymberatos will be required to pay interest of that amount.
80.The ABCC proposed orders that Mr Lymberatos pay the relevant amounts to it, and the ABCC then forward the relevant sums to or on behalf of Mr Fleming. That is a sensible approach.
81.Orders will be made accordingly.
I certify that the preceding eighty-one (81) paragraphs are a true copy of the reasons for judgment of Judge Riley
Associate:
Date: 29 May 2020
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