Basi v Namitha Nakul Pty Ltd (No 2)

The case of Basi v Namitha Nakul Pty Ltd (No 2) involved the applicants seeking declaratory relief and pecuniary penalties for contraventions of the Fair Work Act 2009 (Cth). The employer admitted to various breaches of the Restaurant Industry Award 2010, including failure to display the Award and National Employment Standards, pay annual leave entitlements, pay superannuation contributions, and give notice or payment in lieu on termination of employment. The applicants and the respondents agreed on orders regarding unpaid wages, annual leave entitlements, and outstanding superannuation guarantee payments. The court had to determine whether the proposed range of pecuniary penalties was sufficiently high to achieve specific and general deterrence, whether the penalties should be paid to the applicants or into the Consolidated Revenue Fund, and whether the applicants were entitled to compensation for the loss of growth in their superannuation funds and to recover on their quantum meruit claim.

The court found the respondents' conduct to be reprehensive, deliberate, and systemic, exploiting workers on temporary immigration visas through cash back arrangements, underpayments, and failures to make superannuation payments, combined with threats of withdrawing visa sponsorship. The court held that the penalties imposed must achieve appropriate levels of both specific and general deterrence. The court considered the nature and extent of the conduct and the loss and damage suffered by the applicants due to the respondents' actions. The court determined that the total penalties of $150,000 on the first respondent and $50,000 on the second respondent, payable in equal amounts to each applicant, were sufficient to achieve the necessary deterrence.

The court also ordered the respondents to pay compensation for unpaid wages, annual leave entitlements, and the quantum meruit claim to one of the applicants, Syed Haider, as well as unpaid superannuation to Haider's nominated superannuation fund. The court imposed pecuniary penalties on the first and second respondents, to be paid to Haider, finding that this method of payment would ensure that the penalties served their deterrent purpose. The court did not find it necessary to address the applicants' claims for compensation for the loss of growth in their superannuation funds or the quantum meruit claim, as the orders already provided sufficient redress.

In summary, the court imposed significant penalties on the respondents to deter them and other employers from engaging in similar conduct in the future. The penalties were set at $150,000 for the first respondent and $50,000 for the second respondent, payable in equal amounts to each applicant. The court also ordered the respondents to compensate the applicants for unpaid wages, annual leave entitlements, and unpaid superannuation.