Bristow v Sonny's Restaurant & Bar Pty Ltd - [2019] FCCA 1639

FEDERAL CIRCUIT COURT OF AUSTRALIA

BRISTOW v SONNY’S RESTAURANT & BAR PTY LTD & ORS

[2019] FCCA 1639

Catchwords:
INDUSTRIAL LAW – Application for compensation and the imposition of pecuniary penalties – compensation for hurt and humiliation associated with applicant’s disability – orders accordingly.

Legislation:

Fair Work Act2009 (Cth), ss.545, 546(3), 547(2)

Federal Circuit Court Rules 2001 (Cth), r.16.05

Cases cited:

Australian Licenced Aircraft Engineers Association v International Aviation Service Assistance Pty Ltd [2011] FCA 333
Mcllwain v Ramsay Food Packaging (No.4) [2006] FCA 1302
Ewin v Vergara (No.3) [2013] FCA 1311

Applicant:

calleigh bristow

First Respondent:

sonny’s restaurant & bar pty ltd

Second Respondent:

KEN ELPHICK

Third Respondent:

AINSLIE ELPHICK

Fourth Respondent:

SAMANTHA STAATS

Fifth Respondent:

VICKI MAREE ELPHICK

File Number:

BRG 587 of 2018

Judgment of:

Judge Egan

Hearing date:

27 May 2019

Date of Last Submission:

27 May 2019

Delivered at:

Brisbane

Delivered on:

27 May 2019

REPRESENTATION

Solicitors for the Applicant:

Ms R. Maloney and Ms. S. Quigley of Legal Aid Queensland

First Respondent:

No appearance

Second Respondent:

No appearance

Third Respondent:

No appearance

Fourth Respondent:

In-person

IT IS ORDERED THAT:

Pursuant to Rule 16.05(2)(a) and (f) of the Federal Circuit Court Rules 2001 (Cth), paragraph 4 of the orders of Judge Vasta dated 19 February 2019 be set aside.
The claims for compensation and for the imposition of pecuniary penalties set out in the statement of claim at paragraphs 84-87, 103, 104, 105, 109 and 110, insofar as they relate to the Fourth Respondent, be dismissed.
Pursuant to the provisions of s. 545(1)(2)(b) of the Fair Work Act 2009 (Cth) (‘FWA’), the First Respondent pay the Applicant compensation for lost earnings in the amount of $2,970.25 calculated as per Schedule 1 below:
Schedule 1

Assumptions
Commencement of Employment	27 November 2017
Date of dismissal	20 February 2018
Length of service	12 weeks and 2 days
Applicant’s age at 20 February 2018	30
Relevant industrial instrument	Hospitality (General) Award 2010
Type of Employment	Permanent part-time
Classification level	Introductory
Underpayment
Pay Rates	Permanent part-time
Weekly hours of work	30[1]
Actual weekly rate	$500.00
Actual hourly rate	$16.66 ($500/30 hours)
Correct hourly rate	$18.29
Correct weekly rate	$548.70
Actual total pay during employment	$4,585.00
Correct total pay during employment	$6,401.50 ($548.70 x 9 weeks) + ($18.29 x 25 hrs x 3.2 weeks)[2]
Underpayment	$1,816.50 ($6,401.50 - $4,585.00)
Plus
Unpaid notice pay	$548.70 (30 hours x $18.29)[3]
Unpaid annual leave entitlements	$605.05 (Annual leave accrued weekly (4/52) x 12.2 weeks x $548.70 + 17.5%)
Total	$2,970.25

[1] Hours calculated as an average based on available evidence

[2] Contract started 27 November 2017 and minimum of 25 hours would be provided per week. Applicant not provided work until 18 December 2018

[3] One week per The National Employment Standards Division 11 Section 117(3)(a)

Pursuant to the provisions of ss. 545(1)(2)(b) and 547(2) of the FWA, the First, Second, Third and Fifth Respondents are jointly and severally liable to pay to the Applicant compensation for hurt and humiliation in the amount of $12,500.00 inclusive of interest.
Pursuant to the provisions of s 546(1) of the FWA, pecuniary penalties are imposed on the First, Second, Third and Fifth Respondents as follows:

First Respondent

$70, 875.00

Second Respondent

$14, 175.00

Third Respondent

$14, 175.00

Fifth Respondent

$14, 175.00

in accordance with Schedule 2 below:
Schedule 2

Pecuniary Penalties - First Respondent

Provision	Description	Maximum penalty	Penalty sought
General protections
S340(1)(a)(ii)	Dismissing the Applicant because she made complaints or enquires in relation her employment	$63,000.00	$15,750 (25%)
Contraventions related to the failure to pay the Applicant correctly
s.44(1)	Failing to pay in lieu of notice period as prescribed by section 117(2)(b) of the FW Act
s.45	failing to pay the Applicant the minimum rate for ‘Handyperson’ work as prescribed by clause 20.1 of the Award
s.45	by failing to pay the Applicant at the higher ‘Handyperson’ rate as prescribed by clause 25.1 of the Award
s.45	paying the Applicant on a Friday as prohibited by clause 26.1 of the Award
s.45	by failing to make superannuation contributions on the Applicant’s behalf as mandated by clause 28.2 of the Award
s.45	failing to pay the Applicant an additional leave loading of 17.5% as prescribed by clause 34.2 of the Award
s.323(1)(a)	failing to pay the Applicant in full for the work she performed
Subtotal	$63,000.00	$15,750 (25%)
Contraventions relating to a failure to provide the Applicant with required information
s.44(1)	failing to issue the Applicant a Fair Work Information Statement as prescribed by s.125(1) of the FW Act
s.45	failing to provide access to the award and the National Employment Standards as prescribed by clause 5 of the Award
s.45	failing to prepare and display rosters as prescribed by clause 30.1 of the Award
Subtotal	$63,000.00	$15,750 (25%)
Contravention relating to a failure to make, keep and provide adequate records
s.535(1)	failing to make and keep employee records for the Applicant
s.535(2)	failing to make and keep employee records for the Applicant in the form prescribed by sub-regulations 3.31 to 3.44 of the Regulations
contravening s.536(1)	failing to provide pay slips to the Applicant
contravening s.536(2)	failing to provide pay slips to the Applicant in the form prescribed by sub-regulations 3.46(1)(a), 3.46(1)(d), 3.46(1)(h), 3.46(3)(a), 3.46(3)(b), 3.46(3)(c), 3.46(5)(a) and 3.46(5)(b) of the Regulations
Subtotal	$63,000.00	$15,750 (25%)
Outside Award
s.45	directing the Applicant to work outside the limits of her competence as prohibited by clause 18 of the Award
Subtotal		$63,000.00	$15,750 (25%)
Total		$315,000.00	$78,750.00
Totality principle discount		10%	$7,875.00
*Total penalty payable*		$70,875.00

Pecuniary Penalties – Second Respondent

Provision	Description	Maximum penalty	Penalty sought
General protections
S340(1)(a)(ii)	Dismissing the Applicant because she made complaints or enquires in relation her employment	$12,600.00	$3,150.00 (25%)
Contraventions related to the failure to pay the Applicant correctly
s.44(1)	Failing to pay in lieu of notice period
s.45	failing to pay the Applicant the minimum rate for ‘Handyperson’ work as prescribed by clause 20.1 of the Award
s.45	by failing to pay the Applicant at the higher ‘Handyperson’ rate as prescribed by clause 25.1 of the Award
s.45	paying the Applicant on a Friday as prohibited by clause 26.1 of the Award
s.45	by failing to make superannuation contributions on the Applicant’s behalf as mandated by clause 28.2 of the Award
s.45	failing to pay the Applicant an additional leave loading of 17.5% as prescribed by clause 34.2 of the Award
s.323(1)(a)	failing to pay the Applicant in full for the work she performed
Subtotal	$12,600.00	$3,150.00 (25%)
Contraventions relating to a failure to provide the Applicant with required information
s.44(1)	failing to issue the Applicant a Fair Work Information Statement as prescribed by s.125(1) of the FW Act
s.45	failing to provide access to the award and the National Employment Standards as prescribed by clause 5 of the Award
s.45	failing to prepare and display rosters as prescribed by clause 30.1 of the Award
Subtotal	$12,600.00	$3,150.00 (25%)
Contravention relating to a failure to make, keep and provide adequate records
s.535(1)	failing to make and keep employee records for the Applicant
s.535(2)	failing to make and keep employee records for the Applicant in the form prescribed by sub-regulations 3.31 to 3.44 of the Regulations
contravening s.536(1)	failing to provide pay slips to the Applicant
contravening s.536(2)	failing to provide pay slips to the Applicant in the form prescribed by sub-regulations 3.46(1)(a), 3.46(1)(d), 3.46(1)(h), 3.46(3)(a), 3.46(3)(b), 3.46(3)(c), 3.46(5)(a) and 3.46(5)(b) of the Regulations
Subtotal	$12,600.00	$3,150.00 (25%)
Outside Award
s.45	directing the Applicant to work outside the limits of her competence as prohibited by clause 18 of the Award
Subtotal		$12,600.00	$3,150.00 (25%)
Total		$63,000.00	$15,750.00
Totality principle discount		10%	$1,575.00
*Total penalty payable*		$14,175.00

Pecuniary Penalties – Third Respondent

Provision	Description	Maximum penalty	Penalty sought
General protections
S340(1)(a)(ii)	Dismissing the Applicant because she made complaints or enquires in relation her employment	$12,600.00	$3,150.00 (25%)
Contraventions related to the failure to pay the Applicant correctly
s.44(1)	Failing to pay in lieu of notice period
s.45	failing to pay the Applicant the minimum rate for ‘Handyperson’ work as prescribed by clause 20.1 of the Award
s.45	by failing to pay the Applicant at the higher ‘Handyperson’ rate as prescribed by clause 25.1 of the Award
s.45	paying the Applicant on a Friday as prohibited by clause 26.1 of the Award
s.45	by failing to make superannuation contributions on the Applicant’s behalf as mandated by clause 28.2 of the Award
s.45	failing to pay the Applicant an additional leave loading of 17.5% as prescribed by clause 34.2 of the Award
s.323(1)(a)	failing to pay the Applicant in full for the work she performed
Subtotal	$12,600.00	$3,150.00 (25%)
Contraventions relating to a failure to provide the Applicant with required information
s.44(1)	failing to issue the Applicant a Fair Work Information Statement as prescribed by s.125(1) of the FW Act
s.45	failing to provide access to the award and the National Employment Standards as prescribed by clause 5 of the Award
s.45	failing to prepare and display rosters as prescribed by clause 30.1 of the Award
Subtotal	$12,600.00	$3,150.00 (25%)
Contravention relating to a failure to make, keep and provide adequate records
s.535(1)	failing to make and keep employee records for the Applicant
s.535(2)	failing to make and keep employee records for the Applicant in the form prescribed by sub-regulations 3.31 to 3.44 of the Regulations
contravening s.536(1)	failing to provide pay slips to the Applicant
contravening s.536(2)	failing to provide pay slips to the Applicant in the form prescribed by sub-regulations 3.46(1)(a), 3.46(1)(d), 3.46(1)(h), 3.46(3)(a), 3.46(3)(b), 3.46(3)(c), 3.46(5)(a) and 3.46(5)(b) of the Regulations
Subtotal	$12,600.00	$3,150.00 (25%)
Outside Award
s.45	directing the Applicant to work outside the limits of her competence as prohibited by clause 18 of the Award
Subtotal		$12,600.00	$3,150.00 (25%)
Total		$63,000.00	$15,750.00
Totality principle discount		10%	$1,575.00
*Total penalty payable*		$14,175.00

Pecuniary Penalties – Fifth Respondent

Provision	Description	Maximum penalty	Penalty sought
General protections
S340(1)(a)(ii)	Dismissing the Applicant because she made complaints or enquires in relation her employment	$12,600.00	$3,150.00 (25%)
Contraventions related to the failure to pay the Applicant correctly
s.44(1)	Failing to pay in lieu of notice period
s.45	failing to pay the Applicant the minimum rate for ‘Handyperson’ work as prescribed by clause 20.1 of the Award
s.45	by failing to pay the Applicant at the higher ‘Handyperson’ rate as prescribed by clause 25.1 of the Award
s.45	paying the Applicant on a Friday as prohibited by clause 26.1 of the Award
s.45	by failing to make superannuation contributions on the Applicant’s behalf as mandated by clause 28.2 of the Award
s.45	failing to pay the Applicant an additional leave loading of 17.5% as prescribed by clause 34.2 of the Award
s.323(1)(a)	failing to pay the Applicant in full for the work she performed
Subtotal	$12,600.00	$3,150.00 (25%)
Contraventions relating to a failure to provide the Applicant with required information
s.44(1)	failing to issue the Applicant a Fair Work Information Statement as prescribed by s.125(1) of the FW Act
s.45	failing to provide access to the award and the National Employment Standards as prescribed by clause 5 of the Award
s.45	failing to prepare and display rosters as prescribed by clause 30.1 of the Award
Subtotal	$12,600.00	$3,150.00 (25%)
Contravention relating to a failure to make, keep and provide adequate records
s.535(1)	failing to make and keep employee records for the Applicant
s.535(2)	failing to make and keep employee records for the Applicant in the form prescribed by sub-regulations 3.31 to 3.44 of the Regulations
contravening s.536(1)	failing to provide pay slips to the Applicant
contravening s.536(2)	failing to provide pay slips to the Applicant in the form prescribed by sub-regulations 3.46(1)(a), 3.46(1)(d), 3.46(1)(h), 3.46(3)(a), 3.46(3)(b), 3.46(3)(c), 3.46(5)(a) and 3.46(5)(b) of the Regulations
Subtotal	$12,600.00	$3,150.00 (25%)
Outside Award
s.45	directing the Applicant to work outside the limits of her competence as prohibited by clause 18 of the Award
Subtotal		$12,600.00	$3,150.00 (25%)
Total		$63,000.00	$15,750.00
Totality principle discount		10%	$1,575.00
*Total penalty payable*		$14,175.00

As to the sum of $70,875.00 ordered to be paid by the First Respondent by way of pecuniary penalty:
(a)the amount of $35,437.50 is to be paid to the Commonwealth Consolidated Revenue Fund within 60 days of the making of these orders pursuant to the provisions of s. 546(3)(a) of the FWA; and
(b)the amount of $35,437.50 is to be paid to the Applicant within 60 days of the making of this order pursuant to the provisions of s. 546(3)(c) of the FWA.
As to the sum of $14, 175.00 ordered to be paid by the Second Respondent by way of pecuniary penalty:
(a)the amount of $7,087.50 is to be paid to the Commonwealth Consolidated Revenue Fund within 60 days of the making of these orders pursuant to the provisions of s. 546(3)(a) of the FWA; and
(b)the amount of $7,087.50 is to be paid to the Applicant within 60 days of the making of these orders pursuant to the provisions of s. 546(3)(c) of the FWA.
As to the sum of $14,175.00 ordered to be paid by the Third Respondent by way of pecuniary penalty:
(a)the amount of $7,087.50 is to be paid to the Commonwealth Consolidated Revenue Fund within 60 days of the making of these orders pursuant to the provisions of s. 546(3)(a) of the FWA; and
(b)the amount of $7,087.50 is to be paid to the Applicant within 60 days of the making of these orders pursuant to the provisions of s. 546(3)(c) of the FWA.
As to the sum of 14,175.00 ordered to be paid by The Fifth Respondent by way of pecuniary penalty:
(a)the amount of $7,087.50 is to be paid to the Commonwealth Consolidated Revenue Fund within 60 days of the making of these orders pursuant to the provisions of s. 546(3)(a) of the FWA; and
(b)the amount of $7,087.50 is to be paid to the Applicant within 60 days of the making of these orders pursuant to the provisions of s. 546(3)(c) of the FWA.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 587 of 2018

CALLEIGH BRISTOW

Applicant

And

SONNY’S RESTAURANT & BAR PTY LTD

First Respondent

KEN ELPHICK

Second Respondent

AINSLIE ELPHICK

Third Respondent

samantha staats

Fourth Respondent

VICKI MAREE ELPHICK

Fifth Respondent

REASONS FOR JUDGMENT

This matter was listed for hearing before the Court today at 9.30 am. At approximately 9.45 am, the names of the first respondent, the second respondent, the third respondent and the fifth respondent were each called three times outside Court. None of those respondents responded to the call. That was in circumstances where evidence of due notice having been given to each of those respondents of today’s hearing had been established.
There are affidavits of service in respect of each of the respondents.
That notice can further be presumed, by reason of the fact that the solicitor representing the applicant, Ms Maloney, had indicated that she sent letters to each of the respondents advising them of the terms of the order of his Honour Judge Vasta made on 19 February 2019, in circumstances where, as indicated in the order of his Honour Judge Jarrett made on 30 July 2018, each of the respondents were legally represented and, further, in circumstances where no notice of withdrawal of the solicitor on the record had been filed on behalf of any of the respondents after that time.
The order of Judge Vasta made on 19 February 2019 adjourning the matter for penalty hearing to today was also a matter of notice on the Court Portal that would have been conveyed to the solicitor on the record. The Court is satisfied that the first respondent, the second respondent, the third respondent and the fifth respondent had due notice of today’s hearing.
As to the fourth respondent, the fourth respondent today appeared in person. After a short dialogue between the Court and Ms Maloney on behalf of the applicant, and after Ms Maloney indicated that she consented to the setting aside of orders made against the Fourth Respondent by Judge Vasta, the judgment against the fourth respondent as contained in the order of Judge Vasta made on 19 February 2019 was set aside pursuant to rule 16.05(2)(a) and (f) of the Federal Circuit Court Rules 2001 (Cth). After the order of Judge Vasta in respect of the fourth respondent was set aside, the fourth respondent was excused from further participation in the hearing.
The claims of the applicant have been set out at length in the statement of claim filed on her behalf. No defence or response to the allegations contained in the statement of claim was filed on behalf of the first, second, third or fifth respondents. The allegations as made in the statement of claim are taken to have been established, supported as they were by the filing of affidavits on behalf of the applicant deposing to the matters as alleged in the statement of claim. A sealed copy of the statement of claim as filed is attached to these reasons and marked “A”.
Attached to the submissions filed on behalf of the applicant were two schedules. Schedule 1 set out revised underpayment calculations relating to the applicant’s period of employment. As the amount now claimed is less than the amount as pleaded in paragraph 76 of the statement of claim in respect of alleged underpayment, the Court is prepared to accept the revised claim without the need for notice of such claim being given to the remaining respondents.
Schedule 2 to the submissions filed on behalf of the applicant set out the sections of the Act which have been contravened. That schedule relates to each of the respondents, and relevantly recognises that there have been course of conduct contraventions which properly ought to be the subject of the imposition of only one penalty in respect of each respondent. So much is clear from the terms of Schedule 2.

In that regard, it is noted that it has been conceded by Ms Maloney on behalf of the applicant that the respondents had not previously contravened provisions of the Fair Work Act in circumstances such as were the subject of the Court’s consideration today. The schedule appropriately recognises that there ought to be substantial discounting of the penalties to be imposed in those circumstances. Indeed, across the board there has been a recognition that a 75 per cent discount ought to be applied such that the penalty to be imposed is only 25 per cent of the maximum penalty for each offence.
Each of the contraventions has helpfully been described in the schedules. And each of those contraventions coincide with the case as pleaded against the respondents as supported by relevant affidavit material. The Court accepts the propriety of making pecuniary penalty orders in terms of Schedule 2 to the submissions filed on behalf of the applicant.
The third submission made on behalf of the applicant is that pursuant to the provisions of section 545 of the Fair Work Act, the applicant ought to receive compensation for hurt and humiliation suffered by her as a result of the manner of her termination. Section 545 of the Fair Work Act2009 (Cth) (‘the Act’) relevantly provides as follows:
“Orders that can be made by particular courts
Federal Court and Federal Circuit Court
(1) The Federal Court or the Federal Circuit Court may make any order the court considers appropriate if the court is satisfied that a person has contravened, or proposes to contravene, a civil remedy provision.
Note 1: For the court's power to make pecuniary penalty orders, see section 546.
Note 2: For limitations on orders in relation to costs, see section 570.
Note 3: The Federal Court and the Federal Circuit Court may grant injunctions in relation to industrial action under subsections 417(3) and 421(3).
Note 4:There are limitations on orders that can be made in relation to contraventions of subsection 65(5), 76(4), 463(1) or 463(2) (which deal with reasonable business grounds and protected action ballot orders) (see subsections 44(2), 463(3) and 745(2)).
(2) Without limiting subsection (1), orders the Federal Court or Federal Circuit Court may make include the following:
(a) an order granting an injunction, or interim injunction, to prevent, stop or remedy the effects of a contravention;
(b) an order awarding compensation for loss that a person has suffered because of the contravention;
(c) an order for reinstatement of a person.
Eligible State or Territory courts
(3) An eligible State or Territory court may order an employer to pay an amount to, or on behalf of, an employee of the employer if the court is satisfied that:
(a) the employer was required to pay the amount under this Act or a fair work instrument; and
(b) the employer has contravened a civil remedy provision by failing to pay the amount.
Note 1: For the court's power to make pecuniary penalty orders, see section 546.
Note 2: For limitations on orders in relation to costs, see section 570.
(3A) An eligible State or Territory court may order an outworker entity to pay an amount to, or on behalf of, an outworker if the court is satisfied that:
(a) the outworker entity was required to pay the amount under a modern award; and
(b) the outworker entity has contravened a civil remedy provision by failing to pay the amount.
Note 1: For the court's power to make pecuniary penalty orders, see section 546.
Note 2: For limitations on orders in relation to costs, see section 570.
When orders may be made
(4) A court may make an order under this section:
(a) on its own initiative, during proceedings before the court; or
(b) on application.
Time limit for orders in relation to underpayments
(5) A court must not make an order under this section in relation to an underpayment that relates to a period that is more than 6 years before the proceedings concerned commenced.”
It is submitted that pursuant to the provisions of section 545 and 547(2) of the Act, the first, second, third and fifth respondents were jointly and severally liable to pay to the applicant compensation for hurt and humiliation. Such an order was made in Australian Licenced Aircraft Engineers Association v International Aviation Service Assistance Pty Ltd [2011] FCA 333, per Barker J. Reference is further made to the decision of Greenwood J in Mcllwain v Ramsay Food Packaging (No.4) [2006] FCA 1302, and Bromberg J in Ewin v Vergara (No.3) [2013] FCA 1311 at [658].
The applicant deposed that she had been particularly humiliated by the manner of her termination, particularly by the suggestion that she had been ungrateful for having been employed by the first respondent notwithstanding her disability. That uncontested allegation was most unkind, and would have been extremely hurtful to the applicant. It is appropriate in all of the circumstances that the applicant receive an award by way of compensation for such hurt and humiliation in the amount of $12,500, and that the first, second, third and fifth respondents be jointly and severally liable for the payment of such compensation, as each of them were jointly and severally liable for such conduct, as well as for the underpayment of wages to the applicant in the amount of $2,970.25.
It is appropriate, in the circumstances that the basis for calculation of the underpayment, together with the calculation of pecuniary penalty amounts, as set out in the submissions filed on behalf of the applicant, be reflected by the making of appropriate orders for compensation as well as the imposition of pecuniary penalties, and that such orders be respectively made against the respondents in that regard. Each of those respective annexures are as follows:
Schedule 1
Underpayment Calculations

Assumptions
Commencement of Employment	27 November 2017
Date of dismissal	20 February 2018
Length of service	12 weeks and 2 days
Applicant’s age at 20 February 2018	30
Relevant industrial instrument	Hospitality (General) Award 2010
Type of Employment	Permanent part-time
Classification level	Introductory
Underpayment
Pay Rates	Permanent part-time
Weekly hours of work	30[4]
Actual weekly rate	$500.00
Actual hourly rate	$16.66 ($500/30 hours)
Correct hourly rate	$18.29
Correct weekly rate	$548.70
Actual total pay during employment	$4,585.00
Correct total pay during employment	$6,401.50 ($548.70 x 9 weeks) + ($18.29 x 25 hrs x 3.2 weeks)[5]
Underpayment	$1,816.50 ($6,401.50 - $4,585.00)
Plus
Unpaid notice pay	$548.70 (30 hours x $18.29)[6]
Unpaid annual leave entitlements	$605.05 (Annual leave accrued weekly (4/52) x 12.2 weeks x $548.70 + 17.5%)
Total	$2,970.25

[4] Hours calculated as an average based on available evidence

[5] Contract started 27 November 2017 and minimum of 25 hours would be provided per week. Applicant not provided work until 18 December 2018

[6] One week per The National Employment Standards Division 11 Section 117(3)(a)

Schedule 2

Pecuniary Penalties – First Respondent

Provision	Description	Maximum penalty	Penalty sought
General protections
S340(1)(a)(ii)	Dismissing the Applicant because she made complaints or enquires in relation her employment	$63,000.00	$15,750 (25%)
Contraventions related to the failure to pay the Applicant correctly
s.44(1)	Failing to pay in lieu of notice period as prescribed by section 117(2)(b) of the FW Act
s.45	failing to pay the Applicant the minimum rate for ‘Handyperson’ work as prescribed by clause 20.1 of the Award
s.45	by failing to pay the Applicant at the higher ‘Handyperson’ rate as prescribed by clause 25.1 of the Award
s.45	paying the Applicant on a Friday as prohibited by clause 26.1 of the Award
s.45	by failing to make superannuation contributions on the Applicant’s behalf as mandated by clause 28.2 of the Award
s.45	failing to pay the Applicant an additional leave loading of 17.5% as prescribed by clause 34.2 of the Award
s.323(1)(a)	failing to pay the Applicant in full for the work she performed
Subtotal	$63,000.00	$15,750 (25%)
Contraventions relating to a failure to provide the Applicant with required information
s.44(1)	failing to issue the Applicant a Fair Work Information Statement as prescribed by s.125(1) of the FW Act
s.45	failing to provide access to the award and the National Employment Standards as prescribed by clause 5 of the Award
s.45	failing to prepare and display rosters as prescribed by clause 30.1 of the Award
Subtotal	$63,000.00	$15,750 (25%)
Contravention relating to a failure to make, keep and provide adequate records
s.535(1)	failing to make and keep employee records for the Applicant
s.535(2)	failing to make and keep employee records for the Applicant in the form prescribed by sub-regulations 3.31 to 3.44 of the Regulations
contravening s.536(1)	failing to provide pay slips to the Applicant
contravening s.536(2)	failing to provide pay slips to the Applicant in the form prescribed by sub-regulations 3.46(1)(a), 3.46(1)(d), 3.46(1)(h), 3.46(3)(a), 3.46(3)(b), 3.46(3)(c), 3.46(5)(a) and 3.46(5)(b) of the Regulations
Subtotal	$63,000.00	$15,750 (25%)
Outside Award
s.45	directing the Applicant to work outside the limits of her competence as prohibited by clause 18 of the Award
Subtotal		$63,000.00	$15,750 (25%)
Total		$315,000.00	$78,750.00
Totality principle discount		10%	$7,875.00
*Total penalty payable*		$70,875.00

Pecuniary Penalties – Second Respondent

Provision	Description	Maximum penalty	Penalty sought
General protections
S340(1)(a)(ii)	Dismissing the Applicant because she made complaints or enquires in relation her employment	$12,600.00	$3,150.00 (25%)
Contraventions related to the failure to pay the Applicant correctly
s.44(1)	Failing to pay in lieu of notice period
s.45	failing to pay the Applicant the minimum rate for ‘Handyperson’ work as prescribed by clause 20.1 of the Award
s.45	by failing to pay the Applicant at the higher ‘Handyperson’ rate as prescribed by clause 25.1 of the Award
s.45	paying the Applicant on a Friday as prohibited by clause 26.1 of the Award
s.45	by failing to make superannuation contributions on the Applicant’s behalf as mandated by clause 28.2 of the Award
s.45	failing to pay the Applicant an additional leave loading of 17.5% as prescribed by clause 34.2 of the Award
s.323(1)(a)	failing to pay the Applicant in full for the work she performed
Subtotal	$12,600.00	$3,150.00 (25%)
Contraventions relating to a failure to provide the Applicant with required information
s.44(1)	failing to issue the Applicant a Fair Work Information Statement as prescribed by s.125(1) of the FW Act
s.45	failing to provide access to the award and the National Employment Standards as prescribed by clause 5 of the Award
s.45	failing to prepare and display rosters as prescribed by clause 30.1 of the Award
Subtotal	$12,600.00	$3,150.00 (25%)
Contravention relating to a failure to make, keep and provide adequate records
s.535(1)	failing to make and keep employee records for the Applicant
s.535(2)	failing to make and keep employee records for the Applicant in the form prescribed by sub-regulations 3.31 to 3.44 of the Regulations
contravening s.536(1)	failing to provide pay slips to the Applicant
contravening s.536(2)	failing to provide pay slips to the Applicant in the form prescribed by sub-regulations 3.46(1)(a), 3.46(1)(d), 3.46(1)(h), 3.46(3)(a), 3.46(3)(b), 3.46(3)(c), 3.46(5)(a) and 3.46(5)(b) of the Regulations
Subtotal	$12,600.00	$3,150.00 (25%)
Outside Award
s.45	directing the Applicant to work outside the limits of her competence as prohibited by clause 18 of the Award
Subtotal		$12,600.00	$3,150.00 (25%)
Total		$63,000.00	$15,750.00
Totality principle discount		10%	$1,575.00
*Total penalty payable*		$14,175.00

Pecuniary Penalties – Third Respondent

Provision	Description	Maximum penalty	Penalty sought
General protections
S340(1)(a)(ii)	Dismissing the Applicant because she made complaints or enquires in relation her employment	$12,600.00	$3,150.00 (25%)
Contraventions related to the failure to pay the Applicant correctly
s.44(1)	Failing to pay in lieu of notice period
s.45	failing to pay the Applicant the minimum rate for ‘Handyperson’ work as prescribed by clause 20.1 of the Award
s.45	by failing to pay the Applicant at the higher ‘Handyperson’ rate as prescribed by clause 25.1 of the Award
s.45	paying the Applicant on a Friday as prohibited by clause 26.1 of the Award
s.45	by failing to make superannuation contributions on the Applicant’s behalf as mandated by clause 28.2 of the Award
s.45	failing to pay the Applicant an additional leave loading of 17.5% as prescribed by clause 34.2 of the Award
s.323(1)(a)	failing to pay the Applicant in full for the work she performed
Subtotal	$12,600.00	$3,150.00 (25%)
Contraventions relating to a failure to provide the Applicant with required information
s.44(1)	failing to issue the Applicant a Fair Work Information Statement as prescribed by s.125(1) of the FW Act
s.45	failing to provide access to the award and the National Employment Standards as prescribed by clause 5 of the Award
s.45	failing to prepare and display rosters as prescribed by clause 30.1 of the Award
Subtotal	$12,600.00	$3,150.00 (25%)
Contravention relating to a failure to make, keep and provide adequate records
s.535(1)	failing to make and keep employee records for the Applicant
s.535(2)	failing to make and keep employee records for the Applicant in the form prescribed by sub-regulations 3.31 to 3.44 of the Regulations
contravening s.536(1)	failing to provide pay slips to the Applicant
contravening s.536(2)	failing to provide pay slips to the Applicant in the form prescribed by sub-regulations 3.46(1)(a), 3.46(1)(d), 3.46(1)(h), 3.46(3)(a), 3.46(3)(b), 3.46(3)(c), 3.46(5)(a) and 3.46(5)(b) of the Regulations
Subtotal	$12,600.00	$3,150.00 (25%)
Outside Award
s.45	directing the Applicant to work outside the limits of her competence as prohibited by clause 18 of the Award
Subtotal		$12,600.00	$3,150.00 (25%)
Total		$63,000.00	$15,750.00
Totality principle discount		10%	$1,575.00
*Total penalty payable*		$14,175.00

Pecuniary Penalties – Fifth Respondent

Provision	Description	Maximum penalty	Penalty sought
General protections
S340(1)(a)(ii)	Dismissing the Applicant because she made complaints or enquires in relation her employment	$12,600.00	$3,150.00 (25%)
Contraventions related to the failure to pay the Applicant correctly
s.44(1)	Failing to pay in lieu of notice period
s.45	failing to pay the Applicant the minimum rate for ‘Handyperson’ work as prescribed by clause 20.1 of the Award
s.45	by failing to pay the Applicant at the higher ‘Handyperson’ rate as prescribed by clause 25.1 of the Award
s.45	paying the Applicant on a Friday as prohibited by clause 26.1 of the Award
s.45	by failing to make superannuation contributions on the Applicant’s behalf as mandated by clause 28.2 of the Award
s.45	failing to pay the Applicant an additional leave loading of 17.5% as prescribed by clause 34.2 of the Award
s.323(1)(a)	failing to pay the Applicant in full for the work she performed
Subtotal	$12,600.00	$3,150.00 (25%)
Contraventions relating to a failure to provide the Applicant with required information
s.44(1)	failing to issue the Applicant a Fair Work Information Statement as prescribed by s.125(1) of the FW Act
s.45	failing to provide access to the award and the National Employment Standards as prescribed by clause 5 of the Award
s.45	failing to prepare and display rosters as prescribed by clause 30.1 of the Award
Subtotal	$12,600.00	$3,150.00 (25%)
Contravention relating to a failure to make, keep and provide adequate records
s.535(1)	failing to make and keep employee records for the Applicant
s.535(2)	failing to make and keep employee records for the Applicant in the form prescribed by sub-regulations 3.31 to 3.44 of the Regulations
contravening s.536(1)	failing to provide pay slips to the Applicant
contravening s.536(2)	failing to provide pay slips to the Applicant in the form prescribed by sub-regulations 3.46(1)(a), 3.46(1)(d), 3.46(1)(h), 3.46(3)(a), 3.46(3)(b), 3.46(3)(c), 3.46(5)(a) and 3.46(5)(b) of the Regulations
Subtotal	$12,600.00	$3,150.00 (25%)
Outside Award
s.45	directing the Applicant to work outside the limits of her competence as prohibited by clause 18 of the Award
Subtotal		$12,600.00	$3,150.00 (25%)
Total		$63,000.00	$15,750.00
Totality principle discount		10%	$1,575.00
*Total penalty payable*		$14,175.00

It is directed that the applicant cause minutes of the orders as made by the court to be forwarded to chambers for settling.
As to the imposition of the pecuniary penalties, application has been made for payment of part of the total of each of those respective amounts to the applicant. Such application is made pursuant to the provisions of section 546(3) of the Act. That section provides as follows:
“Payment of penalty
(3) The court may order that the pecuniary penalty, or a part of the penalty, be paid to:
(a) the Commonwealth; or
(b) a particular organisation; or
(c) a particular person.”
There are good public policy reasons for making orders which in part are paid to the Commonwealth’s consolidated revenue fund, and part of which are paid to the person who has suffered as a result of the breaches of the Act. The court is satisfied that such an order should be made as to 50 per cent to the Commonwealth’s consolidated revenue fund within the 60 days of the date of this order, pursuant to the provisions of section 546(3)(a) of the FWA, and as to 50 per cent to the applicant, pursuant to the provisions of section 546(3)(c) of the FWA. And it is ordered, accordingly.

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Judge Egan

Date: 1 July 2019

CORRECTIONS:

Attachment “A” has been added to this judgment.

“A”

STATEMENT OF CLAIM

MATERIAL FACTS

1.In or around May or June 2017 the Applicant attended an information session run by a training company, Team F2C Pty Ltd trading as U2E (U2E), in respect of its Certificate III of Hospitality course (Course).
2.The Course was designed to help unemployed people back into work through up-skilling and the provision of assistance with networking, with a focus on gaining employment after completion of the Course. An essential component of the Course was the completion of 36 shifts in a practical setting.
3.The Second Respondent was at U2E’s information session promoting his businesses as a potential employer of those who completed the Course.
4.The Second Respondent led the Applicant to believe that he and his family owned several businesses including Sails Restaurant & Bar and Sonny’s Cafe & Bar. These businesses were the trading names of 4561 Management Pty Limited (4561).
5.The Applicant subsequently enrolled on the Course through the auspices of her Centrelink service provider, Max Solutions Pty Ltd (Max Employment).

6.Around August/September 2017, one of the Applicant’s teachers on the Course, Mrs Wendy Gordon (Mrs Gordon), formally introduced the Applicant to the Second Respondent.
7.The Second Respondent informed the Applicant of an opportunity for employment:
a)The work would be ‘hospitality work’;
b)The Applicant was initially required to assist with the refurbishment of the First Respondent’s premises at Jindalee (Jindalee Site); but
c)The Applicant would also have to complete one or two shifts a week at the Second Respondent’s other businesses undertaking front of house hospitality work;
d)This would enable the Applicant to familiarise herself with how the Second Respondent’s businesses operated and complete the required number of shifts to pass the Course; and
e)The Applicant could work at the other premises the Second Respondent was refurbishing and opt to perform front of house work at those premises once works there were complete.

8.The Applicant decided to take up the Second Respondent’s offer of employment and start at the Jindalee Site. This was because after the renovations there were completed there, the Second Respondent was due to renovate and refurbish a venue at Surfers Paradise, a venue much closer to the Applicant’s home.
9.The Applicant did not have any building or construction qualifications except for a White Card (General Construction Induction Card) obtained from an online course.

The Applicant informed the Second Respondent that she had disabilities.

The First Contract

On 26 September 2017 the Applicant signed a document that purported to be an “Expression of Interest” (First Contract). The document was a contract of employment, the parties being the Applicant and 4561.
The Applicant did not perform any work for 4561 at the time because she was still completing the Course.
The First Contract was subsequently superseded by a further contract.
The Second Contract
On 27 November 2017 the Applicant signed a contract of employment with the First Respondent (Second Contract).
In response to signing the Second Contract, the First Respondent issued the Applicant with a “Letter of Engagement” as a cover letter for a document titled “Induction (Sonny’s Restaurant & Bar Pty Ltd)”, which the Applicant signed.
The Applicant also signed a ‘terms of employment’ document that sought medical, banking and superannuation information from her.
The Second Contract stated that the Applicant would be employed in accordance with the Hospitality (General) Award 2010 (Award).
No contract with Hospitality Management Group Pty Ltd
The Applicant did not sign a contract of employment, letter of engagement or any other document, contractual or otherwise, with Hospitality Management Group Pty Ltd (Hospitality).
The Applicant was never an employee of Hospitality, though Hospitality did act as Sonny’s agent in some matters.
Commencing work with the First Respondent
Upon commencement of her employment the Applicant again informed the Second Respondent that she had two disabilities: chronic regional pain syndrome and fibromyalgia.
On 24 October 2017 the Fourth Respondent informed the Applicant by email that the rate of pay would be $15 per hour plus a $50 travel allowance for one month.
For the first three weeks immediately after signing the Second Contract the Applicant was not given any hospitality work nor paid a salary.
During this period the Applicant (and her former colleagues) only attended ‘coffee meetings’ with the Second and the Fourth Respondents (the Applicant’s manager) where employment issues were discussed.
The Applicant (and her former colleagues) also attended three other sites:
a)One in Surfers Paradise that the Second Respondent was considering turning into a training facility;
b)One in the West End that the Second Respondent was considering turning into a burger bar; and
c)The Jindalee Site.
On these occasions the Applicant was paid in cash for her time.
On 18 December 2017 the Applicant commenced work at the Jindalee Site and was directed to perform building and construction work that she was not qualified to perform.
The Applicant did not perform any hospitality work at this, or any other, site.
The First Respondent’s directors
The Second and Fifth Respondents were in charge of the First Respondent.
The Second and Fifth Respondents were directing its operations, making decisions at every level, recruiting staff and undertook all duties usually associated with a director.
The Second and Fifth Respondents were made bankrupt on 24 July 2017.
COMPLAINTS IN RELATION TO EMPLOYMENT
Complaints and inquiries about rate of pay
On or around 27 November 2017 the Applicant’s ‘job network provider’, Ms Amra Halilovic (Ms Halilovic) employed by Max Employment, raised concerns with the Applicant about her being paid in accordance with the Award. The Applicant and Ms Halilovic discussed the Award and as a result of these discussions Ms Halilovic telephoned the Fourth Respondent to raise these concerns on the Applicant's behalf.
In late January 2018 the Applicant again reviewed the Award and asked the Fourth Respondent what award level she was being paid at. The Fourth Respondent told the Applicant that she was being paid at an ‘introductory rate’.
Complaints and inquiries about tax and superannuation
In late December 2017 the Applicant noticed that her pay slips appeared to show that no tax or superannuation was being paid on her behalf.
The pay slips came in pairs and often did not accompany wages.
The Applicant asked the Fourth Respondent to provide copies of her pay slips to Ms Halilovic so she could check them.
Ms Halilovic also raised her concerns regarding tax and superannuation with the Fourth Respondent and asked for the Applicant’s pay slips to be emailed to her.
Complaints and inquiries about privacy
Instead of receiving of the Applicant’s pay slips, Ms Halilovic received another employee's pay slips by email.
The Applicant's colleague, Mr Warwick Capewell, received one of the Applicant's pay slips by email.
Both the Applicant and Ms Halilovic raised these concerns with the Fourth Respondent: Ms Halilovic by email on 16 January 2018 and the Applicant verbally.
Complaints and inquiries about method of payment
Once regular work for the First Respondent had commenced the Applicant experienced difficulties being paid and the Fourth Respondent attributed these problems to an issue with the payroll system. The difficulties getting paid persisted for three weeks.
On 1 February 2018 ‘gratuity pay’ of $200 was deposited into the Applicant’s bank account accompanied by a promise from the Fourth Respondent that her wages would be paid the following week on 8 February 2018.
The Applicant asked the Fourth Respondent about the tax implications of receiving ‘gratuity pay’. The Fourth Respondent informed the Applicant that ‘gratuity pay’ was not taxable.
When the Applicant’s wages did not arrive as promised on 8 February 2018, the Applicant was given $500 in cash in a sealed envelope. At the same time the Applicant was told that all of her wages would be in her bank account on 13 February 2018.
The Applicant asked the Fourth Respondent why she was being paid in cash instead of electronic funds transfer. The Applicant also complained to the Fourth Respondent that she was unable to pay her bills with cash. The Fourth Respondent responded to the Applicant’s inquiries in a vague manner.
The Applicant then contacted Ms Halilovic, explained her concerns and asked Ms Halilovic if she would make inquiries on her behalf to see if she could get a clearer response to her query.
Ms Halilovic then contacted Mrs Gordon, who by that time had commenced employment with Hospitality as its HR Manager.
On one occasion the First Respondent paid the Applicant in cash on a Friday.
Complaints and inquiries about health and safety
On numerous occasions the Applicant raised health and safety complaints with the Fourth Respondent, who by then held a ‘site manager’ role at the Jindalee Site. The Applicant raised complaints about the safety at the Jindalee Site:
a)A worker with no qualifications being directed to work with live electrical wiring;
b)No eye protectors or respiratory devices provided to staff while they were sanding;
c)No proper ladders or scaffolding provided for working at height;
d)No properly stocked first aid kit provided;
e)No first aid officer on site;
f)No incident reporting system in place;
g)No emergency evacuation or first aid guide or procedures in place;
h)The Applicant being pressured to attend work despite having a valid medical certificate certifying her unfit for work;
i)Performing physical labour in temperatures exceeding 35 degrees Celsius;
j)Inadequate equipment for moving heavy items; and
k)No safety boots provided.
The Applicant’s dismissal
On Tuesday 13 and Wednesday 14 February 2018 the Applicant was absent from work under cover of a medical certificate due to an injury to her right wrist she had sustained at work. Under pressure from the Fourth Respondent the Applicant returned to work earlier than her medical practitioner had advised.
Due to being unable to use her right hand at work the Applicant aggravated a pre-exiting injury to her left shoulder and upper back. As the Applicant began to struggle with her duties the Second Respondent began to harass her in front of her colleagues and openly discussed her medical issues.
On Friday 16 February 2018 Ms Halilovic spoke with Mrs Gordon about the Applicant’s pay concerns.
On Saturday 17 February 2018 the Applicant and her colleagues received an email from the Fourth Respondent requesting their attendance for work at the Jindalee Site on Monday 19 February 2018.
The Applicant had an appointment with a neurologist at the Gold Coast University Hospital (GCUH) on Monday 19 February 2018. The Fourth Respondent had previously approved the Applicant’s request for personal leave to attend that appointment.
The Applicant did not attend work on Monday 19 February 2018 because of her appointment with a neurologist at the GCUH that day.
On Tuesday 20 February 2018 the Applicant received an unexpected email (Termination Email) from the Third Respondent, the director of Hospitality.
A copy of the Termination Email is annexed to this Statement of Claim at Schedule 1.
In the Termination Email, acting as either the First Respondent’s officer or agent, the Third Respondent confirmed that the Applicant’s employment was being terminated with immediate effect.
The Third Respondent expressly cited among the reasons for terminating the employment the Applicant’s “complaint about receiving $500 in cash as opposed to a direct transfer of funds”. The email also lamented about the Applicant’s absences from the workplace due to her medical conditions.
The First Respondent failed to provide the Applicant with notice of her dismissal nor any notice pay or pay out her entitlements.

PART 3—1 OF THE FAIR WORK ACT 2009

Ground 1 - Workplace rights - s.341(1)(c)(ii)

Sections 340(1)(a)(ii) and 341(1)(c)(ii) of the Fair Work Act 2009 (FW Act) provided the Applicant with a workplace right to make a complaint or inquiry in relation to her employment with the First Respondent without being subjected to adverse action.
The Applicant exercised this workplace right when she made the following complaints and/or inquiries in relation to her employment:
a)On or around 27 November 2017 Ms Halilovic, on behalf of the Applicant, complained to the Fourth Respondent about the Applicant’s rate of pay;
b)Throughout her employment, during the period 27 November 2017 to 20 February 2018, the Applicant raised numerous complaints in relation to health and safety at the Jindalee Site;
c)In late December 2017 the Applicant asked the Fourth Respondent to provide her payslips to Ms Halilovic as no tax or superannuation had been paid;
d)In late December 2017 Ms Halilovic, on behalf of the Applicant, raised concerns with the Fourth Respondent about the payment of tax and superannuation and asked to be emailed the Applicant’s payslips;
e)On 16 January 2018 Ms Halilovic, on behalf of the Applicant, emailed the Fourth Respondent raising concerns that:
i.A pay slip belonging to another employee was sent to her; and
ii.The Applicant’s rate of pay was incorrect.
f)On or around 16 January 2018 the Applicant verbally raised concerns with the Fourth Respondent about receiving the wrong pay slips;
g)On 19 January 2018 Ms Halilovic, on behalf of the Applicant, raised concerns with the Fourth Respondent about the payment of tax and superannuation;
h)On 19 January 2018 the Applicant inquired with the Fourth Respondent what level of the Award she was being paid under;
i)On or around 8 February 2018 the Applicant asked the Fourth Respondent why she was being paid in cash instead of via electronic funds transfer and pointed out the difficulties that caused her;
j)On or around 8 February 2018 Ms Halilovic, on behalf of the Applicant, asked the Fourth Respondent why the Applicant was being paid in cash instead of via electronic funds transfer and pointed out the difficulties that caused the Applicant; and
k)On either Thursday 15 or Friday 16 February 2018 Ms Halilovic spoke with Mrs Gordon about the Applicant’s pay concerns.
The First Respondent, with the Third Respondent acting as its officer and/or agent, subjected the Applicant to adverse action when on 20 February 2018 it summarily dismissed her because she exercised her workplace right to make the complaints and/or inquiries outlined above at paragraphs [61 a) to 61 k)], individually, consecutively, cumulatively or any combination of which.
Ground 2 - non-dismissal disability discrimination - s.351(1)
Section 351(1) of the FW Act provided the Applicant with the right not to be subjected to adverse action because of her disability or a characteristic, a consequence or a manifestation of her disabilities.
A characteristic, consequence or manifestation of the Applicant’s disabilities was the need for leave to attend medical appointments and to rest and recover.
The Applicant took personal leave to attend medical appointments in relation to her chronic regional pain syndrome and fibromyalgia. The Applicant also took time off to get treatment for her shoulder injury and rest and recover.
The First, Second and Fourth Respondents objected to the Applicant taking time off and responded by altering the Applicant’s position to her prejudice by:
a)Pressuring the Applicant to return to work when she was still injured;
b)Providing a hostile environment for the Applicant to work in;
c)Allowing the Applicant to be harassed by the Second Respondent and colleagues; and
d)Failing to respect the Applicant’s privacy in respect of her medical conditions.
Ground 3 – dismissal disability discrimination - s.351(1)
The First Respondent took adverse action against the Applicant when on 20 February 2018 it summarily dismissed her because of a characteristic, consequence or manifestation of the Applicant’s disabilities, namely, the need to take leave to attend medical appointments and to rest and recover from her injury.

PART 2—1 OF THE FAIR WORK ACT 2009

Ground 4 - Contravention of the National Employment Standards

Section 44(1) of the FW Act prohibits an employer from contravening a provision of the National Employment Standards (NES).
Three NES the Applicant was entitled to during her employment with the First Respondent were:
a)The right to be issued with a Fair Work Information Statement before, or as soon as practicable after, she started employment with the First Respondent (s.125(1) of the FW Act);
b)The right to receive one weeks’ pay in lieu of notice upon the termination of her employment (s.117(2)(b) and 117(3)(a) of the FW Act); and
c)The right to receive one weeks’ pay in lieu of her accrued annual leave entitlements upon the termination of her employment (s.90(2) of the FW Act).
The First Respondent failed to provide the Applicant a Fair Work Information Statement before, or as soon as practicable after, she started employment with the First Respondent.
The First Respondent failed to pay the Applicant one weeks’ pay in lieu of notice upon the termination of her employment.
The First Respondent failed to pay the Applicant one weeks’ pay in lieu of her annual leave entitlements upon the termination of her employment.
Ground 5 - Contravention of a modern award
Section 45 of the FWA provides that a person must not contravene a modern award.
The Award provided the Applicant’s minimum terms and conditions of employment and the First Respondent contravened the following provisions:

Clause Description Contravention

5 Access to the award and the National Employment Standards The First Respondent did not make copies of the award and the NES available

18 Work organisation The First Respondent directed the Applicant to work outside the limits of her competence

20.1 Minimum wages The First Respondent failed to pay the Applicant the minimum rate for ‘Handyperson’ work

25.1 Higher duties The First Respondent failed to pay the Applicant at the higher ‘Handyperson’ rate

26.1 Payment of wages The First Respondent paid the Applicant’s wages in cash on a Friday

28.2 Superannuation contributions The First Respondent failed to make superannuation contributions on the Applicant’s behalf

30.1 Rostering The First Respondent failed to prepare rosters

34.2
Payment for annual leave (loading)
The First Respondent failed to pay the Applicant an additional leave loading of 17.5%
PART 2—9 OF THE FAIR WORK ACT 2009
Ground 6 – Payment in full for work performed

Section 323(1)(a) of the FW Act required the First Respondent to pay the Applicant in full for the work she performed.
The First Respondent failed to pay the Applicant in full for the work she performed and underpaid her in the sum of $3,631.30.
The basis of the underpayment is set out at Schedule 2 to this Statement of Claim.
The First Respondent also failed to pay tax on the Applicant’s behalf to the Australian Tax Office.
PART 3—6 OF THE FAIR WORK ACT 2009
Ground 7 - Employee records
Sections 535(1) and (2) of the FW Act required the First Respondent to make and keep for seven year employee records of the kind prescribed by subregulations 3.31 to 3.44 of the Fair Work Regulations 2009 (Regulations).
Contrary to subregulation 3.42(3)(b) of the Regulations the First Respondent failed to post copies of the employee records to the Applicant within 14 days after receiving her request for copies of her employee records
Ground 8 – Pay slips
Sections 536(2)(a) and (b) of the FW Act required the First Respondent to issue the Applicant pay slips in the form prescribed by the Regulations and include any information prescribed by subregulations 3.45 and 3.46 of the Regulations.
The First Respondent did not issue the Applicant with any pay slips during her employment.
However, if it is found that the pay slips Hospitality issued to the Applicant were lawfully issued on behalf of the First Respondent, the First Respondent has nonetheless contravened ss.536(2)(a) and (b) of the FW Act because:
i.The pay slips given to the Applicant were not issued within one working day of paying an amount to the Applicant in relation to the performance of work (s.536(1) of the FW Act);
ii.The pay slips given to the Applicant did not contain the First Respondent’s name (subregulation 3.46(1)(a));
iii.The pay slips given to the Applicant did not contain the date on which the payment to which the pay slip relates was made (subregulation 3.46(1)(d));
iv.The pay slips given to the Applicant did not contain the First Respondent’s ABN (subregulation 3.46(1)(h));
v.The pay slips given to the Applicant did not include:
a)the rate of pay for the Applicant’s ordinary hours (subregulation 3.46(3)(a));
b)the number of hours in that period for which the Applicant was employed at that rate (subregulation 3.46(3)(b)); and
c)the amount of the payment made at that rate (subregulation 3.46(3)(c));
vi.The pay slips given to the Applicant did not include the amount of each superannuation contribution the First Respondent made during the period to which the pay slip relates, and the name, or the name and number, of any fund to which the contribution was made (subregulation 3.46(5)(a)); or
vii.The pay slips given to the Applicant did not include the amounts of contributions that the First Respondent was liable to make in relation to the period to which the pay slip relates, and the name, or the name and number, of any fund to which the contributions will be made (subregulation 3.46(5)(b)).

ACCESSORIAL LIABILITY

By reason of the matters pleaded herein, the Second, Third, Fourth and Fifth Respondents:
a)Had actual knowledge of the factual matters which comprise the contraventions of the FW Act alleged against the First Respondent; and
b)Were intentional participants in the factual matters which comprise the contraventions of the FW Act alleged against the First Respondent.
The Second, Third, Fourth and Fifth Respondents were therefore involved in the First Respondent’s contraventions of the FW Act and are accessorily liable pursuant to s.550 of the FW Act because:
a)They aided, abetted, counselled or procured the First Respondent’s contraventions of the FW Act;
b)They induced the First Respondent’s contraventions of the FW Act, whether by threats or promises or otherwise;
c)They were, by act or omission, directly or indirectly, knowingly concerned in or party to the First Respondent’s contraventions of the FW Act; or
d)They conspired with others to affect the First Respondent’s contraventions of the FW Act.
Furthermore, the Second, Third, Fourth and Fifth Respondents had knowledge of, and were responsible for, the First Respondent’s obligations to the Applicant under the FW Act.
By operation of s.550(1) of the FW Act, the Second, Third, Fourth and Fifth Respondents are taken to have personally contravened each of the provisions alleged to have been contravened by the First Respondent herein.

REMEDIES

The Applicant seeks the following remedies.
Declarations
That the First Respondent:
a)Contravened section 44(1) of the FW Act by failing to issue the Applicant a Fair Work Information Statement as prescribed by section 125(1) of the FW Act;
b)Contravened section 44(1) of the FW Act by failing to pay the Applicant in lieu of notice as prescribed by section 117(2)(b) of the FW Act;
c)Contravened section 45 of the FW Act by failing to provide access to the award and the National Employment Standards as prescribed by clause 5 of the Award;
d)Contravened section 45 of the FW Act by directing the Applicant to work outside the limits of her competence as prohibited by clause 18 of the Award;
e)Contravened section 45 of the FW Act by failing to pay the Applicant the minimum rate for ‘Handyperson’ work as prescribed by clause 20.1 of the Award;
f)Contravened section 45 of the FW Act by failing to pay the Applicant at the higher ‘Handyperson’ rate as prescribed by clause 25.1 of the Award;
g)Contravened section 45 of the FW Act by paying the Applicant on a Friday as prohibited by clause 26.1 of the Award;
h)Contravened section 45 of the FW Act by failing to make superannuation contributions on the Applicant’s behalf as mandated by clause 28.2 of the Award;
i)Contravened section 45 of the FW Act by failing to prepare and display rosters as prescribed by clause 30.1 of the Award;
j)Contravened section 45 of the FW Act by failing to pay the Applicant an additional leave loading of 17.5% as prescribed by clause 34.2 of the Award;
k)Contravened section 323(1)(a) of the FW Act by failing to pay the Applicant in full for the work she performed;
l)Contravened section 340(1)(a)(ii) of the FW Act by dismissing the Applicant because she made complaints or inquiries in relation to her employment;
m)Contravened section 535(1) of the FW Act by failing to make and keep employee records for the Applicant;
n)Contravened section 535(2) of the FW Act by failing to make and keep employee records for the Applicant in the form prescribed by subregulations 3.31 to 3.44 of the Regulations;
o)Contravened section 536(1) of the FW Act by failing to provide pay slips to the Applicant; and
p)Contravened section 536(2) of the FW Act by failing to provide pay slips to the Applicant in the form prescribed by subregulations 3.46(1)(a), 3.46(1)(d), 3.46(1)(h), 3.46(3)(a), 3.46(3)(b), 3.46(3)(c), 3.46(5)(a) and 3.46(5)(b) of the Regulations.
That the Second Respondent:
a) was involved in each of the First Respondent’s contraventions as set out in paragraph [88] above, within the meaning of s.550(2) of the FW Act.
That the Third Respondent:
a) was involved in each of the First Respondent’s contraventions as set out in paragraph [88] above, within the meaning of s.550(2) of the FW Act.
That the Fourth Respondent:
a) was involved in each of the First Respondent’s contraventions as set out in paragraph [88] above, within the meaning of s.550(2) of the FW Act.
That the Fifth Respondent:
a)was involved in each of the First Respondent’s contraventions as set out in paragraph [88] above, within the meaning of s.550(2) of the FW Act.
Pecuniary penalties - the First Respondent
An order pursuant to s.546(1) of the FW Act that the First Respondent:
a)pay a pecuniary penalty for contravening s.44(1) of the FW Act by failing to issue the Applicant a Fair Work Information Statement as prescribed by s.125(1) of the FW Act;
b)pay a pecuniary penalty for contravening s.44(1) of the FW Act by failing to pay the Applicant in lieu of notice as prescribed by s.117(2)(b) of the FW Act;
c)pay a pecuniary penalty for contravening s.45 of the FW Act by failing to provide access to the award and the National Employment Standards as prescribed by clause 5 of the Award;
d)pay a pecuniary penalty for contravening s.45 of the FW Act by directing the Applicant to work outside the limits of her competence as prohibited by clause 18 of the Award;
e)pay a pecuniary penalty for contravening s.45 of the FW Act by failing to pay the Applicant the minimum rate for ‘Handyperson’ work as prescribed by clause 20.1 of the Award;
f)pay a pecuniary penalty for contravening s.45 of the FW Act by failing to pay the Applicant at the higher ‘Handyperson’ rate as prescribed by clause 25.1 of the Award;
g)pay a pecuniary penalty for contravening s.45 of the FW Act by paying the Applicant on a Friday as prohibited by clause 26.1 of the Award;
h)pay a pecuniary penalty for contravening s.45 of the FW Act by failing to make superannuation contributions on the Applicant’s behalf as mandated by clause 28.2 of the Award;
i)pay a pecuniary penalty for contravening s.45 of the FW Act by failing to prepare and display rosters as prescribed by clause 30.1 of the Award;
j)pay a pecuniary penalty for contravening s.45 of the FW Act by failing to pay the Applicant an additional leave loading of 17.5% as prescribed by clause 34.2 of the Award;
k)pay a pecuniary penalty for contravening s.323(1)(a) of the FW Act by failing to pay the Applicant in full for the work she performed;
l)pay a pecuniary penalty for contravening s.340(1)(a)(ii) of the FW Act by dismissing the Applicant because she made complaints or inquiries in relation to her employment;
m)pay a pecuniary penalty for contravening s.535(1) of the FW Act by failing to make and keep employee records for the Applicant;
n)pay a pecuniary penalty for contravening s.535(2) of the FW Act by failing to make and keep employee records for the Applicant in the form prescribed by subregulations 3.31 to 3.44 of the Regulations;
o)pay a pecuniary penalty for contravening s.536(1) of the FW Act by failing to provide pay slips to the Applicant; and
p)pay a pecuniary penalty for contravening s.536(2) of the FW Act by failing to provide pay slips to the Applicant in the form prescribed by subregulations 3.46(1)(a), 3.46(1)(d), 3.46(1)(h), 3.46(3)(a), 3.46(3)(b), 3.46(3)(c), 3.46(5)(a) and 3.46(5)(b) of the Regulations.
An order pursuant to s.546(1) of the FW Act that the First Respondent pay the above pecuniary penalties in the sums set out in the table at Schedule 3 to this Statement of Claim.
Payment of penalties – the First Respondent
An order pursuant to s.546(3) of the FW Act that the First Respondent:
a)pay the above pecuniary penalties in the sums set out in the table at Schedule 3 of this Statement of Claim to the Applicant; or
b)pay the above pecuniary penalties in the sums set out in the table at Schedule 3 of this Statement of Claim, partly to the Applicant and partly to Legal Aid Queensland; or
c)pay the above pecuniary penalties in the sums set out in the table at Schedule 3 of this Statement of Claim, to Legal Aid Queensland.
Pecuniary penalties - the Second Respondent
An order pursuant to s.546(1) of the FW Act that the Second Respondent:
a)pay a pecuniary penalty for contravening s.44(1) of the FW Act by failing to issue the Applicant a Fair Work Information Statement as prescribed by s.125(1) of the FW Act;
b)pay a pecuniary penalty for contravening s.44(1) of the FW Act by failing to pay the Applicant in lieu of notice as prescribed by s.117(2)(b) of the FW Act;
c)pay a pecuniary penalty for contravening s.45 of the FW Act by failing to provide access to the award and the National Employment Standards as prescribed by clause 5 of the Award;
d)pay a pecuniary penalty for contravening s.45 of the FW Act by directing the Applicant to work outside the limits of her competence as prohibited by clause 18 of the Award;
e)pay a pecuniary penalty for contravening s.45 of the FW Act by failing to pay the Applicant the minimum rate for ‘Handyperson’ work as prescribed by clause 20.1 of the Award;
f)pay a pecuniary penalty for contravening s.45 of the FW Act by failing to pay the Applicant at the higher ‘Handyperson’ rate as prescribed by clause 25.1 of the Award;
g)pay a pecuniary penalty for contravening s.45 of the FW Act by paying the Applicant on a Friday as prohibited by clause 26.1 of the Award;
h)pay a pecuniary penalty for contravening s.45 of the FW Act by failing to make superannuation contributions on the Applicant’s behalf as mandated by clause 28.2 of the Award;
i)pay a pecuniary penalty for contravening s.45 of the FW Act by failing to prepare and display rosters as prescribed by clause 30.1 of the Award;
j)pay a pecuniary penalty for contravening s.45 of the FW Act by failing to pay the Applicant an additional leave loading of 17.5% as prescribed by clause 34.2 of the Award;
k)pay a pecuniary penalty for contravening s.323(1)(a) of the FW Act by failing to pay the Applicant in full for the work she performed;
l)pay a pecuniary penalty for contravening s.340(1)(a)(ii) of the FW Act by dismissing the Applicant because she made complaints or inquiries in relation to her employment;
m)pay a pecuniary penalty for contravening s.535(1) of the FW Act by failing to make and keep employee records for the Applicant;
n)pay a pecuniary penalty for contravening s.535(2) of the FW Act by failing to make and keep employee records for the Applicant in the form prescribed by subregulations 3.31 to 3.44 of the Regulations;
o)pay a pecuniary penalty for contravening s.536(1) of the FW Act by failing to provide pay slips to the Applicant; and
p)pay a pecuniary penalty for contravening s.536(2) of the FW Act by failing to provide pay slips to the Applicant in the form prescribed by subregulations 3.46(1)(a), 3.46(1)(d), 3.46(1)(h), 3.46(3)(a), 3.46(3)(b), 3.46(3)(c), 3.46(5)(a) and 3.46(5)(b) of the Regulations.
An order pursuant to s.546(1) of the FW Act that the Second Respondent pay the above pecuniary penalties in the sums set out in the table at Schedule 4 to this Statement of Claim.
Payment of penalties – the Second Respondent
An order pursuant to s.546(3) of the FW Act that the Second Respondent:
d)pay the above pecuniary penalties in the sums set out in the table at Schedule 4 of this Statement of Claim to the Applicant; or
e)pay the above pecuniary penalties in the sums set out in the table at Schedule 4 of this Statement of Claim, partly to the Applicant and partly to Legal Aid Queensland; or
f)pay the above pecuniary penalties in the sums set out in the table at Schedule 4 of this Statement of Claim, to Legal Aid Queensland.
Pecuniary penalties - the Third Respondent
An order pursuant to s.546(1) of the FW Act that the Third Respondent:
a)pay a pecuniary penalty for contravening s.44(1) of the FW Act by failing to issue the Applicant a Fair Work Information Statement as prescribed by s.125(1) of the FW Act;
b)pay a pecuniary penalty for contravening s.44(1) of the FW Act by failing to pay the Applicant in lieu of notice as prescribed by s.117(2)(b) of the FW Act;
c)pay a pecuniary penalty for contravening s.45 of the FW Act by failing to provide access to the award and the National Employment Standards as prescribed by clause 5 of the Award;
d)pay a pecuniary penalty for contravening s.45 of the FW Act by directing the Applicant to work outside the limits of her competence as prohibited by clause 18 of the Award;
e)pay a pecuniary penalty for contravening s.45 of the FW Act by failing to pay the Applicant the minimum rate for ‘Handyperson’ work as prescribed by clause 20.1 of the Award;
f)pay a pecuniary penalty for contravening s.45 of the FW Act by failing to pay the Applicant at the higher ‘Handyperson’ rate as prescribed by clause 25.1 of the Award;
g)pay a pecuniary penalty for contravening s.45 of the FW Act by paying the Applicant on a Friday as prohibited by clause 26.1 of the Award;
h)pay a pecuniary penalty for contravening s.45 of the FW Act by failing to make superannuation contributions on the Applicant’s behalf as mandated by clause 28.2 of the Award;
i)pay a pecuniary penalty for contravening s.45 of the FW Act by failing to prepare and display rosters as prescribed by clause 30.1 of the Award;
j)pay a pecuniary penalty for contravening s.45 of the FW Act by failing to pay the Applicant an additional leave loading of 17.5% as prescribed by clause 34.2 of the Award;
k)pay a pecuniary penalty for contravening s.323(1)(a) of the FW Act by failing to pay the Applicant in full for the work she performed;
l)pay a pecuniary penalty for contravening s.340(1)(a)(ii) of the FW Act by dismissing the Applicant because she made complaints or inquiries in relation to her employment;
m)pay a pecuniary penalty for contravening s.535(1) of the FW Act by failing to make and keep employee records for the Applicant;
n)pay a pecuniary penalty for contravening s.535(2) of the FW Act by failing to make and keep employee records for the Applicant in the form prescribed by subregulations 3.31 to 3.44 of the Regulations;
o)pay a pecuniary penalty for contravening s.536(1) of the FW Act by failing to provide pay slips to the Applicant; and
p)pay a pecuniary penalty for contravening s.536(2) of the FW Act by failing to provide pay slips to the Applicant in the form prescribed by subregulations 3.46(1)(a), 3.46(1)(d), 3.46(1)(h), 3.46(3)(a), 3.46(3)(b), 3.46(3)(c), 3.46(5)(a) and 3.46(5)(b) of the Regulations.
An order pursuant to s.546(1) of the FW Act that the Third Respondent pay the above pecuniary penalties in the sums set out in the table at Schedule 5 to this Statement of Claim.
Payment of penalties – the Third Respondent
An order pursuant to s.546(3) of the FW Act that the Third Respondent:
a)pay the above pecuniary penalties in the sums set out in the table at Schedule 5 of this Statement of Claim to the Applicant; or
b)pay the above pecuniary penalties in the sums set out in the table at Schedule 5 of this Statement of Claim, partly to the Applicant and partly to Legal Aid Queensland; or
c)pay the above pecuniary penalties in the sums set out in the table at Schedule 5 of this Statement of Claim, to Legal Aid Queensland.
Pecuniary penalties - the Fourth Respondent
An order pursuant to s.546(1) of the FW Act that the Fourth Respondent:
a)pay a pecuniary penalty for contravening s.44(1) of the FW Act by failing to issue the Applicant a Fair Work Information Statement as prescribed by s.125(1) of the FW Act;
b)pay a pecuniary penalty for contravening s.44(1) of the FW Act by failing to pay the Applicant in lieu of notice as prescribed by s.117(2)(b) of the FW Act;
c)pay a pecuniary penalty for contravening s.45 of the FW Act by failing to provide access to the award and the National Employment Standards as prescribed by clause 5 of the Award;
d)pay a pecuniary penalty for contravening s.45 of the FW Act by directing the Applicant to work outside the limits of her competence as prohibited by clause 18 of the Award;
e)pay a pecuniary penalty for contravening s.45 of the FW Act by failing to pay the Applicant the minimum rate for ‘Handyperson’ work as prescribed by clause 20.1 of the Award;
f)pay a pecuniary penalty for contravening s.45 of the FW Act by failing to pay the Applicant at the higher ‘Handyperson’ rate as prescribed by clause 25.1 of the Award;
g)pay a pecuniary penalty for contravening s.45 of the FW Act by paying the Applicant on a Friday as prohibited by clause 26.1 of the Award;
h)pay a pecuniary penalty for contravening s.45 of the FW Act by failing to make superannuation contributions on the Applicant’s behalf as mandated by clause 28.2 of the Award;
i)pay a pecuniary penalty for contravening s.45 of the FW Act by failing to prepare and display rosters as prescribed by clause 30.1 of the Award;
j)pay a pecuniary penalty for contravening s.45 of the FW Act by failing to pay the Applicant an additional leave loading of 17.5% as prescribed by clause 34.2 of the Award;
k)pay a pecuniary penalty for contravening s.323(1)(a) of the FW Act by failing to pay the Applicant in full for the work she performed;
l)pay a pecuniary penalty for contravening s.340(1)(a)(ii) of the FW Act by dismissing the Applicant because she made complaints or inquiries in relation to her employment;
m)pay a pecuniary penalty for contravening s.535(1) of the FW Act by failing to make and keep employee records for the Applicant;
n)pay a pecuniary penalty for contravening s.535(2) of the FW Act by failing to make and keep employee records for the Applicant in the form prescribed by subregulations 3.31 to 3.44 of the Regulations;
o)pay a pecuniary penalty for contravening s.536(1) of the FW Act by failing to provide pay slips to the Applicant; and
p)pay a pecuniary penalty for contravening s.536(2) of the FW Act by failing to provide pay slips to the Applicant in the form prescribed by subregulations 3.46(1)(a), 3.46(1)(d), 3.46(1)(h), 3.46(3)(a), 3.46(3)(b), 3.46(3)(c), 3.46(5)(a) and 3.46(5)(b) of the Regulations.
An order pursuant to s.546(1) of the FW Act that the Fourth Respondent pay the above pecuniary penalties in the sums set out in the table at Schedule 6 to this Statement of Claim.
Payment of penalties – the Fourth Respondent
An order pursuant to s.546(3) of the FW Act that the Fourth Respondent:
a)pay the above pecuniary penalties in the sums set out in the table at Schedule 6 of this Statement of Claim to the Applicant; or
b)pay the above pecuniary penalties in the sums set out in the table at Schedule 6 of this Statement of Claim, partly to the Applicant and partly to Legal Aid Queensland; or
c)pay the above pecuniary penalties in the sums set out in the table at Schedule 6 of this Statement of Claim, to Legal Aid Queensland.
Pecuniary penalties - the Fifth Respondent
An order pursuant to s.546(1) of the FW Act that the Fifth Respondent:
a)pay a pecuniary penalty for contravening s.44(1) of the FW Act by failing to issue the Applicant a Fair Work Information Statement as prescribed by s.125(1) of the FW Act;
b)pay a pecuniary penalty for contravening s.44(1) of the FW Act by failing to pay the Applicant in lieu of notice as prescribed by s.117(2)(b) of the FW Act;
c)pay a pecuniary penalty for contravening s.45 of the FW Act by failing to provide access to the award and the National Employment Standards as prescribed by clause 5 of the Award;
d)pay a pecuniary penalty for contravening s.45 of the FW Act by directing the Applicant to work outside the limits of her competence as prohibited by clause 18 of the Award;
e)pay a pecuniary penalty for contravening s.45 of the FW Act by failing to pay the Applicant the minimum rate for ‘Handyperson’ work as prescribed by clause 20.1 of the Award;
f)pay a pecuniary penalty for contravening s.45 of the FW Act by failing to pay the Applicant at the higher ‘Handyperson’ rate as prescribed by clause 25.1 of the Award;
g)pay a pecuniary penalty for contravening s.45 of the FW Act by paying the Applicant on a Friday as prohibited by clause 26.1 of the Award;
h)pay a pecuniary penalty for contravening s.45 of the FW Act by failing to make superannuation contributions on the Applicant’s behalf as mandated by clause 28.2 of the Award;
i)pay a pecuniary penalty for contravening s.45 of the FW Act by failing to prepare and display rosters as prescribed by clause 30.1 of the Award;
j)pay a pecuniary penalty for contravening s.45 of the FW Act by failing to pay the Applicant an additional leave loading of 17.5% as prescribed by clause 34.2 of the Award;
k)pay a pecuniary penalty for contravening s.323(1)(a) of the FW Act by failing to pay the Applicant in full for the work she performed;
l)pay a pecuniary penalty for contravening s.340(1)(a)(ii) of the FW Act by dismissing the Applicant because she made complaints or inquiries in relation to her employment;
m)pay a pecuniary penalty for contravening s.535(1) of the FW Act by failing to make and keep employee records for the Applicant;
n)pay a pecuniary penalty for contravening s.535(2) of the FW Act by failing to make and keep employee records for the Applicant in the form prescribed by subregulations 3.31 to 3.44 of the Regulations;
o)pay a pecuniary penalty for contravening s.536(1) of the FW Act by failing to provide pay slips to the Applicant; and
p)pay a pecuniary penalty for contravening s.536(2) of the FW Act by failing to provide pay slips to the Applicant in the form prescribed by subregulations 3.46(1)(a), 3.46(1)(d), 3.46(1)(h), 3.46(3)(a), 3.46(3)(b), 3.46(3)(c), 3.46(5)(a) and 3.46(5)(b) of the Regulations.

An order pursuant to s.546(1) of the FW Act that the Fifth Respondent pay the above pecuniary penalties in the sums set out in the table at Schedule 7 to this Statement of Claim.
Payment of penalties – the Fifth Respondent
An order pursuant to s.546(3) of the FW Act that the Fifth Respondent:
a)pay the above pecuniary penalties in the sums set out in the table at Schedule 7 of this Statement of Claim to the Applicant; or
b)pay the above pecuniary penalties in the sums set out in the table at Schedule 7 of this Statement of Claim, partly to the Applicant and partly to Legal Aid Queensland; or
c)pay the above pecuniary penalties in the sums set out in the table at Schedule 7 of this Statement of Claim, to Legal Aid Queensland.
Compensation
Pursuant to ss.545(1), 545(2)(b) and 547(2) of the FW Act an order that the First, Second, Third and Fourth Respondents are jointly and severally liable to pay the Applicant compensation for lost earnings at the correct rate of pay comprising:
a)$3,631.30 for the period 27 November 2017 to 20 February 2018 being back pay; and
b)$14,266.20 for the period 20 February 2018 to 21 August 2018 being 26 weeks lost earnings since dismissal;
c)$20,000.00 for hurt and humiliation; and
d)Interest on the above sums up to judgment.
Other orders
An order pursuant to ss.545(1) that the First, Second, Third, Fourth and Fifth Respondent provide existing employees of the First Respondent and Hospitality with:
a)A copy of the judgment in this matter;
b)A copy of the Fair Work Information Statement; and
c)A copy of the Award.
Legal Aid Queensland
15 June 2018

SCHEDULE 1

SCHEDULE 2
Underpayment Calculations

Assumptions

Commencement of Employment

Date of dismissal

Length of service

Applicant’s age at 20 February 2018

Relevant industrial instrument

Type of Employment

Classification level

Underpayment

Pay Rates

Weekly hours of work

Actual weekly rate

Actual hourly rate

Correct hourly rate

Correct weekly rate

Actual total pay during employment

Correct total pay during employment

Underpayment

Plus

Unpaid notice pay

Unpaid annual leave entitlements

Subtotal

Unpaid superannuation on correct earnings

Total underpayment

27 November 2017

20 February 2018

12 weeks and 2 days

Hospitality (General) Award 2010

Permanent part-time

Introductory

Permanent part-time

30[7]

$500.00

$16.66 ($500 / 30 hours)

$18.29

$548.70 (30 hours x $18.29)

$4,585.00

$6,310.05 ($548.70 x 9 weeks + 3 wks x 25 hrs x $18.29)[8]

$1,725.05 ($6,310.05 - $4,585.00)

$548.70 (30 hours x $18.29)

$644.72 (30 hours x $18.29 + 17.5% loading)

$2,918.47

$712.83 (9.5% x $6,310.05 + $548.70 + $644.72)

$3,631.30 ($1,725.05 + $712.83)

[7] Hours calculated as an average based on available evidence.

[8] Contract stated 27 November 2017 and minimum of 25 hours would be provided per week. Applicant not provided work until 18 December 2018.

SCHEDULE 3
Pecuniary Penalties - First Respondent

Provision	Description	Maximum penalty	Penalty sought
NES
s.90(2)	Payment for annual leave	$63,000.00	$31,500.00 (50%)
s.117(2)	Notice pay	$63,000.00	$31,500.00 (50%)
s.125(1)	Fair Work Information Statement	$63,000.00	$31,500.00 (50%)
Subtotals		$189,000.00	$94,500.00
FW Act
s.323 (1)	Pay employee in full	$63,000.00	$31,500.00 (50%)
s.340(1)(a)(ii)	Dismissal because of complaints	$63,000.00	$31,500.00 (50%)
s.351(1)	Disability adverse action (Dismissal)	$63,000.00	$31,500.00 (50%)
s.351(1)	Disability adverse action (non-dismissal)	$63,000.00	$31,500.00 (50%)
s.535(1)	Failure to keep employee records	$63,000.00	$15,750.00 (25%)
s.535(2)	Inadequate information in records	$63,000.00	$15,750.00 (25%)
s.536(1)	Pay slips - failure to provide	$63,000.00	$15,750.00 (25%)
s.536(2)	Pay slips – improper form	$63,000.00	$15,750.00 (25%)
Subtotals		$378,000.00	$188,800.00
Award
Cl. 5.	Access to the award and the NES	$63,000.00	$15,750.00 (25%)
Cl. 18	Work organisation	$63,000.00	$15,750.00 (25%)
Cl. 20.1	Paid according to classification	$63,000.00	$15,750.00 (25%)
Cl. 25.1	Higher duties	$63,000.00	$15,750.00 (25%)
Cl. 26.1	Payment of wages	$63,000.00	$31,500.00 (50%)
Cl. 28.2	Superannuation contributions	$63,000.00	$31,500.00 (50%)
Cl. 30	Rostering	$63,000.00	$15,750.00 (25%)
Cl.34.2	Annual leave loading	$63,000.00	$31,500.00 (50%)
Subtotal		$544,000.00	$173,250.00
Total(s)		$	$456,550.00

SCHEDULE 4
Pecuniary Penalties - Second Respondent

Provision	Description	Maximum penalty	Penalty sought
NES
s.90(2)	Payment for annual leave	$12,600.00	$6,300.00 (50%)
s.117(2)	Notice pay	$12,600.00	$6,300.00 (50%)
s.125(1)	Fair Work Information Statement	$12,600.00	$6,300.00 (50%)
Subtotals		$37,800.00	$18,900.00
FW Act
s.323 (1)	Pay employee in full	$12,600.00	$6,300.00 (50%)
s.340(1)(a)(ii)	Dismissal because of complaints	$12,600.00	$6,300.00 (50%)
s.351(1)	Disability adverse action (Dismissal)	$12,600.00	$6,300.00 (50%)
s.351(1)	Disability adverse action (non-dismissal)	$12,600.00	$6,300.00 (50%)
s.535(1)	Failure to keep employee records	$12,600.00	$3,150.00 (25%)
s.535(2)	Inadequate information in records	$12,600.00	$3,150.00 (25%)
s.536(1)	Pay slips - failure to provide	$12,600.00	$3,150.00 (25%)
s.536(2)	Pay slips – improper form	$12,600.00	$3,150.00 (25%)
Subtotals		$100,800.00	$37,800.00
Award
Cl. 5.	Access to the award and the NES	$12,600.00	$3,150.00 (25%)
Cl. 18	Work organisation	$12,600.00	$3,150.00 (25%)
Cl. 20.1	Paid according to classification	$12,600.00	$3,150.00 (25%)
Cl. 25.1	Higher duties	$12,600.00	$3,150.00 (25%)
Cl. 26.1	Payment of wages	$12,600.00	$6,300.00 (50%)
Cl. 28.2	Superannuation contributions	$12,600.00	$6,300.00 (50%)
Cl. 30	Rostering	$12,600.00	$3,150.00 (25%)
Cl.34.2	Annual leave loading	$12,600.00	$6,300.00 (50%)
Subtotal		$100,800.00	$34,650.00
Total(s)		$	$91,350.00

SCHEDULE 5
Pecuniary Penalties - Third Respondent

Provision	Description	Maximum penalty	Penalty sought
NES
s.90(2)	Payment for annual leave	$12,600.00	$6,300.00 (50%)
s.117(2)	Notice pay	$12,600.00	$6,300.00 (50%)
s.125(1)	Fair Work Information Statement	$12,600.00	$6,300.00 (50%)
Subtotals		$37,800.00	$18,900.00
FW Act
s.323 (1)	Pay employee in full	$12,600.00	$6,300.00 (50%)
s.340(1)(a)(ii)	Dismissal because of complaints	$12,600.00	$6,300.00 (50%)
s.351(1)	Disability adverse action (Dismissal)	$12,600.00	$6,300.00 (50%)
s.351(1)	Disability adverse action (non-dismissal)	$12,600.00	$6,300.00 (50%)
s.535(1)	Failure to keep employee records	$12,600.00	$3,150.00 (25%)
s.535(2)	Inadequate information in records	$12,600.00	$3,150.00 (25%)
s.536(1)	Pay slips - failure to provide	$12,600.00	$3,150.00 (25%)
s.536(2)	Pay slips – improper form	$12,600.00	$3,150.00 (25%)
Subtotals		$100,800.00	$37,800.00
Award
Cl. 5.	Access to the award and the NES	$12,600.00	$3,150.00 (25%)
Cl. 18	Work organisation	$12,600.00	$3,150.00 (25%)
Cl. 20.1	Paid according to classification	$12,600.00	$3,150.00 (25%)
Cl. 25.1	Higher duties	$12,600.00	$3,150.00 (25%)
Cl. 26.1	Payment of wages	$12,600.00	$6,300.00 (50%)
Cl. 28.2	Superannuation contributions	$12,600.00	$6,300.00 (50%)
Cl. 30	Rostering	$12,600.00	$3,150.00 (25%)
Cl.34.2	Annual leave loading	$12,600.00	$6,300.00 (50%)
Subtotal		$100,800.00	$34,650.00
Total(s)		$	$91,350.00

SCHEDULE 6
Pecuniary Penalties - Fourth Respondent

Provision	Description	Maximum penalty	Penalty sought
NES
s.90(2)	Payment for annual leave	$12,600.00	$6,300.00 (50%)
s.117(2)	Notice pay	$12,600.00	$6,300.00 (50%)
s.125(1)	Fair Work Information Statement	$12,600.00	$6,300.00 (50%)
Subtotals		$37,800.00	$18,900.00
FW Act
s.323 (1)	Pay employee in full	$12,600.00	$6,300.00 (50%)
s.340(1)(a)(ii)	Dismissal because of complaints	$12,600.00	$6,300.00 (50%)
s.351(1)	Disability adverse action (Dismissal)	$12,600.00	$6,300.00 (50%)
s.351(1)	Disability adverse action (non-dismissal)	$12,600.00	$6,300.00 (50%)
s.535(1)	Failure to keep employee records	$12,600.00	$3,150.00 (25%)
s.535(2)	Inadequate information in records	$12,600.00	$3,150.00 (25%)
s.536(1)	Pay slips - failure to provide	$12,600.00	$3,150.00 (25%)
s.536(2)	Pay slips – improper form	$12,600.00	$3,150.00 (25%)
Subtotals		$100,800.00	$37,800.00
Award
Cl. 5.	Access to the award and the NES	$12,600.00	$3,150.00 (25%)
Cl. 18	Work organisation	$12,600.00	$3,150.00 (25%)
Cl. 20.1	Paid according to classification	$12,600.00	$3,150.00 (25%)
Cl. 25.1	Higher duties	$12,600.00	$3,150.00 (25%)
Cl. 26.1	Payment of wages	$12,600.00	$6,300.00 (50%)
Cl. 28.2	Superannuation contributions	$12,600.00	$6,300.00 (50%)
Cl. 30	Rostering	$12,600.00	$3,150.00 (25%)
Cl.34.2	Annual leave loading	$12,600.00	$6,300.00 (50%)
Subtotal		$100,800.00	$34,650.00
Total(s)		$	$91,350.00

SCHEDULE 7
Pecuniary Penalties - Fifth Respondent

Provision	Description	Maximum penalty	Penalty sought
NES
s.90(2)	Payment for annual leave	$12,600.00	$6,300.00 (50%)
s.117(2)	Notice pay	$12,600.00	$6,300.00 (50%)
s.125(1)	Fair Work Information Statement	$12,600.00	$6,300.00 (50%)
Subtotals		$37,800.00	$18,900.00
FW Act
s.323 (1)	Pay employee in full	$12,600.00	$6,300.00 (50%)
s.340(1)(a)(ii)	Dismissal because of complaints	$12,600.00	$6,300.00 (50%)
s.351(1)	Disability adverse action (Dismissal)	$12,600.00	$6,300.00 (50%)
s.351(1)	Disability adverse action (non-dismissal)	$12,600.00	$6,300.00 (50%)
s.535(1)	Failure to keep employee records	$12,600.00	$3,150.00 (25%)
s.535(2)	Inadequate information in records	$12,600.00	$3,150.00 (25%)
s.536(1)	Pay slips - failure to provide	$12,600.00	$3,150.00 (25%)
s.536(2)	Pay slips – improper form	$12,600.00	$3,150.00 (25%)
Subtotals		$100,800.00	$37,800.00
Award
Cl. 5.	Access to the award and the NES	$12,600.00	$3,150.00 (25%)
Cl. 18	Work organisation	$12,600.00	$3,150.00 (25%)
Cl. 20.1	Paid according to classification	$12,600.00	$3,150.00 (25%)
Cl. 25.1	Higher duties	$12,600.00	$3,150.00 (25%)
Cl. 26.1	Payment of wages	$12,600.00	$6,300.00 (50%)
Cl. 28.2	Superannuation contributions	$12,600.00	$6,300.00 (50%)
Cl. 30	Rostering	$12,600.00	$3,150.00 (25%)
Cl.34.2	Annual leave loading	$12,600.00	$6,300.00 (50%)
Subtotal		$100,800.00	$34,650.00
Total(s)		$	$91,350.00

First Respondent	$70, 875.00
Second Respondent	$14, 175.00
Third Respondent	$14, 175.00
Fifth Respondent	$14, 175.00

Clause	Description	Contravention
5	Access to the award and the National Employment Standards	The First Respondent did not make copies of the award and the NES available
18	Work organisation	The First Respondent directed the Applicant to work outside the limits of her competence
20.1	Minimum wages	The First Respondent failed to pay the Applicant the minimum rate for ‘Handyperson’ work
25.1	Higher duties	The First Respondent failed to pay the Applicant at the higher ‘Handyperson’ rate
26.1	Payment of wages	The First Respondent paid the Applicant’s wages in cash on a Friday
28.2	Superannuation contributions	The First Respondent failed to make superannuation contributions on the Applicant’s behalf
30.1	Rostering	The First Respondent failed to prepare rosters
34.2	Payment for annual leave (loading)	The First Respondent failed to pay the Applicant an additional leave loading of 17.5%