Fair Work Ombudsman v 3 Rundle Mall Pty Ltd
[2022] FedCFamC2G 354
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Fair Work Ombudsman v 3 Rundle Mall Pty Ltd [2022] FedCFamC2G 354
File number(s): ADG 166 of 2020 Judgment of: JUDGE BROWN Date of judgment: 13 May 2022 Catchwords: INDUSTRIAL LAW – fair work – underpayment of employees – penalty hearing – failure to comply with compliance notices – failure to provide pay slips – where respondent admits to charges against them – first time offender – primacy of issues relating to general deterrence – calculation of penalty Legislation: Crimes Act 1912 (Cth).
Evidence Act 1995 (Cth) s 191.
Fair Work Act 2009 (Cth) ss 3, 536, 539, 550, 557, 681, 682, 701, 706, 712, 716, 717.
Cases cited: ACCC v Energy Watch Pty Ltd (In Liquidation) [2012] FCA 749.
Australian Building and Construction Commissioner v Pattinson [2022] HCA 13.
Australian Ophthalmic Supplies Pty Ltd v McAlary-Smith [2008] FCAFC 8.
Blandy v Coverdale NT Pty Ltd [2008] FCA 1533.
Fair Work Ombudsman v Corporation Sun Pty Ltd [2020] FCCA 2849 .
Fair Work Ombudsman v Darna Pty Ltd [2015] FCCA 709.
Fair Work Ombudsman v Devine Marine Group Pty Ltd [2014] FCA 1365.
Fair Work Ombudsman v Lifestyle SA Pty Ltd [2014] FCA 1151.
Fair Work Ombudsman v Maclean Bay Pty Ltd (No 2) [2012] FCA 557.
Fair Work Ombudsman v Matcraft Pty Ltd & Ors [2021] FCCA 272.
Fair Work Ombudsman v Trek North Tours & Anor (No 2) [2015] FCCA 1801.
Fair Work Ombudsman v Yogurberry World Square [2016] FCA 1290.
FWO v Taj Palace Tandoori Indian Restaurant Pty Ltd & Anor [2012] FMCA 258.
Kelly v Fitzpatrick [2007] FCA 1080.
Mason v Harrington Corporation Pty Ltd [2007] FMCA 7.
Minister for Immigration & Citizenship v Li (2013) 249 CLR 332.
Mornington Inn v Jordon [2008] FCAFC 70.
Ponzio v B & P Caelli Constructions Pty Ltd [2007] FCAFC 65.
Rajagopalan v BM Sydney Building Materials Pty Ltd [2007] FMCA 1412.
Veen v R (No 2) (1988) 164 CLR 465.
Division: Division 2 General Federal Law Number of paragraphs: 123 Date of hearing: 29 April 2022 Place: Adelaide Counsel for the Applicant: Ms Walker Solicitor for the Applicant: Office of the Fair Work Ombudsman Solicitor for the First Respondent: No appearance Solicitor for the Second Respondent: No appearance Solicitor for the Third Respondent: ANB Lawyers ORDERS
ADG 166 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: FAIR WORK OMBUDSMAN
Applicant
AND:
AND:
AND:
3 RUNDLE MALL PTY LTD
First Respondent
132 GRENFELL STREET CONVENIENCE PTY LTD
Second Respondent
ETHAN OKILI
Third Respondent
ORDER MADE BY:
JUDGE BROWN
DATE OF ORDER:
13 MAY 2022
THE COURT DECLARES THAT:
1.The first respondent 3 Rundle Mall Pty Ltd contravened the following provisions of the Fair Work Act (Cth) (hereinafter referred to as “the Act”):
(a)Section 716(5) by failing to comply with a Compliance Notice issued on 18 October 2019 in relation to the employment of Mr Zubair Shamsheer First 3 Rundle Mall CN;
(b)Section 716(5) by failing to comply with a Compliance Notice issued on 18 October 2019 in relation to the employment of six ‘sample’ employees Second 3 Rundle Mall CN; and
(c)Section 536(1) by failing to provide pay slips to Mr Shamsheer.
2.The second respondent 132 Grenfell St Convenience Pty Ltd contravened the following provisions of the FW Act:
(a)Section 716(5) by failing to comply with a Compliance Notice issued on 18 October 2019 in relation to the employment of Mr Shamsheer; and
(b)Section 536(1) by failing to provide pay slips to Mr Shamsheer.
3.The third respondent Ethan Okili was involved, within the meaning of section 550(2) of the Act, in each of the contraventions of 3 Rundle Mall Pty Ltd in paragraph 1 above.
4.The third respondent, Ethan Okili was involved, within the meaning of section 550(2) of the Act, in each of the contraventions of 132 Grenfell St Convenience Pty Ltd in paragraph 2 above.
THE COURT ORDERS THAT:
5.Pursuant to section 545(2)(b) of the Act the third respondent, take the steps that were required by the Compliance Notice within twenty eight (28) days of this order, by:
(a)Paying to the applicant the sum of FIFTEEN THOUSAND AND TWO HUNDRED AND TWENTY DOLLARS AND SEVENTY ONE CENTS ($15,220.71) for the outstanding entitlements the respondents were required to pay Mr Zubair Shamsheer.
6.The applicant distribute to Mr Shamsheer the amount paid to the applicant pursuant to paragraph 7(a) above within ninety (90) days of the payment being made by the third respondent.
7.The third respondent pay a total penalty of SIXTEEN THOUSAND AND THIRTY NINE DOLLARS AND EIGHT CENTS ($16,039.80) pursuant to section 546(1) of the Act for his involvement in the contraventions set out in order (3) and (4) above.
8.Pursuant to section 546(3) of the Act, the pecuniary penalty ordered to be paid by the third respondent in order (7) above is paid to the Commonwealth within twenty eight (28) days of the date of this order.
9.The applicant has liberty to apply.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE BROWN:
INTRODUCTION
The Fair Work Ombudsman[1] commenced these proceedings against 3 Rundle Mall Pty Ltd; 132 Grenfell Street Convenience Pty Ltd; and Ethan Okili; on 5 May 2020. The proceedings are instituted pursuant to the provisions of the Fair Work Act 2009 (Cth).[2]
[1] Hereinafter referred to as “the FWO” or “the Ombudsman”.
[2] Hereinafter referred to as “the FWA” or “the Act”.
3 Rundle Mall and 132 Grenfell Street Convenience operate convenience stores at the addresses contained in their formal corporate identities. Mr Okili was the sole director and secretary of each of these corporations. In the case of 3 Rundle Mall, from 26 August 2016; and in the case of 132 Grenfell Street Convenience, from 12 May 2017.
Each of the companies concerned employed staff to sell goods and maintain stock and displays at the relevant premises concerned. These employees were entitled to be paid wages and to work to conditions stipulated in the Retail Industry Award 2010.[3]
[3] Hereinafter referred to as “the Award”.
Amongst other things, the Award provided a casual minimum wage; allowances for overtime; loadings for Sunday and public holiday hours; as well as other loadings relating to the casual nature of the employment and the hours worked.
In July of 2019, the Ombudsman directed a Fair Work Inspector, Ms Kristen Walsh to conduct an investigation into the compliance of 3 Rundle Mall and 132 Grenfell Street Convenience with the provisions of the Award, insofar as the staff of each company were concerned. Ms Walsh was assisted by another officer, from the FWO, Ms Natalie May.
On 18 October 2019, Ms Walsh issued a Compliance Notice directed to 3 Rundle Mall in which it alleged that the company had failed to pay one of its employees, Zubair Shamsheer, ten aspects of his entitlements, under the Award, for the period between 2 November 2018 and 21 July 2019.
On the same date, Ms Walsh issued a further Compliance Notice, again to 3 Rundle Mall, alleging that it had failed to pay five employees, known only by their given names of Fahad, Jas, Abbas, Shezan, and Toseef seven aspects of their entitlements, under the Award, for the period between 19 June 2019 and 21 August 2019.
On 18 October 2019, Ms Walsh issued a further Compliance Notice to 132 Grenfell Street Convenience alleging that it had failed to pay Mr Shamsheer a loading on his casual minimum wage, to which he was entitled under the Award, between 12 February 2019 and 5 March 2019.
In each case, the Compliance Notice was also directed to Mr Okili, as the director of each of the companies at the relevant time and therefore their human point of contact. Accordingly there are three relevant Compliance Notices. Although two of the Notices refer to the same employee, Mr Shamsheer, the Award irregularities in question relate to two different employers.
In general terms, the relevant Compliance Notices required each of the companies concerned to undertake three discrete steps:
·Firstly, calculate the amount of underpayment involved, in respect of each nominated breach of the Award and forward the respective sums, so calculated, to each of the employees concerned no later than 22 November 2019;
·Secondly, each company was required to pay any superannuation contributions relevant to the calculated underpayments by the due date; and
·Thirdly each company was required to provide written proof to the FWO that compliance with each of the Compliance Notices had been satisfied no later than 29 November 2019.
It is the Ombudsman’s position that neither company complied with the Compliance Notice(s) relevant to it. In these circumstances, the FWO commenced proceedings against each of the companies and Mr Okili on 5 May 2020.
In addition to alleging three failures to comply with a Notice issued pursuant to the provisions of section 716 of the Act, the relevant Statement of Claim also alleges that both 3 Rundle Mall and 132 Grenfell Street Convenience failed to provide Mr Shamsheer with payslips for the period between 2 November 2018 and 21 July 2019 and 12 February 2019 to 5 March 2019 respectively in contravention of the provisions of section 536(1) of the FWA.
It is the position of the FWO that Mr Okili bears accessorial liability for the omissions of each of the companies concerned, given that he was their sole director and shareholder and was involved in each contravention concerned pursuant to the principles contained in section 550(2) of the FWA.
The case came into court, for the first time, on 4 August 2020. On this occasion, the court was informed that each of the companies concerned had been placed into liquidation and therefore no further action could be taken against either of them without the court’s leave. At this stage, it was apparent that no useful purpose could be served by such leave being obtained.
In all these circumstances, the FWO elected to proceed against Mr Okili alone in respect of five contraventions arising under the provisions of the FWA, which can be summarised as being three counts of failing to comply with a Compliance Notice issued under section 716 and two counts of failing to provide payslips in contravention of section 536(1).
Each of these contraventions is characterised as a civil remedy provision, which pursuant to the provisions of section 539(2) of the Act, in the case of a failure to comply with a Compliance Notice, attracts a maximum penalty of 30 penalty units and in the case of the failure to provide payslips attracts a maximum penalty of 60 penalty units.
At relevant times, a penalty unit was $210.00.[4] Accordingly, the maximum penalty applicable to Mr Okili, in total, is one of $44,100.00. In general terms, the Ombudsman seeks the imposition of a penalty of between 45% and 55% of the maximum available for four of the charges and between 20% and 30% for one of the payslip matters.
[4] See Crimes Act 1912 (Cth).
In dollar terms, if this basis was to be adopted, the total penalty would be one of between $19,404.000 and $22,932.00.[5] The FWO would propose a further discount on these totals, when aggregated of around 5%, bringing the range to between $18,433.00 and $21,785.00.
[5] See Annexure B to the FWO’s Submissions on Penalty filed 13 August 2022.
It is the submission of Mr Ajaje, solicitor for Mr Okili that his client has been cooperative with the Ombudsman’s processes and there are significant extenuating circumstances arising in the case and, as such, the court needs to be cautious not to impose a penalty which is crushing upon Mr Okili.
On 4 August 2020, Mr Okili was ordered to file a Response and Defence to the Ombudsman’s claim by 11 September 2020. He did so on 22 September 2020 in which he denied personal responsibility for determining the wages and conditions of employment for either of the companies’ employees or ensuring that they complies with their legal obligations under the FWA.[6] In effect, Mr Okili asserted that as he was living in Sydney, at relevant times, another person employed by him, as a manager, was responsible for all tasks relating to the payroll and employment of staff at both the convenience stores.
[6] See Defence at [5].
In respect of the payslip allegations, Mr Okili did not formally admit the failure to provide Mr Shamsheer with payslips but indicated that upon further enquiry, with the relevant manager, he understood that this may be the case. In this context, the FWO alleges that Mr Shamsheer was paid at the conclusion of each of his shifts and was never provided with a payslip.
Mr Okili has subsequently deposed that he was not able to access wage records to conduct the relevant calculations required to comply with each of the three Compliance Notices in question. It is his case that he was locked out of each of the premises of the stores concerned, by their respective landlords, due to a failure to pay the rent. Nonetheless, he engaged an accountant to assist him with what was required but to no avail.[7]
[7] See Affidavit of Ethan Okili filed 19 April 2022 at [35]-[37].
On 27 October 2020 the parties agreed to attend a mediation. As a consequence of this, the parties were able to agree that there would be not contest as to whether the various infringements of the Act, as alleged, had in fact occurred and the only issue requiring the court’s adjudication would be the appropriate penalty to be imposed. In these circumstances, the parties were directed to file a statement of agreed facts on or before 21 June 2021.
The statement of agreed facts was filed on 30 June 2021. Pursuant to section 191 of the Evidence Act 1995 (Cth) the matters agreed to in this document are taken not to be in dispute. As such, they form the evidentiary basis for the court’s necessary findings in the case.
In support of its submissions regarding the appropriate penalties to be imposed, the Ombudsman relies on an affidavit of Ms May filed on 2 July 2021. Mr Okili has filed an affidavit on 19 April 2022 in which he has provided details of his own personal and financial circumstances and listed the matters which he has asserted mitigate the seriousness of his conduct.
THE RELEVANT LEGISLATIVE PROVISIONS
The objects of the FWA are contained in section 3. They include the provision of an industrial safety net, for Australian employees, which is maintained through the enforcement of a system of minimum terms and conditions specified in the modern award system.
The Office of the Fair Work Ombudsman is created by section 681 of the FWA. One of the functions of the Ombudsman under section 682 of the FWA is to enforce compliance with the Act, including any workplace obligations residing on employers, as a consequence of relevant industrial awards, mandating rates of pay and conditions of employment.
In turn, the FWO may appoint Fair Work Inspectors, who are authorised to utilise what are characterised as compliance powers.[8] In general terms, inspectors are directed to investigate complaints in respect of breaches of the industrial law and are authorised to enter workplaces and determine whether an employer has contravened the law, including in respect of the application of any relevant modern award or otherwise failed to comply with the industrial safety net.
[8] See Fair Work Act 2009 (Cth) s 706.
In addition, the FWO has a responsibility to educate, advise and assist, both employers and employees, in respect of their respective obligations, arising under the Act and, if necessary, commence proceedings, in appropriate courts, to enforce the provisions of the FWA.
Pursuant to section 701 of the Act, the FWO is also a Fair Work Inspector. The FWA empowers the Ombudsman to delegate its statutory responsibilities to Fair Work Inspectors. The Act confers upon such inspectors a number of powers in order to ensure compliance with provisions of the Act. Among other things, inspectors can enter the work place and require the production of employee records.[9] Evidence has been provided that both Ms May and Ms Walsh, at relevant times, held the office of Fair Work Inspector under the Act.
[9] See Fair Work Act 2009 (Cth) s 712(1).
In addition, the FWO, as a consequence of its status as a Fair Work Inspector, has statutory authority to bring proceedings under the Act and seek the imposition of penalties, if breaches of the FWA are established.[10]
[10] See Fair Work Act 2009 (Cth) s 539(2).
Section 716 of the Act provides that, if an inspector believes, on reasonable grounds, that a person has contravened a term of a modern award, the inspector concerned may issue that person with a ‘Compliance Notice’ requiring the person nominated to take action to remedy the contravention in question.
Pursuant to the applicable legislation, any Compliance Notice must provide particulars of the contraventions of the Act alleged and outline any rights of review that arise under the Act. There is no issue in the present case other than that the Compliance Notice in question complies with the provisions contained in sections 716(2) and 716(3) of the FWA.
Sections 716(1) and 716(2) of the Act delineates the criteria, which must be satisfied before an inspector may issue a Compliance Notice. Firstly, the power itself is a discretionary one and like all administrative decisions must be exercised reasonably.
Whether a discretion, conferred by statute, is exercised in a legally reasonably manner, it must be determined by reference to the statute itself, particularly its ‘subject-matter, scope and purpose’.[11] In this particular case, as indicated above, one of the purposes of the FWO is to provide an industrial safety net, for workers, so far as the application of industrial awards is concerned, as well as to educate employers in regard to their industrial responsibilities.
[11] See Minister for Immigration & Citizenship v Li (2013) 249 CLR 332, 370-1 [90] (Gageler J).
Secondly, the discretion may be exercised only once a reasonable belief is formed by the relevant inspector. The discretion must be exercised appropriately and not in an arbitrary, illogical or capricious manner.
The exercise of the relevant discretion cannot be disproportionate to the issue raised. To be exercised reasonably, it must be possible to glean from the relevant decision record ‘an evident and intelligible justification’ for the pertinent decision.[12]
[12] See Minister for Immigration & Citizenship v Li (2013) 249 CLR 332, 370-1 367 [76] (Hayne, Kiefel & Bell JJ).
Section 717 of the Act entitles the recipient of a compliance notice to apply to the court to seek review on the basis that such a person has either not committed the alleged contravention or the notice itself does not comply with the applicable legislation. No such review has been sought in the present matter.
It is Mr Okili’s evidence that when he received the relevant compliance notices, he did not have the records available to him to enable him to do the calculation required of him. It being his case that he lived in Sydney and relied on his manager in Adelaide to deal with employment issues at both the convenience stores in question.
In this context, Ms May has deposed that she received an email from Mr Ajaje on 24 October 2019 requesting copies of the various wages records that she and Ms Walsh had accessed during the site visits to both 3 Rundle Mall and 132 Grenfell Street Convenience.
On 29 October 2019 Ms May forwarded to Mr Ajaje images of the shift reports obtained for 3 Rundle Mall, which showed the hours and days worked by six sample employees and Mr Shamsheer and shift reports in respect of Mr Shamsheer only at both locations.[13]
[13] See Exhibit B.
These were apparently captured on a mobile telephone. They are not particularly easy to decipher but show some hand written calculations referencing hours and cash payments, as well as other payments apparently referable to cigarettes.
In addition, Ms May provided Mr Ajaje with details of Mr Shamsheer’s bank account so his underpayment could be rectified. No such details could be provided in respect of the six sample employees for obvious reasons.
It is an agreed fact that there was no compliance with the relevant notice prior to the stipulated date and Mr Shamsheer remains unpaid. After the due date for compliance had passed, the FWO granted an informal extension to the companies concerned to attend to the formal requirements of the notices.
In this period, which was prior to their liquidation, the relevant companies retained an accountant, Ms Houchar, at Mr Okili’s direction, in an attempt to comply with the notice and calculate what sums were due to the relevant employees, including Mr Shamsheer. Ms May corresponded with Ms Houchar and Mr Ajaje between mid-November and early December.
Ms Houchar calculated that Mr Shamsheer and the other employees were entitled to an hourly rate of $25.99, which led to Mr Shamsheer being due $15,220.71 and the sample employees the sum of $8,647.14. Ms May was critical that these calculations did not satisfy the relevant provisions of the compliance notice that required a discrete calculation of the sum due in respect of each award breach, particularly penalty provisions; did not differentiate between the individuals who comprised the sample group; and did not separate the amounts owed to Mr Shamsheer from each of the employers concerned.
In all these circumstances, it is the effect of Ms May’s evidence that neither company took the specific action required of it and no actual cash rectification has been made to any of the employees concerned, particularly Mr Shamsheer, whose identity and banking details are known and have been disseminated to Mr Okili.
In this context, counsel for the FWO, Ms Walker submits that Mr Okili has been provided with some assistance and reminders by Ms May to help him to comply with the relevant notices, which remain outstanding. Ms Walker further submits that this adds to the seriousness of the relevant breaches.
In response, Mr Ajaje asserts that the evidence of his client is that he did not cavalierly ignore his responsibilities in respect of the notice but did the best he could in challenging circumstances, which included being locked out of the relevant business premises concerned; having no access to relevant documents; and lacking sufficient liquidity to make rectification to Mr Shamsheer.
Section 682(1) of the FWA confers a number of functions on the Ombudsman, which include promoting compliance with the Act through providing assistance to employers so that they know what are their obligations to their employees, particularly in terms of their entitlements. The aim being to iron out problems and misunderstandings expeditiously and in a cost effective manner, without recourse to litigation so that underpayments are rectified efficiently and fairly.
In this context, the application of a Compliance Notice issued under section 716 of the Act must be considered. In Fair Work Ombudsman v Matcraft Pty Ltd & Ors,[14] Judge Kendall explained the legislative intention of a Compliance Notice, as an alternative to litigation, in the following terms:
As explained in the Explanatory Memorandum to the Fair Work Bill 2008 (Cth), the purpose of s 716 of the Act is to provide an alternative to litigation. Section 716 is an informal mechanism whereby the applicant can identify potential contraventions of the Act and seek rectification without an employer having to admit liability.
One of the objects of the Act is to provide accessible and effective procedures to resolve grievances and disputes and provide effective compliance mechanisms. Section 716 encapsulates this objective by allowing employees to make a request for assistance which the applicant can then resolve through the use of s 716.
[14] Fair Work Ombudsman v Matcraft Pty Ltd & Ors [2021] FCCA 272 at [34]-[35].
In addition, as previously indicated, the relevant legislation allows an employer to challenge a notice if it is believed there are no grounds for its issue or the notice itself is invalid. In these circumstances, it is the contention of the FWO that if the respondent had complied with the notices in question, it would have been precluded from bringing these proceedings, with a commensurate saving of public resources.
In Fair Work Ombudsman v Trek North Tours & Anor (No 2),[15] Judge Jarrett explained the underlying rationale of the compliance notice system in the following terms:
The provision of notices to employers serves a number of purposes, not the least of which is to give the employer an opportunity to deal with the contravention that is being alleged, or, in the case of notices to produce, to provide information which would demonstrate that no contravention of the Act has occurred. The regime set out under s.716 and s.717 of the Act relating to compliance notices represents a regime which would avoid proceedings coming to a court at all if an employer took the steps set out in those sections.
[15] Fair Work Ombudsman v Trek North Tours & Anor (No 2) [2015] FCCA 1801 at [22].
In the pithy expression of Ms Walker, the successful implementation of the process envisaged when a compliance notice is issued represents a win/win for all concerned in the following terms:
·An underpaid employee gets his/her entitlements expeditiously and as calculated pursuant to all the applicable provisions of the relevant award;
·An employer is educated about his/her responsibilities under the relevant industrial system without being penalised or forced to incur the costs and indignities of litigation;
·The public purse is spared the cost of bringing expensive proceedings in court.
In this context, it is the submission of Ms Walker that the relevant compliance notices in this matter have singularly failed in achieving any of these objectives, which she contends must have implications for the quantum of the penalties to be imposed.
Essentially, the provisions of section 716 of the Act, which is potentially helpful to both errant employers and the industrial regulator, have been entirely circumvented and therefore the court should consider a significant penalty as a matter of both general and specific deterrence, given the interest the community has in ensuring that there is compliance with relevant legislation, and protecting the rights of employees to be paid what they are entitled.
Section 536(1) of the FWA provides as follows:
An employer must give a pay slip to each of its employees within one working day of paying an amount to the employee in relation to the performance of work.
The provision of pay slips enable both employees and employers to be aware of what are respectively their entitlements and responsibilities arising under any applicable award. They assist employers to turn their minds to how wages are to be calculated, and allow the relevant employees to know the basis on which wages have been calculated, and allow them to reference their own records so that any irregularities can be promptly challenged and if established quickly rectified.
The whole industrial wage system and its enforcement is based on contemporaneous and accurate record keeping. Such systems enable the industrial regulator to investigate any complaints of underpayment efficiently. It is a significant matter in this case that, from the perspective of both the FWO and Mr Okili the relevant records are far from optimal.
The provision of appropriate and correct payslips is an essential component of a fair system of wage regulation. Employees, particularly vulnerable ones, are entitled to know what they have been paid and how specifically their wages are broken down. They also need to know who formally is employing them, so that they can pursue any queries arising from their employment and, if necessary, seek redress from the appropriate source.
Employees need to know this information promptly so that they can query any areas of uncertainty and sort out any misunderstandings. On a basic level, they need to be able to budget and make properly informed decisions about whether they will elect to continue to work in a particular manner, such as on weekends and at night time.
In this context, I respectfully adopt what was said by Judge Reithmuller in FWO v Taj Palace Tandoori Indian Restaurant Pty Ltd & Anor[16] as follows:
Without proper payslips, employees are significantly disempowered, creating a structure within which breaches of the industrial laws can easily be perpetrated.
[16] FWO v Taj Palace Tandoori Indian Restaurant Pty Ltd & Anor [2012] FMCA 258 at [67].
The FWO is not in a position to proceed against 3 Rundle Mall or 132 Grenfell Convenience. It proceeds only against Mr Okili pursuant to the provisions of section 550 of the Act, which deals with what is commonly termed accessorial liability.
Section 550(1) provides that a person who is involved in a contravention of a civil remedy provision of the Act is also taken to have contravened that provision. Section 550(2) provides a definitive list of the circumstances in which a person is taken to be involved in a contravention. A person is so involved only if the person concerned:
·has aided, abetted, counselled or procured the contravention; or
·has induced the contravention, whether by threats or promises or otherwise; or
·has been in any way, by act or omission, directly or indirectly, knowingly concerned in or party to the contravention; or
·has conspired with others to effect the contravention.
It is the contention of the FWO that Mr Okili was involved in the various contraventions because he was concerned in the various contraventions given his overall managerial responsibility for the two companies concerned, stemming from his sole directorship and ownership of them.
In Fair Work Ombudsman v Devine Marine Group Pty Ltd[17] White J explained the concept of a party being knowingly concerned in a contravention under the FWA in the following terms:
The notion of being “knowingly concerned” in a contravention has a different emphasis from that of aiding, abetting, counselling or procuring” a contravention. To be knowingly concerned in a contravention, the person must have engaged in some act or conduct which “implicates or involves him or her” in the contravention so that there be a “practical connection between” the person and the contravention…
[17] Fair Work Ombudsman v Devine Marine Group Pty Ltd [2014] FCA 1365 at [176].
Notwithstanding his assertion that it was his manager who was essentially responsible for the day to day operations of the two businesses concerned, particularly in regards to the payment of staff and the provision of payslips to them. Mr Okili has formally admitted that he was knowingly concerned in the relevant breaches of the FWA and was the individual ultimately responsible for making employment decisions at both of the relevant convenience stores.
In particular, he was personally provided with the relevant notices by Ms May. In addition, he was a member of a WhatsApp group, which discussed staff issues at each of the stores in which he had a proprietorial interest. In a formal sense, Mr Okili has admitted his accessorial liability pursuant to the provisions of section 550(2)(c) of the Act.[18]
[18] See Statement of Agreed Facts at [49] – [60].
LEGAL PRINCIPLES APPLICABLE TO PENALTY HEARINGS
The approach, which the court is required to take, in respect of these contravention proceedings, has been delineated in a number of decisions of the Federal Court.[19] The process can be summarised as follows:
·The court should identify each separate contravention, arising from a breach of either the applicable award or the FWA itself. Pursuant to section 539(2) each such contravention is a distinct incident for penalty purposes;
·The court should determine whether any of these incidents arise in a single course of conduct, within the terms envisaged by section 557(1);
·Then give consideration as to whether any of these contraventions contain elements and factor this into considering what is an appropriate penalty, in all the circumstances, for each contravention;
·Thereafter, the court should fix an appropriate penalty for each single or group contravention, taking into account all relevant circumstances;
·Finally, the court should apply the totality principle. This final step constitutes a review of the aggregate penalty calculated, and envisages a consideration of whether such a penalty is an appropriate response to the conduct, which lead to the various contraventions in question. This case has been described as a process of intuitive synthesis.[20]
[19] See Fair Work Ombudsman v Lifestyle SA Pty Ltd [2014] FCA 1151 at [42] (Mansfield J), citing Fair Work Ombudsman v Kentwood Industries Pty Ltd (No 3) [2011] FCA 579 at [10] (McKerracher J).
[20] Australian Ophthalmic Supplies Pty Ltd v McAlary-Smith [2008] FCAFC 8 at [55] (Graham J).
The totality principle arises when a court is called upon to sentence an individual, as here, in respect of a number of identifiable offences. It is directed to review the penalties imposed, in total, in respect of individual offences to determine whether those penalties, in aggregate, constitute a just and appropriate penalty, in all the circumstances arising. As indicated earlier, it has been characterised as a process of intuitive synthesis.
Gray J in Australian Ophthalmic Supplies Pty Ltd said as follows:
What is required is to determine an appropriate level of penalty for each contravention, as if it were a separate offence, and then look at the aggregate of those penalties in the light of the overall conduct of the [offender], to form a view as to whether that aggregate [is] out of proportion to that overall conduct.[21]
[21] Australian Ophthalmic Supplies Pty Ltd v McAlary-Smith [2008] FCAFC 8 at [23] (Gray J).
Regardless of these considerations, the fundamental task, for the court, is to determine, from all the factual circumstances arising, the gravity or seriousness of the offending, which it is called upon to penalise. Again there is general agreement between the parties as to the considerations relevant to this task, which has been delineated in a number of decisions of both this court and the Federal Court.[22] The considerations are as follows:
[22] See Mason v Harrington Corporation Pty Ltd [2007] FMCA 7; Kelly v Fitzpatrick [2007] FCA 1080 at [14]. (Tracey J); Blandy v Coverdale NT Pty Ltd [2008] FCA 1533 at [23] (Reeves J).
·The nature and extent of the conduct which led to the breaches;
·The circumstances in which the conduct took place;
·The nature and extent of any loss or damage sustained as a result of the breaches;
·Whether there has been similar previous conduct by the respondent;
·Whether the breaches were properly distinct or arose out of the one course of conduct;
·The size of the business enterprise involved;
·Whether or not the breaches were deliberate;
·Whether senior management was involved in the breaches;
·Whether the party committing the breaches has exhibited contrition;
·Whether the party committing the breaches has taken corrective action;
·Whether the party committing the breaches has cooperated with the enforcement authorities;
·The need to ensure compliance with minimum standards by provision of an effective means for investigation and enforcement of employee entitlements; and
·The need for specific and general deterrence.
The court needs to be careful not to apply a formulaic approach to the imposition of penalties or attempt to extrapolate the penalties imposed in one case to the circumstances of another. Each case involving the imposition of a civil penalty warrants an idiosyncratic approach and a careful analysis of all relevant circumstances. As was stated in Australian Ophthalmic Supplies:
Penalties are not a matter of precedent. The choice of penalty must be dictated by the individual circumstances of a case, not by a line by line comparison with another case.[23]
[23] Australian Opthalmic Supplies Pty Ltd v McAlary-Smith [2008] FCA 8 at [12] (Graham J).
Clearly the check-list, as enumerated above, is useful. However, it is not to be regarded as an exhaustive list of factors to be considered. The ultimate control on any sentence is that it must be proportionate to the offence committed. A court is not permitted to impose a sentence greater than is warranted by the objective circumstances of the offending.[24]
[24] See Veen v R (No 2) (1988) 164 CLR 465, 472 (Mason CJ, Brennan, Dawson, and Toohey JJ).
However, in the context of the significant interest the public has in ensuring that employees are paid their proper entitlements and are accorded the protection of the industrial safety net envisaged by the legislature, the court cannot lose sight of the importance of deterrence, both in a specific and general sense.
Penalties have to be fixed at a meaningful level, not set at a level at which their imposition, on an errant employer, can be seen as an acceptable cost of doing business for the employer. In short, penalties must hurt so that others who are considering cutting corners, so far as the payment and protection of their employees are concerned, will be deterred from doing so.
This is particularly important for vulnerable employees, who work in small scale industries, which demand basic entry level skills, such as the convenience store/retail industry, who work in small premises open for long hours. The danger being that some employers may be inclined to factor in the prospect or risk of incurring a penalty in deciding to underpay their employees in order to secure personal gain. In such cases, civil penalties must be set at a sufficiently high level to deter both the contravenor and other who might be tempted to do so.
In the recent case of Australian Building and Construction Commissioner v Pattinson[25] the High Court discussed the inherent problems likely to arise when principles of retributive sentencing, relevant to the criminal law, are applied in civil penalty proceedings. In this context, the High Court rejected the principle of proportionality being applied to the calculation of penalties in the civil sphere. Essentially, the High Court indicated the principle that the maximum penalty should be reserved only for the worst or most egregious examples of the applicable offence did not apply in civil penalty proceedings.
[25] Australian Building and Construction Commissioner v Pattinson [2022] HCA 13.
In addition, the High Court indicated that the primacy of deterrence is the objective of any civil penalty regime. As such a sentencing court, in a civil penalty matter, is required to impose a penalty which is proportionate in the sense that it strikes a reasonable balance between deterrence and what is described as oppressive severity.[26]
[26] Australian Building and Construction Commissioner v Pattinson [2022] HCA 13 at [41].
In this context, concepts also applicable in criminal sentencing, such as totality, parity and course of conduct remained relevant. As such, a court sentencing in respect of a civil penalty provision matter retained a discretion. As with all discretions, it is one which must be exercised fairly and reasonably given the subject matter, scope and purpose of the legislation being applied. The aim being to arrive at a penalty which is appropriate.
In this context the High Court[27] indicated as follows:
It is important to recall that an "appropriate" penalty is one that strikes a reasonable balance between oppressive severity and the need for deterrence in respect of the particular case. A contravention may be a "one‑off" result of inadvertence by the contravenor rather than the latest instance of the contravenor's pursuit of a strategy of deliberate recalcitrance in order to have its way. There may also be cases, for example, where a contravention has occurred through ignorance of the law … In such cases, a modest penalty, if any, may reasonably be thought to be sufficient to provide effective deterrence against further contraventions.
The penalty that is appropriate to protect the public interest by deterring future contraventions of the Act may also be moderated by taking into account other factors … [such as] where those responsible for a contravention of the Act express genuine remorse for the contravention, it might be considered appropriate to impose only a moderate penalty because no more would be necessary to incentivise the contravenors to remain mindful of their remorse and their public expressions of that remorse to the court. Similarly, where the occasion in which a contravention occurred is unlikely to arise in the future because of changes in the membership of an industrial organisation, a modest penalty may be appropriate having regard to the reduced risk of future contraventions.
It is not necessary to multiply examples further. It is sufficient to say that a court empowered by s 546 to impose an "appropriate" penalty must act fairly and reasonably for the purpose of protecting the public interest by deterring future contraventions of the Act.
[27] Australian Building and Construction Commissioner v Pattinson [2022] HCA 13 at [46] – [48].
In addition, in this context, the essential purpose of Compliance Notices must be considered. As indicated above, prompt compliance with their terms can result in a win/win situation for all concerned. The industrial regulator and the public purse is not put to the expense of a hearing; an underpaid employee can be reimbursed promptly; and an errant employer is spared the bother and embarrassment of public prosecution, and is given an opportunity to learn about and rectify past failings for the good of all concerned.
It is also appropriate to consider the nature of the industry involved. As previously indicated, those who work in convenience stores often have modest skills and may have migrated to Australia, often as students. As a consequence, they may speak English as a second language. They are willing to work incommodious hours for these reasons. For self-apparent reasons, they are vulnerable to exploitation particularly by employers willing to cut corners by shaving off wage penalties.
MR OKILI’S EVIDENCE
Mr Okili originated in Jordan and came to Australia as a graduate student in 2000, settling in Sydney. He has a background in IT systems, which led him to work in the convenience store industry. He has managed and operated various convenience stores and other businesses, including a wholesale tobacco business, in Sydney since 2005.
The wholesale tobacco business was owed a significant sum of money by a business associate of Mr Okili. In these circumstances, he purchased the Grenfell Street and Rundle Mall convenience stores from this associate in an attempt to recoup his debt. It is Mr Okili’s evidence that he failed to investigate the financials of either business diligently and the purchases were a financial disaster for him, compounded by the fact that he remained in Sydney and had to manage the business from a distance.
His attempts to sell the two business were fruitless. He asserts that he was let down by his manager in Adelaide. Ultimately, the relevant landlord seized control of each of the store premises causing him great financial loss and, as previously indicated, impeding his ability to access what wage records existed. He remains the primary source of financial support for his extended family.
In addition, it is Mr Okili’s evidence that his business interests in Sydney were significantly impacted by the pandemic emergency and he has lost large sums of money as a result. He has provided a forensic psychological report, which indicates that he has been diagnosed with anxiety and resultant depression. In this context, it has been asserted that his capacity to make appropriate decisions is likely to have been detrimentally affected.
Mr Okili deposes as follows:
I am deeply remorseful and embarrassed by these proceedings and the underlying matters as to underpayment to staff of their lawful entitlements.
These offences are unlikely to re-occur as I am now operating a single store at 86 Liverpool Sydney. My wife and I run the store 7 days a week. In the event that the business grows again, I will engage a book-keeper to maintain the record keeping and see to it that staff are paid their lawful entitlements.
I ask this Honourable Court to consider and take into account my difficult financial and personal circumstances in the Penalty Hearing. [28]
[28] See Mr Okili’s affidavit filed 19 April 2022 at [48] – [50]
Given these factors, it is the submission of Mr Ajaje that his client is unlikely to re-offend and therefore the need for specific deterrence is not high. In addition, he submits that his client has expressed contrition and has cooperated with the authorities by not contesting liability and agreeing to the relevant facts in the case. Of equal significance is Mr Okili’s engagement of professional help to assist, albeit ineffectively, with compliance with the applicable notices.
In these circumstances, it is submitted that Mr Okili has not demonstrated a cavalier disregard for the FWO and its investigations of the two relevant businesses concerned. It is his case, not fully accepted by the FWO that he did the best he possibly could, in challenging circumstances, to rectify the compliance notice served upon him and it is only because he lacks financial capacity to do so that the wages outstanding to Mr Shamsheer have not been paid.
Mr Okili rejects the submission that the two companies were liquidated for any reasons relating to a desire to escape liability. It is his position that the companies had to remain in existence in order to deal with the landlords concerned and it was their actions, not his, that resulted in him being excluded from the relevant premises concerned. Accordingly, as outlined above, it is Mr Ajaje’s submission, on behalf of his client, that the court should not impose a crushing penalty on Mr Okili.
The FWO concedes that Mr Okili’s financial circumstances may be a relevant consideration in the court’s calculation of the appropriate penalty but contends that Mr Okili has provided limited documentary evidence to support his various contentions. More significantly, it is submitted that any factor germane to Mr Okili’s circumscribed financial situation should act as a distraction from the court’s fundamental obligation to consider general deterrence.[29]
DISCUSSION
[29] See ACCC v Energy Watch Pty Ltd In Liquidation) [2012] FCA 749 at [19].
Grouping of offences
Mr Ajaje submits that the various counts relating to Mr Shamsheer could be grouped together. This submission is rejected by Ms Walker. The legislative provisions relating to how contraventions arising under the FWA are to be grouped for the purposes of calculation of penalty are contained in section 557(1) of the FWA, which reads as follows:
(1)For the purposes of this Part, 2 or more contraventions of a civil remedy provision referred to in subsection (2) are, subject to subsection (3), taken to constitute a single contravention if:
(a)the contraventions are committed by the same person; and
(b)the contraventions arose out of a course of conduct by the person.
Given that the various contraventions relating to Mr Shamsheer involved different respondent employers, the only commonality being that Mr Okili was a director of both companies, it is not appropriate that the various counts be grouped for the purpose of the calculation of penalty.
Nature and extent of the conduct leading to the breaches
As noted above, this is a case in which there has been a wholesale failure of the Compliance Notice scheme, through which the function of the relevant Fair Work Inspector has been essentially frustrated. The general public has an interest in ensuring prompt and effective compliance with any breach of the industrial regime when it comes to light.
Neither Mr Shamsheer nor any of the sample group of employees has been provided with what are their financial entitlements under the terms of the applicable award. In addition, no acceptable calculation has been provided to the FWO as to what are those actual entitlements by reference to the explicit terms of the award in respect of the applicable penalties.
The same considerations apply in respect of the provision of payslips to Mr Shamsheer. None have been provided to him. Over a reasonably significant period of time, he was deprived of the opportunity to check his wages against his own understanding of what hours he had worked.
As such the FWO has been impeded in its capacity to investigate the employment affairs of both stores concerned. In the light of these omissions, the public purse has been put to the expense of bringing these compliance proceedings, which still have borne no fruit in terms of the relevant employees being paid what they are each due. In my view, each of the breaches must be considered to be serious in nature.
Deterrence
As I have already observed deterrence has two aspects – general deterrence directed towards the community as a whole, and specific deterrence directed towards the individual concerned whose conduct is to be sanctioned. As the High Court has recently indicated, issues of deterrence must be accorded primacy in the imposition of any civil penalty.
In Fair Work Ombudsman v Darna Pty Ltd,[30] Judge Hartnett said as follows in respect of the importance of the Compliance Notice process in the industrial regulatory system in this county:
The Explanatory Memorandum to the Fair Work Bill 2008 (Cth) provides that compliance notices were designed to be another option to deal with non-compliance instead of pursuing court proceedings. It was to be a less costly and less time consuming procedure. Section 716 of the FW Act allows a person to whom a compliance notice is issued an opportunity to rectify an under payment without being subject to civil remedy provisions. The First Respondent’s failure to comply with the Compliance Notice issued has, in these proceedings, caused the Applicant and the Court to spend time and public funds in dealing with civil remedy proceedings which would not have been necessary had compliance occurred.
[30] Fair Work Ombudsman v Darna Pty Ltd [2015] FCCA 709.
As I have already observed, so far as the current matter is concerned, the Compliance Notice procedure has been an abject failure in bringing about a prompt restitution to the employees concerned and the saving imposition on the public purse. One of the central purposes of the modern award system and the related enforcement procedures is to ensure all employees have the benefit of the industrial safety net provided by relevant awards.
To be able to enforce the terms of modern awards, Fair Work Inspectors must be able to exercise their compliance powers effectively through investigation and then rectification. When there has been a concerted non-compliance with a Notice issued by a Fair Work Inspector, the court needs to indicate that such non-compliance will be regarded as a serious matter by reference to the quantum of any penalty imposed.
I accept that the failure to comply with a Compliance Notice has the potential to undermine the entire purpose of the relevant statutory regime. If an employer does not accept the contents of any Notice served upon it, the regime provides formal mechanisms of review.[31]
[31] See Fair Work Ombudsman v Corporation Sun Pty Ltd [2020] FCCA 2849 at [63] (Kendall J).
As I have already observed, convenience stores, which provide services and good to the community, over long hours, are a staple of the Australian high street. The award recognises that those individuals who work in the industry are entitled to be properly remunerated for the incommodious hours which they work and in recognition of the casual nature of the their employment. In Fair Work Ombudsman v Maclean Bay Pty Ltd (No 2), Marshall J said as follows:
It is important to ensure that the protection afforded by the Act to employees are real and effective and properly enforced. The need for general deterrence cannot be understated. Rights are a mere shell unless respected.[32]
[32] Fair Work Ombudsman v Maclean Bay Pty Ltd (No 2) [2012] FCA 557 at [29] (Marshall J).
In imposing a penalty to reflect general deterrence, the court must impose fines that cannot be seen by others as the cost of doing business.[33] The role of general deterrence in fixing appropriate penalty is demonstrated by what Lander J said in Ponzio v B & P Caelli Constructions Pty Ltd,[34] namely:
In regard to general deterrence, it is assumed that an appropriate penalty will act as a deterrent to others who might be likely to offend…. The penalty therefore should be of a kind that it would be likely to act as a deterrent in preventing similar contraventions by likeminded persons or organisations. If the penalty does not demonstrate an appropriate assessment of the seriousness of the offending, the penalty will not operate to deter others from contravening the section. However, the penalty should not be such as to crush the person upon whom the penalty is imposed or used to make that person a scapegoat. In some cases, general deterrence will be the paramount factor in fixing the penalty.
[33] See Fair Work Ombudsman v Yogurberry World Square [2016] FCA 1290 at [27].
[34] Ponzio v B & P Caelli Constructions Pty Ltd [2007] FCAFC 65 at [93] (Lander J).
In my view, it is important that employers recognise that compliance notices are significant and are thus encouraged to manage their business so that errors, including innocent ones, can be rectified quickly and cheaply for the benefit of both business and employee. These considerations are applicable to both large and small employers.
The same considerations apply to the provision of pay slips. It is important that the penalties be of sufficient magnitude to encourage lax or laissez faire employers, in the convenience store industry, are not tempted to take short cuts in regards to the maintenance of their employment records in an attempt to reduce overheads, with a concomitant threat to the integrity of the industrial safety net.
I accept Mr Ajaje’s submission that Mr Okili has learnt a salutary lesson from these proceedings. In this context, I also note his indication that he has retained a bookkeeper and will, in future, rely on professional assistance in the management of his wage records. However, the only impression one can gain from his affidavit evidence is that he is a person with a strong entrepreneurial bent. He remains involved in the management of at least one convenience store. In these circumstances, in my view, there remains a need for the court to consider some level of specific deterrence.
Contrition and corrective action
The FWO acknowledges that Mr Okili actions in making admissions has saved public expenditure but points to the fact that this occurred sometime after proceedings were commenced. It proposes a discount of 20% in respect of the maximum relating to each count to reflect this cooperation. I will adopt this submission. I also note, in this context, that Mr Okili is not previously known to the Ombudsman.
However, in my view, the most concrete example of contrition would have been that Mr Shamsheer, at least, would have paid the monies due to him. This has not occurred. There is no evidence of any corrective action.
Size of the business and capacity to pay financial penalties
The effect of Mr Okili’s evidence is that he has worked extremely hard in this country and has established a number of small businesses, which have not turned out well for him and, as such, he is currently picking himself up and regrouping financially. As such, Mr Ajaje submits that the court should be mindful not to impose a crushing penalty on him.
It is well established that it is no excuse for an offender to rely on the fact that they are the operator of a small business. To the contrary, the court must bear in mind that small businesses of one form or another represent a large component of employers in this country. This is particularly so in the area of small convenience stores.
In these circumstances, I adopt the comments of Driver FM in Rajagopalan v BM Sydney Building Materials Pty Ltd as follows:
Employers must not be left under the impression that because of their size or financial difficulty that they are able to breach an award. Obligations by employers for adherence to industrial instruments arise regardless of their size. Such a factor should be of limited relevance to the Court’s consideration of penalty.[35]
[35] Rajagopalan v BM Sydney Building Materials Pty Ltd [2007] FMCA 1412 at [27].
I accept Mr Okili is not a wealthy person and is currently experiencing a significant level of financial distress. This, when coupled with the fact that he is a first offender, in my view, warrants a significant discount on the penalties which would otherwise be imposed.
The calculation of penalties
In respect of the three counts arising under section 716(5), after allowing a discount of 20% on the maximum ($6,300.00) to reflect cooperation, I will impose a penalty of 55% of the balance to reflect primarily the need to provide general deterrence but with a significant discount in recognition of the fact that Mr Okili is in straitened financial circumstances and is a first offender. This will result in the imposition of a pecuniary penalty of $2,772.00 in respect of each count and a total $8,316.00 in respect of all three.
Given the overlap between the two pay slip offences, I will adopt a different approach to each of them, as proposed by the Ombudsman in respect of the two offences arising under section 536(1) relating to the failure to provide payslips to Mr Shamsheer at each of the stores concerned. The maximum penalty is $12,600.00.
After allowing the 20% discount, I will fix the penalty of 55% for the first count, resulting in a penalty of $5,544.00 and 30% for the second, resulting in a penalty of $3,024.00. In total, the amount of fines thus calculated for the five offences is $16,884.00.
Totality
The next step is to look at the aggregate of the penalties in total and consider whether the total penalty is an appropriate one when the circumstances of the offending are considered. As previously indicated this has been described as a process of intuitive synthesis. Does the total penalty appear to be correct in aggregate?
This has been characterised as the court having a last look at the total just to see whether it looks wrong.[36]The application of the totality principle is not to be automatically applied and some form of discount invariably given. It is a safeguard consideration directed to avoid injustice or unfairness.
[36] See Mornington Inn v Jordon [2008] FCAFC 70 at [91] (Stone and Buchanan JJ).
In Kelly v Fitzpatrick, Tracey J considered what he termed the orthodox position was for the court to determine the appropriate penalty for each contravention and then consider the aggregate figure to ensure “that it was an appropriate response to the conduct which led to the breaches”.[37]
[37] Kelly v Fitzpatrick [2007] FCA 1080 at [30] (Tracey J).
In particular, the court is required to examine the individual circumstances of the respondent in the context of the seriousness of the offending in question in order to ensure that any penalty imposed is not crushing. Looking at the penalties as I have calculated them, there can be no doubt that they involve significant sums, indeed, when compared to the means and resources of Mr Okili.
Balancing the undoubted seriousness of the offending involved, against the difficult financial circumstances of Mr Okili, I will discount the total aggregate of $16,884.00 by a further 5 % resulting in the imposition of a total penalty of 16,039.80. It is appropriate that the fine be paid to Commonwealth Consolidated Revenue and the other orders and declarations sought by the FWO be made, particularly the order requiring restitution to be made to Mr Shamsheer.
For all these reasons, the orders of the court will be as set out at the commencement of these reasons for judgment.
I certify that the preceding one hundred and twenty-three (123) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Brown. Associate:
Dated: 13 May 2022
Key Legal Topics
Areas of Law
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Employment & Labour Law
Legal Concepts
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Unpaid Wages
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Vulnerability
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Contrition
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Financial Hardship
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