Fair Work Ombudsman v A and K Property Services Pty Ltd
[2019] FCCA 2259
•16 August 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| FAIR WORK OMBUDSMAN v A & K PROPERTY SERVICES PTY LTD & ORS | [2019] FCCA 2259 |
| Catchwords: INDUSTRIAL LAW – Assessment of compensation – imposition of pecuniary penalties. |
| Legislation: Fair Work Act 2009 (Cth), ss.44(1), 45, 87, 96, 535(1), 536(1), 539(2), 546(2) 550(1), 550(2), 557(1), 557(2), 557C Fair Work Amendment (Protecting Vulnerable Workers) Act 2017 |
| Cases cited: Fair Work Ombudsman v Hasegawa and Ye International Pty Ltd [2019] FCCA 1424 |
| Applicant: | FAIR WORK OMBUDSMAN |
| First Respondent: | A & K PROPERTY SERVICES PTY LTD |
| Second Respondent: | YONG SIN KIM |
| Third Respondent: | HYUN JUN KANG |
| Fourth Respondent: | JUNGPYO LEE |
| File Number: | BRG 68 of 2019 |
| Judgment of: | Judge Jarrett |
| Hearing date: | 16 August 2019 |
| Date of Last Submission: | 16 August 2019 |
| Delivered at: | Brisbane |
| Delivered on: | 16 August 2019 |
REPRESENTATION
| Solicitors for the Applicant: | Office of the Fair Work Ombudsman |
| Solicitors for the Respondents: | C & C Legal |
ORDERS
BY CONSENT THE COURT DECLARES THAT:
The First Respondent contravened the following civil remedy provisions of the Fair Work Act 2009:
(a)s.535(1), by failing to make and keep employee records in respect of Sangyeop Lee, Jiyeon Lee, Wonhyong Jang, Gyeongbae Jeong, Jieun Yoo, Jongseung Park, Ahreum Kim, Eunyoung Ko and Jueun Jeong as prescribed by regulations 3.32, 3.33, 3.34, 3.36 and 3.37 of the Fair Work Regulations 2009;
(b)s.536(1), by failing to provide pay slips to the employees within one working day of paying an amount to them in relation to the performance of work;
(c)s.45, by failing to pay Jiyeon Lee, Wonhyong Jang, Gyeongbae Jeong, Jieun Yoo, Jongseung Park, Ahreum Kim, Eunyoung Ko and Jueun Jeong the minimum rate of pay prescribed by clause 17 of the Fast Food Industry Award 2010;
(d)s.45, by failing to pay Jongseung Park, Ahreum Kim, Sangyeop Lee, Jiyeon Lee, Wonhyong Jang and Gyeongbae Jeong the additional loading for working hours on Saturdays as prescribed by clause 25.5(b)(i) of the Fast Food Industry Award 2010;
(e)s.45, by failing to pay Jongseung Park, Sangyeop Lee and Wonhyong Jang the additional loading for working hours on Sundays as prescribed by clause 25.5(c)(i) of the Fast Food Industry Award 2010;
(f)s.45, by failing to pay Ahreum Kim, Eunyoung Ko, Juen Jeong, Gyeongbae Jeong and Jieun Yoo the required rates for overtime worked as prescribed by clause 26.1(a) of the Fast Food Industry Award 2010;
(g)s.45, by failing to pay Sangyeop Lee annual leave loading as prescribed by clause 28.3(a) of the Fast Food Industry Award 2010;
(h)s.45, by failing to make superannuation contributions for the benefit of the Employees such as would avoid the payment of the superannuation guarantee charge as prescribed by clause 21.2 of the Fast Food Industry Award 2010;
(i)s.45, by failing to enter into written part-time agreements with Sangyoeop Lee, Jiyeon Lee, Wonhyong Jang and Jongseung Park as prescribed by clause 12.2 of the Fast Food Industry Award 2010;
(j)s.44(1), by failing to accrue annual leave to the employees as required by s.87 of the Fair Work Act 2009; and
(k)s.44(1), by failing to accrue personal/carers leave to the employees as required by s.96 of the Fair Work Act 2009.
The Second Respondent was involved, within the meaning of s.550(1) of the Fair Work Act 2009, in contraventions 1(a), 1(b), 1(j) and 1(k) above.
The Third Respondent was involved, within the meaning of s.550(1) of the Fair Work Act 2009 , in contraventions 1(j) and 1(k) above with respect to Jongseung Park, Ahreum Kim, Eunyoung Ko and Jueun Jeong.
The Fourth Respondent was involved, within the meaning of s.550(1) of the Fair Work Act 2009, in contraventions 1(j) and 1(k) above with respect to Sangyeop Lee, Jiyeon Lee, Wonhyong Jang, Gyeongbae Jeong and Jieun Yoo.
THE COURT ORDERS THAT:
The First Respondent pay a total penalty of $108,000 pursuant to s.546(1) of the Fair Work Act 2009 for its contraventions set out in paragraph 1 above;
The Second Respondent pay a total penalty of $10,600 pursuant to s.546(1) of the Fair Work Act 2009 for his involvement in the contraventions set out at paragraph 2 above;
The Third Respondent pay a total penalty of $3,550 pursuant to s.546(1) of the Fair Work Act 2009 for his involvement in the contraventions set out at paragraph 3 above; and
The Fourth Respondent pay a total penalty of $3,550 pursuant to s.546(1) of the Fair Work Act 2009 for his involvement in the contraventions set out at paragraph 4 above.
BY CONSENT THE COURT FURTHER ORDERS THAT:
The First Respondent, Second Respondent, Third Respondent and Fourth Respondent, pursuant to s.546(3) of the Fair Work pay their respective penalty amounts to the Consolidated Revenue Fund of the Commonwealth within 90 days of the Court’s order.
The Applicant have liberty to apply on seven days’ notice in the event that any of the preceding orders are not complied with.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT BRISBANE |
BRG 68 of 2019
| FAIR WORK OMBUDSMAN |
Applicant
And
| A & K PROPERTY SERVICES PTY LTD |
First Respondent
| YONG SIN KIM |
Second Respondent
| HYUN JUN KANG |
Third Respondent
| JUNGPYO LEE |
Fourth Respondent
REASONS FOR JUDGMENT
The first respondent operates two sushi take away stores trading under the name “Sushi 79”, one at Currimundi and the other at Brassall, Queensland. At all relevant times, Mr Kim, Mr Kang and Mr Lee were the directors of the first respondent and were responsible for ensuring that the first respondent complied with its legal obligations under the Fair Work Act 2009 (Cth) and the Fair Work Regulations2009 (Cth).
By these proceedings the applicant seeks the imposition of pecuniary penalties upon the respondents for the first respondent’s contraventions of the Fair Work Act and Regulations. The contraventions affected nine employees, each of whom were foreign nationals residing in Australia subject to visa arrangements. Each of the employees was engaged to work in the first respondent’s sushi stores, performing duties including operating the cash register, cleaning, cooking and/or making sushi, on a part-time and full-time basis.
By way of a Statement of Agreed Facts filed on 12 April, 2019 the first respondent has admitted to contravening the Fair Work Act and Regulations in the following respects:
a)failing to make and keep employee records as required by regs. 3.32, 3.33(1), 3.33(2), 3.33(3), 3.34, 3.36 and 3.37 of the Fair Work Regulations, in respect of nine employees in contravention of s.535(1) of the Fair Work Act;
b)failing to provide pay slips within one working day of paying an amount to those employees, in contravention of s.536(1) of the Fair Work Act;
c)failing to pay minimum rates of pay, weekend penalty rates, overtime, annual leave loading in contravention of s.45 of the Fair Work Act. The employees were paid flat rates of pay between $16 and $22 and as a result were underpaid a total of $19,467.24 over a period of almost three months between 6 October, 2017 and 28 December, 2017;
d)failing to make superannuation contributions for the benefit of employees in contravention of s.45 of the Fair Work Act totalling $7,416.41 over the same period;
e)failing to enter into written part-time agreements, in contravention of s.45 of the Fair Work Act; and
f)failing to accrue annual leave and personal/carer’s leave, in contravention of s.44(1) of the Fair Work Act.
Mr Kim admits to being involved in the record keeping, pay slip and failure to accrue annual leave and personal/carer’s leave contraventions for the purposes of s.550(1) of the Fair Work Act. Mr Kang and Mr Lee each admits to being involved in the accrual of annual leave and personal/carer’s leave contraventions for the purposes of s.550(1) of the Fair Work Act.
The particulars of the contraventions admitted by the first respondent are set out in annexure “A” to these reasons.
Mr Kang and Mr Lee’s involvement in the contraventions arose only in relation to the stores in which they worked and their involvement only concerned:
a)four particular employees in respect of Mr Kang; and
b)five of the employees in respect of Mr Lee.
The Fair Work Ombudsman accepts that the respondents are entitled to the benefit of s.557(1) of the Fair Work Act in relation to repeated breaches of each relevant provision in respect of the employees. Thus, the multiple contraventions of the minimum wages provisions arising from the failure to pay eight of the employees the correct wages should be treated as a single contravention.
Further, the Fair Work Ombudsman accepts that there is significant factual and legal overlap between each contravention of s.535(1) as a result of a breach of each obligation set out in the Fair Work Regulations, given that they all came about as the result of a complete failure by the first respondent and Mr Kim to keep any employee records. The Fair Work Ombudsman therefore argues that it is appropriate for the separate breaches of the Fair Work Regulations to be grouped as one contravention.
The Fair Work Ombudsman submits that the legal and factual elements of the remaining contraventions do not have sufficient overlap that would warrant further grouping. I accept that submission. To the extent that there is any overlap between the remaining contraventions, that can be addressed when considering the totality of the aggregate penalties.
Pursuant to ss.539(2) and 546(2) of the Fair Work Act, the Court may impose on the respondents a maximum penalty of:
a)300 penalty units (for the first respondent) or 60 penalty units (for Mr Kim) for each contravention of ss.535(1) and 536(1) of the Fair Work Act;
b)300 penalty units in respect of the first respondent for each contravention of s.45 of the Fair Work Act arising from each breach of the Fast Food Award; and
c)300 penalty units (for the first respondent) or 60 penalty units (for Mr Kim, Mr Kang and Mr Lee) for each contravention of s.44(1) of the Fair Work Act arising from each breach of the National Employment Standards.
Accepting the Fair Work Ombudsman’s approach to the grouping of the contraventions as both I and the respondents do, the maximum penalties that the Court could impose are:
a)$693,000 for 11 contraventions by the first respondent;
b)$50,400 for four contraventions by Mr Kim;
c)$25,200 for two contraventions by Mr Kang; and
d)$25,200 for two contraventions by Mr Lee.
The contraventions dealt with in these proceedings occurred over a period of just under three months during which the first respondent failed to adhere to minimum standards by paying the nine subject employees flat rates of between $16 and $22. The underpayments were the result of the first respondent’s failure to comply with five distinct obligations under the Award. Across the individual employees, the underpayments ranged from $214.08 to $4,857.60 (amounting to between 7.69% and 43.32% of the total entitlements the employees were owed).
Moreover, the respondents failed to make any employee records and failed to provide any pay slips to the employees. The failure by the first respondent and Mr Kim to make and keep employee records and to provide any pay slips to the employees has meant that:
a)the employees are bereft of any knowledge about the basis upon which payments were made to them;
b)the employees were unable to determine for themselves their correct entitlements nor ascertain whether those entitlements have been paid; and
c)the Fair Work Ombudsman has been required to rely on non-contemporaneous records that were recreated by the respondents to assess the quantum of entitlements owed to the employees.
As the applicant points out, the evidence is that in a meeting with Fair Work Inspectors, Mr Kim, Mr Kang and Mr Lee, relevantly:
a)could not specify the start date of employees;
b)informed the Fair Work Ombudsman that the Brassall Sushi 79 had been open since December 2015; and
c)informed the Fair Work Ombudsman that the first respondent had started keeping records only one week prior to the meeting.
The Fair Work Ombudsman contends that the record keeping and pay slip contraventions are particularly serious contraventions as they had the potential to frustrate the ability of the employees to understand their lawful minimum entitlements and hold their employer accountable for not paying them, as well as frustrating the Fair Work Ombudsman and others to understand, investigate, assess and claim the employees’ entitlements. Those matters are self-evident. I accept that submission. The record keeping contraventions are indeed particularly serious.
It is well established that the need for specific and general deterrence is central to the imposition of penalties under the Fair Work Act. A primary purpose of civil penalties is to promote the public interest in compliance and to attempt to put a price on a contravention that is sufficiently high to deter repetition by the contravenor and by others who might be tempted to contravene the same legislation.
Specific deterrence is directed to ensuring that a contravenor is not prepared to embark upon the risk of engaging in the same contravening conduct in the future. The Fair Work Ombudsman submits that there is a need for specific deterrence in this case because:
a)the first respondent continues to operate the business and Mr Kim, Mr Kang and Mr Lee remain in control of the business;
b)despite Mr Kim and Mr Kang’s evidence that they intend to cease operation of the business and do not intend to continue to operating in the food industry in the near future, they remain as directors of the first respondent and the business is still operating;
c)Mr Lee’s evidence is that he intends to remain operating in the “takeaway food business”.
The evidence shows that the first respondent is now issuing compliant pay slips and that the first respondent has reviewed its record keeping practices and implemented changes to ensure compliance with Commonwealth workplace laws.
The Fair Work Ombudsman’s proposed penalty ranges take into account the respondents’ evidence that they have made some changes to the first respondent’s procedures so as to comply with the Fast Food Award, the Fair Work Act and the Fair Work Regulations.
I accept that the need for general deterrence in this matter is reinforced by the recent increase to the maximum penalty for contraventions relating to employee records and pay slips in s.535 and 536 of the Fair Work Act: see the Fair Work Amendment (Protecting Vulnerable Workers) Act 2017. The maximum penalties for these contraventions doubled in respect of individuals and bodies corporate. The Explanatory Memorandum to the Fair Work Amendment (Protecting Vulnerable Workers) Bill 2017 explains (at [17] – [18]) that the increase to the maximum penalties:
…acknowledges the important role employee records and payslips play in determining compliance under the Act; without reliable employee records, employees may be unable to prove their case and recover their minimum entitlements at law. If underpayments cannot be proved, employers may end up with a significant windfall, even if fined for contraventions relating to records under sections 535 and 536.
Whilst I take notice of the changes made by the Fair Work Amendment (Protecting Vulnerable Workers) Act 2017, the respondents are entitled to have the application dealt with according to the law that applies to the circumstances of their case. This matter referred to by the Fair Work Ombudsman does not serve to increase the penalty that might be imposed upon the respondents.
I accept that the respondents operate in an industry which has a real potential to lead to exploitation of workers. The evidence upon which the Fair Work Ombudsman relies shows that in the period July, 2016 to December, 2018:
a)the Fair Work Ombudsman received 1,970 disputes in the takeaway food services industry and according to the statistics kept by her, the industry is ranked third highest for the number if disputes completed across all industries;
b)the proportion of industry disputes relating to visa holders was greater in comparison to disputes from visa holders from all industries (32.5% of all disputes in the industry related to visa holders, compared to 19.5% of disputes received from industry holders across all industries); and
c)the Fair Work Ombudsman has recovered $1,118,518 in underpayments in respect of the takeaway food services industry.
The respondents’ evidence reinforces the problematic nature of compliance with workplace laws in the takeaway food services industry. For example:
a)Mr Kim deposes to being told by Mr Bong Suk Kim, a former director of the first respondent who helped him set up the business and who had a sushi business of his own, that hourly rates of $12 to $13 is what he paid, and that he “looked at advertisements on the internet and local newspaper and saw that sushi stores offered the same hourly rates”; and
b)Mr Lee deposes to being paid $7 per hour when he worked at a sushi business in Sydney and that he did not receive pay slips, overtime, penalty rates or superannuation contributions from his employer.
I accept that these matters all demand a penalty in the present case that recognises the need to deter others in this industry who might be tempted to treat their workers and their obligations to comply with workplace laws in the same way as the respondents in this case.
The respondents have not previously been the subject of findings of contraventions of Commonwealth workplace laws by the Fair Work Ombudsman.
The first respondent’s business is what might be characterised as a small business. There is little evidence of its true financial position before me. Each of the other respondents asserts that they would be unable to pay the penalties sought by the applicant. Their assertions are not supported by any corroborative evidence, but I have no reason to disregard the scant evidence that they give about these matters.
Although the first respondent has put into evidence its Business Activity Statements for the period from 1 April, 2016 to 30 June, 2017 those documents are of very little assistance given the time frame to which they relate. They do not inform the Court of the respondents’ financial circumstances either at the time of the contraventions or at present. In any event, whatever the case might be with respect to the respondents’ financial circumstances penalties should be imposed at a meaningful level.
The personal respondents submit that when they commenced their involvement with the business, they had no previous experience in operating a food business and had never employed any employee prior to operation of the first respondent’s business. Their evidence is that the business was set up by a former director of the first respondent who ran a successful sushi business of his own. The respondents say that they followed the same practice set up by that former director.
Further, the respondents submit that they had no knowledge of their obligations under the Award or the Fair Work Act and thus, this case can be distinguished from a case where an employer with prior or actual knowledge of the proper rates of pay, has taken advantage of employees who were ignorant of their rights. The personal respondents submit that they genuinely believed that at all material times they treated the employees well and paid them “above industry standard” although they do not set out the basis for their belief about that matter.
However, none of that is really to the point. As Judge Dowdy recently said in Fair Work Ombudsman v Hasegawa and Ye International Pty Ltd [2019] FCCA 1424:
[22] …The simple fact of the matter is that persons who engage in business activities which necessitate the employment of staff are under a strict obligation to pay their staff the just entitlements of the staff in accordance with law, whether the relevant employer is a major corporation, or…a family business. […]
… Employees are entitled to respect and part of that respect is to pay them their full entitlements which must be recognised and known to the employer.
The Fair Work Ombudsman accepts that there is no evidence to suggest that the respondents’ contravening conduct was deliberate. The respondents depose to having relied on a system that was set up by a former director of the business. They emphasise that there was no intention on their part to not comply with the relevant workplace laws. I accept that the contraventions in the present case were not deliberate.
However, there is no evidence that the respondents took any steps to understand whether a decision to continue that system was lawful. There is no evidence that they made any enquiries whatsoever about the correct entitlements for their employees at any point after they took over from the previous business owner. That is curious given that it is notorious that wage rates and other entitlements change over time.
I am satisfied that the respondents’ conduct, whilst not deliberate, was plainly grossly reckless.
The respondents have cooperated throughout the Fair Work Ombudsman’s investigation. I accept that they have all made full admissions at the earliest opportunity. They have thereby saved considerable cost to the public purse by avoiding the need for a fully contested liability hearing.
On this point, the Fair Work Ombudsman submits it is relevant to consider that the admissions were made in the context of the Fair Work Ombudsman relying upon and pleading s.557C of the Fair Work Act by reason of which the first respondent would have borne the onus of disproving the underpayment contraventions in circumstances where no records were made or kept by the first respondent and no pay slips were given to the relevant employees. Accordingly, the argument proceeds, the respondents’ concessions may be characterised to some extent as an acceptance of the inevitable. However, I reject that argument. Given the cooperation from the respondents prior to the commencement of these proceedings, I think that early admissions from them were inevitable because they are genuinely contrite about the contraventions.
That is further demonstrated by the directors of the first respondent producing to the Fair Work Ombudsman recreated records for the relevant investigation period in an effort to assist the Fair Work Ombudsman with its investigation. The production of those records allowed the Fair Work Ombudsman to calculate a significant underpayment over the relevant period.
The respondents have rectified all of the underpayment contraventions alleged against the first respondent very soon after it was served with the applicant’s Findings of Contravention letter served on 9 July, 2018. In particular the evidence shows that:
a)on or about 18 July, 2019 the respondents rectified the identified underpayment in full;
b)since on or about 20 July, 2018:
i)the first respondent has been issuing complaint payslips;
ii)the first respondent has been keeping proper records in compliance with the Commonwealth workplace laws;
iii)the first respondent has been keeping record of accrual and payment of annual and personal leave entitlements; and
iv)the first respondent has been paying all employees in accordance with the Award; and
c)the respondents rectified all outstanding superannuation contributions shortly after receiving confirmation from the applicant of the outstanding amount.
Moreover, on 25 and 26 February, 2019 the respondents complied with orders sought by the Applicant in the Statement of claim in these proceedings (but not then made by the Court) and completed all education courses designed for employers available on the Fair Work Ombudsman’s website.
The respondents formally admitted liability on 12 April, 2019 by way of the statement of agreed facts and thereby avoided the time and costs of a liability hearing for all concerned.
Each of Mr Kim, Mr Kang and Mr Lee have deposed to feeling shame, embarrassment and regret in respect of the contravening conduct and that they have apologised to the employees. The Fair Work Ombudsman acknowledges that evidence as genuine. My assessment of the evidence too, is that their evidence about those matters is genuine.
Another significant indicator of the genuine remorse and contrition expressed by the respondents is the acceptance by all of them that the penalty range proposed by the applicant is appropriate in the circumstances.
The Fair Work Ombudsman submits that a discount of 25% of the maximum penalties for each of the respondents is appropriate in the circumstances. I accept that submission.
As is the case in each application in which the Court is dealing with an employer that has not met its employees’ minimum entitlements, it is relevant to recognise that one of the stated principal objects of the Fair Work Act is the preservation of an effective safety net for employee entitlements and effective enforcement mechanisms. It is vital to ensure compliance with a safety net of awards to create an even playing field and ensure all employees are appropriately remunerated for the work they perform. The substantial penalties set by the legislature for contraventions of the Fair Work Act reinforce the importance placed on compliance with minimum standards.
Record keeping is also essential for the reasons I have expressed above. It has often been pointed out that: “Without proper pay slips employees are significantly disempowered, creating a structure within which breaches of the industrial laws can be easily perpetrated”: Fair Work Ombudsman v Taj Palace Tandoori Indian Restaurant Pty Ltd [2012] FMCA 258 at [67].
I accept that the obligation to make and keep employee records is, like the obligation to provide pay slips, essential to achieving compliance with minimum standards under industrial instruments. The record keeping obligations imposed by the Fair Work Act and the Fair Work Regulations are directed at ensuring the creation and retention of records that are critical in assessing compliance with Commonwealth workplace laws. When an employer does not make and keep employment records, an effective safety net for employees is difficult to maintain and results in those employees being more vulnerable to exploitation.
Mr Lee asserts in his affidavit that media coverage has had a negative impact on the businesses profitability. In a general sense, I have no difficulty with that proposition, but as the Fair Work Ombudsman points out, there is no evidence as to any downturn in the first respondent’s profitability, or that any media coverage is the cause of any downturn.
Having regard to the foregoing matters, I fix the penalties for each of the identified contraventions in accordance with the penalties set out in annexure “A” to these reasons.
Having fixed an appropriate penalty for each contravention, the Court should consider the aggregate penalty, to determine whether it is an appropriate response to the conduct that led to the breaches. Whilst the penalty imposed must not be oppressive, it must be commensurate with the seriousness of the conduct engaged in by respondents.
The Fair Work Ombudsman accepts that a totality discount of 25% for each of the respondents, in addition to the 25% discount for cooperation and rectification, is appropriate. The applicant takes that approach owing to the large number of contraventions and the need to ensure that the penalty imposed by the Court is one that is commensurate with the respondents’ conduct. I accept that submission and that a further reduction of 25% of the aggregate penalty is appropriate in each case.
Accordingly, the penalty for the respondents will be as follows:
a)$108,082.50 for the first respondent (which I will round to $108,000);
b)$10,631.25 for the second respondent (which I will round to $10,600);
c)$3,543.75 for the third respondent (which I will round to $3,550); and
d)$3,543.75 for the fourth respondent (which I will round to $3,550).
There is no evidence to indicate that these ranges would be oppressive or crushing on the respondents or any of them.
It is otherwise appropriate to make the orders upon which the parties have agreed. Accordingly, I make the orders set out at the commencement of these reasons.
I certify that the preceding fifty-one (51) paragraphs are a true copy of the reasons for judgment of Judge Jarrett
Associate:
Date: 16 August 2019
Annexure A
PENALTIES FOR THE FIRST RESPONDENT
| Contravention | Maximum penalty | Maximum penalty after discount | Penalty (% of Maximum) | Total penalty |
| s.535 (1) - failure to make and keep employee records | $63,000 | $47,250 | 55% | $25,987 |
| s.536(1) - failure to provide pay slips | $63,000 | $47,250 | 55% | $25,987 |
| s.45 - failure to pay minimum rate pursuant to cl.17 of the Award | $63,000 | $47,250 | 35% | $16,537 |
| s.45 - failure to pay additional loading for working hours on Saturday pursuant to cl.25.5(b)(i) of the Award | $63,000 | $47,250 | 15% | $7,087 |
| s.45 - failure to pay additional loading for working hours on Sunday pursuant to cl.25.5(c)(i) of the Award | $63,000 | $47,250 | 15% | $7,087 |
| s.45 - failure to pay overtime prescribed by cl.26.1(a) of the Award | $63,000 | $47,250 | 35% | $16,537 |
| s.45 - failure to pay annual leave loading prescribed by cl.28.3(a) of the Award | $63,000 | $47,250 | 0% | $0 |
| s.45 - failure to make superannuation contributions prescribed by cl.21.2 of the Award | $63,000 | $47,250 | 35% | $16,537 |
| s.45 - failure to enter into written part-time agreements prescribed by cl.12.2 of the Award | $63,000 | $47,250 | 10% | $4,725 |
| s.44(1) - failure to accrue annual leave as required by s.87 of the Fair Work Act | $63,000 | $47,250 | 25% | $11,813 |
| s.44(1) - failure to accrue personal/carers leave as required by s.96 of the Fair Work Act | $63,000 | $47,250 | 25% | $11,813 |
| Total penalty | $693,000 | $519,750 | $144,110 |
PROPOSED PENALTIES FOR THE SECOND RESPONDENT
| Contravention | Maximum penalty | Maximum penalty after discount | Penalty range sought | Total penalty |
| s.535 (1) - failure to make and keep employee records | $12,600 | $9,450 | 50% | $4,725 |
| s.536(1) - failure to provide pay slips | $12,600 | $9,450 | 50% | $4,725 |
| s.44(1) - failure to accrue annual leave as required by s.87 of the Fair Work Act | $12,600 | $9,450 | 25% | $2,363 |
| s.44(1) - failure to accrue personal/carers leave as required by s.96 of the Fair Work Act | $12,600 | $9,450 | 25% | $2,363 |
| Total penalty | $50,400 | $37,800 | $14,175 |
PROPOSED PENALTIES FOR THE THIRD RESPONDENT
| Contravention | Maximum penalty | Maximum penalty after discount | Penalty range | Total penalty |
| s.44(1) - failure to accrue annual leave as required by s.87 of the Fair Work Act | $12,600 | $9,450 | 25% | $2,363 |
| s.44(1) - failure to accrue personal/carers leave as required by s.96 of the Fair Work Act | $12,600 | $9,450 | 25% | $2,363 |
| Total penalty | $25,200 | $18,900 | $4,726 |
PROPOSED PENALTIES FOR THE FOURTH RESPONDENT
| Contravention | Maximum penalty | Maximum penalty after discount | Penalty range | Total penalty |
| s.44(1) - failure to accrue annual leave as required by s.87 of the Fair Work Act | $12,600 | $9,450 | 25% | $2,363 |
| s.44(1) - failure to accrue personal/carers leave as required by s.96 of the Fair Work Act | $12,600 | $9,450 | 25% | $2,363 |
| Total penalty | $25,200 | $18,900 | $4,726 |
Key Legal Topics
Areas of Law
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Employment Law
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Penalty
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