Fair Work Ombudsman v A and S Wholesale Fruit and Vegetables Pty Ltd

The Fair Work Ombudsman (the applicant) commenced proceedings against A & S Wholesale Fruit & Vegetables Pty Ltd (the first respondent), Stephen Fanous (the second respondent), and Etherah Louli (the third respondent). The applicant alleged that the first respondent contravened various provisions of the *Fair Work Act 2009* (Cth) (the FW Act), the *Fair Work Regulations 2009* (Cth), and the General Retail Industry Award 2010, and that the second and third respondents were involved in these contraventions. The parties subsequently filed agreed statements of facts, admitting contraventions by the first respondent and admitting involvement by the second and third respondents, and agreed on the penalties to be imposed.

The court was required to determine whether the agreed penalties were appropriate, given the admitted contraventions of the FW Act and the Award by the first respondent, and the admitted accessorial liability of the second and third respondents. The contraventions included failures to pay minimum hourly rates, penalty rates, overtime, annual leave loading, and other entitlements, as well as breaches related to record-keeping and the provision of payslips.

Judge O'Sullivan applied the principles for determining civil penalties, considering the nature and extent of the conduct, the circumstances in which it occurred, the loss sustained by employees, the size of the business, whether the breaches were deliberate, the involvement of senior management, and the need for specific and general deterrence. The court noted that while parties can agree on penalties, it is not bound to simply "rubber stamp" them, but it is highly desirable to impose the agreed penalty if it is within the permissible range and considered appropriate in the circumstances. The court found that the agreed penalties, which reflected a discount for early submissions and cooperation, were appropriate.

The court ordered the first respondent to pay penalties totalling $200,000, the second respondent to pay $30,000, and the third respondent to pay $13,000. Additionally, the first respondent was ordered to engage a third party to audit its compliance with the FW Act and the Modern Award for a six-month period and to display a notice in its premises detailing employee entitlements and information on contacting the Fair Work Ombudsman.