Fair Work Ombudsman v A & G Lamattina & Sons Pty Ltd
[2024] FedCFamC2G 880
•13 September 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
Fair Work Ombudsman v A & G Lamattina & Sons Pty Ltd [2024] FedCFamC2G 880
File number: MLG 1499 of 2023 Judgment of: JUDGE BLAKE Date of judgment: 13 September 2024 Catchwords: INDUSTRIAL LAW – failure to comply with minimum terms and conditions in awards – level of pecuniary penalty to be imposed – where parties entered into a Statement of Agreed Facts – where parties agree on penalty – whether penalty agreed is appropriate – factors considered – HELD appropriate that a penalty be imposed in the terms agreed by the parties. Legislation: Evidence Act 1995 (Cth) s 191
Fair Work Act 2009 (Cth) ss 45, 323(1)(a), 323(1)(c), 546, 546(1), 546(3)(a), 556, 557(1), 557(2), 557(3)
Horticulture Industry Award 2010 cll 10.4(b), 14.1(a), 15.1(a), 25.3, 29.4
Horticulture Industry Award 2020 cll 11.3(a), 15.1(a), 25.3, 29.4
Cases cited: Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (2017) 249 FCR 548
Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (2017) 254 FCR 68
Australian Building and Construction Commissioner v Pattinson (2022) 274 CLR 450
Australian Ophthalmic Supplies Pty Ltd v McAlary-Smith [2008] FCAFC 8
Commonwealth v Director, Fair Work Building Industry Inspectorate (2015) 258 CLR 482
Fair Work Ombudsman v Grouped Property Services Pty Ltd (No 2) [2017] FCA 557
Fair Work Ombudsman v NSH North Pty Ltd t/as New Shanghai Charlestown [2017] FCA 1301
Kelly v Fitzpatrick [2007] FCA 1080
R v De Simoni (1981) 147 CLR 383
Division: Division 2 General Federal Law Number of paragraphs: 58 Date of hearing: 15 July 2024 Place: Melbourne Counsel for the Applicant: Ms Stojanova Solicitor for the Applicant: Office of the Fair Work Ombudsman Counsel for the Respondent: Mr Ternovski Solicitor for the Respondent: HMB Employment Lawyers ORDERS
MLG 1499 of 2023 BETWEEN: FAIR WORK OMBUDSMAN
Applicant
AND: A & G LAMATTINA & SONS PTY LTD (ACN 005 830 357)
Respondent
ORDER MADE BY:
JUDGE BLAKE
DATE OF ORDER:
13 SEPTEMBER 2024
THE COURT DECLARES THAT:
1.The Respondent, A & G Lamattina & Sons Pty. Ltd (ACN 005 830 357) contravened the following civil remedy provisions in the period from 10 February 2020 to 11 February 2021:
(a)section 45 of the Fair Work Act 2009 (Cth) (‘Act’) by failing to pay Mr Muhamad Daud Nadde (‘Mr Nadde’), Mr Juli (‘Mr Juli’) and Mr Zulkifli Bin Zahari (‘Mr Zahari’) (collectively, the ‘Employees’) the minimum hourly rate of pay as prescribed by clauses 14.1(a) and 15.1(a) of the Horticulture Industry Award 2010 and the Horticulture Industry Award 2020, as varied from time to time (‘Award’);
(b)section 45 of the Act by failing to pay the Employees the casual loading entitlement as prescribed by clauses 10.4(b) and 11.3(a) of the Award;
(c)section 45 of the Act by failing to pay the Employees overtime rates as prescribed by clause 25.3 of the Award;
(d)section 45 of the Act by failing to pay Mr Nadde and Mr Juli the public holiday penalty rate entitlements as prescribed by clause 29.4 of the Award;
(e)section 323(1)(a) of the Act by failing to pay the Employees in full; and
(f)section 323(1)(c) of the Act by failing to pay the Employees at least monthly.
AND THE COURT ORDERS THAT:
2.Pursuant to section 546(1) of the Act, the Respondent pay a pecuniary penalty of $166,860 (‘Penalty’) to the Commonwealth with respect to the Contraventions declared at paragraph 1 above.
3.Pursuant to section 546(3)(a) of the Act, the Penalty all be paid into the Consolidated Revenue Fund of the Commonwealth of Australia within 90 days of the date of these Orders.
4.The Applicant have liberty to apply.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review 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 BLAKE:
In this matter, the parties have reached agreement as to various contraventions committed by the Respondent of the Fair Work Act 2009 (Cth) (‘Act’), the declarations and orders the Court should consider making in light of the admitted contraventions, and the pecuniary penalty to be imposed on the Respondent. The question before the Court is whether it is appropriate for the Court to give effect to the agreement reached by the parties.
For the reasons that follow, I have decided to impose a pecuniary penalty on the Respondent of $166,860, and to make orders and declarations in the terms sought by the parties.
FACTS
The parties filed a Statement of Agreed Facts (‘SAF’) for the purposes of section 191 of the Evidence Act 1995 (Cth). I have had regard to the SAF in considering this matter. The SAF is reproduced as Annexure 1 to these reasons. The SAF discloses various contraventions of the Act and awards committed by the Respondent in respect of Mr Muhamad Daud Nadde (‘Mr Nadde’), Mr Juli (‘Mr Juli’) and Mr Zulkifli Bin Zahari (‘Mr Zahari’) (collectively, the ‘Employees’).
MATERIAL RELIED ON
At the hearing on penalty, the Applicant relied on the Statement of Claim filed 28 August 2023, the Defence filed by the Respondent on 20 November 2023, the Amended Defence filed by the Respondent on 22 March 2024, the SAF, the affidavit of Fair Work Inspector McCauley (‘Inspector McCauley’) filed 22 December 2023, a written outline of submissions and also its written reply submissions. The Respondent relied on the SAF and its written outline of submissions. The parties also filed a Joint List of Authorities that I have had regard to, and a Joint Minute of Orders.
At the hearing, Counsel for the Respondent objected to the ‘relevance of the evidence’ of Inspector McCauley in relation to various allegations about which he said the Court ‘can’t or shouldn’t make findings’.[1] I did not understand the objection to be to the entirely of the affidavit of Inspector McCauley. Accordingly, I have had regard to those parts of Inspector McCauley’s affidavit where no objection was taken. I have otherwise dealt with the Respondent’s objections in the course of my reasons that follow.
[1] Read in context with the Respondent’s written submissions, I understood this to be an objection to those parts of the evidence led by the Applicant concerning what the Respondent labelled the ‘uncharged acts’.
RELEVANT PRINCIPLES
Section 546 of the Act gives the Court power to impose pecuniary penalties in respect of contraventions of civil remedy provisions contained within the Act.
It is open to parties to propose penalties to be imposed by the Court and to make submissions in respect of the appropriate penalty range: Commonwealth v Director, Fair Work Building Industry Inspectorate (2015) 258 CLR 482 at [46]-[64]. While it is open to the parties to embark upon this course, the Court must nevertheless satisfy itself that the penalty is appropriate. The Court ought not depart from the proposal of the parties merely because it might have been disposed to some other figure.
In Australian Building and Construction Commissioner v Pattinson (2022) 274 CLR 450 (‘Pattinson’), the High Court stated at [9] that ‘Under the civil penalty regime provided by the Act, the purpose of a civil penalty is primarily, if not solely, the promotion of the public interest in compliance with the provisions of the Act by the deterrence of further contraventions of the Act’. The High Court also stated at [42] that penalties ‘are not retributive, but rather are protective of the public interest in that they aim to secure compliance by deterring repeat contraventions’.
In Fair Work Ombudsman v NSH North Pty Ltd t/as New Shanghai Charlestown [2017] FCA 1301, Bromwich J set out at paragraph [36] the approach to be taken when determining penalty. In Kelly v Fitzpatrick [2007] FCA 1080 at [14], the Federal Court set out a list of non-exhaustive factors relevant to the imposition of penalties under the Act.
I intend to approach this matter consistently with the authorities referred to above.
COURSE OF CONDUCT AND GROUPING OF CONTRAVENTIONS
Section 556 of the Act relevantly provides that if a person is ordered to pay a pecuniary penalty in relation to particular conduct, the person is not liable to be ordered to pay a pecuniary penalty under some other provision of a law of the Commonwealth in relation to that conduct.
Section 557(1) of the Act relevantly provides two 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 the contraventions are committed by the same person and the contraventions arose out of a course of conduct by the person. This principle also finds voice in the common law: Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (2017) 249 FCR 458 at [88].
In the present proceedings, the Applicant has accepted that:
(a)the contraventions of clause 14.1(a) of the Horticulture Industry Award 2010 (‘2010 Award’) and clause 15.1(a) of the Horticulture Industry Award 2020 (‘2020 Award’) (being multiple failures to pay minimum rates prescribed by the awards to the Employees as set out in the SAF) arose out of a course of conduct and may be treated as one contravention under section 557(1) of the Act;
(b)the contraventions of clause 10.4(b) of the 2010 Award and clause 11.3(a) of the 2020 Award (being multiple failures to pay casual loading prescribed by the awards to the Employees as set out in the SAF) arose out of a course of conduct and may be treated as one contravention under section 557(1) of the Act;
(c)the contraventions of clause 25.3 of the 2010 Award (being multiple failures to pay overtime rates of pay as prescribed by 2010 Award to the Employees as set out in the SAF) arose out of a course of conduct and may be treated as one contravention under section 557(1) of the Act;
(d)the contraventions of clause 29.4 of the 2010 Award (being failures to pay public holiday penalty rates of pay as prescribed by 2010 Award to Mr Nadde and Mr Juli as set out in the SAF) arose out of a course of conduct and may be treated as one contravention under section 557(1) of the Act;
(e)the contraventions of section 323(1)(a) of the Act of failing to pay the Employees in full as set out in the SAF resulted from the same ‘particular conduct’ of not paying the Employees any wages in each relevant pay period and may be treated as one contravention;
(f)the contraventions of section 323(1)(c) of the Act of failing to pay the Employees at least monthly as set out in the SAF resulted from the same ‘particular conduct’ of not paying the Employees any wages in each relevant pay period and may be treated as one contravention; and
(g)it is appropriate in the proceeding to treat the Respondent’s decision not to pay the Employees their wages and entitlements and each relevant pay period as one course of conduct.
Having considered the SAF and the pleadings, and understanding the nature of the contraventions which arose from a complete failure to pay wages, I am satisfied that the acceptance by the Applicant of the matters above is appropriate.
The reasoning above means that the admitted contraventions contained within the SAF reduce to be treated as six contraventions as follows:
(a)contravention of section 45 of the Act by failing to pay the Employees the minimum hourly rate of pay required by clauses 14.1(a) and 15.1(a) of the awards, as varied from time to time;
(b)contravention of section 45 of the Act by failing to pay the Employees the casual loading required by clause 10.4(b) and 11.3(a) of the awards;
(c)contravention of section 45 of the Act by failing to pay the Employees overtime rates as prescribed by clause 25.3 of the 2010 Award;
(d)contravention of section 45 of the Act by failing to pay Mr Nadde and Mr Juli the public holiday penalty rate entitlements as prescribed by clause 29.4 of the 2010 Award;
(e)contravention of section 323(1)(a) of the Act by failing to pay the Employees in full; and
(f)contravention of section 323(1)(c) of the Act by failing to pay the Employees at least monthly.
FACTORS RELEVANT TO THE ASSESSMENT OF PENALTY
Maximum penalty
The contraventions spanned a period from February 2020 to February 2021. Until 30 June 2020, a penalty unit was $210. From 1 July 2020, a penalty unit was $222. The Applicant submitted that it was appropriate to apply the higher penalty unit where the contravention spans a period where different penalty units apply. I note that submission has been accepted in superior courts: see Fair Work Ombudsman v Grouped Property Services Pty Ltd (No 2) [2017] FCA 557 at [396]-[398]. Given that circumstance, and given I was not addressed orally on this issue, I accept that is the appropriate approach in the circumstances of this matter.
Having regard to the above, the total maximum penalty in respect of the six contraventions is $396,000.
Deterrence
Specific deterrence is directed at the party who has contravened the provisions of the Act. It is concerned with ensuring a contravening party is not prepared to engage in the contravening conduct in the future.
The Respondent is in the Horticulture industry and is covered by the terms of the 2020 Award. It operates a farm producing celery located in Boneo, Victoria. An Equifax company extract indicates that it remains registered.
The SAF discloses the most serious of contraventions of workplace law. A complete failure by an employer to pay any wages at all to three vulnerable employees over the course of numerous weeks in the period February 2020 to February 2021. Counsel for the Respondent accepted that his client ‘would have known that they’re required to pay wages’.
Counsel for the Applicant contended there was a ‘high’ need for specific deterrence in this case. In its written submissions, the Applicant stated that there was a need to impose a penalty to deter the Respondent from engaging in the same contravening conduct in the future. The Respondent, for its part, did not deny the need for specific deterrence.
Notwithstanding the apparent meeting of the minds between the parties on the need for specific deterrence, the parties were in dispute about whether the Court ought have regard to a series of matters that the Respondent labelled ‘uncharged acts’ in assessing, among other things, the need for specific deterrence, the circumstances of the contravening conduct, the deliberateness of the contravening conduct, the Respondent’s poor attitude to the Applicant, the Respondent’s lack of cooperation with the Applicant, and the Respondent not having demonstrated contrition.
The ‘uncharged acts’ that the Applicant submitted were relevant and ought to be taken into account are ‘the Respondent’s problematic compliance history’. The particular matters that the Applicant pointed to in order to ground this submission are referred to in the affidavit of Inspector McCauley, and include a letter of caution from the Applicant to the Respondent issued in 2019 in a matter unrelated to these proceedings, previous allegations of underpayment made against the Respondent that are not related to these proceedings, correspondence from the Respondent in 2019 confirming it had made repayments of outstanding wages in a matter not connected with these proceedings, complaints from employees about non-payment of wages in 2023, and the provision of false information to the Applicant during the course of these proceedings. I propose to deal with the last matter first, being the alleged provision of false information to the Applicant in the course of this proceeding, before returning to the other matters.
On 21 November 2023, the Respondent filed its Defence in this proceeding. Within that document, the Respondent set out at paragraph [10] an explanation of why the non-payment of entitlements had occurred. The Defence was subsequently amended, and the explanation given in paragraph [10] of the Defence was not pressed in the amended version of the Defence. In written submissions, the Applicant asserted that the Respondent by the filing of its Defence and subsequent actions ‘misled the Applicant and created false bank statements’ in an attempt to attribute the contraventions to a payroll error. In oral submissions, I was taken to evidence in the affidavit of Inspector McCauley said to constitute ‘false’ bank statements, or ‘doctored’ statements. In oral submissions, Counsel for the Applicant said that the ‘false bank document submissions that the Ombudsman makes…their relevance is in relation to the Respondent acting deliberately, not having demonstrated contrition, having demonstrated a poor attitude to the Respondent [sic] as regulator, acting in an uncooperative manner’. In written submissions in reply, the Applicant stated that ‘the provision by the Respondent of the false information and bank statements to the Applicant during the investigation is a serious act demonstrative of a lack of contrition and a lack of acceptance of responsibility by the Respondent for the contravening. It is conduct relevant to assessing “whether the company has shown a disposition to cooperate with the authorities responsible for the enforcement of the Act in relation to the [present] contraventions”’.
The creation of false documents is a matter that may be relevant to penalty, depending on the circumstances of a particular case. However, before assessing penalty, a Court would need to be satisfied on the balance of probabilities that the documents were ‘false’ or ‘doctored’.
The Applicant’s submissions in this matter are littered with references to documents being produced by the Respondent as being ‘false’. It is implicit (if not explicit) that in advancing those submissions, the Applicant asks the Court to make a finding that that the Respondent created false documents. Put another way, the Applicant is asking the Court to make a positive finding of fraud committed by the Respondent, and then to use that factual finding for the purposes of assessing pecuniary penalty.
I decline to make any finding that the documents referred to by the Applicant were ‘false’, or make a finding to the effect that the Respondent committed a fraud.
First, this matter was run on pleadings. Nothing in the Statement of Claim filed by the Applicant raises the issue of the creation of false documents or fraud. True it is that the issue (from the Applicant’s perspective) did not arise until after the filing of the Defence. It was open to the Applicant, however, to seek to file an Amended Statement of Claim and squarely raise the issue. It did not do so. An allegation of fraud is a serious matter and if it is going to be raised, it needs to be raised squarely in the pleadings, with the Respondent being given proper and clear notice of the case it is to meet.
Second, it is not necessary in this matter to make any positive finding that false documents were created by the Respondent. The making of such finding is not relevant to any issue in dispute. The parties are agreed as to the contraventions that were committed. The need for specific deterrence is accepted by the Applicant and is not in issue. The parties are agreed as to the penalty to be imposed in respect of all contraventions.
The Applicant also submitted that the Court should make a finding the Respondent created false documents and attempted to mislead the Applicant because it is relevant to the deliberateness of the Respondent’s conduct, its failure to demonstrate contrition, or its acting uncooperatively with (or with a poor or inappropriate attitude to) the Applicant.
It is not, however, necessary for the Court to make the finding urged upon it by the Applicant in order to make findings about the deliberateness of the contravening conduct, the failure of the Respondent to demonstrate contrition, or the Respondent’s uncooperative or poor attitude to the Applicant.
I am comfortably satisfied, and I find, that the contravening conduct of the Respondent was deliberate and intentional. The Employees were not paid any wages at all during significant periods when they were working. The Respondent’s Counsel conceded the Respondent knew it had to pay wages. In the circumstances, the Respondent’s conduct was clearly deliberate and intentional. The Respondent advanced no submission to the contrary.
I am comfortably satisfied, and I find (subject to one matter I come to later), that Respondent demonstrated a poor attitude to the Applicant, and was not cooperative with it. The affidavit of Inspector McCauley discloses that the Applicant first raised concerns about the non-payment of wages to Mr Nadde and Mr Juli with the Respondent on 10 May 2021. The immediate response to that received from the Respondent on 21 May 2021 was that ‘we have found that both employees were paid for the period mentioned below’. Subsequently, on 19 June 2021, the Respondents admitted the employees had not been paid, but said there had been a ‘human error’. The Applicant then was required to invest significant time chasing the Respondent for details and information. That included the Applicant requesting on 25 June 2021 a breakdown of what was owed to each employee, asking on 25 August 2021 what payments had been made, issuing a Compliance Notice on 27 August 2021 (which was ultimately withdrawn on 15 December 2021 including for the reason that the Respondent had not made payments to the Employees), following up the Compliance Notice on 8 October 2021, following up (on 16 November 2021) on promises by the Respondent (made on 14 October 2021) to conduct an audit, dealing with promises by the Respondent (on 7 December 2021) to rectify underpayments by Christmas 2021, chasing compliance with a Notice to Produce on 2 February 2022, and writing to the Respondent requesting again an explanation of the circumstances leading to the non-payment of wages to the Employees. Again, the Respondent advanced no submission or evidence that it had cooperated with the Respondent.
I am also comfortably satisfied, and I find, that the Respondent has not demonstrated any contrition or remorse. The Respondent made no submission that it had demonstrated remorse or contrition, nor did it lead any evidence upon which a finding could be made that it had demonstrated remorse or contrition. I refer also to my reasons later in this judgment.
There are then the remaining ‘uncharged acts’, or other conduct referred to by the Applicant. The Applicant says I should have regard to those matters because they are relevant to the deliberateness of the Respondent’s conduct, the Respondent’s non-cooperative attitude with the Applicant, and the Respondent’s lack of contrition. On this issue, the Respondent submitted that the Court cannot take into account as an aggravating circumstance, conduct of the Respondent that would constitute an additional offence of which the Respondent has neither been charged or convicted. In making that submission, the Respondent relied on what it referred to as the De Simoni principle in criminal sentencing that emanates from the decision in R v De Simoni (1981) 147 CLR 383 at 389. The Respondent also submitted it was not relevant for the Court to consider the ‘uncharged acts’ or other conduct given the circumstances of this case. The Applicant, for its part forcefully submitted that the De Simoni principle does not apply to civil remedy proceedings under the Act.
A matter such as this (run on the SAF and where the orders, declarations and penalties have been agreed, subject to Court approval) is not an appropriate vehicle in which to embark upon a serious review of whether the De Simoni principle applies in civil penalty proceedings under the Act, and I decline to do so in this case.
For the reasons given above, it is not relevant for me to take the remaining ‘uncharged acts’ or other conduct into account. The Applicant explained why it was relevant to do so. It is, however, unnecessary to take those matters into account in circumstances where I have made findings about the deliberateness of the Respondent’s conduct, its lack of contrition and its poor attitude to the Applicant. The parties are agreed as to the contraventions that were committed. The parties are agreed as to the penalty to be imposed in respect of all contraventions.
In summary, I find that the contraventions committed by the Respondent were deliberate and intentional. The Respondent (apart from one matter I will come to) acted uncooperatively toward the Applicant, displayed a poor attitude toward it and the Respondent has not demonstrated any contrition or remorse for its conduct. In all the circumstances, there is a great need for specific deterrence in this case. There is a need to impose a penalty that will specifically deter the Respondent from engaging in the type of contravening conduct it has engaged in, in this matter.
General deterrence is concerned with ensuring, among other things, that the penalty is likely to act as a deterrent in preventing similar contraventions by like-minded persons. Annexed to the affidavit of Inspector McCauley were two reports from the Applicant’s Strategic Research, Analysis and Reporting Team on the Agricultural and Horticultural industries. Those reports disclose, inter alia, that a total of approximately $1.9 million has been recovered in respect to 613 workers in the Agriculture industry since 2016, and that a total of approximately $637,000 has been recovered in respect to 244 workers in the Horticultural Industry since 2016.
In my view, it is necessary in this matter to ensure that any penalty imposed acts as a deterrent to other employers who might be tempted to disregard obligations to pay employees wages and entitlements. The underpayments in this case, and the duration over which they spanned, is significant. There is evidence of non-compliance with minimum conditions in the Agricultural and Horticultural industries. Any penalty set must send a signal to other employers in these industries not to act in a similar way to the way in which the Respondent (and seemingly others) have behaved.
Nature, extent and circumstances of loss
It is difficult to think of a contravention of an award that is more serious than a complete failure to pay employees their wages. That is what occurred in this case. It is egregious conduct.
The Employees were vulnerable employees. Mr Zahari arrived in Australia in 2015, while Mr Nadde and Mr Juli arrived in 2017. The Employees would appear not to have English as their first language – each required an interpreter for interviews with Inspector McCauley. They were employed on the basis that the Respondent made no firm advance commitment to ongoing employment. They were engaged in low-level manual labour that included planting, picking and cutting celery. No submission was advanced to the contrary that the employees were vulnerable.
In the context of low-paid, vulnerable employees, the amount of money that the Employees were deprived of was significant. The total amount of Mr Nadde’s underpayment was $37,086.10. The total amount of Mr Juli’s underpayment was $27,290.98. The total amount of Mr Zahari’s underpayment was $27,530.48.
The contraventions extended for significant periods of time. They persisted despite the Employees making inquiries about their pay. Mr Nadde was paid for only 10 out of 52 weeks of work. Mr Juli was paid for only six out of 36 weeks worked. Mr Zahari was paid for only eight out of 41 weeks of work. This is not a case where an employer misinterpreted or misapplied the industrial instruments in such a way that employees were paid but did not receive their full entitlements. Rather, this is a case in which employees were not paid their entitlements for weeks at a time. The Employees were also deprived of their entitlements for a significant period of time even after the Applicant became involved on their behalf.
All of these matters lead inexorably to the conclusion that the nature and extent of the losses faced by the Employees in this case was significant. These were vulnerable employees seemingly exploited or taken advantage of by their employer. The Respondent offered no explanation for such conduct.
Similar Previous Conduct
It is agreed that the Respondent has not previously been found by a Court to have contravened workplace laws.
As noted earlier, the Applicant made submissions about other conduct it says should be taken into account. Insofar as those submissions are concerned, I rely on my earlier findings and reasons.
Statutory Objectives and compliance with minimum standards
It is clear in this case that there was a failure by the Respondent to comply with minimum employment standards. It is an object of the Act to ensure a ‘guaranteed safety net of fair relevant and enforceable minimum terms and conditions’. The level of penalty must be set at a level that reflects the serious contraventions that have occurred and encourages compliance with minimum standards.
Contrition and Corrective Action
There is no evidence of the Respondent apologising for its conduct or showing any remorse. There is not any evidence of the Respondent accepting responsibility for its actions. There is no evidence from the Respondent of any corrective action it has taken to ensure that similar contraventions do not occur in the future.
It is relevant to note that the Respondent did eventually rectify the non-payments to the affected employees in February 2023. I note that occurred years after the underpayments occurred. I also note that the Respondent eventually entered into the SAF which truncated the need for a full hearing. That cooperation, if it can be called that, also occurred very late, and only after the Respondent had earlier refused to complete negotiations for a statement of agreed facts.
The Respondent advanced no submission that it should receive a discount because of contrition, because it took corrective action, or because it cooperated with the Applicant.
In all the circumstances, I find that the Respondent has expressed no remorse or contrition for its actions. I rely on my earlier finding that it did not cooperate with the Applicant (save as to it eventually entering into the SAF). I find that it has not taken any action to ensure future contraventions of workplace laws do not occur. What actions the Respondent did take came late in the piece. In all of the circumstances, I agree with the Applicant’s submission that the very limited scope of the Respondent’s actions justify only a 10% discount to the maximum penalty.
Size and financial circumstances of the business
The Respondent has not filed any evidence about the size of its operations, its financial circumstances or its capacity to pay a pecuniary penalty. There is some limited evidence before the Court that the Respondent is a supplier to major supermarkets, and some limited evidence that there are other entities connected to the Respondent, but that evidence does not support any concrete findings by this Court as to the size and circumstances of the business.
In circumstances where there is no evidence about the size of the Respondent’s operations or its financial circumstances, I decline to place any weight upon such matters in assessing the appropriate pecuniary penalty.
The Penalty
It is then necessary to consider the application of the totality principle and whether the penalties would be crushing or oppressive. A Full Court of the Federal Court in Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (2017) 254 FCR 68 described the principle at [117]. An earlier description of the principle can also be found in Australian Ophthalmic Supplies Pty Ltd v McAlary-Smith [2008] FCAFC 8 at [102].
As I have noted earlier, the Respondent has not filed any evidence as to its size, business operations or financial circumstances. There is therefore not any evidence upon which I can make any finding that the level of penalty sought to be imposed on it would be crushing or oppressive.
Included in the Applicant’s written submissions by way of annexure was a table setting out penalty ranges for each of the admitted contraventions. I have reproduced that annexure as Annexure 2 to these reasons. I have considered the contents of Annexure 2 in light of the submissions of the parties, the content of the SAF and the other evidence before me, and in light of my findings above. The penalty range for all of the penalties combined is $143,208-$166,860. The parties jointly submitted that I should impose a penalty at the higher end of the range, being the amount of $166,860. I agree that I should impose a penalty at the higher end of the range in this case in the amount submitted by the parties. The Respondent has committed what I regard as the most serious contraventions of workplace law, being a complete failure to pay vulnerable employees their lawful entitlements. The contraventions occurred over an extended period of time and the amounts were significant. The Respondent has not shown any remorse, nor has it taken steps to ensure that future contraventions of workplace laws do not occur. The Respondent also did not cooperate with the Applicant. Most importantly, in the context of the comments of the High Court in Pattinson, there is a clear need for specific and general deterrence in this case, given the deliberate nature of the conduct and the seriousness of the conduct.
For all of the reasons set out above, I regard the penalty agreed by the parties to be the appropriate penalty. I impose a penalty of $166,860 on the Respondent payable within 90 days to the Consolidated Revenue Fund of the Commonwealth of Australia. I will also make the declarations and other orders in the form that the parties asked me to make. They are appropriate in this case.
I certify that the preceding fifty eight (58) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Blake. Associate: B Eyoel
Dated: 13 September 2024
ANNEXURE 1
Statement of Agreed Facts filed 12 April 2024
This Statement of Agreed Facts is made by the Applicant, the Fair Work Ombudsman and the Respondent, A & G LAMATTINA & SONS PTY. LTD. (ACN 005 830 357), (Lamattina) (collectively, the Parties) in these proceedings for the purposes of section 191 of the Evidence Act 1995 (Cth).
A. APPLICATION
1.On 28 August 2023, the Applicant filed an Application and Statement of Claim in this Court against Lamattina alleging various contraventions of the Fair Work Act 2009 (Cth) (FW Act), the Horticulture Industry Award 2010 (2010 Award) and the Horticulture Industry Award 2020 (2020 Award), as varied from time to time, in respect of the employment of Mr Muhamad Daud Nadde (Mr Nadde), Mr Juli and Mr Zulkifli Bin Zahari (Mr Zahari) (collectively, the Employees) who performed work for Lamattina at a farm located in Boneo, Victoria, during the period 10 February 2020 to 11 February 2021 (Assessment Period).
B. ADMITTED CONTRAVENTIONS
2.On the basis of the agreed facts set out below, Lamattina admits it contravened:
(a)section 45 of the FW Act by failing to pay the Employees the minimum hourly rate of pay as prescribed by clause 14.1(a) of the 2010 Award;
(b)section 45 of the FW Act by failing to pay Mr Nadde and Mr Zahari the minimum hourly rate of pay as prescribed by clause 15.1(a) of the 2020 Award;
(c)section 45 of the FW Act by failing to pay the Employees the casual loading entitlement as prescribed by clause 10.4(b) of the 2010 Award;
(d)section 45 of the FW Act by failing to pay Mr Nadde and Mr Zahari the casual loading entitlement as prescribed by clause 11.3(a) of the 2020 Award;
(e)section 45 of the FW Act by failing to pay the Employees overtime rates as prescribed by clause 25.3 of the 2010 Award;
(f)section 45 of the FW Act by failing to pay Mr Nadde and Mr Juli the public holiday penalty rate entitlements as prescribed by clause 29.4 of the 2010 Award;
(g)section 323(1)(a) of the FW Act by failing to pay the Employees in full; and
(h)section 323(1)(c) of the FW Act by failing to pay the Employees at least monthly.
C. AGREED FACTS
The Applicant
3. The Applicant is and was at all relevant times:
(a)a statutory appointee of the Commonwealth appointed by the Governor-General by written instrument pursuant to Part 5-2 of the Fair Work Act 2009 (Cth) (FW Act);
(b)a Fair Work Inspector pursuant to section 701 of the FW Act; and
(c)a person with standing to bring these proceedings and to apply for orders for contraventions of civil remedy provisions pursuant to section 539(2) of the FW Act.
The Respondent
4.Lamattina is and was at all relevant times:
(a)a company incorporated under the Corporations Act 2001 (Cth) and registered since 15 May 1981;
(b)a “constitutional corporation” within the meaning of section 12 of the FW Act;
(c)a “national system employer” within the meaning of section 14 of the FW Act;
(d)the operator of a farm producing celery, located at 125 Browns Road, Boneo, in the State of Victoria (Business); and
(e)by reason of the matters agreed in paragraphs 4(b) and 4(c) above, covered by the FW Act in respect of its employees.
Employees
5.During the Assessment Period, Lamattina employed the Employees as follows:
(a)Mr Nadde performed work at the Business from 10 February 2020 to 11 February 2021 (Nadde Assessment Period);
(b)Mr Juli performed work at the Business from 10 February 2020 to 15 October 2020 (Juli Assessment Period); and
(c)Mr Zahari performed work at the Business from 16 April 2020 to 21 January 2021 (Zahari Assessment Period).
6.During the Assessment Period, the Employees performed duties for Lamattina including planting, picking and cutting celery.
7.At all relevant times during the Assessment Period, the Employees were national system employees within the meaning of section 13 of the FW Act.
D.APPLICABLE INSTRUMENT
Modern Award
8.During the period from 10 February 2020 to 12 November 2020, clause 4.1 of the 2010 Award provided that employers throughout Australia in the horticulture industry (defined in clause 4.2 of the 2010 Award and included sowing, planting, raising cultivation, harvesting, picking, washing, packing, storing, grading, forwarding or treating of horticulture crops) and their employees in the classifications listed in Schedule B to the 2010 Award were covered by the 2010 Award, to the exclusion of any other modern award.
9.During the period from 13 November 2020 to 11 February 2021, clause 4.1 of the 2020 Award provided that employers throughout Australia in the horticulture industry (defined in clause 4.2 of the 2020 Award and included sowing, planting raising cultivation, harvesting, picking, washing, packing, storing, grading, forwarding or treating of horticulture crops) and their employees in the classifications listed in Schedule A to the 2020 Award were covered by the 2020 Award, to the exclusion of any other modern award.
10.During the period from 10 February 2020 to 11 February 2021, the Employees performed duties falling within the scope of the classification structure in Schedule B to the 2010 Award and Schedule A to the 2020 Award.
11.By reason of the matters agreed above in paragraphs 4(d) and 5 to 10, at all relevant times during the Assessment Period, the 2010 Award or the 2020 Award, covered and applied to Lamattina in respect of the employment of the Employees.
12.By reason of the matters agreed above in paragraphs 8 to 11, at all relevant times during the Assessment Period, the Employees were each classified as Level 1 employees pursuant to:
(a)clauses 13 and B.1 of Schedule B of the 2010 Award; and
(b)clauses 12 and A.1 of Schedule A of the 2020 Award.
Casual Status of Employees
13.Each employee was employed by Lamattina on the basis that it made no firm advance commitment to ongoing employment according to an agreed pattern of work.
14.During the Assessment Period, the Employees were casual employees for the purposes of section 15A of the FW Act, and clause 10.4 of the 2010 Award or clause 11.1 of the 2020 Award.
Payments to Employees
15.During the Assessment Period, Lamattina was required, by the operation of clause 20.1 of the 2010 Award or clause 16.1 of the 2020 Award, to pay the wages of the Employees weekly or fortnightly according to the actual hours worked each week or fortnight.
16.During the Assessment Period, Lamattina did not pay the Employees for hours worked in respect of each of their weekly pay periods, except for those identified in Columns C, D and E of Annexure A where:
(a)from 10 February 2020 to 1 November 2020, Lamattina paid the Employees an ordinary hourly rate of $24.36 (gross) and an overtime rate of $34.10 per hour; and
(b)from 2 November 2020, Lamattina paid Mr Nadde and Mr Zahari an ordinary hourly rate of $24.80 and an overtime rate of $34.72 per hour (note that all dollar figures are in gross terms unless otherwise stated).
17.The weekly pay periods where the Employees received payment from Lamattina for hours worked are marked “Yes” in Columns C, D and E of Annexure A.
18.The weekly pay periods where the Employees did not receive payment from Lamattina for hours worked are marked “No” in Columns C, D and E of Annexure A.
19.The weekly pay period from 14 September to 20 September 2020 is marked “N/A” in Column C of Annexure A as Mr Nadde did not work in that weekly pay period.
20.The pay periods that do not fall within the Nadde Assessment Period, Juli Assessment Period or Zahari Assessment Period, because they were not employed during those periods, are redacted in Columns C, D and E of Annexure A.
E.UNDERPAYMENT CONTRAVENTIONS
Failure to pay the minimum hourly rate of pay
21.During the Assessment Period, Lamattina was required to pay the Employees (as Level 1 employees) the following minimum hourly rates of pay (Minimum Rate Entitlement) for all ordinary hours of work (Ordinary Hours):
(a)pursuant to clauses 10.4(b) and 14.1(a) of the 2010 Award:
(i)$19.49 per hour from 10 February 2020 to 1 November 2020; and
(ii)$19.84 per hour from 2 November 2020 to 15 November 2020;
(b)pursuant to clause 11.3 and 15.1(a) of the 2020 Award, $19.84 per hour from 16 November 2020 to the end of the Assessment Period on 11 February 2021.
Mr Nadde
22.During the Nadde Assessment Period, as set out in Annexure B, Mr Nadde:
(a)worked 1,790.20 Ordinary Hours;
(b)was entitled to be paid $35,081.12 by Lamattina in respect of the Minimum Rate Entitlement;
(c)was paid $7,036.43 by Lamattina in respect of the Minimum Rate Entitlement; and
(d)was therefore underpaid $28,044.69 in respect of the Minimum Rate Entitlement.
Mr Juli
23.During the Juli Assessment Period, as set out in Annexure B, Mr Juli:
(a)worked 1,158.75 Ordinary Hours;
(b)was entitled to be paid $22,584.11 by Lamattina in respect of the Minimum Rate Entitlement;
(c)was paid $3,849.19 by Lamattina in respect of the Minimum Rate Entitlement; and
(d)was therefore underpaid $18,734.92 in respect of the Minimum Rate Entitlement.
Mr Zahari
24.During the Zahari Assessment Period, as set out in Annexure B, Mr Zahari:
(a)worked 1,344.50 Ordinary Hours;
(b)was entitled to be paid $26,345.60 by Lamattina in respect of the Minimum Rate Entitlement;
(c)was paid $4,761.86 by Lamattina in respect of the Minimum Rate Entitlement; and
(d)was therefore underpaid $21,583.74 in respect of the Minimum Rate Entitlement.
25.By reason of the matters agreed above in paragraphs 15 to 24, Lamattina contravened section 45 of the FW Act by failing to pay each of the Employees amounts sufficient to satisfy their Minimum Rate Entitlement, in contravention of clauses 10.4(b) and 14.1(a) of the 2010 Award and clauses 11.2 and 15.1(a) of the 2020 Award.
26.By reason of the matters agreed above in paragraph 25, Lamattina underpaid the Employees a total of $68,363.35 in respect of the Minimum Rate Entitlement.
Failure to pay casual loading
27.During the Assessment Period, Lamattina was required to pay the Employees (as Level 1 employees) the following casual loading, being an additional 25% of the minimum hourly rate of pay for all Ordinary Hours (Casual Loading Entitlement):
(a)pursuant to clause 10.4(b) of the 2010 Award:
(i)$4.87 per hour from 10 February 2020 to 1 November 2020; and
(ii)$4.96 per hour from 2 November 2020 to 15 November 2020; and
(b)pursuant to clause 11.3(a) of the 2020 Award, $4.96 per hour from 16 November 2020 to 11 February 2021.
Mr Nadde
28. During the Nadde Assessment Period, as set out in Annexure B, Mr Nadde:
(a)worked 1,790.20 Ordinary Hours which attracted the Casual Loading Entitlement;
(b)was entitled to be paid $8,767.21 by Lamattina in respect of the Casual Loading Entitlement;
(c)was paid $1,551.61 by Lamattina in respect of the Casual Loading Entitlement; and
(d)was therefore underpaid $7,215.60 in respect of the Casual Loading Entitlement.
Mr Juli
29. During the Juli Assessment Period, as set out in Annexure B, Mr Juli:
(a)worked 1,158.75 Ordinary Hours which attracted the Casual Loading Entitlement;
(b)was entitled to be paid $5,643.18 by Lamattina in respect of the Casual Loading Entitlement;
(c)was paid $754.85 by Lamattina in respect of the Casual Loading Entitlement; and
(d)was therefore underpaid $4,888.33 in respect of the Casual Loading Entitlement.
Mr Zahari
30. During the Zahari Assessment Period, as set out in Annexure B, Mr Zahari:
(a)worked 1,344.50 Ordinary Hours which attracted the Casual Loading Entitlement;
(b)was entitled to be paid $6,584.10 by Lamattina in respect of the Casual Loading Entitlement;
(c)was paid $1,190.10 by Lamattina in respect of the Casual Loading Entitlement; and
(d)was therefore underpaid $5,394 in respect of the Casual Loading Entitlement.
31.By reason of the matters agreed above in paragraphs 15 to 20 and 27 to 30, Lamattina contravened section 45 of the FW Act by failing to pay each of the Employees amounts sufficient to satisfy their entitlement to the Casual Loading Entitlement, in contravention of clause 10.4(b) of the 2010 Award and clause 11.3(a) of the 2020 Award.
32.By reason of the matters agreed above in paragraph 31, Lamattina underpaid the Employees a total of $17,497.93 in respect of the Casual Loading Entitlement.
Failure to pay overtime
33.During the Assessment Period, pursuant to clause 25.3 of the 2010 Award, Lamattina was required to pay the Employees (as Level 1 employees) the following rates for all hours of work in excess of 12 hours per engagement or in a single day, or 304 ordinary hours over an eight week period, being 175% of the employee’s ordinary hourly rate (inclusive of the casual loading) (Overtime Rates):
(a)$34.11 per hour from 10 February 2020 to 1 November 2020; and
(b)$34.72 per hour from 2 November 2020 to 11 February 2021.
Mr Nadde
34.During the Nadde Assessment Period, as set out in Annexure B, Mr Nadde:
(a)worked 53 hours which attracted the Overtime Rates;
(b)was entitled to be paid $1,807.84 by Lamattina in respect of the Overtime Rates;
(c)was paid $310.91 by Lamattina in respect of the Overtime Rates; and
(d)was therefore underpaid $1,496.93 in respect of the Overtime Rates.
Mr Juli
35.During the Juli Assessment Period, as set out in Annexure B, Mr Juli:
(a)worked 104.13 hours which attracted the Overtime Rates;
(b)was entitled to be paid $3,552.00 by Lamattina in respect of the Overtime Rates;
(c)was paid $224.11 by Lamattina in respect of the Overtime Rates; and
(d)was therefore underpaid $3,327.89 in respect of the Overtime Rates.
Mr Zahari
36.During the Zahari Assessment Period, as set out in Annexure B, Mr Zahari:
(a)worked 17.5 hours which attracted the Overtime Rates;
(b)was entitled to be paid $596.94 by Lamattina in respect of the Overtime Rates;
(c)was paid $44.20 by Lamattina in respect of the Overtime Rates; and
(d)was therefore underpaid $552.74 in respect of the Overtime Rates.
37.By reason of the matters agreed above in paragraphs 15 to 20 and 33 to 36, Lamattina contravened section 45 of the FW Act by failing to pay each of the Employees amounts sufficient to satisfy their entitlement to the Overtime Rates, in contravention of clause 25.3 of the 2010 Award.
38.By reason of the matters agreed above in paragraph 37, Lamattina underpaid the Employees a total of $5,377.56 in respect of the Overtime Rates.
Failure to pay public holiday penalty rates
39.During the Assessment Period, pursuant to clause 29.4 of the 2010 Award, Lamattina was required to pay Mr Nadde and Mr Juli (as Level 1 employees) at a rate of 225% (inclusive of casual loading), being $43.85 per hour, for all hours worked on public holidays (Public Holiday Rates).
40.Section 6 of the Public Holidays Act 1993 (Vic) provides that the second Monday in March (being Labour Day) is a public holiday.
41.Monday, 9 March 2020 was the second Monday in March in 2020.
42.During the Assessment Period, Mr Nadde and Mr Juli worked on Monday, 9 March 2020, which was a public holiday.
Mr Nadde
43.During the Nadde Assessment Period, as set out in Annexure B, Mr Nadde:
(a)worked 7.5 hours which attracted the Public Holiday Rates;
(b)was entitled to be paid $328.88 by Lamattina in respect of Public Holiday Rates;
(c)was not paid any amounts by Lamattina in respect of the Public Holiday Rates; and
(d)was therefore underpaid $328.88 in respect of the Public Holiday Rates.
Mr Juli
44.During the Juli Assessment Period, as set out in Annexure B, Mr Juli:
(a)worked 7.75 hours which attracted the Public Holiday Rates;
(b)was entitled to be paid $339.84 by Lamattina in respect of Public Holiday Rates;
(c)was not paid any amounts by Lamattina in respect of the Public Holiday Rates; and
(d)was therefore underpaid $339.84 in respect of the Public Holiday Rates.
45.By reason of the matters agreed above in paragraphs 15 to 20 and 39 to 44, Lamattina contravened section 45 of the FW Act by failing to pay Mr Nadde and Mr Juli amounts sufficient to satisfy their entitlement to the Public Holiday Rates, in contravention of clause 29.4 of the 2010 Award.
46.By reason of the matters agreed above in paragraph 45, Lamattina underpaid Mr Nadde and Mr Juli a total of $668.72 in respect of the Public Holiday Rates.
Failure to pay employees in full and at least monthly
47.At all relevant times pursuant to section 323(1) of the FW Act, Lamattina was required to pay amounts payable to each of the Employees in relation to the performance of their work in full and at least monthly.
48.During the Assessment Period, Lamattina failed to pay amounts payable to the Employees in relation to the performance of work in full on each of the occasions on which no payment was made to the Employees set out in Columns C, D and E of Annexure A.
49.During the Assessment Period, Lamattina paid the Employees in periods which exceeded intervals of one month as set out in Columns C, D and E of Annexure A, and therefore did not pay them at least monthly.
50.By reason of the matters agreed above in paragraphs 15 to 20 and 47 to 48, Lamattina contravened section 323(1)(a) of the FW Act by failing to pay each of the Employees in full for work performed.
51.By reason of the matters agreed above in paragraphs 15 to 20, 47 and 49 above, Lamattina contravened section 323(1)(c) of the FW Act by failing to pay the Employees at least monthly for work performed.
Total underpayment and rectification
52.By reason of the contraventions agreed above in paragraphs 26, 32, 38 and 46, Lamattina underpaid the Employees a total amount of $91,907.56 (Underpayment).
53.The Underpayment was rectified by Lamattina on 27 February 2023. In addition, each employee was paid an ex gratia amount of $5,000 (lump sum without deduction).
RELIEF SOUGHT
54.By consent, the Parties seek the following relief:
Declarations
55.Declarations that the Respondent, Lamattina, contravened the following civil remedy provisions in the period from 10 February 2020 to 11 February 2021:
(a)section 45 of the FW Act by failing to pay the Employees the minimum hourly rate of pay as prescribed by clause 14.1(a) of the 2010 Award;
(b)section 45 of the FW Act by failing to pay Mr Nadde and Mr Zahari the minimum hourly rate of pay as prescribed by clause 15.1(a) of the 2020 Award;
(c)(section 45 of the FW Act by failing to pay the Employees the casual loading entitlement as prescribed by clause 10.4(b) of the 2010 Award;
(d)section 45 of the FW Act by failing to pay Mr Nadde and Mr Zahari the casual loading entitlement as prescribed by clause 11.3(a) of the 2020 Award;
(e)section 45 of the FW Act by failing to pay the Employees overtime rates as prescribed by clause 25.3 of the 2010 Award;
(f)section 45 of the FW Act by failing to pay Mr Nadde and Mr Juli the public holiday penalty rate entitlements as prescribed by clause 29.4 of the 2010 Award;
(g)section 323(1)(a) of the FW Act by failing to pay the Employees in full; and
(h)section 323(1)(c) of the FW Act by failing to pay the Employees at least monthly.
Orders
56.An order that the Respondent, Lamattina pay pecuniary penalties pursuant to section 546(1) of the FW Act for the contraventions above in paragraph 55.
57.An order pursuant to section 546(3)(a) of the FW Act that all pecuniary penalties imposed on the Respondent be paid to the Commonwealth of Australia within 90 days of the Court’s orders.
58.An order that the Applicant have liberty to apply.
59.Such further orders as the Court considers appropriate.
ANNEXURE A – NON-PAYMENT OF WAGES
Column A Column B Column C Column D Column E Weekly pay period Date payment expected by Payment received by Mr Nadde Payment received by Mr Juli Payment received by Mr Zahari 10 February 2020 to 16 February 2020 21 February 2020 No No 17 February 2020 to 23 February 2020 28 February 2020 No No 24 February 2020 to 1 March 2020 6 March 2020 No No 2 March 2020 to 8 March 2020 13 March 2020 Yes Yes 9 March 2020 to 15 March 2020 20 March 2020 No No 16 March 2020 to 22 March 2020 27 March 2020 No No 23 March 2020 to 29 March 2020 3 April 2020 No No 30 March 2020 to 5 April 2020 10 April 2020 No No 6 April 2020 to 12 April 2020 17 April 2020 No No 13 April 2020 to 19 April 2020 24 April 2020 No No No 20 April 2020 to 26 April 2020 1 May 2020 No No No 27 April 2020 to 3 May 2020 8 May 2020 Yes Yes Yes 4 May 2020 to 10 May 2020 15 May 2020 No No No 11 May 2020 to 17 May 2020 22 May 2020 No No No 18 May 2020 to 24 May 2020 29 May 2020 No No No 25 May 2020 to 31 May 2020 5 June 2020 No No No 1 June 2020 to 7 June 2020 12 June 2020 No No No 8 June 2020 to 14 June 2020 19 June 2020 No No No 15 June 2020 to 21 June 2020 26 June 2020 Yes Yes Yes 22 June 2020 to 28 June 2020 3 July 2020 No No No 29 June 2020 to 5 July 2020 10 July 2020 No No No 6 July 2020 to 12 July 2020 17 July 2020 No No No 13 July 2020 to 19 July 2020 24 July 2020 No No No 20 July 2020 to 26 July 2020 31 July 2020 No No No 27 July 2020 to 2 August 2020 7 August 2020 No No No Column A Column B Column C Column D Column E Weekly pay period Date payment expected by Payment received by Mr Nadde Payment received by Mr Juli Payment received by Mr Zahari 3 August 2020 to 9 August 2020 14 August 2020 Yes Yes Yes 10 August 2020 to 16 August 2020 21 August 2020 No No No 17 August 2020 to 23 August 2020 28 August 2020 No No No 24 August 2020 to 30 August 2020 4 September 2020 No No No 31 August 2020 to 6 September 2020 11 September 2020 No No No 7 September 2020 to 13 September 2020 18 September 2020 No No No 14 September 2020 to 20 September 2020 25 September 2020 N/A No No 21 September 2020 to 27 September 2020 2 October 2020 Yes Yes Yes 28 September 2020 to 4 October 2020 9 October 2020 Yes Yes Yes 5 October 2020 to 11 October 2020 16 October 2020 No No No 12 October 2020 to 18 October 2020 23 October 2020 No No No 19 October 2020 to 25 October 2020 30 October 2020 No No 26 October 2020 to 1 November 2020 6 November 2020 No No 2 November 2020 to 8 November 2020 13 November 2020 No No 9 November 2020 to 15 November 2020 20 November 2020 No No 16 November 2020 to 22 November 2020 27 November 2020 No No 23 November 2020 to 29 November 2020 4 December 2020 Yes Yes 30 November 2020 to 6 December 2020 1 December 2020 No No 7 December 2020 to 13 December 2020 18 December 2020 No No 14 December 2020 to 20 December 2020 25 December 2020 Yes Yes 21 December 2020 to 27 December 2020 1 January 2021 Yes Yes 28 December 2020 to 3 January 2021 8 January 2021 No No 4 January 2021 to 10 January 2021 15 January 2021 No No 11 January 2021 to 17 January 2021 22 January 2021 No No 18 January 2021 to 24 January 2021 29 January 2021 No No 25 January 2021 to 31 January 2021 5 February 2021 Yes
Column A Column B Column C Column D Column E Weekly pay period Date payment expected by Payment received by Mr Nadde Payment received by Mr Juli Payment received by Mr Zahari 1 February 2021 to 7 February 2021 12 February 2021 No 8 February 2021 to 15 February 2021 19 February 2021 No
Mr Nadde No. Contravention Period Hours Entitlement Paid Underpayment 1 Failure to pay minimum wages
Section 45 of the FW Act by failing to pay the minimum hourly wage required to be paid to the Employees pursuant to clause 14.1(a) of the 2010 Award.10 February 2020 to
12 November 20201,790.20 $35,081.12 $7,036.43 $28,044.69 2 Failure to pay minimum wages
Section 45 of the FW Act by failing to pay the minimum hourly wage required to be paid to the Employees pursuant to clause 15.1(a) of the 2020 Award.13 November 2020 to
11 February 20213 Failure to pay casual loading
Section 45 of the FW Act by failing to pay the casual loading to the Employees pursuant to clause 10.4(b) of the 2010 Award.10 February 2020 to
12 November 20201,790.20 $8,767.21 $1,551.61 $7,215.60 4 Failure to pay casual loading
Section 45 of the FW Act by failing to pay the casual loading to the Employees pursuant to clause 11.3(a) of the 2020 Award.13 November 2020 to
11 February 20215 Failure to pay overtime
Section 45 of the FW Act by failing to pay overtime entitlements to the Employees pursuant to clause 25.3 of the 2010 Award.30 March 2020 to
18 October 202053 $1,807.84 $310.91 $1,496.93 6 Failure to pay public holiday rates
Section 45 of the FW Act by failing to pay the minimum public holiday entitlements pursuant to clause 29.4 of the 2010 Award.9 March 2020 (Labour Day) 7.5 $328.88 $0.00 $328.88 Total $45,985.05 $8,898.95 $37,086.10
ANNEXURE B – TOTAL UNDERPAYMENTS
Mr Juli No. Contravention Period Hours Entitlement Paid Underpayment 1 Failure to pay minimum wages
Section 45 of the FW Act by failing to pay the minimum hourly wage required to be paid to the Employees pursuant to clause
14.1(a) of the 2010 Award.10 February 2020 to
15 October 20201,158.75 $22,584.11 $3,849.19 $18,734.92 2 Failure to pay casual loading
Section 45 of the FW Act by failing to pay the casual loading to the Employees pursuant to clause 10.4(b) of the 2010 Award.10 February 2020 to
15 October 20201,158.75 $5,643.18 $754.85 $4,888.33 3 Failure to pay overtime
Section 45 of the FW Act by failing to pay overtime entitlements to the Employees pursuant to clause 25.3 of the 2010 Award.27 March 2020 to
15 October 2020104.13 $3,552 $224.11 $3,327.89 4 Failure to pay public holiday rates
Section 45 of the FW Act by failing to pay the minimum public holiday entitlements pursuant to clause 29.4 of the 2010 Award.9 March 2020 (Labour Day) 7.75 $339.84 $0.00 $339.84 Total $32,119.13 $4,828.15 $27,290.98
Mr Zahari No. Contravention Period Hours Entitlement Paid Underpayment 1 Failure to pay minimum wages
Section 45 of the FW Act by failing to pay the minimum hourly wage required to be paid to the Employees pursuant to clause
14.1(a) of the 2010 Award.16 April 2020 to
12 November 20201,344.50 $26,345.60 $4,761.86 $21,583.74 2 Failure to pay minimum wages
Section 45 of the FW Act by failing to pay the minimum hourly wage required to be paid to the Employees pursuant to clause
15.1(a) of the 2020 Award.13 November 2020 to
21 January 20213 Failure to pay casual loading
Section 45 of the FW Act by failing to pay the casual loading to the Employees pursuant to clause 10.4(b) of the 2010 Award.16 April 2020 to
12 November 20201,344.50 $6,584.10 $1,190.10 $5,394.00 4 Failure to pay casual loading
Section 45 of the FW Act by failing to pay the casual loading to the Employees pursuant to clause 11.3(a) of the 2020 Award.13 November 2020 to
21 January 20215 Failure to pay overtime
Section 45 of the FW Act by failing to pay overtime entitlements to the Employees pursuant to clause 25.3 of the 2010 Award.22 April 2020 to
15 October 202017.50 $596.94 $44.20 $552.74 Total $33,526.64 $5,996.16 $27,530.48 ANNEXURE 2
Applicant’s Outline of Submissions dated 31 May 2024 - Penalty Range Recommendations
| Contravention | Employee(s) impacted | Total underpayment | Reference for maximum penalty | Max penalty and unit applying | Maximum penalty | Maximum penalty (10% discount) | Penalty range recommendation | Low range | High range | ||
| 1 | s 45 of the FW Act | Failure to pay minimum hourly rate of pay clause 14.1(a) of 2010 Award | Nadde, Juli, Zahari | $68,363.35 | FW Act Item 2 of Section 539(2) | 5 x 60 | $66,600.00 | $59,940.00 | 80-90% | $47,952.00 | $53,946.00 |
| s 45 of the FW Act | Failure to pay minimum hourly rate of pay clause 15.1(a) of 2020 Award | Nadde & Zahari | |||||||||
| s 323(1)(a) of the FW Act | Failure to pay in full | Nadde, Juli, Zahari | FW Act Item 10 of Section 539(2) | ||||||||
| s 323(1)(c) of the FW Act | Failure to pay at least monthly | Nadde, Juli, Zahari | |||||||||
| 2 | s 45 of the FW Act | Failure to pay casual loading entitlement clause | Nadde, Juli, Zahari | $17,497.93 | FW Act Item 2 of Section 539(2) | 5 x 60 | $66,600.00 | $59,940.00 | 80-90% | $47,952.00 | $53,946.00 |
1 $222 applied during the period 1 July 2020 to 11 February 2021.
Contravention Employee(s) impacted Total underpayment Reference for
maximum penaltyMax penalty
and unit applyingMaximum penalty Maximum penalty (10%
discount)Penalty range recommendation Low range
High range
10.4(b) of 2010 Award s 45 of the FW Act Failure to pay casual loading entitlement clause 11.3(a) of
2020 AwardNadde & Zahari
3.
s 45 of the FW Act Failure to pay overtime rates clause 25.3
of 2010 AwardNadde, Juli, Zahari
$5,377.56
FW Act Item 2 of Section 539(2)
5 x 60
units x
$222$66,600.00
$59,940.00
60-70%
$35,964.00
$41,958.00
4.
s 45 of the FW Act Failure to pay public holiday penalty rate entitlement clause 29.4
of 2010 AwardNadde & Zahari
$668.72
FW Act Item 2 of Section 539(2)
5 x 60
units x
$2102[2]$63,000.00
$56,700.00
20-30%
$11,340.00
$17,010.00
Totals: $262,800.00 $236,520.00 $143,208.00 $166,860.00 Total Agreed Penalty Amount: $166,860.00
[2] $210 applied during the period 10 February 2020 to 30 June 2020.
0
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