Fair Work Ombudsman v A To Z Catering Solution Pty Limited (No.3)

This matter concerned the assessment of pecuniary penalties for contraventions of the *Fair Work Act 2009* (Cth) and the *Fair Work Regulations 2009* (Cth). The applicant, the Fair Work Ombudsman (FWO), sought penalties against the first respondent, A To Z Catering Solution Pty Limited (AZC), and the second respondent, Mr Yasin, who was found to be involved in AZC's contraventions. The court had previously made declarations that AZC, and Mr Yasin by his involvement, had contravened various sections of the FW Act and FW Regulations, including provisions relating to payment of wages and record-keeping. The court was required to determine the appropriate pecuniary penalties for these contraventions.

The legal issues before the court were primarily concerned with the methodology for assessing pecuniary penalties, particularly in circumstances involving multiple contraventions. This included considering whether section 557 of the FW Act, which allows for the aggregation of contraventions arising out of a course of conduct, should be applied before or in conjunction with other penalty assessment principles. The court also needed to determine the maximum penalty units applicable to each contravention, taking into account the relevant penalty unit value at the time of the contraventions and any legislative amendments.

In determining the penalties, the court adopted an approach previously accepted in *Fair Work Ombudsman v NSH North Pty Ltd trading as New Shanghai Charlestown*. This approach involved identifying separate contraventions, considering whether to deal with them independently or aggregate them under s 557 of the FW Act, adjusting for any overlap to avoid double penalties, assessing penalties for each group of contraventions in isolation, and finally applying the totality principle to ensure the overall penalties were appropriate and proportionate to the conduct viewed as a whole. The court also confirmed the maximum penalty units for each contravention and the value of a penalty unit at the relevant time, which was $170.

The court made declarations that Mr Yasin was involved in contraventions of sections 44, 45, 323, 535, and 536 of the FW Act, and regulations 3.44(1) and 3.44(6) of the FW Regulations. It also made an additional declaration that Mr Yasin was involved in AZC's contravention of section 45 of the FW Act by failing to pay Ms Chalker for at least 11 hours of late work. The court proceeded to consider the assessment of pecuniary penalties based on these declarations and the established methodology.