Fair Work Ombudsman v Aisha & Umma Enterprises Pty Ltd
[2023] FedCFamC2G 382
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Fair Work Ombudsman v Aisha & Umma Enterprises Pty Ltd [2023] FedCFamC2G 382
File number(s): MLG 2632 of 2021 Judgment of: JUDGE SYMONS Date of judgment: 12 May 2023 Catchwords: INDUSTRIAL LAW – Fair Work – parties by consent seek declaration of contravention of the Fair Work Act 2009 (Cth) – failure of the respondent to comply with compliance notice – whether penalty should be imposed and level of penalty to be imposed – factors relevant to penalty – where greater need for deterrence exists in the café and restaurant industry – where steps required under compliance notice still unperformed at time of penalty hearing – where respondent failed to engage in proceeding – penalty imposed. Legislation: Fair Work Act 2009 (Cth) ss 545, 546, 547, 716
Restaurant Industry Award 2010 cll. 20.1, 30.2, 34.1
Cases cited: Australian Building and Construction Commission v Pattinson (2022) 399 ALR 599; [2022] HCA 13
Fair Work Ombudsman v Corporation Sun Pty Ltd [2020] FCCA 2849
Trade Practices Commission v CSR Ltd [1990] FCA 521
Division: Division 2 General Federal Law Number of paragraphs: 55 Date of last submission/s: 31 March 2023 Date of hearing: 31 March 2023 Place: Melbourne Solicitor for the Applicant: HWL Ebsworth The Respondent: No appearance ORDERS
MLG 2632 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: FAIR WORK OMBUDSMAN
Applicant
AND: AISHA & UMMA ENTERPRISES PTY LTD (ACN 143 329 382)
Respondent
order made by:
JUDGE SYMONS
DATE OF ORDER:
12 May 2023
THE COURT DECLARES BY CONSENT THAT:
1.The respondent contravened s 716(5) of the Fair Work Act 2009 (Cth) (FW Act) by failing to comply with the compliance notice issued on 18 June 2020 (Compliance Notice).
THE COURT ORDERS THAT:
2.Pursuant to s 545(1) of the FW Act the respondent take the steps that were required by the Compliance Notice within 28 days by:
(a)making the full payments to the employees listed in Column A of Annexure 1 (the Employees) in the amounts specified in Column D of Annexure 1, to rectify the underpayments in respect of the minimum rates for ordinary hours worked and penalty rates for ordinary hours worked on a Saturday, Sunday and Public Holiday (the amounts outstanding).
(b)calculating and paying any superannuation contributions required by clause 30.2 of the Restaurant Industry Award 2010 (the Award) in respect of the amounts outstanding to the Employees.
3.Pursuant to s 547(2) of the FW Act, the respondent pay to the Employees interest on the amounts outstanding pursuant to paragraph 2(a) above within 28 days of the date of this order.
4.Pursuant to s 546(1) of the FW Act, the respondent pay a pecuniary penalty of $15,125 in respect of the contravention of s 716(5) of the FW Act.
5.Pursuant to s 546(3)(a) of the FW Act, the pecuniary penalty referred to in paragraph 4 be paid to the Commonwealth within 28 days of this order.
6.The applicant has liberty to apply on seven days’ notice in the event that any of the preceding orders are not complied with.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE SYMONS:
INTRODUCTION
This is an application for the imposition of a penalty in respect of the respondent’s failure to comply with a compliance notice issued pursuant to s 716(2) of the Fair Work Act 2009 (Cth) (the FW Act).
The respondent was not represented at the penalty hearing but did cooperate with the applicant by signing a statement of agreed facts that was filed on 17 July 2022 and which is reproduced as Annexure 2. The respondent has admitted to contravening s 716(5) of the FW Act by failing to comply with a compliance notice given on 18 June 2020 under s 716(2) of the FW Act (the Compliance Notice).
The parties agree that a declaration should be made to recognise the respondent’s contravention of s 716(5) of the FW Act as well as an order that requires the respondent, pursuant to s 545(1) of the FW Act, to take the steps that were required by the Compliance Notice within 28 days. The parties also agree that the respondent should pay interest on the amounts outstanding to the 13 employees identified in Column A of Annexure 1 (the Employees) within 28 days. I consider that such a declaration and orders are appropriate and will give effect to the parties’ agreement.
The outstanding issue is the size of any penalty to be imposed.
BACKGROUND
The respondent is the operator of a café trading as RMB Café located in Melbourne. In around November 2018, the applicant commenced an investigation into the respondent’s compliance with workplace laws as this had application to the Employees.
Following the investigation, Fair Work Inspector Jaimie Adam (FWI Adam) formed a reasonable belief that from 1 May 2017 to 6 August 2019 (the contravention period), the Employees were employed by the respondent and that during the contravention period, the Restaurant Industry Award 2010 (the Award) covered and applied to the Employees.
With respect to the Employees, FWI Adam formed the belief that:
(a)Seven of the Employees were not paid the applicable minimum wage specified in the Award during the contravention period;
(b)Nine of the Employees were not paid the full penalty rate in the Award for ordinary hours worked on a Saturday;
(c)Ten of the Employees were not paid the full penalty rate in the Award for ordinary hours worked on a Sunday; and
(d)Nine of the Employees were not paid the full penalty rate in the Award for ordinary hours worked on a public holiday.
Following this investigation, FWI Adam formed a reasonable belief that the respondent had contravened clause 20.1 (minimum wages) and clause 34.1 (penalty rates for work on weekends and public holidays) of the Award.
On the basis of this belief, FWI Adam gave the respondent the Compliance Notice. The Compliance Notice required the respondent to take steps that included payment in full to the Employees of the amounts identified in Column B (see Annexure 1), calculation and payment of any additional superannuation contributions required by clause 30.2 of the Award, and the production of reasonable evidence to the applicant of compliance with the Compliance Notice by 27 July 2020.
It is common ground that the respondent failed to comply with the Compliance Notice and that as a result, the respondent contravened s 716(5) of the FW Act.
The following amounts were paid by the respondent as partial rectification in response to the Compliance Notice:
(a)on 10 November 2020, two payments of $467 (totalling $934) were made to Simranpreet Singh (Mr Singh);
(b)on 24 January 2021, a payment of $467 was made to Mr Singh;
(c)on 30 July 2021, a payment of $701.42 was made to Ankush Sharma (Mr Sharma);
(d)on 18 August 2021, a payment of $2,500 was made to Mr Singh;
(e)on 17 February 2022, a payment of $2,500 was made to Mr Singh; and
(f)on 29 March 2022, a payment of $2,500 was made to Mr Sharma.
Following the payments referred to in paragraph 11, the amounts still outstanding to each of the Employees are those specified in Column D of Annexure 1.
PROCEEDINGS IN THIS COURT
These proceedings were commenced by the applicant filing an originating application and statement of claim on 15 October 2021.
On 2 February 2022, I made orders by consent referring the matter to mediation and on 14 July 2022 Registrar Edwards (who conducted the mediation) made orders by consent that the parties file a statement of agreed facts and that the matter otherwise progress to a penalty hearing.
On 20 July 2022, a Notice of Listing was sent from my chambers, notifying the parties via email that the matter was set down for a penalty hearing on 31 March 2023.
A statement of agreed facts was filed as foreshadowed and on 31 October 2022 the applicant filed a set of written submissions and an affidavit of FWI Adam sworn on the same date (FWI Adam affidavit).
The respondent, despite being required to file and serve any affidavit evidence and written submissions in respect of penalty by 18 November 2022 has not filed any material and nor has it provided any explanation for its failure to do so. Despite being notified of the time and date of the listing, the respondent did not appear at the penalty hearing. Mr Adams, who appeared on behalf of the applicant, informed the Court that he had received an email from the respondent’s director, Mr Ali, the day prior to the hearing which indicated that he (Mr Ali) was not going to attend Court because he had some things going on personally and would not be able to withstand the pressure of attending unrepresented. The email included the statement “I am very happy with whatever outcome and I am accepting all liabilities and faults”. Regrettably, the position taken by the respondent means that the Court is left to determine the question of penalty on an evaluation of material produced and submissions made by the applicant alone.
Penalty range sought by the applicant
The applicant seeks that a penalty be imposed in the range of $16,650 to $19,980. Viewed in context, this represents a penalty range of approximately 50 to 60 per cent of the maximum penalty of $33,300 available for the contravention by a corporation of s 716(5) of the FW Act. The penalty also takes into account a ten percent discount for the respondent's cooperation in the proceedings, which discount the applicant submits is appropriate in all the circumstances.
Factors relevant to penalty
The primary purpose of deterrence was re-emphasised by the High Court in the decision of Australian Building and Construction Commission v Pattinson [2022] HCA 13 (Pattinson). In that decision, the majority upheld the Commissioner’s appeal and confirmed that the purpose of a civil penalty is primarily, if not solely, the promotion of the public interest in compliance with provisions of the FW Act by those responsible and by (like) others. The Court rejected the approach implicit in the decision of the Full Court (the subject of the appeal) that a penalty must be proportionate to the seriousness of the conduct that constituted the contravention. The majority held instead that “[t]he power conferred by s 546 of the Act is not subject to constraints drawn from the criminal law and there is no place for a ‘notion of proportionality’ in a civil penalty regime”.[1] However, the High Court did accept that s 546 requires the Court to ensure that any penalty “strikes a reasonable balance between deterrence and oppressive severity”.[2] It was only in this more qualified sense that the concept of “proportionality” had any role to play.
[1] See Pattinson at [10].
[2] Ibid at [41].
The High Court in Pattinson also referred to the several factors identified by French J in Trade Practices Commission v CSR Ltd [1990] FCA 521 which informed the assessment of a penalty of an appropriate deterrent value. The list revealed that both the circumstances of the contravener and the circumstances of the contravention may be relevant to the assessment of whether the maximum level of deterrence is called for.[3] However, the Court repeated the caution that the list of possible relevant considerations should not be approached as a “rigid catalogue of matters for attention” and instead the task of the court remains to determine what is an “appropriate” penalty in the circumstances of the particular case.[4]
[3] Ibid at [57].
[4] Ibid at [18] and [19].
Nature and circumstances of the conduct and the extent of any loss
The compliance notice regime was introduced as a means to quickly and inexpensively resolve contraventions of the FW Act. Had the respondent complied with the Compliance Notice within the time frame specified, this litigation could have been avoided. The fact that the applicant and the Court has spent time and public funds dealing with civil remedy proceedings is a matter that I take into account as a relevant loss and mischief to which the compliance notice regime is directed.
The applicant also invites the Court to take account of the fact that some (now) two and a half years after the date for compliance with the Compliance Notice has passed, the respondent has only partially rectified the amounts outstanding under the Compliance Notice with the amount of $27,516.34 yet to be distributed to (most of) the Employees (only Mr Singh has been paid in full). I accept that this delay and deprivation of funds (in four cases the amount outstanding exceeds $4,000) is a relevant loss that I am entitled to take into account, notwithstanding that the focus in these matters ordinarily is on the non-compliance with the primary contravention.
Size and financial circumstances of the respondent
The applicant submits that the respondent did not provide credible evidence of its financial circumstances until 12 May 2021, this being some significant time after the investigation had occurred and the Compliance Notice given and in circumstances where the applicant had sought this information on multiple occasions including to assist in the negotiation of a payment plan.
The applicant’s submissions contain an acknowledgement that the respondent’s business was impacted by COVID-19 restrictions in both 2020 and 2021 but seeks to understate the significance of these events by reference to a decision of Judge Kendall in Fair Work Ombudsman v Corporation Sun Pty Ltd [2020] FCCA 2849 in which his Honour, at [44] made reference to the financial hardship caused by the COVID-19 pandemic but determined not to place significant weight on this matter having assessed all the of the evidence before the Court. However, the assistance derived from this passage is limited given that it simply serves as a reminder that each case is to be decided on its own facts.
In this regard, the FWI Adam affidavit upon which the applicant relies, discloses that the following communications took place between the applicant and Mr Ali, on behalf of the respondent, following the deadline for compliance with the steps identified in the Compliance Notice, being 27 July 2020:
On 5 August 2020, Mr Ali sent an email to FWI Adam which read (in part):[5]
Thank you so much for your email and my sincere apology for the late response. However, I hope you do understand and appreciate the circumstances and the time that we are in right now. As you know and aware that we are in lock down stages on and off for the last 6 months which put immense pressure on all the businesses and especially the small businesses like mine. The business is now completely shut down for next 6 weeks.
I do appreciate the time and effort you put into all this. But the situation right now is not an ideal. We are under so much stress to the point it’s taking a toll out on our health. I have been in and out of my GP, tests and MRI for multiple times. The end result of all these is that I may need an operation on my back. I can’t express in words the stress and anxiety for all these. With everything going on right now and the difficulty of coping and dealing with the pandemic it affected my health. I do need an operation on my back & I need to see a surgeon. Since I cannot afford a private health care, I have requested my GP to put me on a public hospital waiting list. I’m more than happy to provide you with all the tests & results from the MRI and etc. In business area we are trading based on just Takeaways to keep the door open and support the staff whoever stayed with us but we hardly earn $100 a day. It’s just a waste of time and energy and money. I hope you do understand and appreciate that I am still trying to cooperate.
…I am in no position to comply with the outstanding payment at this crisis period. We cannot afford to pay any amount at this time under any circumstances. I would request you to consider my situation and provide me some amicable solution and a reasonable amount. In this Pandemic it will be difficult to put a timeframe on or when and how I am going to pay it off along with all the suppliers bills, rent and the other never ending obligations. We do urge for your help, reasonable way and time for us to sort this out.
[5] See Annexure “JA-2”.
On 8 September 2020, Mr Ali sent a further email to FWI Adam that contained a proposal for a payment plan and read (in part):[6]
I am not sure where to start and how to put this to you or to whoever is dealing with this account…the Situation and the circumstances we are facing at the moment it’s uncertain specially after the late announcement from Daniel Andrew we’re not sure if we are going to open sooner before the end of the year.
However I’m trying my hardest to resolve this matter I have been sincere with you all the time about our situation. I even trying to collect a private funds from my family and friends to resolve this matter once and for all but at this difficult time I wasn’t able to Come up with anything so please do understand I’m not here to disrespect anybody by any means. It’s just a disaster just thinking about it & how We are going to deal with all the outstanding invoices and bills and rent it’s just a bad situation so for me to deal with…
[6] See Annexure “JA-3”.
A payment plan was approved by the applicant and sent to the respondent on 28 September 2020. It made provision for 12 approximately monthly payments commencing 2 October 2020 and ending 26 February 2021 with an initial payment of $5,387.11 and eleven subsequent payments of $2,826.56[7]
[7] See Annexure “JA-4”.
Mr Ali sent the following email to FWI Adam on 29 September 2020 in response to the payment plan[8]
…I do appreciate it [the payment plan] however I just find it’ll be very difficult for me to start payment before even we tried and reopen the shop.
I hope u do understand & appreciate it’s been Almost 6 months since the lockdown
Also after Daniel Andrews announcement on Sunday we will be trading outside only for 4 weeks at least Before he consider to open it full capacity & that if he does no guarantee and no certainty
Please if we could humbly ask to Reschedule this payment to start from 6 January 2021 that will be much appreciate it and that will be the ideal scenario for us to cope with the situation that we are in right now I don’t wanna default only Payment and fall behind because of this payment I’m just trying to be honest with you as much as I can
I hope I’m not asking too much we just need your support again this time just for the next few months to catch up with everything we don’t have much tables outside the café its maximum 6 tables with the 1.5 m restriction
…
[8] See Annexure “JA-5”.
On 2 October 2020, Mr Ali sent FWI Adam an email in which he informed FWI Adam that his father had passed away on Tuesday night back home in Egypt.[9]
[9] See Annexure “JA-8”.
On 20 October 2020, the applicant sent the respondent a second failure to comply with the Compliance Notice (a first notice had been sent on 30 July 2020) which also referenced the respondent’s failure to comply with the payment plan and its failure to offer a genuine alternative as to how the respondent intended to rectify the outstanding underpayments.[10]
[10] See Annexure “JA-6”.
On 26 October 2020, lawyer Mr Madafferi sent an email to FWI Adam on behalf of the respondent in which he referenced the respondent’s inability to trade “given the situation in Victoria” and offered, as a compromise, that it pay an amount of $500 per month until January 2021, at which time the situation could be revisited.[11]
[11] See Annexure “JA-8”.
The applicant was agreeable to an arrangement whereby the respondent would pay $500 per month for the months of October, November and December 2020 with the balance to be paid out over the period from January to October 2021. The respondent made two payments of $467 to Mr Singh (on around 10 November 2020) and a further payment of $500 to Mr Singh on 24 January 2021.
Between February and May 2021, the applicant communicated with Mr Ali in an effort to secure his attendance at a meeting to discuss payment arrangements for the Compliance Notice. A meeting was finally scheduled to take place on 12 May 2021. Mr Ali did not attend the meeting and the applicant issued the respondent with a failure to comply with payment plan notice on 30 June 2021.[12]
[12] See Annexure “JA-16”.
On 28 July 2021 Mr Ali requested to meet with the applicant and proposed an alternative arrangement of a payment of $500 per week. However, on 29 July 2021 the applicant conveyed to Mr Ali that it could not accept the proposed payment plan as it would take too long to pay off the amount outstanding to the Employees.
On 30 July 2021 Mr Ali sent an email to FWI Adam in which he said that he had transferred $700 to one employee and that he would try his best to make a payment every week going forward.[13] Evidence of the payment (which was to Mr Sharma) was produced on 18 August 2021. On the same day, Mr Ali sent FWI Adam evidence of a payment to Mr Singh in the amount of $2,500. In his responsive email, FWI Adam thanked Mr Ali for the payment but told Mr Ali that he should make full rectification immediately as per the Compliance Notice.
[13] See Annexure “JA-21”.
The applicant commenced this proceeding on 15 October 2021. Apart from the payment made to Mr Sharma of $2,500 on 29 March 2022, no further payments were made to or in respect of the Employees after this date.
The applicant submits that it went out of its way to give opportunities to the respondent to secure its compliance with the Compliance Notice including latterly, through the negotiation of a payment plan. The submission was made that this was a case where the respondent was guilty of “too much engagement” over a long period of time and that nothing ultimately had come of its interactions with the applicant.
While it is true that the respondent was not able to commit to a payment plan on terms acceptable to the applicant, I prefer to take a more beneficial view of the respondent’s conduct that recognises the fact that over the period during which the parties were in communication, Melbourne moved in and out of multiple lockdowns, two of which were substantial. It is apparent from the communication reproduced at [26] to [29] above that the lockdowns and attendant uncertainty had a significant impact on the respondent’s business and compromised its ability to make financial commitments, including by way of entry into and maintenance of, a payment plan.
None of this however detracts from the accepted principle that financial circumstances do not exculpate contraventions of workplace laws, this being a consideration that I apply in this case, especially where the respondent has not produced any evidence that might shed light on its historic and current financial situation.
Deterrence
On the topic of deterrence, the applicant submits that penalties for non-compliance with a statutory notice, such as a compliance notice, must be pitched at a level that operates as a meaningful disincentive to those who might otherwise be tempted not to comply. The submission recognises the importance of the compliance notice as a means of prospectively securing compliance with workplace obligations without the need for costly and time-consuming litigation.
The applicant makes the further submission that there is a more acute need for general deterrence in the café and restaurant industry in which the respondent operates which, according to the applicant has “a high workplace dispute rate”. In aid of this submission the applicant relies on its Industry Profile and FWO Interactions Report for the period of July 2018 to July 2022[14] from which the following information can be extrapolated:
(a)the industry is the number one ranked industry in terms of total disputes;
(b)approximately 19% of all compliance notices were given by the applicant to employers in the industry;
(c)of all the disputes raised in the industry to the applicant, approximately 13% related to underpayment of hourly rates, and approximately 4% related to weekend penalty rates; and
(d)visa workers made up approximately 20% of all disputes received by the applicant and 35% of disputes in the industry.
[14] See Annexure “JA-26”.
I accept that it is open for this Court to consider the particular need for general deterrence in certain industries including the café and restaurant industry, provided that there is evidence that supports the propositions upon which the regulator relies in singling out an industry for special treatment.
The applicant’s submissions are supported in part by the industry profile that is in evidence and which indicates that the café and restaurant industry generally experiences a high (the highest) rate of disputes. The industry profile also supports the proposition that across the reporting period (2018 to 2022) the café and restaurant industry was given, on average, 19% of all compliance notices. However, the same data also reveals that the number of compliance notices fell from 35% in 2018-2019 to 15.7% in 2021-22. The industry profile does not shed any light on the frequency at which participants in the café and restaurant industry fail to comply with statutory notices, or whether they fail to comply with statutory notices at a higher rate compared to other participants in other industries.
Further, while the industry profile does provide evidence that visa holders are over-represented in disputes arising in the café and restaurant industry, I am not prepared to draw an inference that the Employees (or some of them) had this status.
The evidence relied upon by the applicant was simply that Mr Ali in a communication with FWI Adam during the investigation had advised him that five of the Employees (he identified them by name) were “students” who were “not allowed to work more than 20 hours per week”. I consider this to provide an unsatisfactory foundation for a finding that these individuals were (student) visa holders.
As far as specific deterrence is concerned, the applicant submits that there is a need to specifically deter the respondent from engaging in the same contravening conduct in the future given that the respondent is still registered and because its failure to fully rectify its non-compliance with the Compliance Notice has been ongoing since 27 July 2020 and reflects the culmination of the applicant’s investigation of and interest in the respondent business that commenced in 2018.
The applicant also submits that the correspondence sent by Mr Ali’s lawyer on 26 October 2020 (refer [32] above) and which makes reference to his client now trading as “Hummsies Kitchen Williamstown” invites an inference that Mr Ali and the respondent have an interest or involvement in other hospitality businesses. This is said to reinforce the need for specific deterrence in this case.
Contrition, corrective action and cooperation
The applicant concedes that the respondent has cooperated by its signing of an agreed statement of facts and its consent to the making of a declaration that acknowledges a breach of s 716(5) of the FW Act. The applicant suggests that a discount of 10 per cent is an appropriate response to this cooperation.
However, the applicant also invites the Court to be circumspect about any finding of genuine remorse or regret in circumstances where the respondent has failed to rectify its lack of compliance with the Compliance-Notice with the consequence that the Employees are still underpaid by an amount of $27,516.34. The failure of the respondent to file any material (beyond the statement of agreed facts) or to appear at the penalty hearing is said to be indicative of a corporate mind-set disinclined to facilitate the course of justice.
CONCLUSION
I consider that a penalty in the amount of $15,125 should be applied in this case.
In fixing this amount I accept, as a general proposition, that a failure by an employer to comply with a compliance notice given under ss 716(2) and (3) of the FW Act, undermines the efficacy of the statutory notice regime and increases the administrative and cost burden of the workplace regulator and where proceedings are then issued, diverts judicial resources. This is a mischief to which general deterrence can and should appropriately be directed. I also accept that there is some evidence that supports a greater need for general deterrence when the case is one that concerns a business that operates (or operated) in the café and restaurant industry.
I have also given weight to the fact that in this case the Employees (or the majority of them) have been deprived of not insubstantial amounts of money over a lengthy period that commenced in some instances back in May 2017, this being the beginning of the contravention period. It is significant that the greater proportion of the outstanding entitlements have still not been rectified and there is a dearth of information to shed light on the current financial circumstances of the respondent.
The failure of the respondent to participate in the penalty hearing, beyond its signing of a statement of agreed facts, also means that the Court is left to speculate as to the level of contrition and insight it possesses and whether the respondent is used currently or will be used again in the future, as an employment vehicle. While I accept that the operating environment that pertained at and around the time of the respondent’s contravention was challenging, this does not exculpate or explain the apparent indifference of the respondent to the proceeding.
I am satisfied that a penalty in the amount of $15,125 is an appropriate and proportionate response to the respondent’s single contravention of s 716(5) of the FW Act.
I certify that the preceding fifty-five (55) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Symons . Associate:
Dated: 12 May 2023
ANNEXURE 1
ANNEXURE 2
STATEMENT OF AGREED FACTS
This Statement of Agreed Facts is made by the Parties in these proceedings for the purposes of s 191 of the Evidence Act 1995 (Cth).
A. ADMITTED CONTRAVENTIONS
1.On the basis of the facts set out below, the Respondent admits to contravening s 716(5) of the Fair Work Act 2009 (Cth) (FW Act), by failing to comply with a compliance notice issued to the Respondent by Fair Work Inspector Jaimie Adam (FWI Adam) pursuant to s 716(2) of the FW Act on 18 June 2020 (Contravention).
B. PARTIES
The Applicant
2.The Applicant, the Fair Work Ombudsman, is and was at all relevant times:
(a)a statutory appointee of the Commonwealth appointed by the Governor General by written instrument pursuant to s 687(1) of the FW Act;
(b)a Fair Work Inspector (FWI) pursuant to s 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 s 539(2) of the FW Act.
3.FWI Adam is and was at all relevant times a FWI appointed by the Applicant under s 700 of the FW Act.
The Respondent
4.The Respondent, Aisha & Umma Enterprises Pty Ltd (ACN 143 329 382) (Aisha & Umma), is and was at all relevant times:
(a)a company incorporated under the Corporations Act 2001 (Cth) and registered since 27 April 201O;
(b)a "constitutional corporation" within the meaning of s 12 of the FW Act;
(c)a "national system employer' within the meaning of s 14 of the FW Act;
(d)by reason of the matters admitted in paragraphs 4(b) and 4(c) above, covered by the FW Act in respect of its employees; and
(e)the operator of a cafe trading as RMB Cafe with a principal place of business of 37 Degraves Street, Melbourne, in the State of Victoria (Business).
C. ADMITTED FAILURE TO COMPLY WITH A COMPLIANCE NOTICE IN CONTRAVENTION OF SECTION 716(5) OF THE FW ACT
The Investigation
5.In or around November 2018, an investigation commenced into Aisha & Umma in respect of the employees (Employees) listed in Column A of Schedule 1 (Investigation).
6.As a result of the Investigation, FWI Adam formed a reasonable belief that, at all relevant times between 1 May 2017 to 6 August 2019 (Contravention Period):
(a)the Employees were employed by Aisha & Umma to work at the Business;
(b)the Restaurant Industry Award 2010(Award), a modern award under the FW Act, covered and applied to the Employees;
(c)Employees Kydas Anastasios, Maha Batool, Sarinya Rinnasak, Sandesh Shah, Simranpreet Singh, Prakash Tamang and Gabriella Wilsker were not paid the applicable minimum wage in the Award during the Contravention Period;
(d)Employees Oktay Aybars Acar, Kingkaew Phongphaet, Keshav Sethi, Sandesh Shah, Ankush, Sharma, Rajvinder Singh, Jung Rajbhanda Sandip, Prakash Tamang and Gabrielle Wilsker were not paid the full penalty rate in the Award for ordinary hours worked on a Saturday
(e)Employees Oktay Aybars Acar, Maha Batool, Kingkaew Phongphaet, Sarinya Rinnasak, Keshav, Sethi, Ankush Sharma, Rajvinder Singh, Jung Rajbhanda Sandip, Prakash Tamang and Gabrielle Wilsker were not paid the full penalty rate in the Award for ordinary hours worked on a Sunday; and
(f)Employees Oktay Aybars Acar, Maha Batool, Kingkaew Phongphaet, Sarinya Rinnasak, Keshav Sethi, Ankush Sharma, Rajvinder Singh, Jung Rajbhanda Sandip and Prakash Tamang were not paid the full penalty rate in the Award for ordinary hours worked on a public holiday.
7.By reason of the matters admitted in paragraph 6 above, FWI Adam formed a reasonable belief within the meaning of s 716(1)(b) of the FW Act that, during the Contravention Period, Aisha & Umma, contravened the following provisions of the Award (Contraventions):
(a)clause 20.1 - minimum wages; and
(b)clause 34.1 - penalty rates for work on weekends and public holidays.
The Compliance Notice
8.On 18 June 2020, FWI Adam gave Aisha & Umma a compliance notice in respect of the Contraventions pursuant to s 716(2) of the FW Act (Compliance Notice) by:
(a)posting a copy to Aisha & Umma's registered office at SE 115 87, Turner Street, Port Melbourne in the State of Victoria; and
(b)emailing a copy to Mohamed Ali's, a Director of Aisha & Umma, email address, being) [email protected].
9.Pursuant to s 716(2) of the FW Act, the Compliance Notice required Aisha & Umma to:
(a)take the following actions to remedy the direct effects of the Contraventions by 20 July 2020 (Specified Actions):
(i)make the full specified payments in Column B of Schedule 1, to the Employees in Column A of Schedule 1 to rectify the underpayments in respect of the minimum rates for ordinary hours worked, and penalty rates for ordinary hours worked on a Saturday, Sunday and Public Holiday (Entitlements);
(ii)calculate and pay any additional superannuation contributions required by clause 30.2 of the Award in respect of the amounts owed to the Employees; and
(b)produce reasonable evidence to the Applicant of compliance with the Compliance Notice by 27 July 2020, by producing evidence that the amounts owed had been paid to the Employees (Evidence).
10.The Compliance Notice met the requirements of s 716(3) of the FW Act.
Failure to comply with the Compliance Notice
11.Aisha & Umma failed, without reasonable excuse, to:
(a)take the Specified Actions set out in the Compliance Notice by 20 July 2020; and
(b)produce Evidence by 27 July 2020.
12.By reason of the matters admitted in paragraph 11 above, Aisha & Umma failed to comply with the Compliance Notice.
13.By reason of the matters admitted in paragraphs 11 to 12 above, Aisha & Umma contravened s 716(5) of the FW Act.
D. PARTIAL RECTIFICATION
14.Aisha & Umma caused amounts (specified in Column C of Schedule 1) to be paid to the Employees in response to the Compliance Notice as follows:
(a)on 10 November 2020, two payments of $467 (totalling $934) were made to Simranpreet Singh (Mr Singh).
(b)on 24 January 2021, a payment of $467 was made to Mr Singh.
(c)on 30 July 2021, a payment of $701.42 was made to Ankush Sharma (Mr Sharma);
(d)on 18 August 2021, a payment of $2,500 was made to Mr Singh;
(e)on 17 February 2022, a payment of $2,500 was made to Mr Singh; and
(f)on 29 March 2022, a payment of $2,500 was made to Mr Sharma.
15.Following the payments referred to in paragraph 14, the amounts still outstanding to each of the Employees is specified Column D of Schedule 1).
E. RELIEF SOUGHT
Declarations
16.By consent, the Parties seek a declaration that Aisha & Umma contravened s 716(5) of the FW Act, by failing to comply with the Compliance Notice.
Orders
17.By consent, the Parties seek orders that:
(a)pursuant to s 545(1) of the FW Act, Aisha & Umma take the steps that were required by the by the Compliance Notice within 28 days from the date of this order, by:
(i)making the full specified payments in Column B of Schedule 1, to the Employees in Column A of Schedule 1 to rectify the underpayments in respect of the minimum rates for ordinary hours worked, and penalty rates for ordinary hours worked on a Saturday, Sunday and Public Holiday (Entitlements);
(ii)calculate and pay any additional superannuation contributions required by clause 30.2 of the Award in respect of the amounts owed to the Employees; and
(b)pursuant to s 547(2) of the FW Act, Aisha & Umma pay to the Employees interest on the amounts owed to her pursuant to paragraph 17(a)(i) above within 28 days of the date of this order;
(c)pursuant to s 546(1) of the FW Act Aisha & Umma pay a pecuniary penalty to the Commonwealth for the contravention admitted in paragraph 16 above, within 28 days of the date of this order; and
(d)the Applicant have liberty to apply on 7 days' notice in the event that any of the preceding orders are not complied with; and
(e)such further orders as the Court considers appropriate.
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