Fair Work Ombudsman v C and H Entertainment Pty Ltd
[2021] FedCFamC2G 5
•3 September 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Fair Work Ombudsman v C & H Entertainment Pty Ltd [2021] FedCFamC2G 5
File number(s): MLG 4215 of 2019 Judgment of: JUDGE BURCHARDT Date of judgment: 3 September 2021 Catchwords: INDUSTRIAL LAW – Applications for declarations and imposition of penalties following earlier liability judgment – parties agreed in adopting approach indicated in Fair Work Ombudsman v NSH [2017] FCA 1301 – second respondent seeking penalties at approximately 50 per cent of those sought by the applicant – third respondent seeking to avoid all penalties – consideration of relevant matters raised by the parties – penalties set largely as sought by applicant. Legislation: Fair Work Act 2009 (Cth)
Fair Work Regulations 2009 (Cth)
Cases cited: Commonwealth of Australia v Director, Fair Work Building Industry Inspectorate [2015] HCA 46
Fair Work Ombudsman & NSH [2017] FCA 1301
Fair Work Ombudsman v Taj Palace Tandoori Indian Restaurant Pty Ltd & Anor [2012] FCMA 258
Trade Practices Commission & CSR Limited (1991) ATPR 41–076
Division: Division 2 General Federal Law Number of paragraphs: 42 Date of last submission/s: 18 August 2021 Date of hearing: 18 August 2021 Counsel for the Applicant: Ms Midwood Solicitor for the Applicant: Office of the Fair Work Ombudsman Counsel for the First and Second Respondents: Mr McKenney
Table of Corrections 6 September 2021 In Order 3(a) the figure “$14,264” has been replaced with the figure “$15,624”. 6 September 2021 In Order 3(6) the figure “$12,094” has been replaced with the figure “$12,096”.
Solicitor for the First and Second Respondents: Wisewould Mahony Lawyers Advocate for the Third Respondent: Self-Represented ORDERS
MLG 4215 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: FAIR WORK OMBUDSMAN
Applicant
AND: C & H ENTERTAINMENT PTY LTD
First Respondent
DON HARIS KUMARAGE
Second Respondent
CHANNA DISSANAYAKE
Third Respondent
ORDER MADE BY:
JUDGE BURCHARDT
DATE OF ORDER:
3 SEPTEMBER 2021
THE COURT DECLARES THAT:
1.
The second respondent was involved, within the meaning of section 550 of the
Fair Work Act 2009(Cth) (“the Act”), in the each of the contraventions by the first respondent of:
(a)section 716(5) of the Act by failing to comply with the Compliance Notice;
(b)
section 535(1) of the Act by failing to make and keep employee records prescribed by regulation 3.33(3) of the Fair Work Regulations 2009 (Cth)
(”the Regulations”);
(c)section 536(1) of the Act by failing to give pay slips within one working day of payment; and
(d)section 536(2) of the Act by giving a pay slip without the information prescribed by Regulation 3.46(1) of the Regulations.
2.The third respondent was involved, within the meaning of section 550 of the Act, in each of the contraventions by the first respondent of sections 535(1), 536(1), and 536(2) of the Act referred to at paragraphs 1(b) to 1(d) above.
THE COURT ORDERS THAT:
3.Pursuant to section 546 of the Act that:
(a)
the second respondent pay pecuniary penalties to the Commonwealth
with respect to his involvement, within the meaning of section 550 of the Act, in the contraventions set out in paragraph 1 above, in the amount of $15,624 within 28 days of this order.
(b)
the third respondent pay pecuniary penalties to the Commonwealth with respect to his involvement, within the meaning of section 550 of the Act,
in the contraventions set out in paragraph 2 above, in the amount
of $12,096 within 28 days of this order.
4.
The applicant have liberty to apply on seven days’ notice in the event that
any of the above orders are not complied with.
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
REASONS FOR JUDGMENT
JUDGE BURCHARDT
INTRODUCTORY
On 4 June 2021 I issued a judgment between these parties by which relevantly I fixed the matter for a penalty hearing which took place on 18 August 2021. In issue before the Court is what remedies should flow from the findings of the earlier judgment. Leaving aside the question of declarations, ultimately the issues between the parties is the amount of penalties that should be imposed upon the respondents. The applicant seeks that penalties of $16,632 be imposed upon the second respondent and $13,104 on the third respondent. The second respondent submits that penalties in the sum of $8,316 should be imposed upon him. Third respondent
has not articulated a figure, but from the materials filed and submissions made it is clear that he seeks that no penalties be imposed upon him at all.
For the reasons that follow, I propose to impose penalties on the respondents at a level close to, but slightly lower than, those proposed by the applicant.
THE LIABILITY JUDGMENT
Because of the way the parties, and most particularly the respondents, have approached the question of penalties, it is appropriate to set the scene by referring briefly to parts
of the liability judgment, although obviously this judgment is to be read in conjunction with that one. The following points about the judgment should be noted.
First, I had no difficulty in finding that the first respondent contravened section 716 of the Fair Work Act 2009 (Cth) (“the Act”) by failing to comply with a notice to produce. I further had no difficulty in finding that the second respondent was involved in that contravention within the meaning of section 550 of the Act. In paragraphs 33-34 of the judgment I recorded:
Given that the second respondent was, at all material times, a director with a 50 per cent shareholding in the first respondent, and given that the evidence shows that the other 50 per cent shareholder is overseas and played no material part in the running of the first respondent’s business, in my view the position is clear. Plainly the second respondent was the person, as the on-the-spot director, to whom the obligations to comply with the requirements under the Act devolved. No other explanation makes any sense. The extracts of texts send by Mr Dissanayake, the third respondent, to Ms Jenkins at “CB-101” and “CB-104” comfortably satisfy me that Mr Dissanayake was apparently administering the pay of Ms Jenkins but was doing so by clear reference to the authority of the second respondent. He was also responsible for all dealings with the Fair Work Ombudsman (see “CB-152” to “CB-153”). He had knowledge of the compliance notice as he accepted service on behalf of the first respondent and was reminded of the timeframe for compliance by phone message the week prior to the deadline.
In these circumstances, I have no doubt that the second respondent was involved with the failure of the first respondent to comply with the compliance notice within the meaning of section 550(1)(c) of the Act.
The second point to be noted is that I was quite clear that the first respondent failed to make and keep employment records as required. The one payslip that the first respondent provided to Ms Jenkins did not comply with the Act. I noted (judgment paragraphs 35-36) that:
I accept that the second respondent had ultimate control and authority over the affairs of the first respondent. I accept that he organised the running of the business, as is shown by his correspondence with the Fair Work Ombudsman if nothing else. However, it would appear to be uncontroversial that he left the onsite operations, including hiring, to managers (“CB-307”). He was, however, onsite from time to time (see “CB-307”) and was aware of Ms Jenkins’ employment.
The second and third respondents (and I shall return to the latter) knew by at least December 2017 of their obligations in respect of record keeping and payslip requirements, and that the Hospitality Award contained penalty rates, including for work at nights and on public holidays, through previous involvement with the Fair Work Ombudsman in respect of other employees. I accept the submission of the applicant (written submissions, paragraph 57) that Ms Jenkins was paid a flat rate of pay including for work on weekends, public holidays and nights, however, Ms Jenkins had informed both respondents that what her base hourly rate of pay should be and that the second respondent told her in reply that “the business could not pay her that sort of wage but that they would come to an agreement on something”. I have no difficulty in inferring that the second respondent knew that loadings and penalty rates under the award were neither applied nor considered relevant and that he was therefore involved with, within the meaning of section 550, in the first respondent’s record keeping contraventions.
I likewise found that the second respondent was involved with the contraventions regarding the failure to provide payslips not least because Ms Jenkins told him that this was the case (paragraph 37 judgment).
In respect of the third respondent I found at paragraph 38:
The third respondent was, on any view of the matter, involved in the day to day management of the first respondent. He is a brother of the second director, who lives in America, and in respect of whom he has a power of attorney (see “CB-200” to “CB-205”). He was generally responsible for administering pay and associated records (“CB-308”) and he knew that the payments to Ms Jenkins were a flat rate of $21 per hour (see third respondent’s defence, paragraph 9). He actually worked with Ms Jenkins, at least on occasions. He was well aware of what her hours were. In these circumstances he was plainly involved in both the failure to keep records and the failure to provide payslips. The third respondent’s oral submissions asserted that he had no responsibility for keeping records at all and that it was his job to get money and transfer to the accounts on the instructions he received. He was just dealing with a bank account and had in fact made some payments himself because the bar could not pay her. Ms Jenkins had approached him but he never took responsibilities. In essence, he put, it was not his job to say how much they get paid. He said that he had also lost money as well as the directors. In short, it was his position that none of this was his responsibility. For the reasons expressed, I do not accept those submissions.
THE PARTIES’ WRITTEN SUBMISSIONS AND AFFIDAVITS
The applicant’s written submissions filed 18 June 2021 traverse the relevant matters
in a fashion that might be described as both orthodox and comprehensive. I will return to various aspects of those submissions in due course but have regard to all of them. The written submissions supported the making of the declarations sought. They also sought that penalties be imposed in respect of the failure to comply with the compliance notice at 70 per cent of the applicable maximum and that the other contraventions be assessed at between 30 and 60 per cent. As earlier indicated, these produced a total of $16,632 for the second respondent and $13,104 for the third respondent after application of 20 per cent discount
for the totality principle.
The written submissions of the second respondent filed 23 July 2021 traversed the submissions of the applicant and sought to draw the Court’s attention to certain qualifications to the matters asserted by the applicant. The submissions also sought to traverse matters favourable
to the second respondent. Perhaps of particulate note is the submission that in circumstances where the second respondent had no previous involvement in the hospitality industry and was certainly not going to have any more in the future, there was in effect little if any need for any consideration of specific deterrence in relation to the second respondent. The second respondent submitted that there should be penalties in respect of all the contraventions except the payslip one of 25 of the applicable maximum and 20 per cent of the maximum in respect of the payslip. As earlier indicated the amount of actual penalties sought to be imposed following a 20 per cent reduction for the totality principle was approximately half of those proposed by the applicant.
The third respondent did not file any written submissions but filed two affidavits.
The first affidavit filed by the third respondent on 23 July 2021 sought to traverse again
the question of his activities in respect of the first respondent. Putting the matter in the round, but I think sufficiently accurately, he essentially sought to blame the second respondent
for all misconduct. He drew the Court’s attention to the fact that the second respondent’s wife was doing all the bookkeeping and accounting of the business. He sought to distance himself completely from any kind of management role in the first respondent and to explain the extent of his interaction with Ms McDonald of the applicant. He appended a number of materials designed to promote this proposition.
The second respondent filed an affidavit ultimately dated 3 August 2021 and set out his family history and I note that he is in secure employment paying him $105,000 per year, and that
his wife earns $52,000 per annum. He set out various borrowings that he had contributed towards the establishment of the business of the first respondent and deposed at paragraph 18 that he had contributed in total at least $160,000. He went on to traverse the financial difficulties of the first respondent and the total loss of in excess of $160,000.
Essentially the affidavit seeks to explain the failure of the business in terms that would
be largely exculpatory and sought to, as it were, explain away the failure of the first respondent under its obligations in respect of Ms Jenkins.
A further and final affidavit by the third respondent was affirmed on 13 August 2021.
It is argumentative in its nature and seeks to put in issue a number of the assertions made
by the second respondent. It should be noted that the affidavit material that the second
and the third respondent has to an extent what might be described as a cutthroat quality
to it in that each seeks to cast blame upon the other.
THE ORAL SUBMISSIONS MADE AT COURT
Counsel for the applicant referred to the previous findings of the Court and indicated the levels of penalty sought together with declarations. She relied upon the statement of claim
and the relevant affidavit material of Ms McDonald. Counsel noted that there were seven contraventions of section 536 in respect of record keeping but noted that it was agreed that
the first respondent was entitled the benefit of section 557. Counsel detailed the nature and circumstances of the contraventions and detailed the paragraphs of the written submissions that traverse this. Counsel noted that if the first respondent had complied with the compliance notice, the Fair Work Ombudsman could not have proceeded. The failure to comply was serious. Failures in respect of payslips were significant. This is not just an administrative failure. There had been only one payslip provided and that was non-compliant.
Counsel referred to the written submissions in respect of deterrence and noted that there were constant difficulties in the hospitality industry (referring to court material at court book 377 to 379 which I do not understand to be controversial in this regard). It was deliberate conduct. Counsel responded to the second respondent’s assertion that he had tried to comply.
Counsel referred to paragraphs 39 to 40 of the written submissions and indicated that cooperation was in fact limited. Counsel noted that there is no evidence that rectification has actually been done in respect of Ms Jenkins. Counsel referred to Fair Work Ombudsman & NSH [2017] FCA 1301 at [109] and submitted that lack of prior contravening conduct was not important. Counsel was otherwise largely prepared to rely upon the written submissions filed.
Counsel for the second respondent likewise was essentially concerned to rely upon the written submissions. Counsel pointed out that Mr Singh the bar manager was also involved.
It was submitted that the time to comply was short. The financial circumstances of the first respondent were that it was liquidated. Counsel accepted that general deterrence was relevant and accepted the material from Ms McDonald indicating that the hospitality industry is notorious for underpayments and non-compliance. Counsel submitted that the second respondent will not be in business again. He is a long-term employee who regrets his solitary commercial venture which had failed. The issue of specific deterrence was of limited relevance. There was a query as to whether the second respondent was an intentional participant. The Court should not find that the conduct was deliberate. The second respondent had been naïve and negligent but not deliberate. Counsel submitted there was quite a degree of cooperation and there were endeavours to negotiate with the Fair Work Ombudsman. Counsel pointed to the fact that ongoing cooperation was rendered more difficult
by the business being locked out of its premises. Counsel referred to the totality principle.
Counsel indicated that he was instructed to issue a formal apology on behalf of the second respondent and to express his remorse. Counsel traversed the figures that he was seeking for the imposition of penalties and submitted that the result should not be crushing.
It was submitted the second respondent has liabilities and there was a query as to whether it might be possible to pay by instalments. He relied upon his client’s affidavit. Counsel finally submitted that although the third respondent was not a director he was involved.
He was the agent of his brother. It was submitted there should be equity between the penalties imposed on the second and third respondents.
The third respondent’s oral submissions were relatively short. He said he never had any benefit of the business. He was not a director or shareholder. He was just giving his brother a hand. He had a separate job. He also has three kids. He took control of paying bills.
It was not his responsibility for pay rates. His brother is not here so he was giving him a hand. His brother paid a lot of money into the business but there was a problem with the landlord. His brother paid $45,000. He is unemployed and suffers from depression and anxiety. He never got paid by the business. Payslips were not his responsibility nor were records or pay rates. It was very unfair that he might be fined. There was no evidence of his responsibility.
THE APPROACH TO BE FOLLOWED
I accept the submission at paragraph 7 of the applicant’s written submissions that the Court should follow the approach set out by Bromwich J in Fair Work Ombudsman & NSH North Pty Ltd trading as New Shanghai Charleston [2017] FCA 1301 at [36] in the following terms:
(1)Identify the separate contraventions, with each breach of each obligation being a separate contravention, and each breach of a term of the Award being a separate contravention.
(2)Consider whether each separate contravention should be dealt with independently or with some degree of aggregation for those contraventions arising out of a course of conduct, noting that s 557 of the FW Act provides that two or more contraventions of a given civil remedy provision are to be taken to be a single contravention if committed by the same person and arising out of a course of conduct by that person.
(3)Consider whether there should be further adjustment to ensure that, to the extent of any overlap between groups of separate aggregated contraventions, there is no double penalty imposed, and that the penalty is an appropriate response to what each respondent did.
(4)Consider the appropriate penalty in respect of each final individual group of contraventions, taken in isolation.
(5)Consider the overall penalties arrived at, including by reference to those which may be proposed by the FWO (as permitted by Commonwealth v Director, Fair Work Building Industry Inspectorate [2015] HCA 46; 258 CLR 482 (CFMEU Civil Penalties Case) at [64]) and what is proposed by the respondents, and apply the totality principle, to ensure that the penalties for each respondent are appropriate and proportionate to the conduct viewed as a whole, making such adjustments as are necessary: see Kelly v Fitzpatrick [2007] FCA 1080; 166 IR 14 at [30]; Australian Ophthalmic Supplies Pty Ltd v McAlary-Smith [2008] FCAFC 8; 165 FCR 560 at [23]. [71] and [102].
The second respondent I think has effectively adopted the same approach and there was certainly no criticism made of the above methodology. Given the nature of the position adopted by the third respondent of course he did not engage with this aspect of the matter at all.
IDENTIFICATION OF CONTRAVENTIONS
There is no doubt that the Court finds seven contraventions of section 536(1) by the first respondent. The applicant concedes that pursuant to section 557(1) of the Act it is appropriate to treat the breaches by the second and third respondents of section 536(1) in failing to provide a payslip to the employee within one working day on seven occasions, by grouping them as one.
The applicant has submitted that it would not be appropriate to further group the contraventions on the basis of common elements as they all arise from separate and distinct obligations under the Act (paragraph 11 written submissions). Neither of the respondents has taken issue with this and accordingly there are in my view four contraventions as follows:
(a)One contravention of section 535(1) in the failure to make and keep records as prescribed.
(b)There was one contravention of a failure to provide a payslip within one working day of payment.
(c)There was one contravention in respect of section 536(2) of the Act in the failure to provide a payslip with the prescribed information.
(d)
There was one contravention, and in this instance by the second respondent only
and not the third respondent, of section 716(5) of the Act in the failure to comply with a compliance notice. It is common cause that the maximum applicable penalties in respect of the contraventions of section 535 and 536 of the Act are $12,600 and in respect of section 716 of the Act, $6,300.
It is also common cause that the primary purpose of civil penalties is to promote the public interest in compliance by attempting to put a price on a contravention that is sufficiently high to deter repetition by the contravener and others who might be tempted to contravene the relevant legislation (see Commonwealth of Australia v Director, Fair Work Building Industry Inspectorate [2015] HCA 46 at [55], where the plurality of French CJ and Kiefel, Bell, Nettle and Gordon JJ adopted the earlier remarks of French J in Trade Practices Commission & CSR Limited (1991) ATPR 41–076 at 52,152).
It is well accepted that various factors may be considered in assessing the appropriate penalty for each contravention that there is no obligatory checklist. Given that the parties who made submissions about this matter adopted essentially the same approach, I will work through the matters raised by the written submissions for the applicant bearing in mind the qualifications offered by the second respondent.
COMPLIANCE NOTICE CONTRAVENTION
I accept the uncontroversial submissions of the applicant that the power to issue compliance notices was introduced into the Fair Work Act to provide a mechanism to address non-compliance as an alternative to commencing litigation. I also accept that such notices provide a mechanism for the efficient and cost effective rectification of identified contraventions.
It is not controversial that if the first respondent had complied with the compliance notice the applicant would not have been able to bring civil remedy proceedings. As earlier indicated in my earlier judgment I find that the second respondent was aware of the requirement to comply with the notice and the timeframe for it. It is clear that there were numerous endeavours to ensure compliance which the respondent failed to take. In truth the written submissions of the second respondent do not really engage in terms with the applicant’s written and oral submissions as to this particular contravention at all save to submit in the round that the penalty should be assessed at 25 per cent of the relevant maximum.
THE RECORD KEEPING/PAYSLIP CONTRAVENTIONS
There is no doubt that payslips are important. This has been made clear in numerous prior court decisions. It is sufficient to refer Fair Work Ombudsman v Taj Palace Tandoori Indian Restaurant Pty Ltd & Anor [2012] FCMA 258 where Riethmuller FM (as his Honour then was) said at [67]:
Whilst the record keeping obligation with respect to pay slips only appears in the Regulations, its central importance in industrial matters cannot be underestimated. Proper pay slips allow employees to understand how their pay is calculated and therefore easily obtain advice. Pay slips provide the most practical check on false record keeping and underpayments, and allow for genuine mistakes or misunderstandings to quickly be identified. Without proper pay slips employees are significantly disempowered, creating a structure within which breaches of the industrial laws can easily be perpetrated.
It is relevant that despite employing Ms Jenkins for eight occasions she was only ever provided with one payslip which was manifestly deficient in compliance with the relevant regulation. Furthermore as I found in the liability judgment the second and third respondents knew
by at least 2017 of their obligations about record keeping and payslip requirements.
Further again Ms Jenkins sent an email to the second respondent on 10 April 2019 asserting that she ought to be paid a higher hourly wage and requesting that she be provided
with payslips, to which the respondents did not reply.
Ms Jenkins was self-evidently on a working holiday visa at the time and in a particularly disempowered position.
THE INVOLVEMENT OF SENIOR MANAGEMENT
While at one level of analysis both the second and third respondents were senior management, that observation needs to be seen in proper context. This was on any view of the matter a small restaurant/bar operation. This is not a factor that requires great weight.
CAPACITY TO PAY
Both of the respondents have asserted an incapacity to pay. The second respondent says
he is in effect $160,000 out of pocket. It would seem that the bulk of this appears to have been as it were agglomerated into his mortgage. There is no evidence as to what his total mortgage is. Obviously repaying the further sums of money that he has lost will however put a strain upon his finances given a combined household income of just over $150,000 per year.
In respect of the third respondent he says he is now unemployed. He likewise has a family to support. I am prepared to accept in his favour, as indeed with the second respondent,
that the matters asserted are true. There was no application to cross-examine after all.
However it should be noted that it is very well established, to a point where it is not necessary in my view even to cite authority, that Parliament has established significant sanctions for contravention of its industrial laws. It has set penalties which in effect themselves involve a substantial range. It is wholly inappropriate, as I believe I have said in an earlier judgment, that the Court should seek to meld the quantum of penalty to be imposed to the capacity of the respondents to pay.
CORRECTIVE ACTION AND COOPERATION
The written submissions of the second respondent seek to challenge or at least qualify the submission made by the applicant that cooperation was limited. The written submissions point to the measures of cooperation that have taken place. My view of this can be stated shortly. Cooperation was extremely limited. The failure to comply with the compliance notice speaks for itself.
Although the second respondent has expressed contrition and offered through Counsel a fulsome apology, there is no evidence that the underpayments to Ms Jenkins have been rectified.
DETERRENCE
I am prepared to accept that in respect of the second respondent the weight to be given to specific deterrence must be limited. He has burnt his fingers badly in his sole effort
as an entrepreneur and there is no reason to doubt that he will not so engage in the future.
The evidence of the third respondent makes this matter less clear, but it is reasonable to suppose that in any event the imposition of the penalties that I will impose should be sufficient to deter the third respondent if he does seek to be in business in the future.
General deterrence is however important. This is an industry notorious for non-compliance and underpayment. It is very important, to return to the words French J, that penalties be set at a level sufficient to ensure further compliance and to deter those who may seek not to do so.
THE SUBSTANCE OF THE RESPONDENTS’ POSITIONS
The second respondent has sought to deflect responsibility both to the third respondent
and to his bar manager Mr Singh. I do not accept that that is a valid approach given the findings I have made as to the second respondent’s involvement. It is said that he was naïve and lacking in judgment. At one level of analysis that may indeed be so. But he was well-aware
of the requirement to keep records. He has put on clear notice by the compliance notices to what his response to that notice required to be. He simply did not do so. I think his failure to comply was intentional albeit perhaps not so much motivated by the determination
not to comply as by an insouciant failure to do so. The same in my view goes for the third respondent.
I have already dealt with the respondents’ endeavours to plead in mitigation their financial circumstances.
CONCLUSIONS AS TO PENALTY
I agree with the applicant in respect of the breach of section 716 and the compliance notice. This was a serious matter and the recommended penalty of 70 per cent is in my view an appropriate one.
In respect to the failure to keep records of penalty rates or loadings and the like, I think that
the 40 per cent recommended by the applicant is indeed once again appropriate.
I think that the failure to give a payslip within one day of payment should be assessed at 50 per cent of the applicable maximums. The respondents were on notice of the existence of the award and they were on notice of the need to give payslips. Nonetheless, the assessment of these matters is always one of impression. This was a relatively new business and I think that 50 per cent is an appropriate outcome in respect of the failure to give payslips. I also agree
with the applicant that the failure to give these payslips without the prescribed information should be assessed at 30 per cent of the applicable maximum.
THE APPLICATION OF THE TOTALITY PRINCIPLE
For the sums to be imposed as a result of the above findings are therefore in respect of the section 716 breach by the second respondent $4,410. In respect of the failure to keep records of penalty rates or loadings for both the second and third respondents it is $5,040. In respect of the section 536 failure to give payslips within one day of payment for the second and third respondent the figure will be $6,300. In respect to the section 536(2) failure to give prescribed information it will be $3,780.
The resultant totals are $19,530 for the first respondent and $15,120 for the third respondent. I note that the second respondent has accrued substantial additional debt as a result
of the business failure.
In all the circumstances, I think a discount proposed of 20 per cent by the applicant in respect of the totality principle is an appropriate one.
CONCLUSION
For the above reasons I will make orders that the respondents pay penalties of $15,624 for the second respondent and $12,096 for the third respondent. There has been no opposition expressed to the issuing of declarations as the applicant seeks. In my view in the circumstances in which this contravention took place, most particularly an industry in which non-compliance is so rife, I think it is an appropriate exercise of the Court’s discretion to make the declarations sought. This will mark the Court’s view of the conduct and make it entirely clear to the industry more generally exactly what it is that the Court is doing and why.
I certify that the preceding forty-two (42) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Burchardt. Associate:
Dated: 3 September 2021
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