Fair Work Ombudsman v Carnarvon Cleaners Pty Ltd
[2023] FedCFamC2G 277
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Fair Work Ombudsman v Carnarvon Cleaners Pty Ltd [2023] FedCFamC2G 277
File number: PEG 60 of 2021 Judgment of: JUDGE LADHAMS Date of judgment: 18 April 2023 Catchwords: INDUSTRIAL LAW – appropriate penalty for admitted contraventions of ss 45, 535(1) and 535(4) of the Fair Work Act 2009 (Cth) – where recommended penalty agreed between the parties Legislation: Corporations Act 2001 (Cth)
Crimes Act 1914 (Cth) s 4AA
Fair Work Act 2009 (Cth) ss 12, 45, 535, 539, 546, 550, 557, 682
Fair Work Regulations 2009 (Cth) reg 3.32
Cases cited: Andreou v Berkeley Challenge Pty Ltd [2014] FCCA 738
Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (2017) 254 FCR 68; [2017] FCAFC 113
Australian Building and Construction Commissioner v Pattinson & Anor (2022) 175 ALD 383; [2022] HCA 13
Commonwealth of Australia v Director, Fair Work Building Industry Inspectorate (2015) 258 CLR 482; [2015] HCA 46
David Armstrong v VK Holdings Pty Limited (unreported, Chief Industrial Magistrates Court, Sydney, 28 November 1997)
Fair Work Ombudsman v EA Fuller & Sons Pty Ltd [2013] FCCA 5
Fair Work Ombudsman v Extrados Solutions Pty Ltd [2014] FCCA 815
Fair Work Ombudsman v Grouped Property Services Pty Ltd (No 2) [2017] FCA 557
Fair Work Ombudsman v HSCC Pty Ltd [2020] FCA 655
Fair Work Ombudsman v Lohr (2018) 158 ALD 457; [2018] FCA 5
Fair Work Ombudsman v Lufra Investments Pty Ltd [2011] FMCA 263
Fair Work Ombudsman v NSN (t/a New Shanghai Charlestown) (2017) 275 IR 148; [2017] FCA 1301
Fair Work Ombudsman v Zucco Farming Pty Ltd [2019] FCCA 1277
Kelly v Fitzpatrick (2007) 166 IR 14; [2007] FCA 1080
Singtel Optus Pty Ltd v Australian Competition and Consumer Commission (2012) 287 ALR 249; [2012] FCAFC 20
Trade Practices Commission v CSR Ltd (1991) ATPR 41-076; [1990] FCA 521
Volkswagen Aktiengesellschaft v Australian Competition and Consumer Commission (2021) 284 FCR 24; [2021] FCAFC 49
Division: Division 2 General Federal Law Number of paragraphs: 93 Date of last submission: 3 February 2023 Place: Perth Counsel for the Applicant Ms E Luck Solicitor for the Applicant: Office of the Fair Work Ombudsman Counsel for the Respondents Mr A Mossop Solicitor for the Respondents: 3D HR Legal
Table of Corrections 19 April 2023 In the cover sheet, Counsel for the Applicant has been changed from ‘Ms A Clemens’ to ‘Ms E Luck’. ORDERS
PEG 60 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: FAIR WORK OMBUDSMAN
Applicant
AND: CARNARVON CLEANERS PTY LTD (ACN 134 865 008)
First Respondent
MARGARET HERLYSHA SEATON
Second Respondent
order made by:
JUDGE LADHAMS
DATE OF ORDER:
18 April 2023
THE COURT DECLARES THAT:
1.The first respondent contravened the following civil remedy provisions:
(a)s 45 of the Fair Work Act 2009 (Cth) (Fair Work Act), by failing to pay Ching Mei ‘Emma’ Tung, Dennis Burgiel, Georgia Nicks, Haru Suzuki, Jie ‘Jay’ Wang, Kirsty Rogers, Mark McCloskey, Mathilde Roussel, Michael Burnell, Mohd Kamarul ‘Kelly’ Ishak, Stephanie Talay, Syed ‘Kechick’ Tuan Bujang and Thomas Beetlestone the required casual loading in accordance with cl 12.5(a) of the Cleaning Services Award 2010 (Award);
(b)s 45 of the Fair Work Act, by failing to pay Gloria Dryden and Russell Paull the required part-time allowance in accordance with cl 12.4(b)(iii) of the Award;
(c)s 45 of the Fair Work Act, by failing to pay each of Ms Tung, Ms Nicks, Greg Morton, Maria Almeida, Ms Roussel, Michael Burnell, Mr Ishak, Shane Morton, Mr Bujang and Mr Beetlestone the required public holiday penalty rate in accordance with cl 27.3 of the Award;
(d)s 45 of the Fair Work Act by failing to pay each of Abert, Albert or Albertus Radzevicius, Allen, Allan or Alan Chilcott, Dane Myers, Mr Burgiel, Ms Dryden, Greg Morton, Heather Pearce, Mr McCloskey, Mei Chi ‘Maggie’ Hung, Michael Burnell, Mr Ishak, Patchareeporn Halse, Mr Paull, Shane Morton and Ms Talay the required rate for overtime work in accordance with cl 28.2 of the Award;
(e)s 45 of the Fair Work Act, by failing to pay each of Mr Chilcott, Mr Myers, David Cuschieri, Ms Pearce, Ms Hung, Nadine Rickersey, Ms Halse, Mr Paull, Shane Morton and Veronica Hegarty the required annual leave loading in accordance with cl 29.4 of the Award;
(f)s 45 of the Fair Work Act, by failing to pay each of Ms Rickersey and Mr Paull the required broken shift allowance in accordance with cl 17.1 of the Award;
(g)s 45 of the Fair Work Act, by failing to pay each of the employees listed above, and Wayne Harding, Adhimitra ‘Eddie’ Subrahma, Nolene Patten, Amelie Perron, David Queen, Diane Stewart, John Stewart and Kayleen Lawless the required minimum engagement entitlement in accordance with cl 24.2 of the Award;
(h)s 535(1) of the Fair Work Act, by failing to comply with reg 3.32(c) of the Fair Work Regulations 2009 (Cth) (Fair Work Regulations), during the period from 7 April 2015 to in or around October 2018; and
(i)s 535(4) of the Fair Work Act, by making and keeping employee records required to be made and kept under s 535(1) of the Fair Work Act and reg 3.32(c) of the Fair Work Regulations that it knew were false or misleading.
2.The second respondent was involved in, pursuant to s 550 of the Fair Work Act, each of the first respondent’s contraventions set out in declarations 1(a) to (i) above.
THE COURT ORDERS THAT:
3.Pursuant to s 546(1) of the Fair Work Act, the first respondent pay a penalty of $116,550 in respect of the contraventions the subject of declaration 1 above.
4.Pursuant to s 546(1) of the Fair Work Act, the second respondent pay a penalty of $23,310 for the contravention the subject of declaration 2 above.
5.The first and second respondents pay the penalty amounts to the Consolidated Revenue Fund of the Commonwealth of Australia within 28 days of this Order.
6.There are no orders as to costs or interest.
7.The parties are at liberty to apply.
8.The proceedings are otherwise dismissed with no order as to costs.
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 LADHAMS:
INTRODUCTION
On 7 April 2021 the applicant, the Fair Work Ombudsman (Ombudsman), commenced proceedings against the respondents alleging that the first respondent, Carnarvon Cleaners Pty Ltd (Carnarvon Cleaners) failed to pay to a number of its employees amounts to which they were entitled under the Cleaning Services Award 2010 (Award), failed to make and keep employee records, and knowingly made or kept false or misleading records, and that the second respondent, Ms Seaton, was involved in those contraventions.
The Ombudsman seeks declarations that Carnarvon Cleaners contravened ss 45, 535(1) and 535(4) of the Fair Work Act 2009 (Cth) (Fair Work Act) as a consequence of the alleged conduct and that Ms Seaton was involved, within the meaning of s 550 of the Fair Work Act, in the contraventions. Ms Seaton was at all relevant times the sole director and shareholder of Carnarvon Cleaners and was the person responsible for the overall operation, direction and management of Carnarvon Cleaners. The Ombudsman also seeks orders requiring Carnarvon Cleaners and Ms Seaton to pay pecuniary penalties to the Commonwealth in respect of the contraventions.
Carnarvon Cleaners and Ms Seaton admit the alleged contraventions and accept that the imposition of pecuniary penalties is appropriate. Orders were made by the Court for the filing of evidence and submissions in relation to penalty and the matter comes before me to be determined on the papers. The recommended penalty in respect of the admitted contraventions, which is agreed between the parties, is that Carnarvon Cleaners pay a penalty of $116,550 and that Ms Seaton pay a penalty of $23,310.
For the reasons explained below, I accept that declarations should be made in respect of the admitted contraventions and I agree that the recommended penalties are appropriate penalties in all the circumstances.
FACTUAL BACKGROUND AND CONTRAVENTIONS OF FAIR WORK ACT
Most of the facts summarised in this judgment are based on the facts agreed between the parties in the amended statement of claim filed on 1 February 2022, the substituted defence filed on 11 October 2022 and the substituted reply filed on 14 October 2022. I have also had regard to the two affidavits filed in this proceeding, namely, the affidavit of Peta Williams filed on 10 November 2022 on behalf of the Ombudsman and the affidavit of Ms Seaton filed on 3 February 2023. Where appropriate, I have referred to the affidavit evidence in the consideration of the appropriate penalty below. Unless otherwise indicated, I accept the evidence of Ms Williams and Ms Seaton.
Carnarvon Cleaners is a company incorporated under the provisions of the Corporations Act 2001 (Cth) which operates a contract cleaning business, servicing approximately 41 premises in and around Carnarvon in the State of Western Australia. Ms Seaton, as the sole director and person responsible for the overall operation, direction and management of Carnarvon Cleaners, was responsible for making decisions regarding business operations, including decisions regarding the employment of employees and entitlements, and ensuring that Carnarvon Cleaners complied with its legal obligations under the Fair Work Act.
At all relevant times:
(a)Carnarvon Cleaners was bound by the Fair Work Act and the Fair Work Regulations 2009 (Cth) (Fair Work Regulations); and
(b)the Award applied to Carnarvon Cleaners’ employment of it its employees.
In around August 2018 the Ombudsman commenced an audit of Carnarvon Cleaners (Assessment) to assess its compliance with the Fair Work Act and fair work instruments during the period from 1 November 2017 to 30 November 2018 (Assessment Period).
During the Assessment Period Carnarvon Cleaners employed 23 employees on a part-time basis and 13 employees on a casual basis. Based on the duties that they performed, the employees were categorised under the Award as Cleaning Services Employee Level 1 (CSE 1) employees, Cleaning Services Employee Level 2 (CSE 2) employees or Cleaning Services Employee Level 3 (CSE 3) employees. A different rate of pay applied to each of the three levels of employee.
During the Assessment Period Carnarvon Cleaners underpaid 35 of its employees a total amount of $114,538.30 in respect of the contraventions admitted by Carnarvon Cleaners in this proceeding. The nature of the underpayments can be described as follows:
(a)Pursuant to cl 12.5(a) of the Award, casual employees were entitled to a casual loading of 25% for all hours worked, in addition to the ordinary hourly rates and rates payable for shift, weekend and overtime work that apply to full-time employees. Carnarvon Cleaners did not pay the full casual loading entitlement to 13 casual employees.
(b)Pursuant to cl 12.4(b)(iii) of the Award, part-time employees were entitled to an allowance of 15% for all hours worked, in addition to the ordinary hourly rates and rates payable for shift, weekend and overtime work that apply to full-time employees. Carnarvon Cleaners did not pay two of its part-time employees the correct part-time allowance to which they were entitled.
(c)Pursuant to cl 27.3 of the Award, employees were entitled to be paid at a rate of double time and one half of their ordinary rates for all hours worked on public holidays. Carnarvon Cleaners did not pay 10 of its employees the full amounts of the public holiday penalty rates to which they were entitled.
(d)Pursuant to cll 12.5 and 28.6 of the Award, overtime was payable on all hours worked in excess of 7.6 hours per day, five days per week or 38 hours per week. Pursuant to cl 28.2, the rate of overtime payable to each employee was time and a half of the employee’s ordinary rate for the first two hours of overtime worked from midnight Sunday to midnight Saturday, and double time for all overtime worked after the first two hours of overtime from midnight Sunday to midnight Saturday. Carnarvon Cleaners failed to pay 13 employees their proper overtime entitlements in respect of the first two hours of overtime worked from midnight Sunday to midnight Saturday, and it failed to pay seven employees their proper overtime entitlements in respect of overtime that they worked after the first two hours of overtime from midnight Sunday to midnight Saturday.
(e)Pursuant to cl 29.4 of the Award, part-time employees were entitled to an annual leave loading of 17.5%, calculated on the employee’s ordinary time rate of pay, in addition to payment for annual leave prescribed by the National Employment Standards. Carnarvon Cleaners underpaid 10 employees their annual leave loading.
(f)Pursuant to cl 17.1 of the Award, Carnarvon Cleaners was required to pay a broken shift allowance of 0.458% of the standard rate per day up to a maximum of 2.29% of the standard rate per week to any of its employees who worked in two separate periods of duty on any day, with a maximum spread of 13 hours, and where the break between periods exceeded one hour. Carnarvon Cleaners underpaid two employees their broken shift allowance.
(g)Pursuant to cl 24.2 of the Award, part-time and casual employees were required to be rostered on for a minimum engagement period of one to four hours, depending on the size of the total cleaning area at each site and were entitled to be paid for the full minimum engagement period even if they were not required to work for the full minimum engagement period. Carnarvon Cleaners underpaid 35 of its employees by paying them only their rostered hours, which were less than the minimum engagement period hours.
Each of these underpayments amounts to contravention of s 45 of the Fair Work Act.
Pursuant to s 535(1) of the Fair Work Act and reg 3.32(c) of the Fair Work Regulations, Carnarvon Cleaners was required to make and keep records to show whether an employee’s employment was full-time or part-time. During parts of the Assessment Period, Carnarvon Cleaners did not make or keep records showing whether five employees were employed on a full-time or part-time basis. This amounted to a contravention of s 535(1) of the Fair Work Act.
During the Assessment the Fair Work Investigator requested that Ms Seaton, on behalf of Carnarvon Cleaners, provide copies of any part-time agreements between Carnarvon Cleaners and its employees. In response to this request, Ms Seaton, on behalf of Carnarvon Cleaners, provided five documents that purported to be letters of engagement, each bearing Ms Seaton’s signature, in respect of five employees (letters of engagement). The letters of engagement were not made and signed on the dates represented on them, but were instead made by Ms Seaton and signed by Ms Seaton and the relevant employee in or about October 2018 for the purposes of the Assessment. Each of the five letters of engagement was false and misleading, and Ms Seaton and Carnarvon Cleaners knew the letters of engagement were false and misleading. In an interview with the Fair Work Investigator on 16 October 2019 Ms Seaton admitted that she created the letters of engagement in 2018 and falsely backdated them.
Carnarvon Cleaners contravened s 535(4) of the Fair Work Act by making and keeping employee records required to be made and kept under s 535(1) of the Fair Work Act and reg 3.32(c) of the Fair Work Regulations that it knew to be false or misleading.
CONSIDERATION OF APPROPRIATE PENALTY
Approach to determining appropriate penalty
Section 546(1) of the Fair Work Act allows the Court to order that a person pay a pecuniary penalty that the Court considers to be appropriate if the Court is satisfied that the person has contravened a civil remedy provision. Sections 45, 535(1) and 535(4) of the Fair Work Act are all civil remedy provisions. The primary purpose of imposing a penalty is deterrence: Australian Building and Construction Commissioner v Pattinson & Anor (2022) 175 ALD 383; [2022] HCA 13 (Pattinson) at [15].
As mentioned above, the recommended penalties in this matter have been agreed between the Ombudsman and the respondents. It is appropriate for the Court to accept the recommendation of the parties and impose penalties in the amounts recommended if the Court is satisfied of the accuracy of the agreement as to facts and consequences and that any penalty proposed by the parties is an appropriate penalty in all the circumstances: Commonwealth of Australia v Director, Fair Work Building Industry Inspectorate (2015) 258 CLR 482; [2015] HCA 46 at [58].
The steps that the Court will ordinarily take in determining an appropriate penalty were summarised in Fair Work Ombudsman v NSN Pty Ltd (t/as New Shanghai Charlestown) (2017) 275 IR 148; [2017] FCA 1301. The five steps summarised at [36] of that judgment are:
(a)identify the separate contraventions;
(b)consider whether each separate contravention should be dealt with independently or with some degree of aggregation for contraventions arising out of the same course of conduct;
(c)consider whether there should be further adjustment to ensure that, to the extent of any overlap between groups of contravention, there is no double penalty imposed;
(d)consider the appropriate penalty for each final individual group of contraventions; and
(e)consider the overall penalties arrived at and apply the totality principle, making adjustments as necessary.
Each of these steps is considered below.
What were the contraventions?
The contraventions were identified in the Ombudsman’s submissions and agreed to by the respondents. I respectfully adopt the identification of contraventions as set out in the Ombudsman’s submissions with minor modifications.
The contraventions fall into three main categories:
(a)contraventions of s 535(1) of the Fair Work Act (Record Keeping Contraventions);
(b)contraventions of s 535(4) of the Fair Work Act (False or Misleading Contraventions); and
(c)contraventions of s 45 of the Fair Work Act (Underpayment Contraventions).
The Record Keeping Contraventions comprise Carnarvon Cleaners’ failure to make and keep records for the following five employees:
(d)Mr Chilcott, from 20 February 2015 to around October 2018;
(e)Ms Dryden, from 12 July 2012 to around October 2018;
(f)Mr Greg Morton, from 27 April 2017 to around October 2018;
(g)Mr Nathan Burnell, from 4 September 2015 to around October 2018; and
(h)Mr Shane Morton, from 23 May 2015 to around October 2018.
The False or Misleading Contraventions comprise Carnarvon Cleaners making each of the five letters of engagement in October 2018.
The Underpayment Contraventions comprise the failure of Carnarvon Cleaners to pay each of the 35 underpaid employees their correct Award entitlements on each occasion those entitlements fell due, pursuant to:
(a)cl 12.5(a) of the Award in relation to casual loading;
(b)cl 12.4(b)(iii) of the Award in relation to part time allowance;
(c)cl 27.3 of the Award in relation to public holiday penalty rates;
(d)cl 28.2 of the Award in relation to overtime;
(e)cl 29.4 of the Award in relation to annual leave loading;
(f)cl 17.1 of the Award in relation to broken shift allowance; and
(g)cl 24.2 of the Award in relation to minimum engagement.
Do any of the contraventions arise out of the same course of conduct?
Section 557 of the Fair Work Act provides that two or more contraventions of certain civil remedy provisions, including ss 45, 535(1) and 535(4),[1] are 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.
[1] See s 557(2)(b) and (n) of the Fair Work Act.
I accept the parties’ submission that the course of conduct provisions in s 557 apply to each of the repeated and continuing contraventions of the requirement in s 535(1) to make and keep prescribed records in relation to each employee throughout the period of their employment. This means that there will be five courses of conduct in respect of s 535(1) of the Fair Work Act.
I also accept the parties’ submission that the course of conduct provisions in s 557 of the Fair Work Act will apply to the repeated contraventions of s 45 of the Fair Work Act in respect of the affected employees for each of the seven clauses of the Award that Carnarvon Cleaners contravened. That means that there are seven separate courses of conduct in relation to the Underpayment Contraventions.
Each of the contraventions of s 535(4) involved a separate act in respect of a different employee. It was a separate and distinct decision to create the false letter of engagement for each employee. Therefore the course of conduct provisions in s 557 do not apply to the five False or Misleading Contraventions.
Should there be further aggregation of contraventions?
Several of the contraventions have common elements, even if they do not arise out of the same course of conduct.
The parties submitted that the five courses of conduct in relation to the Record Keeping Contraventions are appropriately grouped together for the purposes of imposing a penalty, because they each contain common elements, such as the complete failure by Carnarvon Cleaners keep the prescribed records, albeit over different periods of time. I accept that this is appropriate.
The parties also submitted that it is appropriate to group the five courses of conduct in respect of the False or Misleading Contraventions for the purposes of imposing a penalty for the contravention of s 535(4) of the Fair Work Act. There are common elements involved in each contravention, in particular, that each letter was produced and backdated for the purpose of the Assessment. I accept that it is appropriate to group the five False or Misleading Contraventions into one for the purposes of imposing an appropriate penalty.
It is not appropriate to further group together the seven courses of conduct in respect of the Underpayment Contraventions, as each of these courses of conduct related to a different obligation under the Award: see also, Fair Work Ombudsman v Lohr (2018) 158 ALD 457; [2018] FCA 5 at [30]-[34].
The upshot of the application of the course of conduct provision in s 557 and the further grouping based on the common elements of the contraventions is that there are nine groups of contraventions in relation to which penalty must be determined: one in relation to the contraventions of s 535(1), one in relation to the contraventions of s 535(4), and seven in relation to the contraventions of s 45, each relating to failures to pay entitlements under seven different clauses of the Award.
What is the appropriate penalty?
The approach that a court should take when determining the appropriate penalty was considered by the High Court in Pattinson. In that case, the High Court held that the power conferred by s 546 of the Fair Work Act is not constrained by the criminal law notion of proportionality and there is nothing in the text, context or purpose of s 546 which requires that the maximum penalty be reserved for the most serious cases: Pattinson at [10], [49], [50]. The task of the Court remains to determine the ‘appropriate’ penalty in the circumstances of the particular case: Pattinson at [19]. An ‘appropriate’ penalty is one that ‘strikes a reasonable balance between oppressive severity and the need for deterrence in respect of the particular case’: Pattinson at [46].
The types of factors which can inform an assessment of what amounts to an appropriate penalty were summarised by French J in Trade Practices Commission v CSR Ltd (1991) ATPR 41-076; [1990] FCA 521 (CSR Ltd) at [42].[2] The factors are:
[2] See also Kelly v Fitzpatrick (2007) 166 IR 14; [2007] FCA 1080 at [14], where a similar, albeit not identical, list of relevant factors is set out.
1.The nature and extent of the contravening conduct.
2.The amount of loss or damage caused.
3.The circumstances in which the conduct took place.
4.The size of the contravening company.
5.The degree of power it has, as evidenced by its market share and the ease of entry into the market.
6.The deliberateness of the contravention and the period over which it extended.
7.Whether the contravention arose out of the conduct of senior management or at a lower level.
8.Whether the company has a corporate culture conducive to compliance with the Act, as evidenced by educational programs and disciplinary or other corrective measures in response to an acknowledged contravention.
9.Whether the company has shown a disposition to co-operate with the authorities responsible for the enforcement of the Act in relation to the contravention.
These factors are not to be treated as any sort of checklist and the Court’s task remains to determine the appropriate penalty: Pattinson at [19]. I have addressed these factors below to the extent that they are the subject of evidence or relevant to the present application.
Maximum penalties
Before turning to the various factors that inform the determination of the appropriate penalties, it is appropriate to identify the maximum penalties that can be applied in this matter.
Pursuant to ss 539 and 546(2) of the Fair Work Act, the maximum penalty that can be applied in respect of each contravention of ss 45, 535(1) and 535(4) is 60 penalty units in relation to Ms Seaton and 300 penalty units in relation to Carnarvon Cleaners. ‘Penalty unit’ has the meaning given by s 4AA of the Crimes Act 1914 (Cth): see s 12 of the Fair Work Act.
The contraventions of ss 45 and 535(4) of the Fair Work Act all took place during the period from 1 November 2017 to 30 November 2018. At that time, a penalty unit was valued at $210.
The contravention of s 535(1) of the Fair Work Act took place over the period from 20 February 2015 to 30 November 2018. The value of a penalty unit increased over this period, from $170 at the start of the period to 30 July 2015, to $180 for the period from 31 July 2015 to 30 June 2017, and to $210 from 1 July 2017.
The Ombudsman submitted that the higher amount of $210 should be applied for the contravention of s 535(1), which was a continuing course of conduct contravention. In making this submission, the Ombudsman acknowledged that the increased penalty units apply only in respect of contraventions committed after the commencement of the increase, but submitted that this did not exclude the application of the increased penalty to contraventions which are taken to constitute a single contravention under s 557 of the Fair Work Act, and where the contravention continued after the value of the penalty unit had increased. I accept that this is appropriate, having regard to Katzmann J’s judgment in Fair Work Ombudsman v Grouped Property Services Pty Ltd (No 2) [2017] FCA 557 at [396]-[401] and I apply the penalty unit amount of $210 to the contravention of s 535(1) of the Fair Work Act.
The maximum penalties that can be imposed in this matter are therefore:
(a)in respect of Carnarvon Cleaners, $63,000 for each contravention, for a total maximum penalty of $567,000; and
(b)in respect of Ms Seaton, $12,600 for each contravention, for a total maximum penalty of $113,400.
General deterrence
Ms Williams’ affidavit annexes a report prepared by the Ombudsman’s Strategic Research, Analysis and Reporting Team for the period July 2019 to June 2022 titled Industry Profile and FWO Interactions: Building and Other Industrial Cleaning Services (Industry Report). The Industry Report provides information relevant to the need for general deterrence in the cleaning services industry. This report shows that between July 2019 and June 2022, the cleaning services industry:
(a)was ranked fourth highest in disputes with the Ombudsman by industry class;
(b)was involved in 1,524 completed disputes with the Ombudsman;
(c)had, as 25.1% of its employees, mature age workers 55 years or older;
(d)was involved in 27% of all industry disputes involving visa holders; and
(e)was the subject of over $1.2 million in monies recovered by the Ombudsman for employees.
There is a need for general deterrence in the present case to deter others in the cleaning services industry and more generally from engaging in the type of conduct that the respondents engaged in.
I accept the Ombudsman’s submission that failing to make and keep records in contravention of s 535(1) of the Fair Work Act, and the making of false or misleading records in contravention of s 535(4) of the Fair Work Act are particularly serious because they are the types of conduct that can frustrate the Ombudsman’s investigation of contraventions and the determination of underpaid entitlements: see, for example, Fair Work Ombudsman v Zucco Farming Pty Ltd [2019] FCCA 1277 at [93]-[94]. Ensuring compliance with the record keeping requirements under the Fair Work Act is essential to ensure that employees are remunerated according to minimum standards. The high level of non-compliance in the cleaning services industry reinforces the need for general deterrence in this industry. I accept the Ombudsman’s submission that the penalty to be imposed in this matter should be sufficiently meaningful to show that the Court denounces the respondents’ conduct, and to encourage compliance in the cleaning services industry.
I also accept the Ombudsman’s submission that failure to pay the correct Award entitlements, particularly to employees who are vulnerable and in low income roles in a competitive service industry such as the cleaning services industry, warrants meaningful penalties because these are contraventions of minimum standards, fundamental to the objects of the Fair Work Act, of ensuring a guaranteed safety net of fair, relevant and enforceable minimal terms through modern awards. As Burchardt FM said in Fair Work Ombudsman v Lufra Investments Pty Ltd [2011] FMCA 263 at [48]:
…the obligation to pay minimum standards is prescribed by law and … a failure to comply is important. These are not munificent benefits. They are minimum standards created by the appropriate authorities to protect Australian workers. I accept that ensuring compliance with minimum standards is a significant matter albeit … it is merely one aspect of the issues relating to general deterrence.
I give substantial weight to the need for general deterrence in determining the appropriate penalties in this matter.
Specific deterrence
Both parties have submitted that the need for specific deterrence in this matter is low, notwithstanding that Carnarvon Cleaners remains registered and Ms Seaton remains the sole director.
I accept that the risk of future contravening conduct is mitigated by the contrition, corrective action and cooperation of the respondents. The respondents submitted, and I accept, that this is particularly reflected in:
(a)Carnarvon Cleaners voluntarily rectifying all underpayments promptly after receiving the Ombudsman’s audit confirmation, some eight months before these proceedings were commenced;
(b)the respondents’ continued cooperation and agreement to meet the Ombudsman’s claim for a penalty, which is indicative of their acceptance of responsibility;
(c)Ms Seaton’s engagement in corrective action, including by completing the Ombudsman’s online employer training unit; and
(d)the admissions made by the respondents in these proceedings, which have facilitated the course of justice.
Nature and extent of conduct, nature and extent of loss and damage
The Underpayment Contraventions resulted in 35 of Carnarvon Cleaners’ 36 employees during the Assessment Period being underpaid a total amount of $114,538.30. That amount of underpayment is significant.
The vast majority of this amount, comprising $102,544.27, arose from underpayments of the employees’ minimum engagement entitlements in cl 24.2 of the Award, which, as discussed below, Ms Seaton did not properly understand.
The underpayments to casual employees of their casual loading entitlements were also significant, amounting to $7,027.84. Ms Seaton gave evidence, which I accept, that she did not understand the difference between part-time and casual employees. While this misunderstanding resulted in Carnarvon Cleaners underpaying its casual employees their casual loading entitlements, it also resulted in other payments being made to them to which they were not entitled, suggesting that the underpayments were not deliberate.
The total underpayments for each of the other Underpayment Contraventions were comparatively smaller, being:
(a)total underpayments of $14.37 of part-time allowance to two employees;
(b)total underpayments of $2,012.21 of public holiday penalties to 10 employees;
(c)total underpayments of $1,654.85 of overtime penalties to 14 employees;
(d)total underpayments of $1,202.61 of annual leave loading to 10 employees; and
(e)total underpayments of $82.15 of broken shift allowance to two employees.
Some of the Underpayment Contraventions disproportionately affected particular employees. For example, one employee was underpaid $16,303.73 and another was underpaid $9,534.53.
In relation to the contraventions of ss 535(1) and (4) of the Fair Work Act, Carnarvon Cleaners failed to keep the required records for seven years in relation to five employees. In the course of the Assessment, it made false records for those employees and backdated them, and then provided them to the Fair Work Investigator, in purported compliance with a request for employee records. These were treated by the Fair Work Investigator as genuine for a period of a year. I accept the Ombudsman’s submission that the provision of these false and misleading records undermined the Ombudsman’s ability to perform the statutory function of investigating contraventions of the Fair Work Act: see s 682(1)(c) of the Fair Work Act.
Similar previous conduct
The evidence before the Court shows that the Ombudsman previously audited Carnarvon Cleaners in 2010, 2013 and 2014, finding on each occasion that Carnarvon Cleaners had contravened Award entitlements. I take this into account in considering the appropriate penalty.
While the respondents acknowledge the previous audits confirmed Award contraventions of varying significance, the respondents also submitted that viewed as a whole, the audit results show that the respondents:
(a)immediately and voluntarily took steps to repay the alleged underpayments as soon as they received notice of any errors made;
(b)consistently improved over the five year period by demonstrably reducing the number of errors from when the Award was first introduced in 2010 when they made five errors, to the audits in 2013 where they made two errors, and 2014 where they made one error which did not actually result in underpayment; and
(c)the only error that was repeated related to erroneous overtime payment calculations.
I accept this submission, but place little weight on it. While most of the errors were different in each audit, they show a repeated pattern of failing to pay the appropriate employee entitlements under the Award and any improvements made in the audits from 2010 to 2014 did not continue, as shown by the significant increase in the number of contraventions of the Fair Work Act and the Award in the Assessment that led to these proceedings.
Circumstances in which conduct took place
The contravention of s 535(1) of the Fair Work Act took place in circumstances where Carnarvon Cleaners failed to make and keep records of whether five employees were employed on a full-time or part-time basis. Ms Seaton gave evidence that Carnarvon Cleaners did make and keep some records on the MYOB software in compliance with the requirements of reg 3.32(c) of the Fair Work Regulations that specified if an employee was part-time or full-time. Ms Seaton gave evidence that during the Assessment, the MYOB records were accessible, but she has not been able to access historical MYOB records since then and has only been able to locate historical payroll advices issued weekly which showed the hours the employees worked and that each employee was recorded and paid as ‘PPT’, and taxation records. The significance of this is unclear because the contraventions relate to the Assessment Period when records were apparently accessible.
The affidavit is silent in relation to whether records were made, and subsequently became inaccessible, in respect of the five employees the subject of the admitted contraventions. In the absence of any direct evidence on this, I do not accept that records were made in relation to these particular employees for the purposes of reg 3.32(c) of the Fair Work Regulations and subsequently became inaccessible. In any event, s 535(1) of the Fair Work Act not only requires that an employer make records, but also requires that the employer keep those records for seven years. That clearly has not happened in the present case.
The contravention of s 535(4) of the Fair Work Act took place in circumstances where the Ombudsman was conducting the Assessment into Carnarvon Cleaners and Ms Seaton created false and misleading records in response to a request from the Fair Work Inspector for copies of any part-time agreements between Carnarvon Cleaners and its part-time employees. Ms Seaton in her affidavit accepted that she has no reasonable excuse for creating and backdating the letters of engagement and then asking the employees to sign them in October 2018. Ms Seaton gave evidence that she panicked when she received the Fair Work Inspector’s request for copies of the agreements.
The circumstances in which the contraventions of s 45 of the Fair Work Act took place largely fall into two broad categories of underpayments resulting from payroll or MYOB data entry errors, and underpayments resulting from a misapplication of the Award. Ms Seaton gave evidence of the systems in place at the time of the contraventions, and said at [25] of her affidavit:
(a)All rostering and attendance information was recorded in hard copy handwritten sheets which was then manually entered into the computer.
(b)MYOB (the accounting software used by Carnarvon Cleaners) required manual individual rate updates to include options within the Award rates of pay (e.g. a separate entry for each level classification and rate/penalty rate) and the annual increases. The system did not allow for historical pay rates or previous rates/options to be deleted from the drop-down menu for each employee which meant that any person processing payroll could easily inadvertently select a historical (incorrect) rate or classification level.
(c)I had engaged three different contractor payroll/accounts clerks (in the 12 months before the Assessment Period) who lived in Carnarvon to help me. Unfortunately, none of those staff was suited to the role and by July 2017 I was without payroll assistance.
(d)Due to the level of isolation of the business, being in Carnarvon, I was unable to find any employees or other contractors with payroll / accounts expertise to provide assistance (noting that the manual timesheet records that are used meant that remote services were unable to be utilised) and admittedly, as a then 68 year old who is not computer literate save for sending a basic email, I had not even considered the prospect of remote assistance.
(e)I was the sole manager and administrator for the business responsible for liaising with clients (bookings, changes, issues etc), ordering supplies, managing staff, responding to employee/client queries, scheduling rosters, attempting to maintain payroll records and personally undertaking regular cleaning shifts (up to 25 hours a week between 4 am and 6pm each day). At times I was working up to 90 hours per week just to ensure sufficient resourcing and rostering to deliver on contractual cleaning obligations while also attempting to action weekly payroll runs and applying a complex Award with constant interruptions and no assistance.
(f)The situation was further complicated by my lack of computer skills which meant that I was maintaining the MYOB system based on data entries/systems created by the payroll contractors. On reflection, none of us had the requisite professional skills and experience in MYOB, payroll or the Award’s application to the business.
Ms Seaton in her affidavit, and the respondents in their submissions, accepted that it is their obligation to take steps to find out their legal obligations and comply with them.
It is clear that at the time of the contraventions, Ms Seaton did not have the requisite skills and knowledge to properly comply with the Award. This does not excuse the contraventions and the respondents do not rely on this as an excuse.
It is also relevant that following the 2010, 2013 and 2014 audits, the Ombudsman provided details of the Ombudsman’s website and contact telephone numbers to Carnarvon Cleaners. The letter following the 2014 audit advised that further information to assist Carnarvon Cleaners to comply with its current and future obligations could be accessed on the Ombudsman’s website or on the Fair Work Infoline, details for which were provided. The letter also advised Carnarvon Cleaners about free tools available to assist employers to comply with modern awards and pay the correct pay and penalty rates. It can be inferred from this that Ms Seaton and Carnarvon Cleaners had notice of their obligations as an employer and of the services available to assist them in meeting their obligations. There is no evidence to suggest that Carnarvon Cleaners or Ms Seaton utilised these services at any stage.
Both parties accept that the Underpayment Contraventions arose from the inconsistent record-keeping practices adopted by the respondents, rather than any deliberate attempt to underpay staff.
The Underpayment Contraventions that resulted from payroll or MYOB data entry errors related to the underpayment of part-time allowances, public holiday penalty rates, overtime, annual leave loading and broken shift allowances. The evidence of Ms Seaton as to how these errors occurred is as follows:
(a)The failure to pay the correct part-time allowance to two employees resulted from one employee being erroneously paid at a part-time CSE 2 rate on one occasion when she should have been paid at the rate applicable to a CSE 3 employee, and another employee being paid at a July 2015 rate for a part-time CSE 2 employee rather than the applicable 2018 rate.
(b)The failure to pay correct public holiday penalty rates arose in circumstances where Ms Seaton was unable to locate the handwritten timesheets that were the source of the data she inputted into MYOB.
(c)The underpayments of overtime arose largely due to MYOB data entry error.
(d)The failure to pay annual leave loading arose as a result of Ms Seaton’s failure to manually select the annual leave loading option in MYOB each time that annual leave was taken.
(e)The failure to pay the broken shift allowance resulted from Ms Seaton failing to manually select the broken shift allowance for some employees.
The Underpayment Contraventions that resulted from the misapplication of the Award include the underpayment of casual employee loading and the underpayment of minimum engagement entitlements. Ms Seaton’s evidence in relation to the failure to pay casual employee loading was that at the time of the contraventions, she did not understand the legal definition of ‘casual employee’ and mistakenly classified all employees as part-time employees. She deposed that she believed she was doing the employees a favour by classifying them as part-time for things like sick leave, annual leave, housing applications and custody applications. Ms Seaton gave evidence that the failure to pay the minimum engagement entitlements arose from her misunderstanding of the application of the relevant provision based on the wording of the Award and her interactions with other cleaning contractors who she understood adopted the same practices as Carnarvon Cleaners. I accept Ms Seaton’s evidence in relation to the circumstances of the Underpayment Contraventions.
Size and financial circumstances of business
The obligation to comply with the provisions of the Fair Work Act falls on both small and large businesses and an employer cannot shirk its responsibilities imposed by law simply because of its smaller size: see Fair Work Ombudsman v Extrados Solutions Pty Ltd [2014] FCCA 815 at [10]. However, the size of the business may be relevant in determining the size of the pecuniary penalty that would operate as an effective deterrent: Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (2017) 254 FCR 68; [2017] FCAFC 113 (ABCC v CFMEU) at [105].
During the Assessment Period Carnarvon Cleaners employed 36 employees, although only 13 of these were employed for the whole of the Assessment Period. As at 1 February 2023, Carnarvon Cleaners employed 18 employees, of which 13 are full-time or part-time and five are employed on a casual basis.
Ms Seaton deposed that as a consequence of media reports in April 2021 about these proceedings, Carnarvon Cleaners lost clients with contracts worth over $30,000 per year. Further, COVID-19 has had a significant impact on Carnarvon Cleaners’ business operations in 2020 and 2021, although no pre-COVID-19 figures were provided to show the extent of the impact of COVID-19.
Ms Seaton’s affidavit annexes a profit and loss statement for the financial year ended 30 June 2022. This shows that Carnarvon Cleaners had an annual turnover exceeding $1.1 million in the financial year ended 30 June 2022, down from an annual turnover exceeding $1.2 million the previous year. In each of the 2021 and 2022 financial years, Carnarvon Cleaners earned a pre-tax profit in the vicinity of $60,000 to $65,000.
Ms Seaton draws an annual income of $119,000.
Taking into account the financial resources of the respondents, I am satisfied that the proposed penalties are sufficiently meaningful so that they will not be regarded by the respondents or others as an acceptable cost of doing business: see Singtel Optus Pty Ltd v Australian Competition and Consumer Commission (2012) 287 ALR 249; [2012] FCAFC 20 at [62].
Deliberateness
As Flick J said in Fair Work Ombudsman v HSCC Pty Ltd [2020] FCA 655 at [30], ‘[c]ontravening conduct which has been deliberately pursued may well occasion greater concern as to the need for specific deterrence.’
The False and Misleading Contravention of s 535(4) of the Fair Work Act entails Carnarvon Cleaners, through the actions of Ms Seaton, making a record that it knows was false and misleading. This conduct can only be seen as deliberate, irrespective of whether Ms Seaton felt panicked at the time of the conduct.
I accept the submissions of both parties that the Record Keeping Contraventions of s 535(1) and the Underpayment Contraventions of s 45 were not deliberate.
The Ombudsman submitted that the Underpayment Contraventions were ‘either reckless or negligent, given [Carnarvon Cleaner’s] record keeping practices, which were prone to inconsistencies and error’, and that the Record Keeping Contraventions were ‘careless or reckless, resulting from record keeping practices prone to inconsistencies and error’.
The respondents submitted that, taking into account the wording of the test in Kelly v Fitzpatrick (2007) 166 IR 14; [2007] FCA 1080 (Kelly) at [14], which is similar to that in CSR Ltd extracted above, it is only necessary for the Court to determine whether or not the conduct was deliberate, and it is not necessary to determine whether the conduct was reckless, negligent or careless. However, if the Court does make a finding as to whether the conduct was reckless, negligent or careless, the Court should, in the respondents’ submission, find that the conduct was negligent or careless, not reckless.
I acknowledge that Kelly and CSR Ltd both refer simply to the deliberateness of the conduct as a relevant factor in determining an appropriate penalty, but that other cases consider that a relevant factor is whether the contravention was ‘the result of deliberate, covert or reckless conduct, as opposed to negligence or carelessness’: see, for example, ABCC v CFMEU at [103]; Volkswagen Aktiengesellschaft v Australian Competition and Consumer Commission (2021) 284 FCR 24; [2021] FCAFC 49 at [150].
To the extent that it is necessary to determine whether the Record Keeping Contraventions and the Underpayment Contraventions were reckless, negligent or careless, I find that they were negligent or careless, rather than reckless. Carnarvon Cleaners had in place poor record keeping practices and these poor practices contributed to the contraventions. On the evidence before me, I consider that those poor record keeping practices largely arose from Carnarvon Cleaners’ and Ms Seaton’s misunderstandings of the Award and Carnarvon Cleaners’ obligations under the Fair Work Act, Ms Seaton’s lack of computer skills and Carnarvon Cleaners’ difficulty in finding suitable employees to assist with the administrative side of the business, rather than any recklessness or complete indifference as to whether or not Carnarvon Cleaners was complying with its obligations under the Fair Work Act.
That finding of negligence or carelessness does not, however, mean that the contraventions were excusable. Chief Industrial Magistrate Hart made the following observations in David Armstrong v VK Holdings Pty Limited (unreported, Chief Industrial Magistrates Court, Sydney, 28 November 1997) at [19], which were adopted by Judge Driver in Fair Work Ombudsman v EA Fuller & Sons Pty Ltd [2013] FCCA 5 at [90]:
Negligence in this area is far from excusable. An employer has an obligation to find out and provide the minimum lawful entitlements prescribed for its employees. When the employee is a young, vulnerable employee, such as a trainee, the obligation upon the employer is even greater.
Involvement of senior management
I accept that senior management was involved in the contraventions. Ms Seaton was at all material times the sole director and shareholder of Carnarvon Cleaners and she was responsible for the day to day management of the business. Ms Seaton was responsible for making decisions regarding the employment of employees and employee entitlements. She was also responsible for ensuring Carnarvon Cleaners complied with its legal obligations under the Fair Work Act. She has admitted that she was involved, within the meaning of s 550 of the Fair Work Act, in the contraventions.
Contrition, corrective action and cooperation
I accept that Carnarvon Cleaners has cooperated with the Ombudsman throughout the Assessment and took corrective action by promptly and fully rectifying all underpayments, including some outside the scope of this proceeding, by 28 August 2020, before these proceedings were commenced in April 2021.
Ms Seaton caused the prompt rectification of the underpayments. Since April 2021, she has also completed FWO online training modules relating to:
(a)diversity and discrimination;
(b)workplace flexibility;
(c)record keeping and pay slips;
(d)managing performance;
(e)hiring employees;
(f)difficult conversations in the workplace – employee course; and
(g)all seven modules of the Workplace Basics Quiz.
In the past 18 months, Ms Seaton and Carnarvon Cleaners also engaged external specialist human resources, legal and payroll contractors to review and completely revise Carnarvon Cleaners’ payroll, human resources and record keeping practices. Some of the examples of changes referred to in Ms Seaton’s affidavit include:
(a)engaging a remote human resources professional to provide ongoing support and practical advice as to the application of the Award;
(b)engaging an employment law firm to draft new engagement letters for all employees and implementing a system to ensure that they are stored digitally and in hard copy;
(c)working with information technology consultants to migrate the business systems to digital systems;
(d)engaging a remote payroll consultant to ensure that employees receive automated third party set payment rates for their classifications and further reduce the risk of operator and data entry errors; and
(e)hiring a payroll consultant/administration officer to conduct administrative duties for the business.
In the light of the corrective action and contrition showed by the respondents, it is appropriate that the penalties that might otherwise be imposed be significantly reduced, as the corrective action and contrition reduces the need for specific deterrence.
Appropriate penalties
Taking into account all of the above matters, I accept that the penalties agreed between the parties are appropriate.
The following table sets out the penalties that will apply for each of the nine groups of contraventions and how those penalties were calculated with respect to the maximum penalties:
Contravention Maximum penalty - Carnarvon Cleaners Maximum penalty - Ms Seaton Percentage of maximum penalty imposed Penalty - Carnarvon Cleaners Penalty - Ms Seaton s 45 Fair Work Act
cl 12.5(a) Award
(casual loading)$63,000 $12,600 10% $6,300 $1,260 s 45 Fair Work Act
cl 12.4(b)(iii) Award
(part-time allowance)$63,000 $12,600 10% $6,300 $1,260 s 45 Fair Work Act
cl 27.3 Award
(public holiday penalty rates)$63,000 $12,600 10% $6,300 $1,260 s 45 Fair Work Act
cl 28.2 Award
(overtime penalties)$63,000 $12,600 10% $6,300 $1,260 s 45 Fair Work Act
cl 29.4 Award
(annual leave loading)$63,000 $12,600 10% $6,300 $1,260 s 45 Fair Work Act
cl 17.1 Award
(broken shift allowance)$63,000 $12,600 10% $6,300 $1,260 s 45 Fair Work Act
cl 24.2 Award
(minimum engagement entitlement)$63,000 $12,600 25% $15,750 $3,150 s 535(1) Fair Work Act
(failure to make and keep employee records)
reg 3.32(c) Fair Work Regulations
(full-time or part-time)$63,000 $12,600 50% $31,500 $6,300 s 535(4) Fair Work Act
(knowingly make or keep false or misleading records)$63,000 $12,600 50% $31,500 $6,300 TOTALS $567,000 $113,400 $116,550 $23,310 Are the overall penalties appropriate, having regard to the totality principle?
Neither party has suggested that there should be any further adjustment to reflect the totality principle in circumstances where appropriate reductions have already been applied in relation to the penalty sought for each contravention. I have had regard to the overall penalties in this case and consider that the overall penalty is appropriate having regard to the totality principle.
PART OF APPLICATION WHICH IS NOT PRESSED
In the amended statement of claim, the Ombudsman alleged that Carnarvon Cleaners contravened s 45 of the Fair Work Act by failing to pay an employee a leading hand allowance in accordance with cl 17.5 of the Award. In the written submissions filed on 2 December 2022 the Ombudsman:
(a)advised that the alleged leading hand allowance contravention was no longer pressed;
(b)asked the Court not to make any declaration of a contravention of s 45 of the Fair Work Act in respect of the leading hand allowance, or any order in relation to such a contravention; and
(c)asked the Court to dismiss the Ombudsman’s case with respect to the leading hand allowance allegation only with no order as to costs.
The reason given by the Ombudsman for this change of position was that the Ombudsman recently became aware of the judgment in Andreou v Berkeley Challenge Pty Ltd [2014] FCCA 738 in which Judge Jones held at [30] that the obligation to pay leading hand allowance pursuant to the Award did not extend to employees classified as CSE 3.
In the present proceedings, the only allegation of a contravention of s 45 in relation to a failure to pay a leading hand allowance related to an employee who was classified as a CSE 3 employee. The change of position by the Ombudsman is appropriate and the orders made in this matter reflect the change in the Ombudsman’s position.
CONCLUSION
Based on the facts agreed between the parties in the pleadings, the evidence before the Court and the consideration of the relevant legislation and authorities, I consider that it is appropriate to make the declarations and orders agreed between the parties. Accordingly, I make those declarations and orders.
I certify that the preceding ninety-three (93) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Ladhams. Associate:
Dated: 19 April 2023
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