Fair Work Ombudsman v Champagne or Wine Pty Ltd
[2023] FedCFamC2G 735
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Fair Work Ombudsman v Champagne or Wine Pty Ltd [2023] FedCFamC2G 735
File number: MLG 4118 of 2020 Judgment of: HER HONOUR JUDGE C.E. KIRTON KC Date of judgment: 17 August 2023 Catchwords: INDUSTRIAL LAW – application of the Fair Work Ombudsman – pecuniary penalties – contraventions of ss 712(3) and 716(5) of the Fair Work Act 2009 (Cth) – one employee of a restaurant – Compliance Notice and Notice to Produce records not complied with – declarations made by consent – order for the payment of employee entitlements by consent – principles of penalties applied – relevant factors considered – deterrence as the primary objective of penalties satisfied – penalties ordered Legislation: Fair Work Act 2009 (Cth) ss 539(2), 545(1), 546, 550, 557, 712(1) and (3), 716(2) and (5)
Federal Circuit Court Rules 2001 (Cth) r 4.05(2)(b)
Restaurant Industry Award 2010 (Cth) cls 13.1, 20, 34.1 and 34.2(a)(i)
Cases cited: Australian Building and Construction Commissioner v Pattinson [2022] HCA 13
Australian Competition and Consumer Commission v Reckitt Benckiser (Australia) Pty Ltd [2016] FCAFC 181
Australian Ophthalmic Supplies Pty Ltd v McAlary-Smith (2008) 165 FCR 560; [2008] FCAFC 8
Construction, Forestry, Mining and Energy Union v Cahill [2010] FCAFC 39
Fair Work Ombudsman v 85 Degrees Coffee Australia Pty Ltd [2022] FCA 1317
Fair Work Ombudsman v AJR Nominees Pty Ltd (No 2) [2014] FCA 128
Fair Work Ombudsman v Commercial and Residential Cleaning Group Pty Ltd [2017] FCCA 2838
Fair Work Ombudsman v NSH North Pty Ltd trading as New Shanghai Charlestown [2017] FCA 1301
Fair Work Ombudsman v Rubee Enterprises Pty Ltd [2016] FCCA 3456
Fair Work Ombudsman v Yogurberry World Square Pty Ltd [2016] FCA 1290
Kelly v Fitzpatrick [2007] FCA 1080
Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
Mornington Inn Pty Ltd v Jordan [2008] FCAFC 70
Division: Division 2 General Federal Law Number of paragraphs: 118 Date of last submissions: 3 February 2022 Date of hearing: 3 February 2022 Place: Melbourne (by videoconference) Counsel for the Applicant: Ms N Campbell Solicitor for the Applicant: Office of the Fair Work Ombudsman Solicitor for the First Respondent: Collins Law Pty Ltd The Second Respondent: Appeared in person The Third Respondent: Appeared in person
Table of Corrections 28 August 2023 In [19] and [20], to add the words ‘plus interest’ and ‘and interest’ respectively, to reflect the fact that the parties agreed on a sum of the Employee’s entitlement, and to pay interest on this sum. ORDERS
MLG 4118 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: FAIR WORK OMBUDSMAN
Applicant
AND: CHAMPAGNE OR WINE PTY LTD (ACN 622 184 801)
First Respondent
JEFFREY DEAN BALDASSARRE
Second Respondent
ALLISON CLAIRE BARNES
Third Respondent
order made by:
HER HONOUR JUDGE C.E. KIRTON KC
DATE OF ORDER:
17 August 2023
THE COURT DECLARES BY CONSENT THAT:
1.Champagne or Wine Pty Ltd (ACN 622 184 801) (First Respondent) contravened s 716(5) of the Fair Work Act 2009 (Cth) (FW Act) by failing to comply with the Compliance Notice dated 10 July 2020 (Compliance Notice).
2.The First Respondent contravened s 712(3) of the FW Act by failing to comply with the Notice to Produce dated 19 December 2019.
3.Mr Jeffrey Dean Baldassarre (Second Respondent) was, pursuant to s 550(2) of the FW Act, involved in the First Respondent’s contraventions referred to in Orders 1 and 2 above.
4.Ms Allison Claire Barnes (Third Respondent) was, pursuant to s 550(2) of the FW Act, involved in the First Respondent’s contraventions referred to in Orders 1 and 2 above.
THE COURT ORDERS BY CONSENT THAT:
5.Pursuant to s 545(1) of the FW Act, the First Respondent take the steps that were required by the Compliance Notice within 28 days of the date of this Order by:
(a)Paying Mr Oscar Sleeman (Employee) the sum of $2,832;
(b)Calculating the amount the Employee should have been paid in respect of additional superannuation contributions for the period specified in the Compliance Notice;
(c)Paying the additional superannuation contributions it was required to pay on behalf of the Employee as a result of Order 5(b) above into the nominated superannuation fund of the Employee (or in the event that the Employee has not made a nomination, to a fund in accordance with cl 22.4 of the Restaurant Industry Award 2010); and
(d)Preparing and producing to the Fair Work Ombudsman (Applicant) a schedule outlining its calculations of the superannuation contributions it was required to pay the Employee as a result of Order 5(b) above and providing proof of any amounts paid as a result of Order 5(c) above.
6.Pursuant to s 547(2) of the FW Act, the First Respondent pay interest to the Employee on the amount owed pursuant to Order 5(a) above at the Federal Court of Australia’s pre-judgment interest rate as at the date of this Order, within 28 days of the date of this Order.
THE COURT ORDERS THAT:
7.The First Respondent pay a penalty of $52,000 pursuant to s 546(1) of the FW Act for the contraventions set out at Order 1 and 2 above.
8.The Second Respondent pay a penalty of $10,400 pursuant to s 546(1) of the FW Act for his involvement in the contraventions set out at Order 1 and 2 above.
9.The Third Respondent pay a penalty of $10,400 pursuant to s 546(1) of the FW Act for her involvement in the contraventions set out at Order 1 and 2 above.
10.The First, Second and Third Respondents, pursuant to s 546(3) of the FW Act, pay their respective penalty amounts to the Commonwealth within 28 days of the date of these Orders.
11.The Applicant has liberty to apply on seven (7) days’ notice if any of the preceding Orders are not complied with.
AND THE COURT NOTES THAT:
A.These Orders have been amended pursuant to r 17.05(2)(e) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
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
HER HONOUR JUDGE C.E. KIRTON KC:
INTRODUCTION
This matter concerns the failure by Champagne or Wine Pty Ltd (ACN 622 184 801) (First Respondent), the operator of an Italian restaurant, to comply with notices served upon it by the Fair Work Ombudsman (Applicant), during an investigation with respect to the underpayment of a casual employee.
The proceeding commenced by way of an Originating Application filed on 27 November 2020 (Application) by the Applicant. In accordance with r 4.05(2)(b) of the Federal Circuit Court Rules 2001 (Cth), applicable at the time, the Application was filed with an accompanying Statement of Claim.
An Amended Statement of Claim was filed by the Applicant on 1 December 2020 (Amended Statement of Claim). In the Amended Statement of Claim, the Applicant alleged that the First Respondent contravened provisions of the Fair Work Act 2009 (Cth) (FW Act). It was further alleged that both Jeffrey Dean Baldassarre (Second Respondent) and Allison Claire Barnes (Third Respondent) were involved in the First Respondent’s contraventions of the FW Act.
The Applicant sought declarations from the Court against the First, Second and Third Respondents (together, the Respondents), as well as orders for the payment of entitlements and pecuniary penalties pursuant to ss 545(1) and 546(1) of the FW Act.
BACKGROUND
On 29 November 2017, the Second and Third Respondents, as co-directors of the First Respondent, took over ownership of ‘Mother Dough’, an Italian restaurant located in Hawthorn, Victoria (Restaurant).[1]
[1] Affidavit of Jeffrey Dean Baldassare, affirmed 8 July 2021 and filed 12 July 2021 (Second Respondent’s 12 July 2021 Affidavit), [2]; Affidavit of Jeffrey Dean Baldassare, affirmed 13 July 2021 and filed 14 July 2021 (Second Respondent’s 14 July 2021 Affidavit), [1]; Affidavit of Allison Claire Barnes affirmed 13 July 2021 filed 14 July 2021 (Third Respondent’s Affidavit), [1]; Amended Statement of Claim, filed 1 December 2020, [3(e)].
From 20 June 2018 to 23 September 2019 (Employment Period), the First Respondent employed Mr Oscar Sleeman (Employee) on a casual basis. During the Employment Period, the Employee was paid a flat rate of $22 per hour for all hours of work.[2]
[2] Statement of Agreed Facts, filed 14 May 2021 (Statement of Agreed Facts), [9(e)].
On or about 4 October 2019, the Applicant commenced an investigation into the First Respondent’s compliance with the FW Act, following a request for assistance from the Employee.[3]
[3] Statement of Agreed Facts, [6]-[7].
On 19 December 2019, pursuant to s 712(1) of the FW Act, a Notice to Produce, dated 19 December 2019 (Notice to Produce), was issued to the First Respondent and served on the address of the First Respondent’s registered office.[4] On the same day, the Notice to Produce was sent by email to the First Respondent’s business email address, which both the Second and Third Respondent had access to (Business Email Address).[5]
[4] Statement of Agreed Facts, [25].
[5] Statement of Agreed Facts, [12], [26].
The Notice to Produce required the First Respondent to produce by 30 January 2020 documents which included the following:
(a)Any records of hours worked by the Employee from 1 June 2018 to 30 September 2019; and
(b)Any records of payments made to the Employee from 1 June 2018 to 30 September 2019.[6]
[6] Statement of Agreed Facts, [25]; Affidavit of Patricia Louise Campbell affirmed and filed 3 June 2021 (Campbell Affidavit), [13] and Annexure “PC-7”.
The First Respondent failed to comply with the Notice to Produce, prompting communication by Fair Work Inspector Chum employed by the Applicant (FWI Chum) on 31 January 2020,[7] 3 February 2020,[8] 4 February 2020, 13 February 2020,[9] and 14 February 2020.[10]
[7] Campbell Affidavit, [12] and Annexure “PC-6”.
[8] Campbell Affidavit, [13] and Annexure “PC-7”.
[9] Campbell Affidavit, [14] and Annexure “PC-8”.
[10] Campbell Affidavit, [16] and Annexure “PC-9”.
On 17 June 2020, the First Respondent made a payment to the Employee in the amount of $1,700. This payment, however, did not satisfy the Employee’s entitlements, as it failed to include weeknight shift hourly rates and contained deductions for food and drink provided to the Employee during the Employment Period.[11]
[11] Statement of Agreed Facts, [19]-[22].
As a result of the Applicant’s investigation, FWI Chum formed a reasonable belief for the purposes of s 716(1) of the FW Act, that during the Employment Period, the First Respondent had contravened the following in respect of the Employee:
(a)Clauses 13.1 and 20 of the Restaurant Industry Award 2010 (Restaurant Award), by failing to pay the applicable minimum hourly wage for ordinary hours worked and a 25% casual loading;
(b)Clause 34.2(a)(i) of the Restaurant Award, by failing to pay the additional amount of 10% of the standard hourly rate for each hour or part of an hour worked between 10:00 pm and midnight on Monday to Friday; and
(c)Clause 34.1 of the Restaurant Award, by failing to pay the casual weekend penalty of 150% of the minimum wage for ordinary hours worked on a Saturday and Sunday.[12]
[12] Statement of Agreed Facts, [10].
On 11 July 2020, pursuant to s 716(2) of the FW Act, a Compliance Notice, dated 10 July 2020 (Compliance Notice) was served on the address of the First Respondent’s registered office.[13] On 14 July 2020, the Compliance Notice was sent by email to the Business Email Address.[14]
[13] Statement of Agreed Facts, [11].
[14] Statement of Agreed Facts, [12].
The Compliance Notice required the First Respondent do the following:
(a)By 7 August 2020:
(i)Identify the number of hours worked by the Employee during the Employment Period;
(ii)Identify the amount the First Respondent paid to the Employee in respect of each entitlement under the Restaurant Award;
(iii)Calculate the amount the First Respondent should have paid to the Employee during the Employment Period in respect of each entitlement under the Restaurant Award; and
(iv)Make a payment to the Employee of the difference between the amount referred to in sub-paragraph (ii) and the amount referred to in sub-paragraph (iii);
(v)Make a record of the information and amounts referred to in sub-paragraphs (i) to (iv) and the amount of the payment referred to in sub-paragraph (iv); and
(vi)Calculate and pay any additional superannuation contributions required by the Restaurant Award to the Employee; and
(b)By 14 August 2020, produce to the Applicant reasonable evidence of compliance with the Compliance Notice, by producing a schedule of underpayments and proof that full payment to the Employee was made.[15]
[15] Statement of Agreed Facts, [14]; Campbell Affidavit, [19] and Annexure “PC-12”.
On 4 August 2020[16] and 12 August 2020,[17] FWI Chum communicated with the Respondents to remind them that the Compliance Notice required: action to be taken by 7 August 2020 and evidence of compliance to be provided by 14 August 2020. The First Respondent did not take the actions required pursuant to the Compliance Notice or provide evidence of doing so.
[16] Statement of Agreed Facts, [16]; Campbell Affidavit, [20] and Annexure “PC-13”.
[17] Statement of Agreed Facts, [17]; Campbell Affidavit, [21] and Annexure “PC-14”.
Thereafter, the following attempts were made to communicate with the Respondents:
(a)On 18 August 2020 by letter and email from FWI Chum, regarding the First Respondent’s failure to comply with the Compliance Notice and the Notice to Produce;[18]
(b)On 26 and 27 August 2020 by letter and email respectively from FWI Chum, regarding the First Respondent’s failure to comply with the Compliance Notice;[19]
(c)On 14 September 2020 by a telephone call between FWI Chum and the Third Respondent, regarding the First Respondent’s failure to comply with the Compliance Notice;[20] and
(d)On 9 October 2020 by letter and email from Cheryl Tam (Ms Tam), a lawyer employed by the Applicant, regarding the Applicant’s intention to commence legal proceedings against the Respondents.[21]
[18] Campbell Affidavit, [22] and Annexure “PC-15”.
[19] Campbell Affidavit, [23] and Annexure “PC-16”.
[20] Campbell Affidavit, [24] and Annexure “PC-17”.
[21] Campbell Affidavit, [25] and Annexure “PC-18”.
On 27 November 2020, the Application was filed with the Court.
On 23 March 2021, the Respondents, via the First Respondent’s Business Email Address, sent Ms Tam three (3) emails as follows:
(a)An email from Bendigo Bank indicating that a payment of $1,700 was made on 17 June 2020 to “Oscar” by “Allie B”;
(b)An email without content, attaching apparent timesheets for the Restaurant; and
(c)An email without content, attaching an excel spreadsheet entitled “Mother Dough – Timesheet”.[22]
[22] Campbell Affidavit, [28] and Annexure “PC-19”.
Since the commencement of proceedings, the parties have agreed as to the amount that the First Respondent should have paid the Employee in respect of each of his entitlements under the Restaurant Award for the Employment Period. This agreement was achieved late in the proceeding, being only one (1) day prior to date the hearing was to commence. The relevant amount is $2,832, which the First Respondent has consented to pay the Employee, plus interest, within 28 days of the Court’s order.
ISSUES BEFORE THE COURT
The Respondents have admitted to contraventions of the FW Act. The First Respondent has also consented to the payment of entitlements and interest to the Employee.
As a result of the admitted contraventions, the Court may make orders for the payment of penalties, pursuant to s 546(1) of the FW Act.
The issues that the Court must therefore determine are as follows:
(a)The penalty that is appropriate to be imposed upon each of the Respondents in the circumstances; and
(b)The timeframe within which the Respondents should be required to pay the respective penalties to the Commonwealth.
CONTRAVENTIONS
The Respondents have each made admissions in regards to contraventions of the FW Act.
The contraventions admitted by the First Respondent are as follows:
(a)Section 716(5) of the FW Act, by failing to comply with the Compliance Notice; and
(b)Section 712(3) of the FW Act, by failing to comply with the Notice to Produce.
(Together, the Contraventions).
The Second Respondent has admitted to involvement in the Contraventions within the meaning of s 550(2)(c) of the FW Act. As such, pursuant to s 550(1) of the FW Act, the Second Respondent is taken to have contravened ss 716(5) and 712(3) of the FW Act, which is admitted.
The Third Respondent has admitted to involvement in the Contraventions within the meaning of s 550(2)(c) of the FW Act. As such, pursuant to s 550(1) of the FW Act, the Third Respondent is taken to have contravened ss 716(5) and 712(3) of the FW Act, which is admitted.
HEARING AND DOCUMENTS RELIED UPON
This matter was heard on 3 February 2022 and proceeded by way of Microsoft Teams (Hearing).
At the Hearing, the Applicant relied on the following documents:
(a)Amended Statement of Claim;
(b)Statement of Agreed Facts, filed 14 May 2021;
(c)Affidavit of Patricia Louise Campbell, affirmed and filed 3 June 2021;
(d)Affidavit of the Employee, affirmed and filed 4 August 2021; and
(e)Applicant’s Submissions on Penalty, filed 4 August 2021 (Applicant’s Penalty Submissions).
At the Hearing, the Respondents relied on the following documents:
(a)Affidavit of the Second Respondent, affirmed 8 July 2021 and filed 12 July 2021;
(b)Affidavit of the Second Respondent, affirmed 13 July 2021 and filed 14 July 2021; and
(c)Affidavit of the Third Respondent, affirmed 13 July 2021 and filed 14 July 2021.
The Court also had before it a Court Book filed by the Applicant on 17 February 2021 and numbering 1272 paginated pages, which contains each of the documents referred to at [28] and [29] above. The Court also considered the transcript of the Hearing, where Counsel for the Applicant, the Solicitor for the First Respondent, and the Second Respondent made submissions.
RELEVANT LEGAL PRINCIPLES
The task before the Court is to apply the penalty principles in order to arrive at an appropriate imposition of pecuniary penalties upon the Respondents, bearing in mind the primary purpose of penalties for contraventions of the FW Act is deterrence: Australian Building and Construction Commissioner v Pattinson [2022] HCA 13 (Pattinson), at [9] and [15].
The Applicant’s Penalty Submissions referred to the judgment of Bromwich J in Fair Work Ombudsman v NSH North Pty Ltd trading as New Shanghai Charlestown [2017] FCA 1301, where His Honour set out the preferred approach of the court in determining appropriate penalties, at [36]:
36 […]
(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 […] 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 […]
(Citations omitted)
Further, the case of Kelly v Fitzpatrick [2007] FCA 1080 was submitted by the Applicant to be authority for those factors which the Court must consider in the assessment of appropriate penalties, and which the Applicant’s Penalty Submissions have been framed around. In that judgment, the factors include the following, at [14]:
(a)The nature, extent and circumstances of the contravening conduct;
(b)The nature and extent of loss or damage;
(c)Whether there had been similar previous contravening conduct;
(d)Whether the breaches were properly distinct or arose out of the one course of conduct;
(e)The size of the contravening business or enterprise;
(f)Whether or not the breaches were deliberate;
(g)Whether senior management was involved in the contravention(s);
(h)Whether the party committing the breach exhibited contrition;
(i)Whether the party committing the breach had taken corrective action;
(j)Whether the party committing the breach had cooperated with enforcement authorities;
(k)The need to ensure compliance with minimum standards; and
(l)The need for specific and general deterrence.
The High Court in Pattinson at [19] cautioned against the use of the list of possible relevant considerations as a ‘rigid catalogue of matters for attention’, citing Australian Ophthalmic Supplies Pty Ltd v McAlary-Smith [2008] FCAFC 8 at [91].
Maximum penalties
The maximum penalties that may be imposed for contraventions of the FW Act are set out in the table in s 539(2) of the FW Act. Section 546(2) of the FW Act prescribes that a pecuniary penalty imposed by the Court must not be more than the maximum number of penalty units referred to in the table in s 539(2) of the FW Act.
The maximum penalty amounts are set by the legislature to demonstrate that contraventions of the FW Act should be taken seriously and that penalties for such contraventions should be sufficiently deterrent.
As opposed to treating the maximum penalties as a ‘yardstick’ against which the court may compare the relevant contravening conduct (Markarian v The Queen (2005) 228 CLR 357 at [31]; Fair Work Ombudsman v 85 Degrees Coffee Australia Pty Ltd [2022] FCA 1317 at [19]), the maximum penalty is to be treated as ‘one of a number of relevant factors’: Pattinson at [54], citing Australian Competition and Consumer Commission v Reckitt Benckiser (Australia) Pty Ltd [2016] FCAFC 181 (Reckitt Benckiser) at [155]. The majority in Pattinson, at [10] and [71], also noted that nothing in the text, context and purpose of s 546 of the FW Act requires that the maximum penalty be reserved only for the most serious contraventions, instead emphasising that the imposition of the maximum penalty may be ordered where it is fairly and reasonably required to protect the public interest from future contraventions.
Following Pattinson, Bromwich J in Fair Work Ombudsman v 85 Degrees Coffee Australia Pty Ltd [2022] FCA 1317 (85 Degrees Coffee), at [50], considered there to be a limited role for maximum penalties in assisting the court’s determination of penalties to be imposed.
The maximum penalties (before any discount is applied) that the Court can impose in this matter are as follows:
(a)First Respondent – $96,300;
(b)Second Respondent – $19,260; and
(c)Third Respondent – $19,260.
The figures at [39] above are further broken down in Annexure B of the Applicant’s Penalty Submissions for each contravention as follows:
Contravention Description of contravention Maximum penalty s 716(5) Failing to comply with the Compliance Notice First Respondent: $33,300
Second Respondent: $6,660
Third Respondent: $6,660s 712(3) Failing to comply with the Notice to Produce First Respondent: $63,000
Second Respondent: $12,600
Third Respondent: $12,600Grouping of contraventions
Section 557(1) of the FW Act allows for the grouping of multiple contraventions where they arise from the same ‘course of conduct’. Further, contraventions may be grouped in the event that there is an overlap of the factual and legal elements of the contraventions: Construction, Forestry, Mining and Energy Union v Cahill [2010] FCAFC 39 (Cahill) at [39].
The Applicant submitted that the Respondents had committed two (2) contraventions of the FW Act, being s 716(5) and 712(3), and as these provisions are not ‘civil remedy provisions’ pursuant to s 557(2), they do not attract the operation of s 557(1) of the FW Act and cannot be considered as a single contravention.[23] I accept this submission.
[23] Applicant’s Submissions on Penalty, filed 4 August 2021 (Applicant’s Penalty Submissions), [17].
I note however, that the Court nevertheless has discretion to group contraventions where they sufficiently overlap such that the offender may be ‘punished twice for the same conduct’: Cahill at [41].
The Applicant submitted that there is no evidence before the Court to suggest that the Contraventions arose from one transaction or decision. It was submitted that the Compliance Notice and Notice to Produce were issued on different dates, for ‘entirely different purposes’, and required distinct steps for compliance.[24] As such, it was submitted that it would not be appropriate to group the Contraventions together.
[24] Applicant’s Penalty Submissions, [19].
The Respondents did not file written submissions addressing the grouping of contraventions, nor was it addressed at the Hearing. I agree with the Applicant’s submission that the contravention of s 716(5) and the contravention of s 712(3) arose as a result of different factual circumstances, and that the Respondents non-compliance with the Compliance Notice and the Notice to Produce constituted a failure by them to respond to separate and distinct obligations.
I am therefore satisfied that the grouping of the Contraventions as proposed by the Applicant is appropriate in the circumstances and will not result in a double punishment of the Respondents. This has the effect that the Contraventions are two (2) in total.
Nature, extent and circumstances of the contravening conduct
The First Respondent is an incorporated company, registered on 11 October 2017, and is the operator of the Restaurant.[25]
[25] Statement of Agreed Facts, [3(a) and (e)].
The Second Respondent is a director of the First Respondent, having responsibility for its operation, management and control and ensuring that it complies with its legal obligations under the FW Act.[26]
[26] Statement of Agreed Facts, [4(b) and (c)].
The Third Respondent is a director and secretary of the First Respondent, also having responsibility for its operation, management and control and ensuring that it complies with its legal obligations under the FW Act.[27]
[27] Statement of Agreed Facts, [5(b) and (c)].
The Second Respondent and the Third Respondent took over ownership of the Restaurant on 29 November 2017. As at the time of the commencement of the Employment Period, the Second Respondent and the Third Respondent had been operating the Restaurant for approximately seven (7) months.[28] Neither the Second nor Third Respondent had previous experience in the restaurant industry prior to operating the Restaurant.[29]
[28] Second Respondent’s 12 July 2021 Affidavit, [2]; Second Respondent’s 14 July 2021 Affidavit, [1]; Third Respondent’s Affidavit, [1].
[29] Second Respondent’s 12 July 2021 Affidavit, [3]; Second Respondent’s 14 July 2021 Affidavit, [1]; Third Respondent’s Affidavit, [1].
During the Employment Period, the Employee was paid a flat rate of $22 for all hours worked at the Restaurant. It has now been agreed that the amount owing to the Employee is $2,832, as well as superannuation contributions from the Employment Period.
The Notice to Produce and the Compliance Notice were issued to the Respondents on 19 December 2019 and 11 July 2020 respectively. Despite extensive communication between FWI Chum and Ms Tam and the Respondents, compliance with the notices was not completed. As a result of the Respondents’ non-compliance with the Compliance Notice in particular, the Employee did not have the benefit of receiving payment of amounts owed to him. I am satisfied that the loss and damage sustained as a result of the Contraventions was therefore significant.
Deliberateness
The Applicant submitted that the Respondents’ contravening conduct was deliberate. It was submitted that the Respondents were aware of the Compliance Notice and the Notice to Produce being given to them and their obligations therein, and were in frequent contact with FWI Chum regarding the due dates for compliance, and nevertheless still did not comply.[30] Beyond this, the Applicant submitted as follows:
27.[…] The Respondents have demonstrated a cavalier approach to their obligations under each of the notices, informing the Applicant that they were too “busy” to comply […] The Applicant submits the Respondents’ conduct can only be described as a deliberate disregard of the law, which is a serious aggravating factor in this matter.[31]
(Emphasis in original, footnote omitted)
[30] Applicant’s Penalty Submissions, [25]-[27].
[31] Applicant’s Penalty Submissions, [27].
At the Hearing, the Solicitor for the First Respondent challenged the Applicant’s submissions that the Respondents completely ignored the Compliance Notice, submitting that although it may not have been the appropriate action, the Respondents did pay the Employee $1,700 in June 2020 as an attempt at compliance.[32]
[32] Transcript, P18:L24-29.
At the Hearing, the Second Respondent stated the following, as to the deliberateness of the Respondents’ conduct:
[…] I would like to firstly and strongly refute what the applicant was saying. There was no time at any stage did we deliberately, decidedly or – disregard any of the issues that were brought to us by Fair Work […] on 17 June 2020, we paid $1700 within six days of the first request by Fair Work to Oscar, so we did not disregard any of this at all. We take it very seriously. We were inexperienced and naïve. There was absolutely no attempt on our part to undermine or be dishonest in terms of our – this particular individual.[33]
[33] Transcript, P23:L34-42.
In reply, Counsel for the Applicant submitted that the payment of the $1,700 to the Employee did not assist the Court, as the payment did not represent compliance with either the Compliance Notice or the Notice to Produce.[34]
[34] Transcript, P30:L19-20.
I agree with the submissions of the Applicant that the contravening conduct of the Respondents was deliberate. I make this finding on the basis of the following:
(a)The Respondents were aware of and understood the obligations contained within the Compliance Notice and the Notice to Produce;
(b)The Respondents were aware of the due dates for compliance with the Compliance Notice and the Notice to Produce;
(c)The Second and Third Respondents had ongoing and frequent communication with FWI Chum regarding their obligations under the Compliance Notice and Notice to Produce; and
(d)The Respondents took no action to meet their obligations to comply with the Compliance Notice or Notice to Produce prior to the commencement of legal proceedings.
With respect to [57(d)] above, I do not consider that the payment of $1,700 in June 2020 to the Employee was an action done in an attempt to comply with the Compliance Notice, particularly in circumstances where the actions required were specifically set out in the Compliance Notice. Further, the calculation performed to arrive at the $1,700 amount was plainly not based on the Employee’s actual legal entitlements.
I also do not consider the Respondents’ providing of the Restaurant’s timesheets and excel spreadsheet to be actions done in proper compliance with their obligations, as this necessarily inferred that the Applicant was to complete the relevant calculations. In any event, these emails were received beyond the time limits for compliance with the Compliance Notice and Notice to Produce.
The inadvertent or innocent nature of the Second and Third Respondents’ states of mind asserted has not been proven as required, pursuant to Reckitt Benckiser at [131]. I am satisfied on the evidence that the Respondents conduct, in failing to comply with the Compliance Notice and Notice to Produce, was deliberate.
Cooperation, Contrition and Corrective Action
In respect of contrition and corrective action, the Applicant submitted that the Respondents’ expression of regret is limited and that no meaningful action has been taken in compliance with the Compliance Notice.[35]
[35] Applicant’s Penalty Submissions, [42] and [48].
Further, as the Applicant contends, the Respondents only provided information after the commencement of these proceedings, which was incomplete and did not meet the requirements of the Compliance Notice. This was submitted to be evidence that the Respondents did not take this matter seriously and are not contrite.[36]
[36] Applicant’s Penalty Submissions, [42].
In their affidavits, the Second and Third Respondents did not make any expressions of regret or remorse for their actions in failing to comply with the Compliance Notice or Notice to Produce. In fact the Second and Third Respondents in their affidavits continued to proffer substantive points as to whether or not the contraventions occurred, referring to their conduct as ‘an oversight on [their] behalf at worst’.[37] This indicates a lack of understanding of the contravening conduct and indeed a lack of contrition.
[37] Second Respondent’s 12 July 2021 Affidavit, [16]; Second Respondent’s 14 July 2021 Affidavit, [15]; Third Respondent’s Affidavit, [15].
At the Hearing, however, the Second Respondent expressed regret that ‘this has gone on for so long, that it even happened in the first place’.[38]
[38] Transcript, P33:L7-9.
Among the limited corrective action taken by the Respondents was their agreement as to the underpayment amount owed to the Employee. The Court notes however, that this underpayment amount was arrived at only one (1) day prior to the Hearing, demonstrating that calculation of such a figure, as required by the Compliance Notice, was not a priority for the Respondents in any sense.
As concerns the Respondents cooperation with the Applicant, the Applicant acknowledged that the Respondents cooperated in the proceedings by making full admissions, saving the Court time and resources.[39]
[39] Applicant’s Penalty Submissions, [46].
The Full Court of the Federal Court in Mornington Inn Pty Ltd v Jordan [2008] FCAFC 70, at [76] (Mornington Inn v Jordan), set out circumstances whereby a discount on penalty for cooperation may be given:
76.[…] the benefit of such a discount should be reserved for cases where it can be fairly said that an admission of liability: (a) has indicated an acceptance of wrongdoing and a suitable and credible expression of regret; and/or (b) has indicated a willingness to facilitate the course of justice.
On the basis of the reasoning of the Full Court of the Federal Court in Mornington Inn v Jordan, the Applicant submitted that an appropriate penalty discount for cooperation in this case would be no more than 10%.[40]
[40] Applicant’s Penalty Submissions, [48].
The Solicitor for the First Respondent made submissions at the Hearing, requesting that the Court take into account the fact that the Respondents have, in good faith, agreed to pay the $2,832 amount and superannuation to the Employee.[41]
[41] Transcript, P20:L21-23.
The Second Respondent submitted that had the $2,832 amount been ‘offered’ earlier, the time and resources of the Court and the Applicant’s office could have been saved, stating that ‘all [they] were happy to do was pay an amount and be done with it’.[42] No submissions were received from the Third Respondent at the Hearing.
[42] Transcript, P25:L36-43.
The Court considers that the Respondents’ admissions to the Contraventions have undoubtedly saved time and resources, as the need for liability hearing was obviated. Further, the Respondents’ agreement as to the amount to be paid to the Employee also represents a cooperative action taken in the resolution of this matter.
However, the Court notes the late timing of the Respondents’ agreement as to the $2,832 amount, as well as their failure to take any steps in compliance with the Compliance Notice, necessitating the use of significant time and resources of the Applicant and by extension, the public. Indeed the Applicant appears to have gone to great lengths to assist the Respondents in this matter, including communicating with the Second and Third Respondents frequently regarding compliance obligations and due dates, and calculating the Employee’s entitlements.
In light of the above, I consider that a discount for cooperation with respect to each of the Respondents ought to be limited to 10% in the circumstances.
Size of the business and financial resources
The size and financial resources of a business, where based on evidence, may be relevant to the assessment of an appropriate penalty for contravention of the FW Act: Fair Work Ombudsman v Commercial and Residential Cleaning Group Pty Ltd [2017] FCCA 2838 at [61]; Mornington Inn v Jordan at [99].
The Applicant submitted that there is insufficient evidence of the Respondents’ financial positions for the Court to have any basis upon which to reduce what would otherwise be considered an appropriate penalty.[43]
[43] Applicant’s Penalty Submissions, [41].
At the Hearing, the solicitor for the First Respondent contended that the financial positions of the Respondents ought to be taken into account when considering the size of the penalty.[44] In response, the Court noted that this would be a difficult task in the absence of any evidence as to the Respondents’ financial positions.[45] An adjournment for the collation of financial information was then requested, which the Court refused on the basis that there had been ample opportunity for such information to have been provided prior to, and in the course of, these proceedings.[46]
[44] Transcript, P19:L46-P20:L2.
[45] Transcript, P20:L4-6.
[46] Transcript, P32:L20-21, 23.
At the Hearing, the Second Respondent admitted ignorance that financial details or information was required, and offered to send details to the Court. The Court informed the Second Respondent that: it was the final hearing of the proceeding; and that there had been ample opportunity for the Respondents to file information relating to their financial circumstances and they had elected not to do so.[47]
[47] Transcript, P26:L38-45; P28:L3-12 and L19-21.
The only evidence the Court has before it as to the financial position of the First Respondent are screenshots of a bank account indicating debited and credited amounts and account balance, over a period of approximately two (2) weeks.[48] I note the following from this information:
(a)As at 25 May 2021, the account had a balance of $1,631.21, following the deduction of amounts for wages;
(b)As at 26 May 2021, the account had a balance of $411,54;
(c)As at 4 June 2021, the account had a balance of $1,019.97;
(d)As at 5 June 2021, the account had a balance of $26.27;
(e)As at 9 June 2021, the account had a balance of $420.07;
(f)As at 10 June 2021, the account had a balance of $346.14; and
(g)As at 11 June 2021, the account had a balance of $254.89.
[48] Second Respondent’s 12 July 2021 Affidavit, [17] and Annexure “JDB-1”; Second Respondent’s 14 July 2021 Affidavit, [16] and Annexure “JDB-1”; Third Respondent’s Affidavit, [16] and Annexure “JDB-1”.
The information in the preceding paragraph reveals little about the financial position of the First Respondent. What is noted overall, however, is that the First Respondent took ownership of the Restaurant on 29 November 2017, and as at the time of the Hearing, continued to maintain this ownership.
The Second Respondent submitted that if the penalties proposed by the Applicant were imposed, that the Restaurant would close. Specifically, the Second Respondent stated:
Any sort of fine that you impose like this would – I tell you, it would close our business down immediately and then there’s five people out of work…[49]
[49] Transcript, P24:L43-44.
This submission indicates a relatively tenuous financial position of the First Respondent, as well as shedding light on the relatively small size of the business.
As for the Second and Third Respondents’ financial positions, there has been no information provided to the Court. However, I note the following Affidavit evidence from both the Second and Third Respondent:
We have struggled financially throughout our ownership period. Covid restrictions have drastically affected our revenues to the point that both owners have missed some 7 weeks wages from April 2000 and March 2021.[50]
[50] Second Respondent’s 12 July 2021 Affidavit, [14]; Second Respondent’s 14 July 2021 Affidavit, [13]; Third Respondent’s Affidavit, [13].
At the Hearing, the Second Respondent also submitted that he and the Third Respondent have families,[51] and had taken only one (1) weeks wage in the preceding five (5) weeks, which amounted to $1000 before tax.[52]
[51] Transcript, P24:L36.
[52] Transcript, P25:L11-13.
The Second Respondent also made frequent reference to the inexperience of himself and the Third Respondent, stating that: at the time of the Contraventions they had only been in the restaurant industry for eight (8) months; that the Second Respondent had never previously worked in the food industry; and that the Third Respondent had only run a small catering business from home.[53]
[53] Transcript, P26:L3-5.
Upon questioning by the Court, it became apparent that the Second Respondent owned a property, within which he resided with his wife and two (2) children, which was subject to a mortgage. The Third Respondent did not own her home.
Despite the Respondents’ assertions that they have limited capacity to pay any penalties that would be imposed by the Court, very little evidence has been provided in support of these assertions. I agree with the submissions of the Applicant that there is insufficient evidence for the Court to reduce the penalty on the basis of the size and financial resources of the business. Further, I do not consider that the limited evidence suggests that the penalty imposed would be ‘crushing or oppressive’ upon any of the Respondents: Kelly v Fitzpatrick [2007] FCA 1080 at [30]. Nor do I consider the small size of the business to minimise the Respondents’ obligations to comply with the FW Act.
Involvement of senior management in the breaches
The Second and Third Respondents were the joint directors and shareholders of the First Respondent during the Employment Period. Therefore they were responsible for the day-to-day operation and management of the Restaurant.[54]
[54] Statement of Agreed Facts, [4] and [5].
The Applicant submitted that as the Second and Third Respondents were the only level of management within the First Respondent, they were therefore ‘intimately involved’ in the Contraventions, and further that it was through their actions that the Contraventions were perpetrated.[55]
[55] Applicant’s Penalty Submissions, [39].
The Respondents did not challenge the Applicant’s submissions and did not make any submissions offering an alternative perspective on the role of senior management in the Contraventions.
I consider that is readily apparent that senior management of the First Respondent were involved in the Contraventions. The Second and Third Respondents being the only directors and shareholders, were therefore directly responsible for the First Respondent’s compliance with its obligations as required by the Compliance Notice and Notice to Produce.
Deterrence
As previously discussed in these Reasons for Judgment, the primary purpose of penalties for contraventions of the FW Act is to protect the public interest through compliance by deterrence. The majority of the High Court in Pattinson noted at, [66]:
66The theory of s 546 of the [FW Act] is that the financial disincentive involved in the imposition of a pecuniary penalty will encourage compliance with the law by ensuring that contraventions are viewed by the contravenor and others as an economically irrational choice. […]
General deterrence
General deterrence serves the purpose of confirming for others that a penalty for a contravention of the FW Act is not simply “the cost of doing business” (Fair Work Ombudsman v Yogurberry World Square Pty Ltd [2016] FCA 1290 at [27]), but rather represents a broader condemnation of the contravening acts.
The comments of Judge Altobelli (as his Honour then was) at [104] in Fair Work Ombudsman v Rubee Enterprises Pty Ltd [2016] FCCA 3456 demonstrate the consistent issue of non-compliance with the FW Act within the hospitality industry, albeit His Honour was there referring to underpayment of employees and failures to keep proper records. Nevertheless, the Court considers that general deterrence is desirable within the hospitality industry, particularly restaurants, given the propensity of employers to hire young and vulnerable staff, with little regard for their legal entitlements.
The Applicant submitted that general deterrence is a ‘critical factor’ in this matter, stating that recipients of statutory notices such as the Compliance Notice must not be under a misapprehension about their obligations to comply, and that consequences will follow from non-compliance.[56]
[56] Applicant’s Penalty Submissions, [34].
Also with respect to general deterrence, the Applicant submitted that a meaningful penalty will encourage other employers to take timely action in compliance with any notices issued by a Fair Work Inspector.[57]
[57] Applicant’s Penalty Submissions, [35].
The Second Respondent submitted, with respect to general deterrence:
I mean, it can’t surely in the public interest to be closing – this would close our business down […] I’m not sure if the Fair Work office is going to try to use our – or this case as a scapegoat or a headline to deter other businesses.[58]
[…]
Now, if you want to try to send a message, that’s not up to me to be paying for.[59]
[58] Transcript, P24:L42-47.
[59] Transcript, P26:L23-24.
It is the Second Respondent’s view that he should not bear the burden of deterring others. It nevertheless remains the case that the Respondents’ contravening conduct represents clear non-compliance with obligations as required by the Compliance Notice and Notice to Produce. As such, there is a need for general deterrence in this matter to ensure that the obligations imposed by such notices are taken seriously and properly complied with within the required timeframe.
Specific deterrence
Specific deterrence is directed at ensuring that contraveners are not prepared to embark upon the risk of engaging in the same contravening conduct again: Fair Work Ombudsman v AJR Nominees Pty Ltd (No 2) [2014] FCA 128 at [50]. As the Respondents continued to operate and manage the Restaurant, this may mean ensuring their future compliance with their obligations under the FW Act by deterrence through penalties.
The Applicant submitted as follows:
37.[…] given the continued operation of the Business, and the ongoing status of Mr Baldassare and Ms Barnes as directors of the Company, the lack of remorse shown by the Respondents and the fact that the Compliance Notice has still not been complied with, it is necessary that any penalty imposed on the Respondents contains sufficient “sting or burden” that the Respondents will “seek to avoid the risk of subjection to future penalties” and therefore be “deterred from future contraventions” […]
38.There is a need to send a message to the Respondents that the Court does not tolerate such contraventions and the impact they have on affected individuals and public resources.[60]
(Emphasis in original, citation omitted)
[60] Applicant’s Penalty Submissions, [37] and [38].
At the Hearing, the Solicitor for the First Respondent submitted that a ‘much lower penalty’ than those proposed by the Applicant would be sufficient to deter the Respondents from future non-compliance.[61]
[61] Transcript, P20:L25-28.
The Respondents did not provide any evidence of actions taken to ensure future compliance and indeed at the time of the Hearing they had still not complied with their obligations under the Compliance Notice. As such, the Respondents have demonstrated a ‘stubborn determination’ not to take steps in compliance with the Compliance Notice and Notice to Produce, indicating that there is plainly a need for specific deterrence: 85 Degrees Coffee at [42].
I further consider that a significant need for specific deterrence exists in this matter for the reasons provided by the Applicant, particularly noting the impact of the Contraventions upon the Employee and the Applicant, which demonstrated a complete lack of regard for the law by the Respondents. The imposition of penalties upon the Respondents ought to ensure the future compliance in their ongoing operation of the Restaurant and any future business endeavours.
TOTALITY
The final step for the Court is to consider the aggregate penalty and determine its appropriateness and proportionality to the Respondents’ contravening conduct. The High Court in Pattinson, at [41], considered that in ensuring that a penalty is proportionate, a reasonable balance should be struck ‘between deterrence and oppressive severity’.
The Applicant submitted that the proposed penalties reflect an appropriate and proportionate response to the Contraventions, and that any further discount is not warranted in the circumstances.[62]
[62] Applicant’s Penalty Submissions, [51].
The Solicitor for the First Respondent submitted at the Hearing that the Second and Third Respondents were naïve and inexperienced restaurant owners,[63] and did not simply disregard the Compliance Notice or Notice to Produce, but were in fact ‘working very hard just to survive’ at the time.[64] Ultimately, it was the First Respondent’s submission that the proposed penalty amounts were ‘well and truly beyond a sense of proportionality’.[65]
[63] Transcript, P18:L15-17.
[64] Transcript, P18:L39-41.
[65] Transcript, P19:L9-11.
The Second Respondent, in regards to totality, submitted as follows:
(a)Both he and the Third Respondent were ‘inexperienced and naïve’ and did not attempt to be dishonest or disregard the rules with respect to the Contraventions;[66]
(b)There have been no other complaints by staff in relation to the Respondents;[67]
(c)The proposed penalties would close the Restaurant down;[68]
(d)The proposed penalties ‘don’t even come close’ to appropriate or proportionate;[69] and
(e)The proposed penalties are ‘completely unreasonable’, in that they represent amounts more than 10 times the amount owed to the Employee.[70]
[66] Transcript, P23:L35-42.
[67] Transcript, P23:L44; See also Second Respondent’s 12 July 2021 Affidavit, [4]; Second Respondent’s 14 July 2021 Affidavit, [3]; and Third Respondent’s Affidavit, [3].
[68] Transcript, P24:L42-43; P26:L28.
[69] Transcript, P26:L22-23.
[70] Transcript, P26:L25-35.
At the Hearing, in response to the submissions of the Respondents, Counsel for the Applicant submitted that the totality principle acts as a final check by the Court to ensure proportionality of the penalty, and that proportionality does not operate in a way that is specific to individual circumstances.[71]
[71] Transcript, P31:L29-33.
The Court notes comments of Judge Altobelli in Fair Work Ombudsman v Rubee Enterprises Pty Ltd [2016] FCCA 3456, where His Honour stated, at [120], that pursuant to the principle of totality, a penalty imposed:
120.[…] must […] bear relativity to the seriousness of the conduct engaged in by the Respondents. […]
In considering the aggregate penalty to be imposed on each Respondent, relative to the seriousness of the contravening conduct, I make the following observations:
(a)The Respondents did not, at any time, comply with their obligations in the Compliance Notice;
(b)The Respondents only partially complied with their obligations in the Notice to Produce after the commencement of proceedings in this Court;
(c)The Applicant expended significant time and resources in following up and reminding the Respondents of their obligations to comply with both the Compliance Notice and the Notice to Produce; and
(d)The fact that the Employee, during the Employment Period, was 21 and 22 years old,[72] and as a result of the Respondents non-compliance, was deprived of the payment of entitlements owing to him.
[72] Statement of Agreed Facts, [9(d)(i)].
Given the undeniable seriousness of the Respondents’ contravening conduct in completely disregarding notices imposed upon them by the Applicant, the Court considers that the penalties in the amounts proposed are appropriate and that no further discount is warranted on the basis of totality. Further, there is insufficient evidence that the proposed penalties would be so severe so as to be said to be oppressive.
DETERMINING THE QUANTUM OF THE PENALTY
The Applicant’s Penalty Submissions set out the proposed penalty range for each contravention as follows:[73]
[73] Applicant’s Penalty Submissions, Annexure B.
Contravention Description of contravention Proposed penalty range s 716(5) Failing to comply with the Compliance Notice First Respondent: $19,980 - $23,310
Second Respondent: $3,996 - $4,662
Third Respondent: $3,996 - $4,662s 712(3) Failing to comply with the Notice to Produce First Respondent: $37,800 - $44,100
Second Respondent: $7,560 - $8,820
Third Respondent: $7,560 - $8,820Total proposed penalty range First Respondent: $57,780 - $67,410
Second Respondent: $11,556 - $13,482
Third Respondent: $11,556 - $13,482Total proposed penalty range after discount (10%) First Respondent: $52,000 - $60,670
Second Respondent: $10,400 - $12,130
Third Respondent: $10,400 - $12,130
The Court considers that the lower end of the range of penalties proposed by the Applicant are appropriate in the circumstances to sufficiently deter future contraventions. The penalties to be imposed upon each of the Respondents are therefore as follows:
(a)First Respondent – $52,000;
(b)Second Respondent – $10,400; and
(c)Third Respondent – $10,400.
TIMEFRAME FOR PAYMENT
The Applicant proposed orders for the payment of pecuniary penalties by the Respondents within 28 days of the Court’s orders.[74] It does not appear that the Respondents have challenged this, nor was it addressed at the Hearing.
[74] Applicant’s Penalty Submissions, Annexure A, [7]-[9].
In these circumstances, I am satisfied that a period of 28 days from the date of the Court’s order is appropriate for the Respondents to pay the penalties imposed, noting that there has been ample time between the conclusion of the Hearing to make appropriate financial arrangements for their payment.
Accordingly, orders will be made that the Respondents pay the penalties to the Commonwealth within 28 days of the date of the orders of the Court.
CONCLUSION
The Court finds that pursuant to s 546(1) of the FW Act a penalty of $52,000 is to be paid by the First Respondent to the Commonwealth for the Contraventions within 28 days of the date of the Court’s orders.
The Court also finds that pursuant to s 546(1) of the FW Act a penalty of $10,400 is to be paid by the Second Respondent to the Commonwealth for the Second Respondent’s involvement in the Contraventions within 28 days of the date of the Court’s orders.
Finally, the Court finds that pursuant to s 546(1) of the FW Act a penalty of $10,400 is to be paid by the Third Respondent to the Commonwealth for the Third Respondent’s involvement in the Contraventions within 28 days of the date of the Court’s orders.
I certify that the preceding one hundred and eighteen (118) numbered paragraphs are a true copy of the Reasons for Judgment of Her Honour Judge C.E. Kirton KC. Associate:
Dated: 17 August 2023
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