FEDERAL MAGISTRATES COURT OF AUSTRALIA
| FAIR WORK OMBUDSMAN v NICOLE PATRICE DAWE | [2013] FMCA 191 |
| INDUSTRIAL LAW – Penalty – whether a penalty should be imposed pursuant to s728 of the Workplace Relations Act 1996 (Cth) and s550 of the Fair Work Act 2009 (Cth) - whether any of the contraventions have common elements and should be grouped together – consideration of appropriate penalty – penalty imposed. |
| Workplace Relations Act 1996 (Cth), ss.185, 235, 728 Federal Magistrates Court Rules 2001, rr.13.03A, 13.03B, 13.03C Fair Work Act 2009 (Cth), ss.90.535, 536, 539, 550, 712 Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth), sch.16 |
| Applicant: | FAIR WORK OMBUDSMAN |
| Respondent: | NICOLE PATRICE DAWE |
| File Number: | SYG 654 of 2012 |
| Judgment of: | Emmett FM |
| Hearing date: | 14 March 2013 |
| Date of Last Submission: | 14 March 2013 |
| Delivered at: | Sydney |
| Delivered on: | 21 March 2013 |
REPRESENTATION
| Solicitors for the Applicant: | A. Kovalsky (Fair Work Ombudsman) |
| Solicitors for the Respondent: | C. Cody (Mason Sier Turnbull) |
ORDERS
Pursuant to sub-section 719(1) of the Workplace Relations Act 1996 (Cth) (WR Act) a penalty of $5,280 be imposed on the respondent for her involvement in contraventions of the following provisions relating to base rates of pay:
(a)sub-section 182(1) of the WR Act and item 5 of Schedule 16 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth) (Transitional Act);
(b)clause 8(a) of the “Kijani Investments Pty Ltd ATF The Dawe Investments Trust Employee Collective Agreement” (Kijani ECA);
(c)clause 16 of the Australian Workplace Agreement lodged by Kijani Investments Pty Ltd (Kijani Investments) with the Employment Advocate on 2 February 2006 with respect to the employment of Lee Mayberry; and
(d)clause 16 of the Australian Workplace Agreement lodged by Kijani Investments with the Employment Advocate on 15 September 2006 with respect to the employment of Georgina Dart.
Pursuant to sub-section 719(1) of the WR Act a penalty of $5,280 be imposed on the respondent for her involvement in contraventions of the following provisions relating to casual loadings:
(a)sub-section 185(2) of the WR Act; and
(b)clause 8(e) of the Kijani ECA.
Pursuant to sub-section 719(1) of the WR Act a penalty of $3,960 be imposed on the respondent for her involvement in contraventions of clause 15(b) of the Kijani ECA relating to annual leave entitlements.
Pursuant to sub-section 719(1) of the WR Act a penalty of $3,960 be imposed on the respondent for her involvement in contraventions of clause 16 of the Kijani ECA relating to personal / carer’s leave entitlements.
Pursuant to sub-section 719(1) of the WR Act and sub-section 44(1) of the Fair Work Act 2009 (FW Act) a penalty of $4,620 be imposed on the respondent for her involvement in contraventions of the following provisions relating to payment of accrued but untaken annual leave on termination:
(a)sub-section 235(2) of the WR Act
(b)sub-section 90(2) of the FW Act
Pursuant to sub-section 719(1) of the WR Act a penalty of $4,620 be imposed on the respondent for her involvement in contraventions of clause 20 of the Kijani ECA relating to payment in lieu of notice of termination entitlements.
Pursuant to item 29 of sub-section 539(2) of the FW Act a penalty of $2,640 be imposed on the respondent for her involvement in contraventions of sub-section 536(1) of the FW Act relating to an employer’s obligation to issue payslips.
Pursuant to regulation 14.4 of the Workplace Relations Regulations 2006 (WR Regulations), sub-section 846(2)(g) of the WR Act and Item 29 of sub-section 539(2) of the FW Act a penalty of $2,640 be imposed on the respondent for her involvement in contraventions of the following provisions relating to record keeping:
(a)regulations 19.8(1)(d)-(e), 19.11(1)-(2), 19.11(4), 19.12(1) and 19.13(1) of the WR Regulations; and
(b)section 535(1) of the FW Act, by virtue of contraventions of regulations 3.32(d), 3.32(e), 3.33(1), 3.33(2), 3.36(1), and 3.37 of the Fair Work Regulations2009.
Pursuant to item 32 of sub-section 539(2) of the FW Act a penalty of $23,760 be imposed on the respondent for her involvement in four separate contraventions of sub-section 712(3) of the FW Act in respect of failing to comply with four Notices to Produce.
Pursuant to sub-section 841(b) of the WR Act and sub-section 546(3)(c) of the FW Act the Respondent is to pay the penalty amounts ordered at Orders 1 to 9 above in the following way:
(a)a total amount of $52,344.43 is to be paid to the following employees by way of compensation for damage suffered by the employees as a result of the contraventions (which is otherwise not recoverable due to the liquidation of Kijani Investments):
(i)Alex Reuben Barnett - $3,879.39;
(ii)Georgina Dart – $11,177.57;
(iii)Amy Rebecca Franks - $7,456.31;
(iv)Skie-Lee Huff - $1,198.84;
(v)Ashley Louise Jenkins - $18,512.41;
(vi)Daniela Anna Labella - $303.12;
(vii)Lee Mayberry - $4,311.65;
(viii)Alexandra Moate - $2,877.98;
(ix)Sarah Eliza Harriett Ray – $1,407.22; and
(x)Victoria Strohmeier - $1,219.94.
(b)a total amount of $4,415.57 (being the remainder of the penalty amount) is to be paid to the Consolidated Revenue Fund of the Commonwealth.
Payments required under Orders 1 to 10 above are to be paid within twenty-eight days.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 654 of 2012
| FAIR WORK OMBUDSMAN |
Applicant
And
| NICOLE PATRICE DAWE |
Respondent
REASONS FOR JUDGMENT
Introduction
On 15 February 2013 I declared that the respondent was involved in contraventions of the civil penalty provisions of s.728 of the Workplace Relations Act 1996 (Cth) (“the WRA”) and s.550 of the Fair Work Act 2009 (Cth) (“the FWA”)(see Fair Work Ombudsman v Dawe 2013 FMCA 94).
The respondent’s accessorial liability arose from admissions deemed by the respondent to have been made by reason of her failure to comply with various orders of the Court and her failure to participate in any substantial way in this proceeding, including the failure of the respondent to file a defence or any evidence or attend various scheduled directions hearings.
The respondent was a director of Kijani Investments Pty Ltd (“Kijani Investments”) and, on her own evidence, was solely responsible for the entitlements of employees of that company. The Court made findings of contraventions by Kijani Investments of various sections of the WRA and the FWA in respect of certain indentified employees of Kijani Investments (“the Employees”).
The applicant now seeks an order that the respondent pay a pecuniary penalty in respect of her accessorial liability for the contraventions engaged in by Kijani Investments.
Following the orders made by the Court on 15 February 2013, Mr Charles Cody of Mason Sier Turnbull Lawyers in Victoria filed a Notice of Address for Service on behalf of the respondent. No other document was filed by or on behalf of the respondent. On 6 March 2013, Mr Cody filed a Notice of Intention to Withdraw as Lawyer. Because that notice was filed less than 7 days from the date of the penalty hearing, it was necessary for Mr Cody to seek leave of the Court to withdraw.
At the commencement of the hearing, Mr Cody sought leave to withdraw as the respondent’s lawyer, after making short oral submissions on the respondent’s behalf. The submissions were three fold:
i)That the respondent may have been suffering from a medical condition that may have effected her conduct in respect of her business and participation in the applicant’s investigation of the contraventions and in this Court proceeding. There was no evidence provided to the Court in support of that submission. Mr Cody informed the Court that he had copies of three medical reports in his possession that he acknowledged were not in admissible form. Nevertheless, I invited Mr Cody to send through copies of those certificates to the Court, which he duly did. The reports were objected to by the solicitor for the applicant, Ms Kovalsky, on the basis that they were not in proper form, were unspecific and did not contain any particular diagnosis for which various medications may have been prescribed, and that in the circumstances the Court could place so little weight on them that they ceased to be relevant. I asked Mr Cody if the authors of the reports would be available for cross examination which he answered in the negative. In the circumstances, the certificates were rejected by me as evidence in support of Mr Cody’s submission about any medical condition that may have affected the applicant’s conduct.
ii)That the applicant is in an impecunious financial position. However, there is no evidence at all before the Court to support such a submission. Again, I raised with Mr Cody whether the applicant wished to put on such evidence and make herself available for cross examination at a further hearing and he again answered in the negative.
iii)That the applicant is sorry.
On 4 March 2013 the applicant filed submissions in relation to penalty. Those submissions contained the following factual assertions:
2. Between 16 February 2010 and 18 January 2011, the applicant received eleven workplace complaints from current or former employees (Employees) of Kijani Investments Pty Ltd (Kijani Investments). The Employees’ complaints mainly related to allegations of underpayment of wages and leave entitlements pursuant to the WR Act, the FW Act and agreements made under those Acts[1].
[1] Wade Affidavit at paragraph 10 and Exhibit SAW-1 of the Wade Affidavit at Tab 3.
3. At all material times, the respondent was the director[2] of Kijani Investments responsible in a practical sense for ensuring that Kijani Investments complied with its legal obligations to its employees under the WR Act and FW Act[3].
[2] Wade Affidavit at paragraphs 6 to 7 and Exhibit SAW-1 of the Wade Affidavit at Tab 2 for copy of ASIC search.
[3] Wade Affidavit at paragraphs 43(d), 49(b); Barnett Affidavit at paragraphs 11, 30(a)-(b), 32, 41 and annexure ARB-3, 44 and annexure ARB-4; Franks Affidavit at paragraph 28; Labella Affidavit at paragraphs 9,19,32,37-42 and annexure DL-2. Dart Affidavit at paragraphs 7,33,34,35 and annexure GD-5, 42 and annexure GD-8, 43; Moate Affidavit at paragraphs 21 and annexure AM-1, 24-26 and annexures AM-2, AM-3 and AM-4, 28, 43, 45-46,48 and annexure AM-9, 50 and annexure AM-11, 51; Jenkins Affidavit at paragraphs 29 and annexure AJ-3, 33 and annexure AJ-6, 36 and annexure AJ-7; Mayberry Affidavit at paragraphs 5-6 and annexure LM-1, 30-33, 35; Ray Affidavit at paragraphs 29 and annexure SR-6, 30-33 and annexure SR-8, 35 and annexure SR-9; Huff Affidavit at paragraphs 8-9,28-29.
4. On 9 March 2012, District Registrar Wall of the Federal Court of Australia in Sydney ordered that Kijani Investments be wound up (as a result of proceedings relating primarily to unpaid employee superannuation entitlements: Deputy Commissioner of Taxation v Kijani Investments Pty Ltd – NSD35/2012). As a result, the applicant was not able to commence proceedings against Kijani Investments.
5. On 23 March 2012, following the applicant’s investigation into the Employees’ complaints, these proceedings were commenced against the respondent due to her involvement in contraventions committed by Kijani Investments. The applicant alleged that the respondent had been involved in contraventions which resulted in the Employees being underpaid a total amount of $56,585.28, as well as, contraventions of Kijani Investments’ obligations in respect of record keeping, issuing payslips and requirement to respond to NTP s(Notices to Produce) issued by the applicant during the course of the investigation.
…
29. The eleven Employees are each young workers who were aged between 15 and 21 years of age[4] when they commenced employment at one of four retail stores (trading as ‘Subway’ franchises) which were operated by Kijani Investments in the vicinity of Newcastle in the State of New South Wales.
[4] Statement of Claim at paragraph 5; Franks Affidavit at paragraphs 1 and 4; Labella Affidavit at paragraphs 1 and 3; Barnett Affidavit at paragraphs 1 and 3; Moate Affidavit at paragraphs 1 and 3; Thomas Affidavit at paragraphs 1 and 3; Ray Affidavit at paragraphs 1 and 3; Jenkins Affidavit at paragraphs 1 and 2; Mayberry Affidavit at paragraphs 1 and 2; Huff Affidavit at paragraphs 1 and 2; Dart Affidavit at paragraphs 1 and 2.
30. The Employees were engaged to perform low-skilled customer service work. Each of the Employees was initially engaged in the position of ‘Sandwich Artist’[5]; a role which primarily involved the preparation and sale of Subway sandwich products. After commencing employment, seven of the Employees subsequently were promoted to the position of Supervisor (but continued to be paid as Sandwich Artists[6]) and one Employee was promoted to the position of Manager and was paid as such[7].
[5] Jenkins Affidavit at paragraph 2; Mayberry Affidavit at paragraphs 2 and 13; Huff Affidavit at paragraph 2; Dart Affidavit at paragraph 12; Franks Affidavit at paragraph 9; Labella Affidavit at paragraph 3; Barnett Affidavit at paragraphs 9 and 36-37; Moate Affidavit at paragraph 11; Thomas Affidavit at paragraphs 3 and 12; Ray Affidavit at paragraph 9.
[6] Jenkins Affidavit at paragraphs 7-13; Mayberry Affidavit at paragraphs 2, 15-18, 22-23 and 25; Dart Affidavit at paragraphs 12-15, 17, 27, 29-32 and 38; Franks Affidavit at paragraphs 10-13; Barnett Affidavit at paragraphs 13, 16, 23 and 42-43; Moate Affidavit at paragraphs 12-13; Ray Affidavit at paragraphs 10-14, 29, and Annexure SR-6 of the Ray Affidavit.
[7] Moate Affidavit at paragraphs 14-16, 26 and 41.
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32. The applicant has calculated that during the period from 6 June 2006 to 30 June 2011, Kijani Investments underpaid the Employees at least $56,585.28. The applicant’s calculations are based solely on documentary evidence provided by the Employees (such as payslips, rosters and bank statements).
33. During the investigation, the applicant attempted to obtain copies of relevant documents, such as time and wage records, from Kijani Investments by issuing four NTPs pursuant to section 712 of the FW Act over the course of an 11 month period (on 19 April 2010, 18 August 2010, 23 November 2010 and 7 March 2011)[8].
[8] Wade Affidavit at paragraphs 31, 43(b), 54(d) and 59. Also refer to Exhibit SAW-1 of the Wade Affidavit at Tabs 21, 30, 43 and 47 for copies of the NTPs.
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35. In response to the four NTPs (which sought, amongst other things, time and wage documents for each of the Employees regarding their respective periods of employment), the applicant received only six pages of employment documentation. The documentation was provided on 1 June 2010 in response to the first of the four NTPs and included the following documents relating to Miss Labellla: notification of a birthday, bank account details, an employee details form, an enquiry about tax arrangements, a letter of resignation and an enquiry about group a certificate. The respondent did not provide pay records or time records for Miss Labella or for any other employee.
36. As set out at paragraphs 31 to 69 of the Wade Affidavit, during the course of the investigation the respondent gave several reasons for Kijani Investments’ failure to comply with the NTPs including:
a) in respect of the first NTP (which was issued on 19 April 2010 with a required response date of 18 May 2010):
i) on 19 April 2010, the respondent claimed that Kijani Investments had already previously provided the requested records to the applicant. This was a reference to documents produced on 24 August 2009 in response to a prior investigation. The applicant explained to the respondent that the previously provided records related to a different set of employees and a different time period. Further the records which had been produced electronically could not be opened (as was explained to the respondent at the time) and the records provided in hardcopy had subsequently been returned to company director, Mr Jason Dawe;
ii) on 21 May 2010, the respondent claimed that the documents had been sent to the applicant via email by Kijani Investments’ bookkeeper. However, on the same date the applicant advised that no such email was received;
iii) on 26 May 2010, the respondent claimed that she received error messages when trying to send documents to the applicant. The applicant offered to investigate the cause of the error messages but copies of the error messages were not provided; and
iv) on 1 June 2010, the respondent provided limited documentation in response to the first NTP as described at paragraph 0 above.
b) in respect of the second NTP (which was issued on 18 August 2010 with a required response date of 2 September 2010):
i) between 23 August 2010 and 6 September 2010, the respondent claimed that she was unable to communicate about the issued NTP due to a “severe throat and chest infection”;
ii) on 29 September 2010, the respondent claimed that she was unable to comply with the second NTP due to personal illness (including the flu, tonsillitis and sinusitis), a serious illness suffered by Kijani Investments’ bookkeeper and ongoing computer repairs.
c) the applicant did not receive any response in respect of the third NTP (which was issued on 23 November 2010 with a required response date of 8 December 2010).
d) in respect of the fourth NTP (which was issued on 7 March 2011 with a required response date of 23 March 2011) the applicant was advised (on 1 April 2011) that the respondent had been overseas from 14 March 2011 and was due to return on 10 May 2011. No further response was received after 10 May 2011.
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39. During the period between 23 May 2012 and 21 June 2012, (that is, more than a year after the last NTP was issued and following the commencement of these proceedings), the respondent provided the applicant with copies of time and wage records in respect of the Employees, predominately in the form of payslips. The applicant analysed the provided records but did not accept their accuracy.
40. The time and wage records provided by the respondent showed differing hours of work, amounts payable and amounts paid than the corresponding evidence provided by the eleven Employees. The Employees’ evidence was preferred as in all cases the amounts shown on payslips provided by the Employees matched the amounts received into their bank accounts whereas the amounts shown on payslips provided by the respondent did not correspond with the bank statement evidence. Additionally, payslips provided by the respondent showed pay increases being applied in some cases up to five months before such an increase came into existence.[9]
41. As a result of Kijani Investments’ failure to comply with the four NTPs and later failure to provide credible time and wage evidence, the applicant was obliged to rely solely on documentary evidence provided by the Employees which was significantly incomplete (particularly in respect of payslips which Kijani Investments frequently failed to issue[10]).
[9] Wade Affidavit at paragraphs 70 to 71.
[10] Wade Affidavit at paragraph 89.
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46. The Employees’ entitlements to minimum wages are derived from four different sources. The majority of the Employees were covered for their entire period of employment by the Kijani ECA[11]. The exceptions to this general rule are:
a) Miss Mayberry, who was covered by the Mayberry AWA for the duration of her employment[12];
b) Miss Dart, who was covered by the Dart AWA from 15 September 2006 to July 2007. Miss Dart’s employment with Kijani Investments ended in July 2007 but she later commenced a new period of employment on 30 January 2008 at which time she became subject to the conditions contained in the Kijani ECA[13]; and
c) Miss Dart and Miss Franks, who were both long-standing employees, who were covered by the Australian Pay and Classification Scale (APCS) derived from the Shop Employees (State) Award (Shop Employees Award) during their periods of employment which pre-dated the lodgment of the Dart AWA and the Kijani ECA.
47. The aggregate underpayment amounts by contravention type (based on the underpayment figures provided at Annexures B to L of the statement of claim) are set out at columns 5 and 6 of Annexure A.
[11] Wade Affidavit at paragraphs 15-17.
[12] Wade Affidavit at paragraph 22. Mayberry Affidavit at paragraph 6.
[13] Wade Affidavit at paragraphs 18-21.
In support of the application, the applicant read the following affidavits:
6. The applicant relies upon the following documents:
a) application and statement of claim both filed on 23 March 2012;
b) affidavit of Alex Rueben Barnett affirmed on 16 November 2012 (Barnett Affidavit);
c) affidavit of Amy Rebecca Franks affirmed on 20 November 2012 (Franks Affidavit);
d) affidavit of Daniela Anna Labella sworn on 20 November 2012 (Labella Affidavit);
e) affidavit of Georgina Dart affirmed on 20 November 2012 (Dart Affidavit);
f) affidavit of Joanne Freya Thomas affirmed on 20 November 2012 (Thomas Affidavit);
g) affidavit of Alexandra May Attwood Moate affirmed on 21 November 2012 (Moate Affidavit);
h) affidavit of Ashley Louise Jenkins affirmed on 21 November 2012 (Jenkins Affidavit);
i) affidavit of Lee Mayberry sworn on 21 November 2012 (Mayberry Affidavit);
j) affidavit of Sarah Eliza Harriet Ray sworn on 21 November 2012 (Ray Affidavit);
k) affidavit of Skie-Lee Huff sworn on 21 November 2012 (Huff Affidavit); and
l) affidavit of Inspector Stephen Anthony Wade affirmed on 27 November 2012 (Wade Affidavit).
The applicant’s written submission also identified the relevant legislative provisions relating to penalty and they are as follows:
10. The applicant is a statutory appointee of the Commonwealth appointed by the Governor-General by written instrument, pursuant to section 687(1) of the FW Act and is a Fair Work Inspector pursuant to section 701 of the FW Act.
11. On 1 July 2009, the WR Act was repealed by the provisions of the FW Act. In respect of contraventions occurring prior to 1 July 2009, sub-item 11(1) of Part 3 of Schedule 2 of the Transitional Act provides that the WR Act continues to apply, on and after 1 July 2009, in relation to conduct that occurred before 1 July 2009.
12. Sub-item 13(1) of Part 3 of Schedule 18 of the Transitional Act gives Fair Work Inspectors the power to make or continue applications under the WR Act.
13. Sub-section 719(1) of the WR Act provides that the Federal Magistrates Court[14] may impose a penalty in respect of a contravention of an "applicable provision" by a person bound by the provision. An "applicable provision" is defined in section 717 of the WR Act to include a term of a AWA[15], a collective agreement and the Australian Fair Pay and Conditions Standard (AFPCS)[16].
14. Pursuant to items 13 and 14 of Part 3 of Schedule 18 of the Transitional Act, Part 5-2 of the FW Act (establishing the Office of the Fair Work Ombudsman) applies to conduct that occurred both before WR Act repeal and after WR Act repeal.
15. For contraventions occurring on and after 1 July 2009, sub-section 546(1) of the FW Act provides that the Federal Magistrates Court may order a person to pay a pecuniary penalty if the court is satisfied the person has contravened a civil remedy provision. Sub-section 539(1) identifies those provisions that are 'civil remedy provisions' for the purposes of the FW Act, which are those set out in the table at sub-section 539(2).
16. Pursuant to item 16(1) of Schedule 16 of the Transitional Act, section 539(2) of the FW Act is to be read as if it includes the civil remedy provisions contained in the Transitional Act, and Part 4-1 of the FW Act applies to them as if they were provisions of the FW Act.
[14] Section 717 of the WR Act defines the Federal Magistrates Court as an 'eligible court'.
[15] On 28 March 2008, the WR Act was amended by the Workplace Relations Amendment (Transition to Forward with Fairness) Act 2008. As part of these amendments AWAs were no longer able to be made. As a result of this change the reference to an AWA at section 717 of the WR Act was replaced by a reference to an ITEA (that is, an Individual Transitional Employment Agreement). However, despite this change section 717 of the WR Act continued to apply in relation to existing AWAs by virtue of a savings provision at item 2 of Schedule 7A of the WR Act.
[16] Which includes sub-sections 182(1) and 235(2) of the WR Act.
Further I accept the applicant’s written submission in relation to the relevant principles to determining penalty as follows:
17. The applicant submits that the following principles should be taken into account in determining the question of appropriate penalty:
a) the first step for the Court is to identify the separate contraventions involved. Each breach of each separate obligation found in the WR Act is a separate contravention[17];
b) secondly, the Court should consider whether the breaches arising in the first step constitute a single course of conduct[18];
c) thirdly, to the extent that two or more contraventions have common elements, this should be taken into account in considering what is an appropriate penalty in all the circumstances for each contravention. The respondent should not be penalised more than once for the same conduct. The penalties imposed by the Court should be an appropriate response to what the respondent did[19]. This task is distinct from and in addition to the final application of the “totality principle”[20];
d) fourthly, consider the appropriate penalty for the single breaches and, if relevant, each group of contraventions, taking into account all of the relevant circumstances; and
e) finally, consider whether it is an appropriate response to the conduct which led to the breaches[21]. The Court should apply an “instinctive synthesis” in making this assessment[22]. This is known as an application of the “totality principle”.
[17] Gibbs v Mayor, Councillors and Citizens of City of Altona (1992) 37 FCR 216 at 223; McIver v Healey [2008] FCA 425 at [16] (unreported, Federal Court of Australia, 7 April 2008, Marshall J).
[18] Sub-section 719(2) of the WR Act and section 557 of the FW Act.
[19] Australian Ophthalmic Supplies Pty Ltd v McAlary-Smith [2008] FCAFC 8 at [46] (Graham J) (unreported, Full Court of the Federal Court of Australia, 20 February 2008, Gray, Graham and Buchanan JJ) (Merringtons).
[20]Mornington Inn Pty Ltd v Jordan [2008] FCAFC 70 at [41]-[46] (Stone and Buchanan JJ) (unreported, Full Court of the Federal Court of Australia, 7 May 2008, Gyles, Stone and Buchanan JJ) (Mornington Inn).
[21] See Kelly v Fitzpatrick (2007) 166 IR 14 at [30] (Tracey J) (Kelly); Merringtons, supra at [23] (Gray J), [71] (Graham J) and [102] (Buchanan J).
[22] Merringtons, supra at [27] (Gray J) and [55] and [78] (Graham J).
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27. The factors relevant to the imposition of a penalty under the WR Act have been summarised by Mowbray FM in Mason v Harrington Corporation Pty Ltd t/as Pangaea Restaurant & Bar [2007] FMCA 7 (Pangaea), [26]-[59], as follows:
(a) the nature and extent of the conduct which led to the breaches;
(b) the circumstances in which that conduct took place;
(c) the nature and extent of any loss or damage sustained as a result of the breaches;
(d) whether there had been similar previous conduct by the defendant;
(e) whether the breaches were properly distinct or arose out of the one course of conduct;
(f) the size of the business enterprise involved;
(g) whether or not the breaches were deliberate;
(h) whether senior management was involved in the breaches;
(i) whether the party committing the breach had exhibited contrition;
(j) whether the party committing the breach had taken corrective action;
(k) whether the party committing the breach had cooperated with the enforcement authorities;
(l) the need to ensure compliance with minimum standards by provision of an effective means for investigation and enforcement of employee entitlements; and
(m) the need for specific and general deterrence.
28. This summary was adopted by Tracey J in Kelly v Fitzpatrick (2007) 166 IR 14; [2007] FCA 1080, [14]. While the summary is a convenient checklist, it does not prescribe or restrict the matters which may be taken into account in the exercise of the Court’s discretion: Sharpe v Dogma Enterprises Pty Ltd [2007] FCA 1550, [11]; Merringtons at [91] per Buchanan J.
Further I accept the applicant’s written submissions in relation to the principles in considering a course of conduct and the applicant’s submissions in relation to the relevant course of conduct in this case. Those submissions are as follows:
19. Sub-section 719(2) of the WR Act and sub-section 557(1) of the FW Act provide that where the same person commits two or more contraventions of an ‘applicable provision’ and the contraventions arose out of the same course of conduct by that person, the contraventions are taken to constitute a single contravention.
20. The applicant accepts that, based on the facts in this case, the respondent has the benefit of sub-section 719(2) of the WR Act and sub-section 557(1) of the FW Act in relation to the contraventions which affected multiple employees or occurred on more than occasion.
21. Other than as outlined at paragraph 0 above, the applicant submits that the course of conduct provisions do not otherwise reduce the number of contraventions because each breach pleaded in these proceedings is a distinct and separate obligation under the WR Act, WR Regulations, FW Act or FW Regulations.[23] The applicant submits that where there are contraventions of distinct civil remedy provisions, sub-section 719(2) of the WR Act and sub-section 556(1) of the FW Act should not be applied to reduce the number of contraventions.
I also accept the applicant’s written submission in relation to the grouping together of separate contraventions which may have common elements. Those submissions are as follows:
22. It is open to the Court to group separate contraventions together where the contraventions may be said to overlap with each other or involve the potential punishment of the Respondents for the same or substantially similar conduct.[24]
23. The applicant accepts that some of the contraventions have common elements and that this should be taken into account in considering an appropriate penalty to ensure that the Respondents are not punished more than once for the same or substantially similar conduct.
24. This is particularly appropriate where legislative change has resulted in multiple contraventions pursuant to different terms, arising from the same course of conduct; as such conduct would otherwise have attracted the application of the course of conduct provisions referred to in paragraph 0 above. In this instance, due to the length of the period of conduct, there has been significant legislative change, which the applicant accepts ought not lead to additional penalties being awarded.
[24] Mornington Inn at [88], per Stone and Buchanan JJ.
The grouping of the various contraventions proposed by the applicant is appropriate. Those groupings have the effect of confining the fifteen contraventions found to have been proved to be grouped into nine contraventions with a maximum penalty of $72,600. The consequence of the grouping of the contraventions in this way is to reduce the maximum penalty from $108, 900.
Circumstances in which the conduct took place and the nature and extent of the conduct
As stated above, the Employees were between 15 and 21 years of age and were engaged in low skilled customer service work. Due to their youth and relative inexperience in the workforce, the Employees were in a vulnerable position. Several of the Employees gave evidence that they were not provided with a copy of the Kijani Investments Pty Ltd ATF The Dawe Investments Trust Employee Collective Agreement (“Kijani ECA”), or knew of its existence, and so were not in a position to know their full entitlements. Further, the Employees were often not provided with payslips and, due to their irregular working hours, were not in a position to determine what gross hourly rate they were actually being paid.
During the period from 6 June 2006 to 30 June 2011, as stated above, Kijani investments underpaid the Employees at least $56,585.28.
The applicant issued four Notices to Produce to the respondent, none of which were complied with in relation to providing pay records for any of the Employees. The ability to issue Notices to Produce is a key aspect in the investigative power vested in Fair Work Inspectors by Fair Work Australia and non compliance with Notices to Produce has the capacity to frustrate the effectiveness of the exercise of those powers.
Due to the respondent’s failure to participate in this proceeding any explanation or excuse provided by the respondent to the applicant about the failure to comply with the Notices’ to Produce was unable to be tested in Court. I accept the applicant’s submission that even if the reasons provided by the respondent to the applicant and identified in the applicant’s written submission were accepted, they were sufficient only to respond to the delay in responding to the Notices’ to Produce. The respondent did not provide sufficient explanation for the respondent’s total failure to provide relevant documents over an 11 month period.
More than a year after the last Notice to Produce was issued and the commencement of this proceeding, the respondent provided the applicant with copies of time and wage records in respect of the Employees, predominantly in the form of pay slips. However, the applicant did not accept the accuracy of that information as it did not correspond with the evidence provided by the Employees. Having regard to the respondent’s defaults and failure to participate in this proceeding and to file any defence or evidence, I accept the evidence of the Employees in relation to their employment by Kijani Investments.
I accept the applicant’s submission that when determining the appropriate penalty in relation to the respondent’s involvement in Kijani Investment’s failure to comply with the four Notices to Produce, the Court should have regard to the serious flow on consequences to the contraventions. These include the impaired ability for the applicant to comply with the statutory objective of ensuring adequate minimum entitlements to employees. Further I accept that in all likelihood, the amounts owing to the Employees have been underestimated as a result of the respondent’s failure to keep proper records in circumstances where she has acknowledged that she was solely responsible for the Employees’ entitlements.
I further accept that the vast majority of the underpayments arose from Kijani Investment’s failure to pay the Employees in accordance with the terms of workplace agreements drawn by it. The majority of the Employees were covered for their entire period of employment by the Kijani ECA. The exceptions are as follows:
46. The Employees’ entitlements to minimum wages are derived from four different sources. The majority of the Employees were covered for their entire period of employment by the Kijani ECA[25]. The exceptions to this general rule are:
(a) Miss Mayberry, who was covered by the Mayberry AWA for the duration of her employment[26];
(b) Miss Dart, who was covered by the Dart AWA from 15 September 2006 to July 2007. Miss Dart’s employment with Kijani Investments ended in July 2007 but she later commenced a new period of employment on 30 January 2008 at which time she became subject to the conditions contained in the Kijani ECA[27]; and
(c) Miss Dart and Miss Franks, who were both long-standing employees, who were covered by the Australian Pay and Classification Scale (APCS) derived from the Shop Employees (State) Award (Shop Employees Award) during their periods of employment which pre-dated the lodgment of the Dart AWA and the Kijani ECA.
[25] Wade Affidavit at paragraphs 15-17.
[26] Wade Affidavit at paragraph 22. Mayberry Affidavit at paragraph 6.
[27] Wade Affidavit at paragraphs 18-21.
An obligation created by Parliament to honour an industrial bargain must be vindicated and be seen to be vindicated (see CEPU v QR Ltd (No 2.) [2010] FCA 652 at [37] per Logan J).
I accept the applicant’s submissions about the seriousness of an employer underpaying an employee in such circumstances. That submission is as follows:
50. In respect of the underpayments arising from contraventions of legislative minima, the applicant submits that the underpayment contraventions represent a failure to provide basic and important conditions and entitlements under the workplace relations legislation. The purpose of the legislation is to provide a safety net which ensures adequate minimum entitlements to employees[28], particularly those whom are vulnerable or in low income roles. The legislation is also designed to provide an even playing field for all employers with regard to employment costs. Contraventions of these fundamental entitlements undermine the workplace relations regime as a whole and display a disregard for Kijani Investments’ statutory obligations.
[28] Section 3 of the FW Act.
Nature and extent of the loss
I accept the applicant’s written submission that the nature and extent of the loss suffered by each of the Employees was significant to them and warrants the imposition of a penalty because it involves contravention of minimum standards of the most fundamental kind, namely, the payment of minimum wages.
Similar previous conduct
I accept the written submission of the applicant that Kijani Investments’ failure to comply with the four Notices to Produce may be interpreted as an attempt to frustrate the applicant’s investigation into the complaints which were the subject of this proceeding.
Kijani Investments was the subject of proceedings brought by the Australian Taxation Office in respect of unpaid employee superannuation entitlements (see Deputy Commissioner of Taxation v Kijani Investments Pty Ltd – NSD 35/2012). I accept the applicant’s written submission that involvement in this proceeding is evidence that the respondent has a history of failing to pay minimum entitlements to employees.
I also have regard to the case Mayberry v Kijani Investments Pty Ltd as trustee for The Dawe Investments Trust Subway Wallsend trading as Subway [2011] FCA 1238 where Katzmann J at 22 stated as follows:
“I take into account the fact that there is no evidence that Kijani has previously offended. But this is a serious matter. The applicant is a vulnerable, low-paid worker in an industry where vulnerable workers are commonly employed and where the scope for exploitation is high. The conduct in question involved Kijani’s senior management. The commissioner found it to be entirely unjustified. There is no evidence to mitigate its seriousness. There is, for example, nothing to suggest that Kijani has shown any insight into, let alone remorse for, its behaviour, nor is there anything to demonstrate cooperation with Ms Mayberry or the Court – quite the opposite in fact. There is no reason to believe that the failure to comply with the commissioner’s orders is not deliberate. On the contrary, everything points to the likelihood that Kijani has wilfully ignored them.”
Size and financial circumstances of the business
As stated above, there is no evidence regarding the financial circumstances of the respondent. Kijani Investments was placed into liquidation as a result of the Australia Taxation Office proceeding.
I accept the applicant’s written submission that financial difficulties faced by a business do not excuse its failure to pay its employees the required minimum entitlements (see Lynch v Buckley Sawmills Pty Ltd [1984] FCA 306; 3 FCR 503).
Deliberateness of the breaches
I am satisfied that the breaches engaged in by Kijani Investments and for which the respondent was responsible were deliberate. Further, I accept that Kijani Investments was subject to the operation of the Fairness Test in comparing the terms of the Kijani ECA with the terms of the Shop Employees Award. As a result the Kijani ECA did not pass the Fairness Test and it was ultimately varied on 17 November 2008 to provide higher rates of pay, thereby enabling it to pass the Fairness Test.
However, based on the evidence before me, I accept that the increased rates of pay were not applied by Kijani Investments until almost two years after the variation was made. I find that such conduct shows a deliberate disregard by Kijani Investments at least to discharge the obligations it plainly had to the Employees in circumstances where the rates of pay were well known to Kijani Investments and to the respondent.
Contrition, Corrective Action, Co-operation with Authorities
As stated above, Mr Cody appeared amicus by telephone before the Court and informed the Court that the respondent said she was sorry. That is the sum total of the contrition expressed by the respondent. In the circumstances, I accept the submission of the solicitor for the applicant that having regard to the delays in this matter caused by the respondent, such an apology should be given little weight. Further, the respondent has taken no corrective action to address the loss to the Employees as a result of her conduct. This is clearly a case of too little, too late.
Ensuring Compliance with Minimum Standards
One of the principle objects of the WRA was the maintenance of an effective safety net of employer obligations and effective enforcement mechanisms. I accept that the substantial penalties set by the legislature for contravention of such obligations reinforce the importance placed on compliance with minimum standards. The respondent in this case fell well short with compliance of minimum standards.
General Deterrence
In matters such as this where the employees were young and vulnerable and engaged in an ad hoc manner within the retail industry, there is a need for general deterrence in any penalty imposed.
The role of general deterrence in determining the appropriate penalty is illustrated by the comments of Lander J in Ponzio v B & P Caelli Constructions Pty Ltd (2007) 158 FCR 543, [93]:
“In regard to general deterrence, it is assumed that an appropriate penalty will act as a deterrent to others who might be likely to offend: Yardley v Betts (1979) 22 SASR 108. The penalty therefore should be of a kind that it would be likely to act as a deterrent in preventing similar contraventions by like minded persons or organisations. If the penalty does not demonstrate an appropriate assessment of the seriousness of the offending, the penalty will not operate to deter others from contravening the section. However, the penalty should not be such as to crush the person upon whom the penalty is imposed or used to make that person a scapegoat. In some cases, general deterrence will be the paramount factor in fixing the penalty: R v Thompson (1975) 11 SASR 217.”
In Plancor Pty Ltd v Liquor, Hospitality and Miscellaneous Union [2008] FCAFC 170 Gray J stated at [37]:
“The ... hospitality industry [is] an industry notorious for non-compliance with the standards imposed by industrial instruments ... [it] is also an industry in which enforcement of those standards has proved to be notoriously difficult.”
Specific deterrence
I accept the applicant’s written submission that the respondent is an experience company officer and has been a company officer holder in the following entities:
(a) Dabhra Investments Pty Ltd (Dabhra Investments): director and company secretary from 19 August 2004 to present;
(b) Dabhra Nelson Bay Pty Ltd: director and company secretary from 29 November 2004 to 26 November 2006;
(c) Jasnic Investments Pty Ltd: director and company secretary from 8 May 2003 to 18 November 2012; and
(d) Kijani Investments Pty Ltd (in liq): director and company secretary from 14 November 2005 to present.
I note that the respondent remains a company director of Dabhra Investments. Dabhra is cited in publicly available reports, issued by Shaw Gidley Liquidators, as the entity which took over the operation of the four Subway Stores previously operated by Kijani Investments when Kijani Investments was placed into liquidation. Those were the four stores in which the Employees were employed. I accept the applicant’s submission that a reference in a creditor’s report to “Dubrah Investments Pty Ltd” is a typographical error rather than reference to another entity.
In the circumstances, there is a need for specific deterrence which I accept is high because of the respondent’s continuing involvement in the operation of fast food stores and the employment of young workers. Further, it is particularly relevant that the respondent has failed to demonstrate any genuine contrition or take any corrective action to address the consequences to the Employees of her conduct.
Totality
In fixing an appropriate penalty for each course of conduct, the Court should take a final look at the aggregate penalty and determine whether it is an appropriate response to the conduct which led to the breaches and is not oppressive or crushing.
Regard must be had as to whether the penalty overall is appropriate and that the sum of the penalties imposed for several contraventions does not result in the total of the penalties exceeding what is proper, having regard to the totality of the contravening conduct involved (see Australian Competition and Consumer Commission v Australian Safeway Stores Pty Ltd (1997) 145 ALR 36 at 53 per Goldberg J; Australian Ophthalmic Supplies Pty Ltd v McAlary-Smith (2008) 165 FCR 560 at 567 per Gray J; and 581-583 per Buchanan J (“McAlary-Smith”); Mornington Inn Pty Ltd v Jordon 247 ALR 714 at 727 (“Mornington Inn”)).
In Australian Competition and Consumer Commission v Australian Safeway Stores Pty Ltd (1997) 145 ALR 36 at [53] Goldberg J referred to McDonald v R (1994) 48 FCR 555 where Spender J stated at 556 that the sentence for each offence should be “properly calculated in relation to the offence for which it is imposed”. It is implicit in this statement that a sentencer, or penalty fixer must, as an initial step, impose a penalty appropriate for each contravention and then as a check, at the end of the process, consider whether the aggregate is appropriate for the total contravening conduct involved.
Goldberg J’s approach has been followed regularly in the Federal Court (see Ponzio v B & P Caelli Constructions Pty Ltd (2007) 158 FCR 453 per Jessup J; Kelly v Fitzpatrick (2007) 166 IR 14 at [30] per Tracey J.)
I have had regard to the overriding principle that one must ensure that the sentence is proportionate to the gravity of the contravening conduct (Attorney General (SA) v Tichy (1982) SASR 84 at 92-93).
Penalty
The applicant recommends that a total penalty be imposed on the respondent between $55,440 and $56,760 and be imposed on the respondent for her involvement in the contraventions in accordance with a table prepared by the applicant. That table is annexed hereto and marked “Annexure A”. I am satisfied that a total penalty of $56,760 should be imposed on the respondent.
I am satisfied that the penalty recommended by the applicant both in respect of each of the nine groupings of contraventions is appropriate, as well as the range proposed by the applicant having regard to the high amount of underpayment; that the underpayment may be even higher but was unable to be quantified due to the respondent’s failure to comply with the four Notices to Produce; the lack of co-operation by the respondent both during the applicant’s investigation and during the course of this proceedings; the vulnerability of the Employees due to their youth and relative inexperience in the workforce; the deliberateness of the underpayment to the Employees in circumstances where Kijani Investments and the respondent had implemented the workplace agreements at the workplace; the need for general deterrence in an industry which employs a high proportion of young and unskilled staff; and, the need for specific deterrence given the respondent’s lack of contrition and corrective action. Those penalties are reflected in Annexure A to these Reasons.
I am also satisfied that pursuant to s.841(b) of the WR Act and s.546(c) of the FW Act, the respondent pay the amounts identified in column 5 of Annexure A to these Reasons to each of the Employees by way of compensation suffered by the Employees as a result of the contraventions and which is otherwise not recoverable due to the liquidation of Kijani Investments. The compensation to the Employees totals $52,344.43. The remainder of the penalty, being $4,415.57 should be paid to the Consolidated Revenue Fund of the Commonwealth.
Proposed orders
For the reasons referred to above, I am satisfied that the following orders should be made.
1. Pursuant to sub-section 719(1) of the Workplace Relations Act 1996 (Cth) (WR Act) a penalty of $5,280 be imposed on the respondent for her involvement in contraventions of the following provisions relating to base rates of pay:
(a) sub-section 182(1) of the WR Act and item 5 of Schedule 16 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth) (Transitional Act);
(b) clause 8(a) of the “Kijani Investments Pty Ltd ATF The Dawe Investments Trust Employee Collective Agreement” (Kijani ECA);
(c) clause 16 of the Australian Workplace Agreement lodged by Kijani Investments Pty Ltd (Kijani Investments) with the Employment Advocate on 2 February 2006 with respect to the employment of Lee Mayberry; and
(d) clause 16 of the Australian Workplace Agreement lodged by Kijani Investments with the Employment Advocate on 15 September 2006 with respect to the employment of Georgina Dart.
2. Pursuant to sub-section 719(1) of the WR Act a penalty of $5,280 be imposed on the respondent for her involvement in contraventions of the following provisions relating to casual loadings:
(a) sub-section 185(2) of the WR Act; and
(b) clause 8(e) of the Kijani ECA.
3. Pursuant to sub-section 719(1) of the WR Act a penalty of $3,960 be imposed on the respondent for her involvement in contraventions of clause 15(b) of the Kijani ECA relating to annual leave entitlements.
4. Pursuant to sub-section 719(1) of the WR Act a penalty of $3,960 be imposed on the respondent for her involvement in contraventions of clause 16 of the Kijani ECA relating to personal / carer’s leave entitlements.
5. Pursuant to sub-section 719(1) of the WR Act and sub-section 44(1) of the Fair Work Act 2009 (FW Act) a penalty of $4,620 be imposed on the respondent for her involvement in contraventions of the following provisions relating to payment of accrued but untaken annual leave on termination:
(a) sub-section 235(2) of the WR Act
(b) sub-section 90(2) of the FW Act
6. Pursuant to sub-section 719(1) of the WR Act a penalty of $4,620 be imposed on the respondent for her involvement in contraventions of clause 20 of the Kijani ECA relating to payment in lieu of notice of termination entitlements.
7. Pursuant to item 29 of sub-section 539(2) of the FW Act a penalty of $2,640 be imposed on the respondent for her involvement in contraventions of sub-section 536(1) of the FW Act relating to an employer’s obligation to issue payslips.
8. Pursuant to regulation 14.4 of the Workplace Relations Regulations 2006 (WR Regulations), sub-section 846(2)(g) of the WR Act and Item 29 of sub-section 539(2) of the FW Act a penalty of $2,640 be imposed on the respondent for her involvement in contraventions of the following provisions relating to record keeping:
(a) regulations 19.8(1)(d)-(e), 19.11(1)-(2), 19.11(4), 19.12(1) and 19.13(1) of the WR Regulations; and
(b) section 535(1) of the FW Act, by virtue of contraventions of regulations 3.32(d), 3.32(e), 3.33(1), 3.33(2), 3.36(1), and 3.37 of the Fair Work Regulations 2009.
9. Pursuant to item 32 of sub-section 539(2) of the FW Act a penalty of $23,760 be imposed on the respondent for her involvement in four separate contraventions of sub-section 712(3) of the FW Act in respect of failing to comply with four Notices to Produce.
10. Pursuant to sub-section 841(b) of the WR Act and sub-section 546(3)(c) of the FW Act the Respondent is to pay the penalty amounts ordered at Orders 1 to 9 above in the following way:
(a) a total amount of $52,344.43 is to be paid to the following employees by way of compensation for damage suffered by the employees as a result of the contraventions (which is otherwise not recoverable due to the liquidation of Kijani Investments):
(i) Alex Reuben Barnett - $3,879.39;
(ii) Georgina Dart – $11,177.57;
(iii) Amy Rebecca Franks - $7,456.31;
(iv) Skie-Lee Huff - $1,198.84;
(v) Ashley Louise Jenkins - $18,512.41;
(vi) Daniela Anna Labella - $303.12;
(vii) Lee Mayberry - $4,311.65;
(viii) Alexandra Moate - $2,877.98;
(ix) Sarah Eliza Harriett Ray – $1,407.22; and
(x) Victoria Strohmeier - $1,219.94.
(b) a total amount of $4,415.57 (being the remainder of the penalty amount) is to be paid to the Consolidated Revenue Fund of the Commonwealth.
11.Payments required under Orders 1 to 10 above are to be paid within twenty-eight days.
I certify that the preceding forty seven (47) paragraphs are a true copy of the reasons for judgment of Emmett FM
Date: 21 March 2013
ANNEXURE A
OUTLINE OF MAXIMUM PENALTIES AND APPLICANT’S PENALTY RECOMMENDATIONS
The maximum penalties that may be imposed by the Court in relation to the respondent’s contraventions are set out in the table below:
| 1 | 2 | 3 | 4 | 5 | 6 | 7 | 8 | 9 | 10 |
| Grouping | Description of contravention | Provision contravened | Reference for maximum penalty | Amount underpaid | Proportion of underpayment | Maximum penalty | Maximum penalty (after grouping) | % of maximum penalty sought by the applicant | Penalty amount sought by the applicant |
| Group 1 | Base rate of pay | Sub-section 182(1) of the WR Act and item 5 of Schedule 16 of the Transitional Act | Sub-section 719(1) of the WR Act in relation to item 2 of sub-section 718(1) of the WR Act | $345.62 | 0.61% | $6,600 | $6,600 | 80% | $5,280 |
| Clause 8(a) of the Kijani ECA | Sub-section 719(1) of the WR Act in relation to item 4 of sub-section 718(1) of the WR Act | $18,968.19 | 33.52% | $6,600 | |||||
| Clause 16 of the Mayberry AWA | Sub-section 719(1) of the WR Act in relation to item 1 of sub-section 718(1) of the WR Act | $4,311.65 | 7.62% | $6,600 | |||||
| Clause 16 of the Dart AWA | Sub-section 719(1) of the WR Act in relation to item 1 of sub-section 718(1) of the WR Act | $3,206.54 | 5.67% | $6,600 | |||||
| Group 2 | Casual loading | Sub-section 185(2) of the WR Act | Sub-section 719(1) of the WR Act in relation to item 2 of sub-section 718(1) of the WR Act | $180.25 | 0.32% | $6,600 | $6,600 | 80% | $5,280 |
| Group 3 | Annual leave | Clause 15 of the Kijani ECA | Sub-section 719(1) of the WR Act in relation to item 4 of sub-section 718(1) of the WR Act | Not calculable[29] | - | $6,600 | $6,600 | 60% | $3,960 |
| Group 4 | Personal/ carer’s leave | Clause 16 of the Kijani ECA | Sub-section 719(1) of the WR Act in relation to item 4 of sub-section 718(1) of the WR Act | $408.00 | 0.72% | $6,600 | $6,600 | 60% | $3,960 |
| Group 5 | Payment of accrued but untaken annual leave on termination | Sub-section 235(2) of the WR Act | Sub-section 719(1) of the WR Act in relation to item 2 of sub-section 718(1) of the WR Act | $1,856.64 | 3.28% | $6,600 | $6,600 | 60-70% | $4,620 |
| Sub-section 90(2) of the FW Act | Sub-section 44(1) of the FW Act and item 1 of sub-section 539(2) of the FW Act | $7,184.44 | 12.70% | $6,600 | |||||
| Group 6 | Notice of termination | Clause 20 of the Kijani ECA | Sub-section 719(1) in relation to item 4 of sub-section 718(1) | Not calculable[30] | - | $6,600 | $6,600 | 60-70% | $4,620 |
| Group 7 | Payslips | Section 536(1) of the FW Act and Chapter 2, Part 19, Division 6, sub-regulations 19.20 (1) and (2) of the WR Regulations | Item 29 of sub-section 539(2) of the FW Act | - | - | $3,300 | $3,300 | 80% | $2,640 |
| Group 8 | Record keeping | Regulations 19.8(1)(d)-(e), 19.11(1)-(2), 19.11(4), 19.12(1) and 19.13(1) of the WR Regulations (record keeping | Regulation 14.4 of the WR Regulations and sub-section 846(2)(g) of the WR Act | - | - | $3,330[31] | $3,300 | 80% | $2,640 |
| Section 535(1) of the FW Act, by virtue of contraventions of regulations 3.32(d), 3.32(e), 3.33(1), 3.33(2), 3.36(1), and 3.37 | Item 29 of sub-section 539(2) of the FW Act | - | - | $3,300 | |||||
| Group 9 | Failure to comply with a Notice to Produce | Sub-section 712(3) of the FW Act | Item 32 of sub-section 539(2) of the FW Act | - | - | $26,400[32] | $26,400 | 90% | $23,760 |
| TOTAL | $56,585.28 | 100% | $108,900 | $72,600 | - | $55,440 to $56,760 | |||
[29] Refer to the matters particularised at paragraph 64 of the statement of claim and paragraphs 44-47 of the Dart Affidavit.
[30] Refer to the matters particularised at paragraph 84 of the statement of claim, paragraphs 27-37 of the Labella Affidavit and paragraphs 26-31 of the Huff Affidavit.
[31] The respondent was involved in contraventions of six separate civil remedy provisions relating to record keeping under the WR Regulations each with a maximum penalty of $550. In contrast, under the FW Act all record keeping obligations are covered by only one civil remedy provision (section 535 of the FW Act) with a maximum penalty of $3,300.
[32] Section 557 of the FW Act (course of conduct) does not apply to contraventions of sub-section 712(3) of the FW Act (failure to comply with a NTP. The respondent was involved in four contraventions of sub-section 712(3) of the FW Act each with a maximum penalty of $6,600.
- AGLC
- Fair Work Ombudsman v Dawe [2013] FMCA 191
- Case
- [2013] FMCA 191
- Decision Date
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