Fair Work Ombudsman v Dosanjh
[2016] FCCA 923
•18 May 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
FAIR WORK OMBUDSMAN v DOSANJH [2016] FCCA 923
Catchwords:
INDUSTRIAL LAW – Determination of penalties to be imposed in relation to admitted contraventions of the Fair Work Act 2009 (Cth) – agreed statement of facts.
Legislation:
Evidence Act 1995, s.191
Fair Work Act 2009, ss.45, 535, 536,537
Fair Work Regulations 2009
Cases cited:
Australian Opthalmic Supplies Pty Ltd v McAlary−Smith [2008] FCAFC 8
Carr v CEPU & Anor [2007] FMCA 1526
Fair Work Ombudsman v Bound for Glory Enterprises & Anor [2014] FCCA 432
Fair Work Ombudsman v EA Fuller & Sons Pty Limited and Anor [2013] FCCA 5
Fair Work Ombudsman v Happy Cabby Pty Limited [2013[ FCCA 97
Fair Work Ombudsman v Invivo Group Pty Limited & Ors [2015] FCCA 1914
Fair Work Ombudsman v Orwill Pty Limited & Ors [2011] FMCA 730
Fair Work Ombudsman v Ramsey Food Processing Pty Limited (No. 2) [2012] FCA 408
Fair Work Ombudsman v Soleimani [2014] FCCA 2380
Fair Work Ombudsman v Taj Palace Tandoori Indian Restaurant Pty Limited & Anor [2012] FMCA 258
Fair Work Ombudsman v Tiger Telco Pty Ltd (in liq)[2012] FCA 479
Fair Work Ombudsman v Total Project Marketing [2014] FCCA 451
Kelly v Fitzpatrick [2007]FCA 1080 at [30]
Martin v Fresho Foods Pty Limited (No. 2) [2009] FMCA 191
Mowbray FM in Mason v Harrington Corporation Pty Ltd t/as Pangaea
Ponzio v B & P Caelli Constrictions Pty Ltd [2007] FCAFC 65
Restaurant & Bar [2007] FMCA 7 (Pangaea)
Sharpe v Dogma Enterprises Pty Ltd [2007] FCA 1550
Workplace Ombudsman v Saya Cleaning Pty Limited [2009] FMCA 38
Workplace Ombudsman v Securit−E Holdings Pty Ltd (In Liquidation) & Ors [2009] FMCA 700
Applicant: FAIR WORK OMBUDSMAN
Respondent: GURMAKH DOSANJH
File Number: SYG 1343 of 2015
Judgment of: Judge Altobelli
Hearing date: 23 November 2015
Date of Last Submission: 19 February 2016
Delivered at: Sydney
Delivered on: 18 May 2016 REPRESENTATION
Solicitors for the Applicant: Fair Work Ombudsman
Solicitors for the Respondent: Carol & O'Dea Lawyers ORDERS
THE COURT DECLARES THAT:
(1)The Respondent contravened:
(a)Section 45 of the Fair Work Act 2009 (Cth), by failing to make a piecework agreement that was in writing and signed as required under clause 15.7 of the Horticulture Award 2010 [MA000028] for each of the 60 employees;
(b)Section 535(1) of the Fair Work Act 2009, by failing to make and keep for seven years employee records of the kind prescribed by the Fair Work Regulations 2009;
(c)Section 535(2) of the Fair Work Act 2009, by failing to make and keep records for the Employees in the form and containing the required content prescribed in the Fair Work Regulations 2009; and
(d)Section 536(1) of the Fair Work Act 2009, by failing to give any of the employees a pay slip within one working day of paying an amount to that employee in relation to the performance of work.
THE COURT ORDERS THAT:
(2)Pursuant to ss.546(1) and (3) of the Fair Work Act 2009, the Respondent pay the Applicant the sum of $13,005 within 60 days of the date of this Order.
FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEYSYG 1343 of 2015
FAIR WORK OMBUDSMAN Applicant
And
GURMAKH DOSANJH Respondent
REASONS FOR JUDGMENT
Introduction
1.These reasons for judgment explain the declarations and Orders made by the Court in this matter.
2.The Fair Work Ombudsman (the Applicant) seeks the imposition of pecuniary penalties against Gurmakh Dosanjh (the Respondent). The applicant contends that the Respondent has breached four provisions of the Fair Work Act 2009 (hereafter referred to as ‘the Act’). There is no dispute as to liability. The Applicant and Respondent are only in dispute over what is an appropriate penalty. The parties have agreed on a Statement of Agreed Facts (SOAF) which is reproduced in the first Schedule to these reasons.
3.The Applicant’s Application and Statement of Claim were filed on 18 May 2015. The Respondent’s Response was filed 3 July 2015. The Respondent consented to the making of declarations and an order for penalties as set out in the Statement of Claim, but asked the Court to discount or moderate the penalties imposed on the Respondent for the reasons set out in the Response. Both the Statement of Claim and the Response, are reproduced in the second Schedule to these reasons.
Background
4.The Respondent conducts a blueberry farm. As part of the Applicant’s three year campaign in the horticulture industry known as “Harvest Trail” designed to increase education and compliance in the horticultural sector, in early November 2014 inspectors from the Applicant attended on the Respondent’s farm and undertook a spot check in compliance with the Act.
5.The Respondent is the owner and operator of the blueberry farm business conducted at Morgans Road, Sandy Beach in the mid-north coast region of New South Wales. He employed 60 employees between 29 January 2014 to 14 November 2014, with approximately 30 employees employed at any given time. The employees were engaged on a casual basis as farm labourers, picking blueberries, paid at an informal piece rate for each bucket of blueberries picked, and picked two buckets of blueberries per hour of work performed, on average.
6.The employees fell within the classification of level 1 employee under the Horticulture Award 2010 [MA000028], a modern Award (hereafter referred to as ‘the Award’). The employees were only known to the Respondent and identified by him by their first names. They were paid in cash for work performed and were, in most cases, working in Australia under working holiday visas subclass 417.
7.During the period in question, the only employee records kept by the employer was a diary containing the first names of the employees and the corresponding tallies indicating the number of buckets of blueberries picked by each employee.
8.Both the Respondent and employees were covered by the Act. Indeed, the Respondent admitted to the following contraventions of the Act:
a)Section 45 of the Act – failure to make a piecework agreement in writing under clause 15.7 of the Award. Under clause 15.1 of the Award, casual employees are able to enter into an agreement with their employer to be paid on a piecework rate, but clause 15.7 requires that any such agreement to be in writing and signed by both employer and employee. Despite the fact that the employees were engaged by the Respondent on a piecework rate for every bucket of fruit picked, there was no piecework agreement between them.
b)Sections 535(1) and 535(2) of the Act – failure to make and keep employee records. The Respondent concedes that he was required to make, and keep for seven years, employee records of the kind described by the Fair Work Regulations 2009 (hereafter referred to as ‘the Regulations’) in relation to each of the employees. The Respondent also agreed that under s.535(2) of the Act the records were required to be kept in a form, and to include information, prescribed by the Regulations. The relevant Regulations included reg.3.31 dealing with the form of records, reg.3.32 dealing with the content of records, and reg.3.33 dealing with records about pay, hours worked, causal leave loadings, etc.
c)Section 536(1) of the Act – failure to provide payslips. The Respondent agreed that he was required to give a payslip to each of the employees within one working day of paying an amount to the employee in relation to the performance of work. In fact the respondent made cash payments to the employees, and did not provide a payslip.
The evidence
9.In the Applicant’s case, it relied on the following documents:
·Application, filed 18 May 2015;
·Statement of Claim, filed 18 May 2015;
·Summary of Agreed Facts, filed 14 August 2015;
·Affidavit of Jeff Neil Tillitzki, affirmed 14 October 2015;
·List of authorities filed 15 October 2015;
·Outline of submissions filed 15 October 2015; and
·Supplementary outline of submissions, filed 5 February 2016.
10.In the Respondent’s case, reliance was placed on the following documents:
·Response, filed 3 July 2015;
·Affidavit of Gurmakh Dosanjh, sworn 8 September 2015 and filed 10 September 2015;
·Outline of submissions, filed 5 November 2015;
·Further affidavit of Gurmakh Dosanjh, sworn 8 September 2015 and filed 20 November 2015; and
·Supplementary outline of submissions, filed 19 February 2016.
Issue about statement of agreed facts
11.During submissions as to penalty on 23 November 2015, an issue arose about paragraph 8(d) of the Statement of Agreed Facts, which states:
(d) picked two buckets of blueberries per hour of work performed, on average;
12.The Court observes that the Statement of Agreed Facts is clear in its terms. The document is an agreed document for the purposes of s.191 of the Evidence Act 1995 which states:
(1) In this section:
“agreed fact” means a fact that the parties to a proceeding have agreed is not, for the purposes of the proceeding, to be disputed.
(2) In a proceeding:
(a) evidence is not required to prove the existence of an agreed fact; and
(b) evidence may not be adduced to contradict or qualify an agreed fact;
unless the court gives leave.
(3) Subsection (2) does not apply unless the agreed fact:
(a) is stated in an agreement in writing signed by the parties or by Australian legal practitioners, legal counsel or prosecutors representing the parties and adduced in evidence in the proceeding; or
(b) with the leave of the court, is stated by a party before the court with the agreement of all other parties.
13.During submissions, however, the solicitor for the Respondent contended that the use of the words “on average” at paragraph 8(d) of the Statement of Agreed Facts meant that the Respondent could contend, insofar as it was relevant, that in fact not all of his employees only picked two buckets of blueberries per hour. Indeed, the Respondent’s solicitor was instructed to press in submissions that not all workers only ever filled two buckets per hour and that the rate could in fact vary between two and eight buckets per hour “although average at usual times would be two buckets an hour” (transcript, 23 November 2015, page 4, lines 9 and 10).
14.The significance of this factor appears to lie in any consequential finding (if necessary) that the employees were being paid $12 an hour, on average. Given the contraventions alleged and admitted, the precise significance of any such finding is, in any event, questionable. Nonetheless, to the extent that it is necessary, the Court finds that the Respondent is bound by the Statement of Agreed Facts. In the transcript, the Respondent’s solicitor conceded that the average at usual times would be two buckets an hour. It is not possible for the Respondent to take this matter further given the agreed facts. The issue probably generated more light, than heat, given its limited significance.
Contraventions and maximum penalties
15.The appendix A to the Applicant’s Supplementary outline of submissions filed 5 February 2016 sets out a very useful summary of the contraventions and the penalties that may be imposed. This appendix is reproduced below:
| Contravention | Maximum penalty | Grouping | Maximum Possible Penalty | Proposed penalty range | Penalty Range (incl. Grouping and disc) | ||||
| Respondent | Respondent | ||||||||
| Provision | Nature of contraventions | Respondent | Max. penalty (no discount) | Max. penalty (discount of 15%) | Min | Max | |||
| Section 45 of the FW Act – Failure to make a piecework agreement in accordance with clause 15.7 of the Award | Piecework Agreement | $10,200.00 | $10,200.00 | $8,670.00 | 75% | 85% | $6,502.50 | $7,369.50 | |
| Section 535(1) of the FW Act − Failure to make and keep for 7 years employee records: In a form readily accessible to a FWI in accordance with subregulation 3.31(1)(b) of the FW Regulations; with the requisite content In accordance with subregulations 3.33(1), (2) and (3)(c) | Records − make and prescribed form | $5,100.00 | Failure to make and keep employee records In the form required (2 Grouped) | $5,100.00 | $4,335.00 | 75% | 85% | $3,251.25 | $3,684.75 |
| Section 535(2) of the FW Act for the records not being In the form prescribed by the FW Regulations | Records − Form | $5,100.00 | |||||||
| Section 536(1) of the FW Act − Failure to give a payslip within 1 working day of payment | Payslips | $5,100.00 | $5,100.00 | $4,335.00 | 75% | 85% | $3,251.25 | $3,684.75 | |
| 4 Contraventions | $25,500.00 | 3 Groups | $20,400.00 | $17,340.00 | $13,005.00 | $14,739.00 | |||
16.The Respondent’s only contention with this summary was in respect of the grouping of the contraventions, and with respect to the proposed penalty range. Both of these will be discussed in more detail below. In short, however, the Respondent contended that the record keeping and payslip contraventions should be grouped and treated as one contravention for penalty purposes. This would mean that as a result of the grouping of the ss.535 and 536 contraventions, there would, in effect, only be two contraventions for penalty purposes. The Applicant’s contention is set out in the table reproduced above. The second major difference, of course, related to the proposed penalty range. Whereas the Applicant contended the range should be from 75-85 per cent, the Respondent contended the range should be 40-50 per cent.
Principles relevant to determining penalty
17.The Respondent accepted the statement of law set out at paragraphs 38 and 39 of the Applicant’s outline of submissions. These paragraphs are reproduced below:
38. A non−exhaustive list of factors relevant to the imposition of a penalty was usefully 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;
(I) 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.
39. This summary was adopted by Tracey J in Kelly v Fitzpatrick. [McIver v Healey 166 IR 14 at [14] (Tracey J)]. 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 at [11]; Meningtons at [91] per Buchanan J].
18.Another useful statement of the approach to be adopted by a Court as to penalty is found out paragraphs 23-27 of his Honour Judge Driver’s decision in Fair Work Ombudsman v EA Fuller & Sons Pty Limited and Anor [2013] FCCA 5:
23. The first step for the Court is to identify the separate contraventions involved. Each breach of each separate obligation found in the Workplace Relations Act, Workplace Relations Regulations and Fair Work Act in relation to each employee is a separate contravention. [Gibbs v Mayor, Councillors and Citizens of City of Altona (1992) 37 FCR 216 at 223; McIver v Healey [2008] FCA 425 at [16]; Blandy v Coverdale NT Pty Ltd ACN 102 611 423 [2008] FCA 1533 at [56]]
24. Secondly, the Court should consider whether the breaches arising in the first step constitute a single course of conduct. [Section 719(2) of the Workplace Relations Act, regulation 14.5 of the Workplace Relations Regulations and s.557(1) of the Fair Work Act.]
25. 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 Respondents 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 Respondents did. [Australian Ophthalmic Supplies Pty Ltd v McAlary-Smith [2008] FCAFC 8 (Merringtons) at [46] (Graham J).] This task is distinct from and in addition to the final application of the “totality principle”. [Mornington Inn Pty Ltd v Jordan [2008] FCAFC 70 (Mornington Inn) at [41]-[46] (Stone and Buchanan JJ).]
26. Fourthly, consider the appropriate penalty for the single breaches and, if relevant, each group of contraventions, taking into account all of the relevant circumstances.
Finally, consider whether it is an appropriate response to the conduct which led to the breaches. [See Kelly v Fitzpatrick (2007) 166 IR 14 at [30] (Tracey J) (Kelly); Merringtons at [23] (Gray J), [71] (Graham J) and [102] (Buchanan J).] The Court should apply an “instinctive synthesis” in making this assessment. [Merringtons at [27] (Gray J) and [55] and [78] (Graham J).] This is known as an application of the “totality principle”.
19.The relevant principles as applied to the present case will be discussed below.
Grouping of contraventions – course of conduct and common element
20.The Applicant’s submissions in this regard are found at paragraphs 28-33 of its outline of submissions, which are reproduced below:
Course of conduct
28. Section 557 of the FW Act identifies that multiple breaches of particular provisions may attract the operation of the course of conduct provisions. Particularly relevant is whether the breaches arose out of separate acts or decisions of the employer, or out of a single act or decision. The latter case will constitute a 'course of conduct', but the former will not. [Seymour v Stawell Timber Industries Ply Ltd (1985) 9 FCR 241 at 266−267 per Gray J (with whom Northrop J agreed at 245).] The onus of establishing the benefit of section 557 of the FW Act falls on Mr Dosanjh. [Workplace Ombudsman v Securit−E Holdings Pty Ltd (In Liquidation) & Ors [2009] FMCA 700 at [5].]
29. The applicant accepts that, based on the facts in this case, Mr Dosanjh has the benefit of section 557 of the FW Act in regards to the separate contraventions involving each of the employees individually. Accordingly, even though each of the contraventions affected multiple employees, and occurred on multiple occasions, the applicant has counted each 'contravention type' as a single contravention.
30. For example, failing enter to into a piecework arrangement under clause 15.7 of the Modern Award, even though this contravention applied to 60 employees, is taken to be a single contravention. Further, although the respondent failed to issue pay slips in relation to 60 employees on many occasions from 29 January 2014 to 14 November 2014, this conduct has been treated by the applicant as a single contravention.
Common element
31. It is open to the Court to group contraventions where they have “common elements” [Fair Work Ombudsman v Total Project Marketing [2014] FCCA 451 at [84]. In a different context, the principle is also considered in Pearce v R (1998) 194 CLR 610 at [40] per McHugh, Hayne and Callinan JJ] so that “the offender is not punished twice for what is essentially the same criminality” [Construction, Forestry, Mining and Energy Union v Cahill [2010] FCAFC 39 at [39]. See also Momington Inn at [88], per Stone and Buchanan JJ, Australian Opthalmic Supplies Pty Ltd v McAlary−Smith [2008] FCAFC 8 at [23], [55], [93] and [102]; Fair Work Ombudsman v Tiger Telco Pty Ltd (in liq)[2012] FCA 479 at [24]]
The applicant submits that in the case at hand, contraventions of sub−section 535(1) and sub−section 535(2) of the FW Act have common elements in that they both involve the underlying vice of failing to make the employee records of the kind prescribed by the regulations.
32. Accordingly, the Applicant submits that for penalty purposes, Mr Dosanjh should be treated as having committed three separate contraventions of the FW Act, being:
(a) 'Piecework contravention' — a contravention of section 45 of the FW Act by failing to make a piecework agreement that was in writing and signed as required under clause 15.7 of the Modern Award for each of the 60 Employees;
(b) 'Record−keeping contravention' — a contravention of subsection 535(1) of the FW Act by failing to make and keep for 7 years employee records of the kind prescribed by the FW Regulations;
and a contravention of subsection 535(2) of the FW Act by failing to make and keep records for the Employees in the form and containing the required content prescribed in the FW Regulations; and
(c) 'Pay−slip contravention' — a contravention of subsection 536(1) of the FW Act by failing to give any of the employees a pay slip within one working day of paying an amount to that employee in relation to the performance of work.
33. Other than as already identified at paragraphs 29 to 32 above, the applicant submits that the contraventions are each distinct and separate obligations and that there are no further overlapping contraventions.
21.Initially, in his outline of submissions, the Respondent did not appear to cavil with any aspect of this. In particular, at paragraph 18 of the Respondent’s outline of submission he seemed to concede that the contraventions should be grouped into the three categories set out at paragraph 32 of the Applicant’s submissions (reproduced above).
22.When the matter was argued before the Court on 23 November 2015, the Respondent’s submissions had changed and, as previously foreshadowed in these reasons for judgment, it submitted that the recordkeeping contravention, and payslip contravention, being the contraventions under ss.535 and 536 of the Act, ought to be grouped together and treated as a single contravention pursuant to s.557 of the Act. The Respondent relied on the decision of her Honour Judge Jones in Fair Work Ombudsman v Soleimani [2014] FCCA 2380 at paragraph 30.
23.The Court does not accept, however, that this decision assists the Respondent. All that her Honour Judge Jones was doing at paragraph 30 was satisfying herself “that the parties’ agreement to group together” certain contravention was appropriate. It could not be said that her Honour was intending to make a general statement that the failure to make or keep employee records, and the failure to issue payslips, had such common elements, and arose out of a similar course of conduct, that they should be grouped together.
24.The Court accepts the Applicant’s submissions in this regard, i.e. that it is not bound by the decision in Fair Work Ombudsman v Soleimani and, in any event, and to the extent that the Respondent submits it applies to the facts of this case, the Court holds that it is not consistent with other case law. Indeed, a close scrutiny of that decision reveals a number of points of difference that are set out at paragraphs 5 and 6 of the Applicant’s supplementary submissions. The Court accepts the Applicant’s submission that the Respondent’s payslip and record keeping contraventions arise from two separate and distinct courses of conduct.
25.The first is the decision made by the Respondent concerning what records would be made and how they would be kept which was, to say the least, minimalistic in the extreme. The second course of conduct was the complete failure of the Respondent to issue payslips to the employees. The Court accepts that payslips serve a different purpose to employee records. Whilst employee records are vital for compliance purposes to enable the regulator to determine whether an employer has complied with minimum conditions under the Act, payslips are provided to employees so that the employees have a record of their wages and entitlements.
26.The payslips enable employees to check what they are being paid. The keeping of employee records and the giving of payslips to employees are regulated by separate statutory provisions. The Court accepts the Applicant’s submission that each of these obligations warrants separate recognition and that further grouping would give insufficient attention to the separate factual and legal character of these minimum obligations: Fair Work Ombudsman v Ramsey Food Processing Pty Limited (No. 2) [2012] FCA 408 at [2] (Buchanan J).
27.The Court believes this approach is consistent with prevailing case law including, e.g. Fair Work Ombudsman v Happy Cabby Pty Limited [2013[ FCCA 97, Fair Work Ombudsman v Invivo Group Pty Limited & Ors [2015[ FCCA 1914 at [69]-[75] and Fair Work Ombudsman v Taj Palace Tandoori Indian Restaurant Pty Limited & Anor [2012] FMCA 258 at [17].
28.Accordingly, for penalty purposes the Respondent will be treated as having committed three separate contraventions of the Act, being the piecework contravention (s.45), the record keeping contravention (ss.535(1) and (2) of the Act) and the payslip contravention (s.536(1) of the Act).
The nature and extent of the conduct which led to the breaches
29.The conduct in question was extensive and related to 60 employees over a period of nearly 10 months. The only record created by the Respondent was called the day book. This record was in evidence. The Court has previously averted to this as being somewhat minimalistic, but in terms of it being a record, that probably overstates the situation. It is hard to imagine a more superficial or half-hearted attempt to comply with any standard of record keeping, let alone the statutory standard. The facts are that the contraventions were only identified as a result of a spot check conducted on behalf of the Applicant.
The circumstances in which the conduct took place
30.It was agreed that most of the persons employed by the Respondent were working in Australia on working holiday subclass 417 visas. The condition on which such visas are issued is accepted by the Court to cover relatively young people travelling from certain overseas countries who become eligible for a second visa if they complete a stated period of seasonal work in regional Australia. The Court accepts the Applicant’s submission that most of the countries that subclass 417 visa holders come from are not countries where English is the official language but might, perhaps, be the second language. The Court accepts the Applicant’s submission that 417 visa holders are a group that can be easily exploited by employers. In Martin v Fresho Foods Pty Limited (No. 2) [2009] FMCA 191, His Honour Federal Magistrate Wilson (as he was then known) stated at paragraph 28:
The workers were described by counsel for the applicant as ‘vulnerable’. By this I took him to mean not that they were subject to a legal disability such as age or mental acuity, or from a different country and culture, but rather that they were employed as unskilled, menial workers who had little choice but to accept the terms of remuneration that they were offered. I accept the categorisation of the transferring employees as vulnerable in the sense to which I have referred.
31.This Court also accepts that the employees in question were vulnerable in the sense adopted by His Honour.
32.The Court accepts the submissions made on behalf of the Applicant, based on industry research analysis, that 37 per cent of workers were born outside of Australia, and 49 percent of the workers obtained an education level of year 10 or lower, in comparison to the total workforce of which 17 per cent have an education level of year 10 or lower. Thus, the Court accepts that the employees in this matter were vulnerable to exploitation because of being overseas workers, their age, and their visa status.
Any loss or damage sustained as a result of the breaches
33.It is clear that the Respondent employed 60 people during the period in question, and 30 employees at any one time. The issue of the loss or damage suffered by the employees raises, at least indirectly, the issue of the hourly rate equivalent of the piecerate on which they were engaged. To the extent that the Respondent sought to submit that his culpability was, somehow, lessened by what he submitted was the actual earnings of the average employee, the Court does not accept this. The Respondent is bound by the Statement of Agreed Facts that he agreed to.
34.If he seriously contended that his employees, on average, either earned more than $6 per bucket, or picked more than two buckets per hour, the onus was on him to lead admissible evidence to this effect. He did not do so. The fact is that the Respondent paid his employees $6 per bucket of blueberries picked, when those employees picked two buckets of blueberries per hour of work performed, on average. But even if the Respondent was paying his employees at $8 per bucket, even $16 an hour would be well below the minimum hourly entitlement of $21.08 applicable under the Award.
35.The harsh reality in this case is that the Respondent’s failure to keep records makes it impossible to calculate the precise quantum of the underpayments, and thus, to investigate the Respondent’s compliance with minimum entitlements under the Award. The record keeping was so minimalistic that it was not even possible for the Respondent, let alone the Applicant, to contact the vast majority of the employees in question.
36.The Court also accepts the Applicant’s submission that the Respondent’s conduct has caused a loss to the statutory objectives of the Act, as a result of failing to keep records. This was discussed by His Honour Federal Magistrate Lucev (as he then was) in Fair Work Ombudsman v Orwill Pty Limited & Ors [2011] FMCA 730 at 21:
The consequences of contravening conduct may include loss of, or damage to, the relevant statutory objective. That is, “conduct … [which] undermines the utility and effectiveness of a fundamental object” [Secretary, Department of Health and Ageing v Pagasa Australia Pty Ltd [2008] FCA 1545 at para.56 per Flick J (“Pagasa”)] of, in this case, the WR Act and WR Regulations. In this case, the failure to make and maintain various records and to issue payslips undermines the utility and effectiveness of the purpose of Part 19 of the WR Regulations which provides for “the inspection of records by workplace inspectors”. [WR Regulations, Ch.2, reg.19.1] The statutory purpose of the WR Regulations ties in with the purposes for which the powers of workplace inspectors can be exercised under s.169 of the WR Act, those purposes including determination of whether various industrial instruments and minimum standards and entitlements, and the requirements of the WR Act and WR Regulations themselves, are being observed. [WR Act, s.169(1)] Manifestly, failure to make and maintain records in relation to employee entitlements, undermines the utility and effectiveness of workplace inspectors, and their ability to determine whether or not there has been compliance with minimum standards and industrial instruments, and the provision of effective means for investigation and enforcement of employee entitlements. [Sterling Crown IR at 350-351 per Lucev FM; FMCA at paras.51-52 per Lucev FM] Assuming, as per the relevant banking and wages records which have been produced, that payment was to occur monthly to each of the Employees, there has also been a failure to comply with minimum standards for timely payment imposed by agreements entered into between the Employees and Orwill. The failure to pay the Employees for months at a time is a not an insignificant aggravating factor when assessing penalty.
Similar previous conduct
37.The Court accepts that the Respondent has not previously been the subject of proceedings by the Applicant or its predecessors for contraventions of workplace laws.
Size and financial circumstances of the respondent.
38.The number of employees engaged by the Respondent has already been noted.
39.The Respondent advances no evidence as to the financial circumstances of his business. He does not assert, nor was it submitted on his behalf, that the reason for the contraventions was financial difficulties. Not that this would make a difference anyway: Workplace Ombudsman v Saya Cleaning Pty Limited [2009] FMCA 38 at [27]-[28].
Deliberateness of the breaches
40.There is no evidence to suggest that the contraventions were deliberate. The Respondent’s case was certainly conducted on the basis that it was inadvertent. His evidence was not tested, nor is the Court suggesting that in the circumstances of a case such as this, it should be. What is objectively known is that he completed year 12 in Australia, has been engaged in farming for over a decade, and appeared to understand that his employees were covered by an Award of some sort. The Court cannot find that the Respondent was aware of the Applicant’s Harvest Trail campaign. There is no suggestion that the Respondent has limited oral and written English skills.
41.Whatever the Respondent knew, the fact is he should have known far more than he actually knew. His culpability cannot be either obviated, or mitigated, by ignorance of the law, particularly in the circumstances of a case where his employees are vulnerable, and palpably so. The Court accepts, however, that he operated a relatively unsophisticated fruit growing and picking business, and had no formal knowledge, experience or training in workplace relations, and did not have a formal system in place in relation to human resources or payroll. The Court finds that he was inattentive to his statutory obligation.
Involvement of senior management
42.The Respondent is the owner and operator of the business and has been for almost a decade. He was personally responsible for the management and supervision of the farm.
Rectification
43.This is clearly relevant to mitigation of penalty. The Respondent has taken corrective action which signals to the Court a commitment to compliance in the future. This is a positive development which operates in the Respondent’s favour. It does not negate the compulsion on the Court to impose a penalty, but certainly mitigates the quantum of that penalty. As the Applicant submitted, however, the Respondent’s capacity to mitigate the losses he has created is in fact greatly reduced because of the appalling state of his record keeping, i.e. not even he could find the vast majority of the workers employed during the relevant period, and whose entitlements have been denied. This is a contra-mitigating fact.
Cooperation and early admissions
44.It is common ground that the Respondent’s cooperation throughout the investigation and in these proceedings works as a mitigating factor in his favour. The submissions made on his behalf signal to the Court a meaningful expression of regret. Of course, the very situation that he has created – the absence of any meaningful records – makes it impossible for him to communicate with any of the affected employees with regards to an apology or restitution.
Ensuring compliance with minimum standards
45.One of the objects in the Act, set out in s.3(b), is the maintenance of a (fair, relevant and enforceable) safety net. Record keeping is a critical tool in assessing compliance with workplace laws: Fair Work Ombudsman v Bound for Glory Enterprises & Anor [2014] FCCA 432 at [76].
46.Indeed, the Court accepts the Applicant’s submissions that proper record keeping is the bedrock of compliance with the Act and the minimum standards under a modern Award. The importance of record keeping provision and payslips is self-evident. Nor should the requirement to enter in a written piecework agreement be regarded as merely an administrative exercise.
The need for specific and general deterrence
47.The Applicant’s submissions in this regard are found at paragraphs 93-101 of its submissions:
The need for specific and general deterrence
93. The primacy of deterrence in the determination of penalty was emphasised by French CJ (as he then was) in Re Trade Practices Commission v CSR Ltd (1991) 13 ATPR 41−076 at [40],[ See also: Pangaea at [26] — [59] and Ponzio v B & P Caelli Constrictions Pty Ltd [2007] FCAFC 65 at [93]] in which he stated:
The principal, and I think probably the only, object of the penalties imposed by s.76 is to attempt to put a price on contravention that is sufficiently high to deter repetition by the contravenor and by others who might be tempted to contravene the Act.
Specific deterrence
94. It is important that the penalty imposed on Mr Dosanjh is proportionate to the conduct, and appropriate to deter Mr Dosanjh from engaging in similar contraventions in the future. As stated in Ponzio v B & P Caelli Constructions Pty Ltd (2007) 158 FCR 543:
[93] There are three purposes at least for imposing a penalty: punishment; deterrence; and rehabilitation. The punishment must be proportionate to the offence and in accordance with the prevailing standards of punishment: R v Hunter (1984) 36 SARC 101 at 103. Therefore the circumstances of the offence or contravention are especially important. The penalty must recognise the need for deterrence, both personal and general. In regard to personal deterrence, an assessment must be made of the risk of re−offending.
95. There is evidence that Mr Dosanjh is taking active steps to comply with his record keeping obligations. Specific deterrence remains a relevant component in the determination of penalties as Mr Dosanjh remains the employer and operator of the Farm. [SOAF [6(C)]]. The need for specific deterrence is required to deter Mr Dosanjh from engaging in future similar conduct and counter any misconception he may have that:
(a) contraventions do not attract a penalty; or
(b) he can risk the penalty in the knowledge he will be able to “buy [his] way out”. [Sharpe v Dogma Enterprises Pty Ltd [2007] FCA 1550 at [15]]
General deterrence
96. The Applicant submits that the need for general deterrence is a key factor warranting the imposition of a penalty in this proceeding.
97. 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 likeminded 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.
98. Mr Dosanjh's contraventions of the FW Act occurred in the horticulture industry where employees often hold temporary visas and by their nature, as set out at paragraphs 44 to 50 above, can be described as vulnerable.
99. The prevalence of noncompliance with the FW Act by employers in the horticultural sector is the reason the FWO instigated the Harvest Trail Campaign. As reported by the applicant in the media report dated 15 October 2013: “Over the past two years about 230 complaints in the fruit picking sector were investigated and $80,000 was recovered for 107 workers. Approximately one third were visa holders — mostly working holiday makings.”[Exhibit “JNT−1” at Tab 14, page 92] The auditing and compliance function side of the Harvest Trail campaign, including the current proceeding, is a vital element to the promotion of compliance with the FW Act.[Exhibit “JNT−1” at Tab 17]
100. The applicant submits that a penalty should be imposed on a meaningful level so as to deter other employers from committing similar contraventions, especially in the horticultural sector and the geographical area to Mr Dosanjh's Farm. There is a need to send a message to the community, and particularly to employers, that employers must provide their employees with the correct entitlements, and steps should be taken to understand and comply with those entitlements.
Totality
101. The applicant accepts that the Court may find that the totality principle is relevant when determining the appropriate level of penalties to be set in this case.[Carr v CEPU & Anor [2007] FMCA 1526 at [34]]
48.The Court accepts these submissions. The Court accepts there is a need to send a message to the community, and particularly to employers, that employers must provide their employees with the current entitlements, and steps should be taken to understand and comply with those entitlements. The Court also accepts, however, that having fixed an appropriate penalty for each course of conduct, the Court should take a final look at the aggregate penalty, to determine whether it is an appropriate response to the conduct which led to the breaches, and is not oppressive or crushing: Kelly v Fitzpatrick [2007] FCA 1080 at [30].
Conclusion
49.For the most part the Court has accepted the submissions made on behalf of the Applicant with regards to assessment of penalties. Having regard to the matters discussed above, the Court believes that the penalty range proposed on behalf of the Respondent is manifestly low. The matters averted to, however, do point to a penalty at the lower end of the proposed penalty range, i.e. 75 per cent. The Court is satisfied that a total penalty of $13,005 is appropriate in the circumstances of the case. There seems no reason to depart from the calculation of the penalties for the individual breaches proposed by the Applicant. The Court will make the orders sought by the Applicant based on 75 per cent of the maximum penalty.
I certify that the preceding forty-nine (49) paragraphs are a true copy of the reasons for judgment of Judge Altobelli
Associate:
Date: 18 May 2016
Schedule One
Statement of Agreed Facts, filed 14 August 2016
1.This Statement of Agreed Facts is an agreed document of the Applicant and Respondent for the purposes of section 191 of the Evidence Act 1995 (Cth).
2.This document is submitted to the Court for the purposes of determining liability in these proceedings and any penalties to be ordered against the Respondent in respect of the contraventions referred to below.
THE INVESTIGATION
3.The Applicant has undertaken a three year campaign in the horticulture industry known as "Harvest Trail". This campaign has aimed to increase education and compliance in the horticultural sector. In or around early November 2014, Fair Work Inspectors attended the Respondent's blueberry farm as part of the Harvest Trail campaign and undertook a spot check of its compliance with the Fair Work Act 2009 (Cth) (FW Act). This subsequently led to the Applicant's investigation of the Respondent's compliance with the FW Act.
COMMENCEMENT OF PROCEEDINGS
4.On 15 May 2015, the Applicant filed an application and statement of claim in this Court against the Respondent in respect of contraventions of the FW Act relating to record keeping provisions, failing to make a piecework agreement and failing to issue pay slips.
THE ADMITTED FACTS
The Applicant
5.The Applicant has standing and authority to bring these proceedings and to pursue declarations and orders in respect of the Respondent's contraventions.
The Respondent
6.The Respondent is and was at all material times:
a.a natural person capable of being sued;
b.one of two trustees for the Singh Dosanjh Family Trust (ABN 46 292 187 875);
c.an owner and operator of a blueberry farm business (the Business) located at Lot 32, Morgans Road, Sandy Beach in the mid−north coast region of New South Wales (the Farm); and
d.a "national system employer" by virtue of the extended definition contained in s 30N(1)(a) of the FW Act.
The Employees
7.The Respondent employed 60 employees (the Employees) during the period from 29 January 2014 to 14 November 2014 (Relevant Period), with approximately 30 employees employed by the Respondent at any given time.
8.The Employees:
a.were employed on a casual basis as farm labourers;
b.performed the duties of picking blueberries at the Farm;
c.were paid an informal piecerate for each bucket of blueberries picked;
d.picked 2 buckets of blueberries per hour of work performed, on average;
e.fell within the classification of Level 1 Employee under the Horticulture Award 2010 MA000028 (Modern Award);
f.were only known to the Respondent and identified by him by their first names;
g.were paid in cash for work performed; and
h.were, in most cases, working in Australia under Working Holiday visas (subclass 417).
9.During the Relevant Period, the only employee records kept by the Employer was a diary containing the first names of the Employees and corresponding tallies indicating the number of buckets of blueberries picked by each Employee.
The FW Act and Modern Award
10.The Respondent was covered by the FW Act and was bound by the FW Act in respect of the Employees.
11.The Respondent was bound by the Modern Award in respect of the employment of the Employees.
ADMITTED CONTRAVENTIONS
12.The Respondent admits to contravening the following provisions of the FW Act.
Section 45 of the FW Act − failure to make a piecework agreement in writing under clause 15.7 of the Modern Award
13.Pursuant to clause 15.1 of the Modern Award, casual employees are able to enter into an agreement with their employer to be paid a piecework rate.
14.Pursuant to clause 15.7 of the Modern Award, any piecework agreement between an employer and an employee is required to be in writing and signed by the employer and the employee.
15.During the Relevant Period, the Respondent paid the Employees a piecework rate for every bucket of fruit picked.
16.During the Relevant Period, there was no piecework agreement between the Respondent and any of the Employees that was in writing and signed.
17.The Respondent agrees that by reason of paragraphs 13 to 16, he:
a.contravened a term of a Modern Award, being subclause 15.7 of the Modern Award; and
b.thereby contravened section 45 of the FIN Act, which is a civil remedy provision pursuant to section 539 of the FW Act.
Subsections 535(1) and 535(2) − failure to make and keep employee records
18.Under subsection 535(1) of the FW Act, the Respondent was required to make, and keep for 7 years, employee records of the kind prescribed by the Fair Work Regulations 2009 (FW Regulations) in relation to each of the Employees.
19.Under subsection 535(2) of the FW Act, the records required to be kept under subsection 535(1) were to be in the form, and include any information, prescribed by the FW Regulations.
Regulation 3.31 Records − Form
20.At all material times, pursuant to subregulation 3.31(1)(b) of the FW Regulations, the Respondent was required to make and keep records that were in a form that was readily accessible to a Fair Work Inspector.
21.During the relevant period, the Respondent failed to make and keep records that were in the form required under subregulation 3.31(1)(b) of the FW Regulations in that:
a.The only employee records kept by the Respondent were contained in a diary kept by the Respondent for the 2014 calendar year known as a "Day Book";
b.The Day Book only contained entries of the Employees' first names and corresponding tallies which indicated the number of buckets of blueberries picked by each Employee; and
c.The entries in the Day Book were not in a form readily accessible to an inspector as they were unable to be interpreted on their face and required interpretation by the Respondent.
Regulation 3.32 Records − Content
22.At all material times, pursuant to regulation 3.32 of the FW Regulations, the Respondent was required to make and keep records that specified:
a.the employer's name (subregulation 3.32(a));
b.the Employee's name (subregulation 3.32(b));
c.whether the Employee was permanent, temporary or casual (subregulation 3.32(d)); and
d.the date on which the Employee's employment began (subregulation 3.32(e)).
23.During the Relevant Period, the Respondent did not make and keep records that specified the content required under regulation 3.32 of the FW Regulations in that:
a.The Day Book did not contain the employer's name, any of the Employees' full names, whether the Employees were permanent, temporary or casual and the dates on which their employment began.
Regulation 3,33 Records — Pay
Subregulation 3.33(1)24.At all material times, pursuant to subregulation 3.33(1) of the FW Regulations, the Respondent was required to make and keep records that specified:
a.the rate of remuneration paid to each Employee;
b.the gross and net amounts paid to each Employee; and
c.any deductions made from the gross amounts paid to each Employee.
25.During the Relevant Period, the Respondent did not make and keep records that specified the above details of payments required under subregulation 3.33(1) of the FW Regulations in that:
a.The Day Book did not contain any record of the rate of remuneration paid to each Employee, the gross and net amounts paid to each Employee, or any deductions made from the gross amounts paid to the Employees.
Subregulation 3.33(2)
26.Under subregulation 3.33(2) of the FW Regulations, the Respondent was required to make and keep a record that set out the hours worked by the Employees. During the Relevant Period, the Respondent did not make and keep records that specified the hours worked by the Employees as required under subregulation 3.33(2) of the FW Regulations.
Subregulation 3.33(3)(c)
27.At all material times, the Employees were entitled to receive casual loadings pursuant to clause 10.4(b) of the Modern Award. Pursuant to subregulation 3.33(3)(c), the Respondent was required to make and keep records that set out details of the casual loadings that the Employees were entitled to be paid.
28.In the absence of a written piecework agreement in place, the Employees were entitled to receive a minimum hourly rate of $21.08 pursuant to clauses 14.1(a) and 10.4(b) of the Modem Award. The Respondent did not make and keep records, as required under subregulation 3.33(3)(c) of the FW Regulations, that set out the details of the casual loadings that the Employees were entitled to be paid.
29.By reason of the matters set out at paragraphs 18 to 28 above, the Respondent contravened subsection 535(1) of the FW Act, which is a civil remedy provision pursuant to subsection 539(2) of the FW Act.
30.By reason of the matters set out at paragraphs 19 to 29 above, the Respondent contravened subsection 535(2) of the FW Act, which is a civil remedy provision pursuant to subsection 539(2) of the FW Act.
Subsection 536(1) − failure to provide payslips
31.Pursuant to subsection 536(1) of the FW Act, the Respondent was required to give a pay slip to each of the Employees within one working day of paying an amount to the Employee in relation to the performance of work.
32.The Respondent made cash payments to Employees in relation to the performance of work and did not give any of the Employees a pay slip within one day of paying each Employee an amount in relation to the performance of work, or at all.
33.By reason of the matters set out in paragraphs 18 to 32 above, the Respondent contravened subsection 536(1) of the FW Act, which is a civil remedy provision pursuant to section 539 of the FW Act.
IMPACT OF CONTRAVENTIONS
34.The Respondent's failure to keep employee records required under the FW Act, as set out in paragraphs 18 to 32 above, prevented the Applicant from ascertaining whether the employees were underpaid in accordance with the Modern Award, and if so, the value of each underpayment.
35.Further, due to the Respondent only keeping records of the Employees' first names in the Day Book, the 60 Employees could not be located by the Applicant.
RESPONDENT'S STEPS POST INVESTIGATION
36.The Respondent has since taken steps to rectify its non−compliance with the FW Act, including engaging a bookkeeper.
37.The Respondent has also entered into formal written agreements with its employees.
38.The Respondent has participated in the Applicant's investigation, including admitting the contraventions.
RELIEF SOUGHT
39.The parties agree to the orders set out in paragraphs 32 to 35 of the Statement of Claim.
Schedule Two
Statement of Claim, filed 15 May 2016
BACKGROUND
1.The Applicant is and was at all material times:
a) a statutory appointee of the Commonwealth appointed by the Governor-General by written instrument in accordance with s 687 of the Fair Work Act 2009 (Cth) (FW Act);
b) a Fair Work Inspector under s 701 of the FW Act; and
c) a person with standing to bring these proceedings under s 539(2) of the FW Act.
2.The Respondent is and was at all material times:
a) a natural person capable of being sued;
b) one of two trustees for the Singh Dosanjh Family Trust (ABN 46 292 187 875);
c) an owner and operator of a blueberry farm business (the Business) located at Lot 32, Morgans Road, Sandy Beach in the mid-north coast region of New South Wales (the Farm); and
d) a “national system employer” by virtue of the extended definition contained in s 30N(1)(a) of the FW Act.
THE EMPLOYEES
3.The Respondent was at all material times, the employer of 60 employees (Employees) during the period from 29 January 2014 to 14 November 2014 (Relevant Period).
4.During the Relevant Period, the Employees:
a) were employed on a casual basis as farm labourers;
PARTICULARS
A. The Employees did not have ongoing employment with the Respondent;
B. The Employees worked irregular hours and had no guaranteed hours of work.
b) primarily performed the duties of picking blueberries at the Farm;
c) were paid an informal piece rate of $6.00 for each bucket of blueberries picked;
d) picked 2 buckets of blueberries per hour of work performed, on average;
e) fell within the classification of Level 1 Employee under the Horticulture Award 2010 MA000028 (Modern Award);
f) were only known to the Respondent and identified by him by their first names as set out in Annexure A;
g) were paid in cash for work performed;
h) were, in most cases, working in Australia under Working Holiday visas (subclass 417); and
i) were, in most cases, undertaking a period of work in the harvesting industry in order to qualify for a second Working Holiday visa.
5.During the Relevant Period, the only employee records kept by the Employer was a diary containing the first names of the Employees and corresponding tallies indicating the number of buckets of blueberries picked by each Employee.
THE FW ACT
6.At all relevant times, the Respondent was covered by the FW Act and was bound by the FW Act in respect of the Employees.
THE MODERN AWARD
7.The Respondent was at all times bound by the Modern Award in respect of the employment of the Employees.
PARTICULARS
A. Pursuant to subsection 49(2) of the FW Act and clause 2.1 of the Modern Award , the Modern Award commenced operation on 1 January 2010.
B. Pursuant to subsections 47(1) and 48(1) of the FW Act, a modern award applies to an employer if the award is expressed to cover the employer, the modern award is in operation and no other provision of the FW Act applies so that the modern award does not apply to the employer.
C. Under clause 4.1 of the Modern Award, the Modern Award covers employers throughout Australia in the horticulture industry and their employees in the classifications listed in Schedule B, to the exclusion of any other modern award.
D. The “horticulture industry” is defined in clause 4.2(a) of the Modern Award to include “agricultural holdings, flower or vegetable market gardens in connection with the sowing, planting, raising, cultivation, harvesting, picking, packing, storing, grading, forwarding or treating of horticultural crops, including fruit and vegetables upon farms, orchards and/or plantations”.
E. By reason of the matters pleaded above at paragraph 4 above, the types of duties performed by the Employees are within the scope of the classification of a Level 1 Employee as set out in clause B.1 of Schedule B to the Modern Award.
ALLEGED CONTRAVENTIONS
Section 45 of the FW Act - failure to make a piecework arrangement in writing under clause 15.7 of the Modern Award
8.Pursuant to clause 15.1 of the Modern Award, casual employees are able to enter into an agreement with their employer to be paid a piecework rate.
9.Pursuant to clause 15.7 of the Modern Award, any piecework agreement between an employer and an employee is required to be in writing and signed by the employer and the employee.
10.During the Relevant Period, the Respondent paid the Employees a piecework rate of $6.00 for every bucket of fruit picked.
11.During the Relevant Period, there was no piecework agreement between the Respondent and any of the Employees that was in writing and signed.
12.By reason of the matters pleaded in paragraphs 10 and 11 above, the Respondent:
a) contravened a term of a Modern Award, being subclause 15.7 of the Modern Award; and
b) thereby contravened section 45 of the FW Act, which is a civil remedy provision pursuant to section 539 of the FW Act.
Sections 535(1) and 535(2) - failure to make and keep employee records
13.Pursuant to subsection 535(1) of the FW Act, at all relevant times the Respondent was required to make, and keep for 7 years, employee records of the kind prescribed by the Fair Work Regulations 2009 (FW Regulations) in relation to each of the Employees.
14.Pursuant to subsection 535(2) of the FW Act, the records required to be kept under subsection 535(1) were to be in the form, and include any information, prescribed by the FW Regulations.
Regulation 3.31 Records - Form
15.At all material times, pursuant to regulation 3.31(1)(b) of the FW Regulations, the Respondent was required to make and keep records that were in a form that was readily accessible to a Fair Work Inspector.
16.During the relevant period, the Respondent failed to make and keep records that were in the form required under regulation 3.31(1)(b) of the FW Regulations.
PARTICULARS
A.The Applicant served a Notice to Produce Records or Documents upon the Respondent on 17 November 2014, pursuant to section 712 of the FW Act;
B.The only employee records kept by the Respondent were contained in a diary kept by the Respondent for the 2014 calendar year known as a “Day Book”;
C.The Day Book only contained entries of the Employees’ first names and corresponding tallies which indicated the number of buckets of blueberries picked by each Employee; and
D.The entries in the Day Book were not in a form readily accessible to an inspector as they were unable to be interpreted on their face and required interpretation by the Respondent.
Regulation 3.32 Records - Content
17.At all material times, pursuant to regulation 3.32 of the FW Regulations, the Respondent was required to make and keep records that specified:
a)the employer’s name (subregulation 3.32(a));
b)the Employee’s name (subregulation 3.32(b));
c) whether the Employee was permanent, temporary or casual (subregulation 3.32(d)); and
d) the date on which the Employee’s employment began (subregulation 3.32(e)).
18.During the Relevant Period, the Respondent did not make and keep records that specified the content required under regulation 3.32 of the FW Regulations.
PARTICULARS
A.The Applicant repeats particulars A to C to paragraph 16 above.
B.The Day Book did not contain the employer’s name, any of the Employees’ full names, whether the Employees were permanent, temporary or casual and the dates on which their employment began.
Regulation 3.33 Records - Pay
19.At all material times, pursuant to regulation 3.33(1) of the FW Regulations, the Respondent was required to make and keep records that specified:
a)the rate of remuneration paid to each Employee;
b)the gross and net amounts paid to each Employee; and
c)any deductions made from the gross amounts paid to each Employee.
20.During the Relevant Period, the Respondent did not make and keep records that specified the above details of payments required under regulation 3.33(1) of the FW Regulations.
PARTICULARS
A.The Applicant repeats the particulars A to C to paragraph 16 above.
B.The Day Book did not contain any record of the rate of remuneration paid to each Employee, the gross and net amounts paid to each Employee, or any deductions made from the gross amounts paid to the Employees.
21.At all material times, pursuant to regulation 3.33(2) of the FW Regulations, the Respondent was required to make and keep a record that set out the hours worked by the Employees.
PARTICULARS
A.The Applicant repeats paragraph 4(a) above.
B.In the absence of a written piecework agreement in place, the Employees were entited to receive a minimum hourly rate of $21.08 pursuant to clauses 14.1(a) and 10.4(b) of the Modern Award.
22.During the Relevant Period, the Respondent did not make and keep records that specified the hours worked by the Employees as required under regulation 3.33(2) of the FW Regulations.
PARTICULARS
A.The Applicant repeats the particulars A to C to paragraph 16 above.
B.The Day Book did not set out the hours worked by the Employees.
23.At all material times, the Employees were entitled to receive casual loadings.
PARTICULARS
A.The Applicant repeats the particulars to paragraph 21 above.
B.As casual employees, the Employees were entitled to receive a casual loading in addition to their hourly rate pursuant to clause 10.4(b) of the Modern Award.
24.At all material times, pursuant to subregulation 3.33(3)(c), the Respondent was required to make and keep records that set out details of the casual loadings that the Employees were entitled to be paid.
PARTICULARS
A.The Applicant repeats the particulars to paragraph 23 above.
25.During the Relevant Period, the Respondent did not make and keep records, as required under subregulation 3.33(3)(c) of the FW Regulations, that set out the details of the casual loadings that the Employees were entitled to be paid.
PARTICULARS
A.The Applicant repeats the particulars A to C to paragraph 16 above.
B.The Day Book did not set out the details of the casual loadings that the Employees were entitled to be paid.
26.By reason of the matters pleaded at paragraphs 15 to 25 above, the Respondent contravened subsection 535(1) of the FW Act, which is a civil remedy provision pursuant to subsection 539(2) of the FW Act.
27.By reason of the matters pleaded at paragraphs 15 to 25 above, the Respondent contravened subsection 535(2) of the FW Act, which is a civil remedy provision pursuant to subsection 539(2) of the FW Act.
Section 536(1) - failure to provide payslips
28.At all material times, pursuant to subsection 536(1) of the FW Act, the Respondent was required to give a pay slip to each of the Employees within one working day of paying an amount to the Employee in relation to the performance of work.
29.During the Relevant Period, the Respondent made cash payments to Employees in relation to the performance of work.
30.At all material times during the Relevant Period, the Respondent did not give any of the Employees a pay slip within one day of paying each Employee an amount in relation to the performance of work, or at all.
31.By reason of the matters pleaded in paragraphs 28 to 30 above, the Respondent contravened subsection 536(1) of the FW Act, which is a civil remedy provision pursuant to section 539 of the FW Act.
ORDERS SOUGHT
The Applicant seeks:
32.Declarations that the Respondent contravened the following civil remedy provisions:
a) section 45 of the FW Act by failing to make a piecework agreement that was in writing and signed as required under clause 15.7 of the Modern Award for each of the 60 Employees;
b) subsection 535(1) of the FW Act by failing to make and keep for 7 years employee records of the kind prescribed by the FW Regulations;
c) subsection 535(2) of the FW Act by failing to make and keep records for the Employees in the form and containing the required content prescribed in the FW Regulations; and
d) subsection 536(1) of the FW Act by failing to give any of the Employees a pay slip within one working day of paying an amount to that Employee in relation to the performance of work.
33.Orders that the Respondent pay penalties pursuant to subsection 546(1) of the FW Act for the contraventions set out in paragraph 32 above.
34.Orders pursuant to subsection 546(3) of the FW Act requiring the Respondent to pay his penalty amounts to the Commonwealth.
35.Such further or other orders as the Court deems fit.
ANNEXURE A
LIST OF FIRST NAMES OF EMPLOYEES TAKEN FROM “DAY BOOK”
1. Aimee 44. Nath 2. Aisling 45. Paul 3. Amy 46. Pieter 4. Andi 47. Rob 5. Anna 48. Sam 6. Barny 49. Shelby 7. Barri 50. Shiro 8. Ben 51. Sky 9. Carly 52. Sophie 10. Cathy 53. Steve 11. Chiriro 54. Stuart 12. Chris 55. Sullivan 13. Consuelo 56. Tanya 14. Danielle 57. Tim 15. Davide 58. Tina 16. Debbie 59. Tom 17. Elena 60. Will 18. Emma 19. Emilia 20. Hannah 21. Harry 22. Helene 23. Helle 24. Gabby 25. James 26. Janna 27. Jodie 28. Jordi 29. Josh 30. Julie 31. Justine 32. Katie 33. Laura 34. Leah 35. Lisa 36. Lucas 37. Lucy 38. Lucy (2) 39. Mark 40. Matt 41. Matthew 42. Nath 43. Nicole Response, 3 July 2016
Further orders sought by respondent
1.That the Court discount or moderate any penalties imposed on the Respondent upon the grounds listed below.
Grounds of opposition or further orders
1.The Respondent is a private individual operating an unsophisticated fruit growing/picking business, and has very limited experience in the areas of workplace relations, payroll administration, and human resources.
2.The contraventions which are the subject of these proceedings ('the Contraventions') are limited to administrative requirements imposed upon employers by the Fair Work Act 2009 and the Fair Work Regulations 2009, and do not involve any underpayment of wages to the employees of the business.
3.After receiving initial notice of the Contraventions from the Applicant on or around 13 January 2015, the Respondent took immediate corrective action to address the conditions giving rise to the Contraventions, including (but not limited to) engaging a bookkeeper and implementing an electronic payroll system.
4.As a consequence of the Respondent's immediate steps to address the conditions giving rise to the Contraventions, no further contraventions are likely to arise.
5.The Respondent has made full admissions to the Contraventions as early as possible, and intends to fully cooperate with the Applicant in this proceeding.
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28
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