Fair Work Ombudsman v Gogikar
[2025] FedCFamC2G 1294
•14 August 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Fair Work Ombudsman v Gogikar [2025] FedCFamC2G 1294
File number(s): BRG 545 of 2024 Judgment of: JUDGE EGAN Date of judgment: 14 August 2025 Catchwords: INDUSTRIAL LAW – Application for the imposition of pecuniary penalties – where complaints made by employees themselves involved in deceptive practices after falling out with respondent – where orders made accordingly. Legislation: Fair Work Act (2009) (Cth), s. 535(1), 535(4), 536(1), s. 557, s. 718A Cases cited: Fair Work Ombudsman v Equine Robinson Pty Ltd [2023] FedCFamC2G 159
Kelly v Fitzpatrick [2007] FCA 1080
Division: Division 2 General Federal Law Number of paragraphs: 15 Date of hearing: 11 August 2025 Place: Brisbane Solicitor for the Applicant: Mr B. McCauliffe, Fair Work Ombudsman Counsel for the Respondent: The Respondent, on his own behalf ORDERS
BRG 545 of 2024 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: FAIR WORK OMBUDSMAN
Applicant
AND: NAVANEETH GOGIKAR
Respondent
ORDER MADE BY:
JUDGE EGAN
DATE OF ORDER:
14 AUGUST 2025
THE COURT ORDERS THAT:
1.Pursuant to the provisions of s. 546(1) of the Fair Work Act 2009 (Cth), the respondent pay a pecuniary penalty in the amount of $15,984.00 to the Commonwealth of Australia Consolidated Revenue Fund on or before 4pm on 14 November 2025 by reason of his contravention of the provisions of ss. 535(1), 535(4), 536(1) and 718A(1) of the Fair Work Act (2009) (Cth).
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE EGAN
On 2 September 2024, the applicant commenced proceedings against the respondent. In its Statement of Claim filed on the same date, the applicant sought the following relief:
Declarations
54. Pursuant to section 141 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) or section 545 of the FW Act, that Mr Gogikar contravened the following provisions of the FW Act during the Contravention Period:
(a)section 535(1) of the FW Act in failing to make and keep records of the type required by regulation 3.33(1) of the FW Regulations;
(b)section 535(1) of the FW Act in failing to make and keep records of the type required by regulation 3.33(2) of the FW Regulations;
(c)section 535(4) of the FW Act in making and keeping an employee record that he knew was false or misleading;
(d)section 536(1) of the FW Act in failing to give the Employees a pay slip within one working day of paying amounts to the Employees in relation to the performance of work; and
(e)section 718A(1) of the FW Act in knowingly giving false or misleading information or a document to a FWI who was exercising or performing functions under or in connection with the law of the Commonwealth. Pecuniary penalties.
Pecuniary penalties
55.Orders that Mr Gogikar pay penalties pursuant to section 546(1) of the FW Act for the contraventions declared in paragraph 54 above.
56.Orders pursuant to section 546(3)(a) of the FW Act that all penalties imposed on Mr Gogikar be paid to the Consolidated Revenue Fund of the Commonwealth within 28 days of the date of the Court’s orders.
On 1 May 2025, a Statement of Agreed Facts (SOAF) signed by each of the parties was filed in the Court Registry. The SOAF was as follows:
STATEMENT OF AGREED FACTS
This Statement of Agreed Facts is made by the Applicant and the Respondent for the purposes of section 191 of theEvidence Act 1995(Cth).
A.PARTIES
1.The Applicant, the Fair Work Ombudsman (FWO), is and was at all relevant times:
(a)a statutory appointee of the Commonwealth appointed by the Governor-General
by written instrument pursuant to section 687(1) of theFair Work Act 2009(Cth) (FW Act);
(b)a Fair Work Inspector (FWI) pursuant to section 701 of the FW Act; and
(c)a person with standing to bring these proceedings and to apply for orders for contraventions of civil remedy provisions pursuant to section 539(2) of the FW Act.
The Respondent
2. The Respondent, Mr Navaneeth Gogikar (Mr Gogikar), at all relevant times:
(a) is a natural person capable of being sued;
(b) is the holder of the Australian Business Number 24 219 397 175;
(c)was a sole trader carrying on a business as a fuel outlet trading under the United Petroleum brand at 22 Gowan Road, Sunnybank Hills, Queensland 4109 (Business);
(d)was a person responsible for ensuring that the Business complied with its legal obligations under the FW Act;
(e)was a “national system employer” within the extended meaning pursuant to section 30N(1) of the FW Act; and
(f) employed persons to work at the Business.
B. THE EMPLOYEES
The Employees
3. During the period from 2 September 2019 to 14 February 2021 (Contravention Period), Mr Gogikar employed the following individuals to work at the Business:
(a) Mr Pranavanshu Reddy Mauram (Mr Mauram), who was employed from 19 August 2019 to 14 February 2021;
(b) Mr Krishna Sumedh Panakanti (Mr Panakanti), who was employed from 22 August 2019 to 28 January 2021; and
(c) Ms Chinmai Talasani (Ms Talasani), who was employed from 2 September 2019 to 28 June 2020. (together, the Employees).
4. At all relevant times during the Contravention Period, each of the Employees was:
(a) a visa holder pursuant to a subclass 500 student visa;
(b) employed as a Console Operator and performed duties consistent with that role, including:
(i) providing customer service functions;
(ii) operating the console;
(iii) monitoring the fuel forecourt;
(iv) receiving deliveries;
(v) handling stock and sales at the console; and
(c) employed by Mr Gogikar on a casual basis.
5. At all relevant times during the Contravention Period, each of the Employees was a “national system employee” within the meaning of section 13 of the FW Act.
6. Mr Gogikar paid the Employees on an irregular basis for the performance of work.
C. LEGISLATION AND APPLICABLE MODERN AWARD
Application of the FW Act
7. At all relevant times during the Contravention Period, by reason of the facts set out at paragraph 2 above, the FW Act and the Fair Work Regulations 2009 (Cth) (FW Regulations) applied to Mr Gogikar in respect of his employment of the Employees.
D. PRODUCTION OF RECORDS OR DOCUMENTS
Investigation
8. At all relevant times, FWI Yoomin Lee was a FWI duly appointed under section 700 of the FW Act (FWI Lee) and exercising powers or performing functions under the FW Act.
9. At all relevant times, FWI Elizabeth McKendry was a FWI duly appointed under section 700 of the FWI Act (FWI McKendry) and exercising powers or performing functions under the FW Act.
10. In or around March 2021, the Applicant commenced an investigation into Mr Gogikar’s compliance with the FW Act (Investigation). Records Produced by Mr Mauram
11. On 22 April 2021, in the course of the Investigation, FWI McKendry sent an email to Mr Mauram asking him to provide information regarding his employment by Mr Gogikar including but not limited to copies of time sheets, rosters, pay slips or communications between Mr Mauram and Mr Gogikar.
12. On 9 May 2021, in response to the email from FWI McKendry, Mr Mauram provided the Applicant with copies of the following documents relevant to the Investigation:
(a) photographs of weekly rosters sent to Mr Mauram by Mr Gogikar via the messaging platform WhatsApp; and
(b) screenshots of communications between Mr Mauram and Mr Gogikar via WhatsApp between 12 October 2019 and 22 February 2021, whereby Mr Mauram would inform Mr Gogikar on an irregular basis about:
(i) the days on which he performed work in recent weeks;
(ii) how many hours he worked each day; and
(iii) the total number of hours he had worked for Mr Gogikar across September 2019 to January 2021, as summarised in Annexure A.
(the Mauram WhatsApp Records).
Records Produced by Mr Gogikar
13. On 10 August 2021, in the course of the Investigation, FWI Lee issued Mr Gogikar with a Notice to Produce Records or Documents pursuant to section 712 of the FW Act (NTP).
14. The NTP required Mr Gogikar to produce any records and documents from the Contravention Period in respect of the Employees which recorded, among other things, rates of pay, details of pay periods and rates paid, gross amounts and net amounts paid each pay period, and rosters and timesheets. The NTP stipulated a compliance date of 7 September 2021 (NTP Compliance Date).
15. The NTP included a warning, pursuant to subsections 718A(5) and 718A(6) of the FW Act, that Mr Gogikar may be liable to a civil remedy for giving false or misleading information or producing false or misleading documents.
16. After the NTP Compliance Date, on 20 September 2021 and 19 November 2021, Mr Gogikar produced documents to FWI Lee via email (the Produced Records).
17. Mr Gogikar did not produce any further records or documents in respect of the NTP to FWI Lee.
Accurate Records
18. The Produced Records included copies of ANZ Bank records of the Business for the period 19 July 2019 to 20 January 2021, which showed payments to “Chinmai” (Ms Talasani), “Sumedh” (Mr Panakanti), and “Pranav” and “Mauram” (both Mr Mauram)
(ANZ Bank Records).
19. The payments made to Mr Mauram by EFT during the period 19 July 2019 to 20 January 2021 as recorded in the ANZ Bank Records are set out in Annexure B.
False or Misleading Records
20. The Produced Records included copies of 64 pay slips, including one duplicate, purportedly relating to each week of Mr Mauram’s employment during the period 19 November 2019 to 1 February 2021 (together, the Mauram Pay Slips).
21. The Mauram Pay Slips were recorded by Mr Gogikar and purported to record the hours worked by Mr Mauram and the wages and superannuation paid to him for those pay periods.
22. The Mauram Pay Slips purported to record:
(a) that Mr Mauram was paid an hourly rate of $21.54;
(b) in respect of 62 of the Mauram Pay Slips (including a duplicate), that Mr Mauram worked 16 hours each week and received a net pay of $344.64 in respect of each of those pay periods; and
(c) in respect of two of the Mauram Pay Slips (being the pay slip for period 25 February 2020 to 2 March 2020 and the pay slip for period 10 March 2020 to 16 March 2020), that Mr Mauram worked 15 hours each for those weeks and received a net pay of $323.10 in respect of each of those pay periods.
23. Details of the pay periods, dates of payment, hours of work, and weekly payment, recorded in each of the Mauram Pay Slips are set out in Annexure C.
24. The Mauram Pay Slips recorded that Mr Mauram:
(a) worked a different number of total hours in each weekly pay period to those reported by Mr Mauram to Mr Gogikar within the Mauram WhatsApp Records;
(b) was paid an hourly rate of pay that was different to the actual hourly rate of pay he received as recorded in the ANZ Bank Records; and
(c) was paid different gross and net amounts to those he actually received as recorded in the ANZ Bank Records.
Absent Records
25. The Produced Records did not include any documents which recorded:
(a) the hours worked;
(b) the rate of remuneration paid;
(c) the gross and net amount paid; and
(d) any deductions made from the gross amount paid, with respect to Ms Talasani and Mr Panakanti.
26. The Produced Records did not include any pay slips for Ms Talasani or Mr Panakanti.
E. FALSE OR MISLEADING RECORD CONTRAVENTIONS
Knowingly making and keeping a record that is false or misleading
27. Pursuant to section 535(1) of the FW Act, at all relevant times, Mr Gogikar was required to make, and keep for seven years, employee records of the kind prescribed by the FW Regulations in relation to each of the Employees.
28. Pursuant to regulation 3.33(1) of the FW Regulations, Mr Gogikar was required to make and keep a record of:
(a) the rate of remuneration paid to the Employees;
(b) the gross and net amount paid to each of the Employees; and
(c) any deductions made from the gross amount paid to each of the Employees.
29. Pursuant to regulation 3.33(2) of the FW Regulations, Mr Gogikar was required to make and keep a record of the hours worked by each of the Employees.
30. Pursuant to section 535(4) of the FW Act, Mr Gogikar was prohibited from making or keeping an employee record of the type he was required to make or keep under the FW Act or FW Regulations where he knew that employee record was false or misleading.
31. By reason of the facts set out at paragraphs 4(c), 6, and 27 to 29 above, the Mauram Pay Slips were records of the kind required to be made or kept for the purposes of section 535(1), in that they purported to record the rate of remuneration and gross and net amounts paid to Mr Mauram as required by regulation 3.33(1) of the FW Regulations, and Mr Mauram’s hours of work as required by regulation 3.33(2) of the FW Regulations.
32. The Mauram Pay Slips were false or misleading as:
(a) the hours recorded in the Mauram Pay Slips as being worked by Mr Mauram were not the actual hours worked by Mr Mauram. The actual hours worked by Mr Mauram are set out in Annexure A;
(b) the hourly rate of pay for Mr Mauram as recorded in the Mauram Pay Slips was not the actual hourly rate paid to Mr Mauram; and
(c) the weekly amounts paid to Mr Mauram as recorded in the Mauram Pay Slips were not the actual amounts paid to Mr Mauram. The actual amounts paid to Mr Mauram are set out in Annexure B.
33. At all relevant times, Mr Gogikar knew that the Mauram Pay Slips were false or misleading in a material particular because he:
(a) liaised with Mr Mauram in relation to his availability to work;
(b) was responsible for setting rosters;
(c) knew the actual hours worked by Mr Mauram;
(d) knew the hourly rates and amounts actually paid to Mr Mauram;
(e) created the Mauram Pay Slips; and
(f) knew the content of the Mauram Pay Slips, which he provided to FWI Lee.
34. By reason of the facts set out at paragraphs 27 to 33, Mr Gogikar contravened section 535(4) of the FW Act by knowingly making and keeping false or misleading records for Mr Mauram, being the Mauram Pay Slips.
Knowingly giving a false or misleading document to a FWI
35. At all relevant times, Mr Gogikar was prohibited by section 718A(1) of the FW Act from knowingly or recklessly giving false or misleading information, or producing a document that is false or misleading, to a FWI who was exercising or performing functions under or in connection with a law of the Commonwealth.
36. At all relevant times, FWI Lee was exercising her powers and functions under the FW Act by:
(a) issuing the NTP to Mr Gogikar during the Investigation; and
(b) receiving the Mauram Pay Slips from Mr Gogikar in connection with the NTP.
37. The Mauram Pay Slips were false or misleading for the reasons set out in paragraph 32 above.
38. Mr Gogikar knew that the Mauram Pay Slips were false or misleading for the reasons set out in paragraph 33 above.
39. The Applicant took reasonable steps to inform Mr Gogikar that he may be liable for a civil remedy under the FW Act for producing false or misleading documents, including providing the following warning to Mr Gogikar in the NTP: “You may be liable to a civil remedy under the [FW] Act for giving false or misleading information or producing false or misleading documents. It is also a serious offence under the Criminal Code (Cth)”.
40. When Mr Gogikar produced the Mauram Pay Slips to FWI Lee, the production was not accompanied by any written statement stating that the records were false or misleading in a material particular or explaining why they were false or misleading pursuant to section 718A(4) of the FW Act.
41.By reason of the facts set out at paragraphs 35 to 40 above, Mr Gogikar contravened section 718A(1) of the FW Act by producing the Mauram Pay Slips to FWI Lee in response to the NTP, knowing that those documents were false or misleading.
F. FURTHER RECORD KEEPING AND PAY SLIP CONTRAVENTIONS
Failure to make and keep records (pay records)
42. At all relevant times, Mr Gogikar was required by section 535(1) of the FW Act to make, and keep for seven years, employee records of the kind prescribed by the FW Regulations in relation to the Employees.
43. Pursuant to regulation 3.33(1) of the FW Regulations, Mr Gogikar was required to make and keep a record of:
(a) the rate of remuneration paid to the Employees;
(b) the gross and net amounts paid to each of the Employees; and
(c) any deductions made from the gross amount paid to each of the Employees.
44. Notwithstanding that the NTP required the production of records of the kind described in paragraphs 42 and 43, Mr Gogikar did not produce any such records to the Applicant.
45. During the Contravention Period, Mr Gogikar failed to keep the kind of record required by FW Regulation 3.33(1) in relation to each of the Employees. The Mauram Pay Slips were purported to be records of the kind described at paragraph 43 above, but by reason of the facts set out at paragraphs 21 to 24, 32 and 33 above, they were false and misleading and did not record the information required by FW Regulation 3.33(1) and 3.33(2).
46. During the Contravention Period, Mr Gogikar failed to make and keep accurate records in relation to:
(a) Mr Mauram’s rate of remuneration; and
(b) gross and net amounts paid to Mr Mauram.
47. By reason of the facts set out at paragraphs 4(c), 6, and 42 to 46 above, Mr Gogikar contravened section 535(1) of the FW Act.
Failure to make and keep records (hours worked)
48. At all relevant times, pursuant to section 535(1) of the FW Act, Mr Gogikar was required by regulation 3.33(2) of the FW Regulations to make and keep records that set out the hours worked by employees who were either a casual or irregular part-time employee who was guaranteed a rate of pay set by reference to a period of time worked.
49. Notwithstanding that the NTP required the production of records of the kind described in paragraph 48, Mr Gogikar did not produce any such records to the Applicant.
50. During the Contravention Period, Mr Gogikar failed to keep the kind of record required by regulation 3.33(2) of the FW Regulations in relation to casual or irregular part-time employees including each of the Employees.
51. During the Contravention Period, Mr Gogikar failed to make and keep accurate records in relation to the hours worked by Mr Mauram as a casual or irregular part-time employee for the purposes of regulation 3.33(2) of the FW Regulations.
52. The Mauram Pay Slips were purported to be records of the kind described at paragraph 48 above, but by reason of the matters set out at paragraphs 32 to 34 above, they were false and misleading and did not record the information required by regulation 3.33(2) of the FW Regulations.
53. By reason of the facts set out at paragraphs 4(c), 6, and 48 to 52 above, Mr Gogikar contravened section 535(1) of the FW Act.
Failure to provide pay slips to the Employees
54. At all relevant times during the Contravention Period, pursuant to section 536(1) of the FW Act, Mr Gogikar was required to give each of the Employees a pay slip within one working day of paying amounts to the Employees in relation to the performance of work.
55. During the Contravention Period, Mr Gogikar did not give the Employees pay slips within one working day of payment for the performance of work, or at all.
56. By reason of the facts set out in paragraphs 4(c), 6, 54 and 55 above, Mr Gogikar contravened section 536(1) of the FW Act.
G. RELIEF
57. By consent, the parties seek declarations that Mr Gogikar contravened the following provisions of the FW Act during the Contravention Period:
(a) section 535(1) of the FW Act in failing to make and keep records of the type required by regulation 3.33(1) of the FW Regulations;
(b) section 535(1) of the FW Act in failing to make and keep records of the type required by regulation 3.33(2) of the FW Regulations;
(c) section 535(4) of the FW Act in making and keeping an employee record that he knew was false or misleading;
(d) section 536(1) of the FW Act in failing to give the Employees a pay slip within one working day of paying amounts to the Employees in relation to the performance of work; and
(e) section 718A(1) of the FW Act in knowingly giving false or misleading information or a document to a FWI who was exercising or performing functions under or in connection with a law of the Commonwealth.
58. The parties agree to the following orders:
(a) pursuant to section 546(1) of the FW Act, Mr Gogikar pay pecuniary penalties to the Commonwealth in respect of the contraventions referred to in paragraph 57 above within 28 days of the date of the Court’s orders;
(b) the Applicant have liberty to apply; and
(c) such further order or orders as the Court considers appropriate.
On 2 May 2025, the Court made consent declarations and orders as follows:
THE COURT DECLARES BY CONSENT THAT:
1) The Respondent contravened the following provisions of the Fair Work Act 2009 (Cth) (FW Act):
a) section 535(1) of the FW Act in failing to make and keep records of the type required by regulation 3.33(1) of the Fair Work Regulations 2009 (Cth) (FW Regulations);
b) section 535(1) of the FW Act in failing to make and keep records of the type required by regulation 3.33(2) of the FW Regulations;
c) section 535(4) of the FW Act in making and keeping an employee record that he knew was false or misleading;
d) section 536(1) of the FW Act in failing to give Pranavanshu Reddy Mauram, Krishna Sumedh Panakanti and Chinmai Talasani a pay slip within one working day of paying amounts to them in relation to the performance of work; and
e) section 718A(1) of the FW Act in knowingly giving false or misleading information or a document to a Fair Work Inspector who was exercising or performing functions under or in connection with a law of the Commonwealth.
THE COURT ORDERS BY CONSENT THAT:
2. The directions hearing listed for 2 May 2025 be vacated.
3. The Applicant shall file and serve any written submissions and any affidavit evidence to be relied upon in respect of penalty on or before 23 May 2025.
4. The Respondent shall file and serve any written submissions and any affidavit evidence to be relied upon in respect of penalty on or before 13 June 2025.
5. The Applicant is to file and serve any written submissions in reply on or before 27 June 2025.
6. The matter be listed for a penalty hearing at 9.45am on 5 August 2025.
7. Each party have liberty to apply on the giving of two (2) days’ notice, each to the other.
The matter came before the Court for a hearing as to the imposition of pecuniary penalties on 11 August 2025.
In Schedule A to the applicant’s written submissions filed on 23 May 2025, the quantum of pecuniary penalties as sought by the applicant was set out as follows:
No.
Contravention
Maximum penalty
Proposed penalty %
Proposed penalty amount
1
Section 535(1) of the FW Act in failing to make and keep records of the type required by FW Regulation 3.33(1)
$13,320
50%
$6,600
2
Section 535(1) of the FW Act in failing to make and keep records of the type required by FW Regulation 3.33(2)
3
Section 535(4) of the FW Act in making and keeping an employee record that the Respondent knew was false or misleading
$13,320
60%
$7,992
4
Section 536(1) of the FW Act in failing to give a pay slip within one working day of paying amounts to three employees in relation to the performance of work
$13,320
50%
$6,660
5
Section 718A(1) of the FW Act in knowingly giving false or misleading information or a document to a Fair Work Inspector who was exercising or performing functions under or in connection with a law of the Commonwealth
$13,320
70%
$9,324
Total recommended penalties
$30,636
Less 15% discount for cooperation
$4,595.40
TOTAL RECOMMENDED PENALTIES
$26,040.60
As set out in the SOAF, it has been demonstrated that the respondent had committed clear breaches of the provisions of s. 535(1), 535(4), 536(1) and 718A(1) of the Fair Work Act (2009) (Cth) (the FWA). It was of relevance, however, that the respondent co-operated with the applicant during the period of the applicant’s investigation of him, and afterwards. Hence the concession in Annexure A to the effect that any pecuniary penalty ought to be the subject of a 15% discount.
The applicant conceded that multiple occasions of contravening conduct on the part of the respondent ought, in the current circumstances, be regarded as a single contravention. In that regard, the Court has noted the contents of the affidavit of a FWO inspector named Ms Foster where it was deposed as follows: [1]
[1] Affidavit of Amanda Jane Foster filed on 23 May 2025.
1. I am employed as a Fair Work Inspector (FWI) by the Office of the Fair Work (OFWO), and I am authorised to make this affidavit on behalf of the Applicant. A copy of my instrument of appointment dated 6 July 2022 is annexed and marked AJF-01 (pages 1-2).
2. The OFWO maintains electronic and paper records in relation to the performance of the FWO's functions under the FW Act, including the investigations it conducts. In the course of my duties at the OFWO, I am authorised to access and produce these records.
3. The matters deposed to in this affidavit are true to the best of my knowledge, information and belief. I know the matters deposed to either from my own knowledge or from my review of the records held by the OFWO.
4. Where I refer to actions undertaken by other employees of the OFWO in relation to this matter, I have reviewed their records and believe those matters to be true to the best of my knowledge, information and belief.
Investigation and Notice to Produce Records or Documents
5.This matter concerns three employees who were employed by the Respondent to work at a United Petroleum branded fuel retail outlet in Sunnybank Hills, Queensland during the period 19 August 2019 to 14 February 2021.
When applying the provisions of s. 557 of the FWA, it was submitted on behalf of the applicant that course of conduct principles did not apply, although it was conceded that there was some factual overlap in the contraventions of ss. 535(4) and 718A(1) of the FWA, insofar as they both related to the false or misleading Mauram Pay Slips. The Court accepts such proposition.
Imposition of Penalties
It is important that all businesses, big and small, comply with workplace relations legislation, and that they be deterred from breaching such legislation. In Kelly v Fitzpatrick [2007] FCA 1080 at [28], when considering that very question, Tracy J said as follows:
“[28] The respondents have expressed contrition and have put in place mechanisms which are designed to ensure that there will be no repetition of the breaches which have led to the present proceeding. Specific deterrence does not, therefore, loom large as a consideration in determining penalty. It does not follow that the need for general deterrence may be disregarded. As Finkelstein J said in CPSU v Telstra Corporation Limited [2001] FCA 1364; (2001) 108 IR 228 at 231: "even if there be no need for specific deterrence, there will be occasions when general deterrence must take priority, and in that case a penalty should be imposed to mark the law’s disapproval of the conduct in question, and to act as a warning to others not to engage in similar conduct ..." No less than large corporate employers, small businesses have an obligation to meet minimum employment standards and their employees, rightly, have an expectation that this will occur. When it does not it will, normally, be necessary to mark the failure by imposing an appropriate monetary sanction. Such a sanction "must be imposed at a meaningful level": see Australian Competition and Consumer Commission v ABB Transmission and Distribution Ltd [2001] FCA 383; [2001] ATPR 41-815 at [13].”
The Court has had regard to the principle that whilst any penalty imposed must not be crushing or oppressive, it must be commensurate with the seriousness of the conduct engaged in by the respondents.
In Fair Work Ombudsman v Equine Robinson Pty Ltd [2023] FedCFamC2G 159 at [11] – [13] it was held as follows:
11. The Court accepts that there is a need for general deterrence when it imposes a pecuniary penalty for contraventions of the FWA. In the case of a company, an expression of contrition for the offending conduct is most clearly seen by the way the corporation has taken steps to alleviate its wrongdoing and change its behaviour. (ACE Insurance Ltd v Trifunovski (No. 2) [2012] FCA 793 at [113] – [114] per Perram J)
12. In circumstances where there has been no acknowledged contrition on the part of the respondents, and further where there has been no payment to the relevant employee of money owed to them by the first respondent, the fact of co-operation in the preparation of the SOAF does not relieve the Court of the responsibility of imposing pecuniary penalties which actually will deter future contraventions of the FWA. (Fair Work Ombudsman v AJR Nominees Pty Ltd (No. 2) [2014] FCA 128 at [50] per Gilmour J)
13. When considering what the appropriate penalty ought to be, discounting is only relevant where there has been actual contrition and a demonstrated desire on the part of the offenders to remedy their recalcitrant behaviour. In the present matter, such positive behaviour has been absent. No discounting ought to apply as a consequence.
At the hearing, the respondent claimed that he was in a dire financial situation. He said that his wife had only recently returned to work after having given birth to a child about a year ago. When it was suggested by the lawyer for the applicant that the respondent had earnt about $25,000.00 from driving for Uber and DiDi over the period from 1 October 2024 until 30 March 2025, the respondent submitted that such payments as recorded in Commonwealth Bank Statements annexed to the affidavit of the applicant filed on 15 July 2025 were net payments, and did not reflect running and maintenance costs in respect of vehicles driven by him. The respondent was probably correct in that regard.
The facts of this matter record an unusual factual dynamic between people who had once been friendly toward each other. The evidence before the Court was that the former employees of the respondent had themselves been parties to deception. The respondent, though by no means without fault, was part of a web of deception which unravelled when his relationship with his former employees soured.
In all the circumstances, and in the exercise of the Court’s discretion having applied global discounting because of the respondent’s co-operation, the Court considers that the respondent should be ordered to pay pecuniary penalties in the total amount of $15,984.00 as set out in the schedule below as follows:
No.
Contravention
Maximum penalty
Proposed penalty %
Proposed penalty amount
1
Section 535(1) of the FW Act in failing to make and keep records of the type required by FW Regulation 3.33(1)
$13,320
30%
$3,996
2
Section 535(1) of the FW Act in failing to make and keep records of the type required by FW Regulation 3.33(2)
3
Section 535(4) of the FW Act in making and keeping an employee record that the Respondent knew was false or misleading
$13,320
30%
$3,996
4
Section 536(1) of the FW Act in failing to give a pay slip within one working day of paying amounts to three employees in relation to the performance of work
$13,320
30%
$3,996
5
Section 718A(1) of the FW Act in knowingly giving false or misleading information or a document to a Fair Work Inspector who was exercising or performing functions under or in connection with a law of the Commonwealth
$13,320
30%
$3,996
TOTAL RECOMMENDED PENALTIES
$15,984
And it is so ordered.
I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Egan . Associate:
Dated: 14 August 2025
0
6
1