Fair Work Ombudsman v Gogikar

Case [2025] FedCFamC2G 1294

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

  1. 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…

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Fair Work Ombudsman v Gogikar [2025] FedCFamC2G 1294
Case
[2025] FedCFamC2G 1294
Decision Date

CaseChat Overview and Summary

The matter before the Court was an application by the Fair Work Ombudsman (FWO) against Mr Navaneeth Gogikar, a sole trader operating a fuel outlet under the United Petroleum brand. The FWO alleged that Mr Gogikar contravened several provisions of the Fair Work Act 2009 (Cth) (FW Act) and the Fair Work Regulations 2009 (Cth) (FW Regulations) during a period from 2 September 2019 to 14 February 2021. The legal issues that the Court had to decide were whether Mr Gogikar knowingly made and kept false or misleading records, failed to make and keep required records, and provided false or misleading documents to a Fair Work Inspector (FWI), as well as whether he failed to provide pay slips to his employees. The Court found that Mr Gogikar did indeed contravene the FW Act in multiple respects. Firstly, he knowingly made and kept false or misleading records for one of his employees, Mr Pranavanshu Reddy Mauram. Mr Gogikar was aware that the records he kept were inaccurate, yet he continued to maintain them. Secondly, he failed to keep accurate records of the hours worked by Mr Mauram and the remuneration paid to him. Thirdly, he did not provide Mr Mauram with pay slips within one working day of paying him, as required by the FW Act. Lastly, he knowingly provided false or misleading documents to the FWI during an investigation. The Court concluded that Mr Gogikar's actions were deliberate and in violation of the FW Act. Consequently, the Court ordered Mr Gogikar to pay pecuniary penalties to the Commonwealth and granted the FWO liberty to apply for further orders as appropriate.

Orders

Orders of the court

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Background

Background to the litigation

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 FACTSThis Statement of Agreed Facts is made by the Applicant and the Respondent for the purposes of section 191 of theEvidence Act 1995(Cth).A.PARTIES1.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-Generalby 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 Respondent2. 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 EMPLOYEESThe Employees3. 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 AWARDApplication of the FW Act7. 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 DOCUMENTSInvestigation8. 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 Mauram11. 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 Gogikar13. 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 Records18. 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 Records20. 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 Records25. 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 CONTRAVENTIONSKnowingly making and keeping a record that is false or misleading27. 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 FWI35. 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 CONTRAVENTIONSFailure 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 Employees54. 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. RELIEF57. 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.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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:Declarations54. 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 penalties55.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 FACTSThis Statement of Agreed Facts is made by the Applicant and the Respondent for the purposes of section 191 of theEvidence Act 1995(Cth).A.PARTIES1.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-Generalby 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 Respondent2. 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 EMPLOYEESThe Employees3. 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 AWARDApplication of the FW Act7. 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 DOCUMENTSInvestigation8. 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 Mauram11. 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 Gogikar13. 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 Records18. 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 Records20. 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 Records25. 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 CONTRAVENTIONSKnowingly making and keeping a record that is false or misleading27. 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 FWI35. 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 CONTRAVENTIONSFailure 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 Employees54. 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. RELIEF57. 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.