Fair Work Ombudsman v Green Clean (Aust) Pty Ltd
[2016] FCCA 2676
•28 October 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| FAIR WORK OMBUDSMAN v GREEN CLEAN (AUST) PTY LTD & ANOR | [2016] FCCA 2676 |
| Catchwords: INDUSTRIAL LAW – Acknowledged contraventions of the Fair Work Act 2009 (Cth) – underpayments – consideration of issues of penalty – circumstances changing since the hearing on penalty. |
| Legislation: Crimes Act 1912 (Cth), s.4AA Crimes Legislation Amendment (Penalty Unit) Act 2015 (Cth) Federal Circuit Court Rules 2001 (Cth) |
| Cases cited: Australian Ophthalmic Supplies Ply Ltd v McAlary−Smith [2008] FCAFC 8; (2008) 165 FCR 560 Fair Work Ombudsman vPromoting U Pty Ltd & Anor [2012] FMCA 58 Fair Work Ombudsman v The Syndicate Group Pty Ltd & Anor [2015] FCCA 2847 |
| Applicant: | FAIR WORK OMBUDSMAN |
| First Respondent: | GREEN CLEAN (AUST) PTY LTD |
| Second Respondent: | MICHAEL GIROWAL |
| File Number: | SYG 69 of 2016 |
| Judgment of: | Judge Driver |
| Hearing date: | 8 August 2016 |
| Date of Last Submission: | 30 August 2016 |
| Delivered at: | Sydney |
| Delivered on: | 28 October 2016 |
REPRESENTATION
| Counsel for the Applicant: | Mr M Vincent |
| Solicitors for the Applicant: | Office of the Fair Work Ombudsman |
| Counsel for the Respondents: | Mr C Lowe |
| Solicitors for the Respondents: | JFM Law |
ORDERS
The Court declares that the First Respondent contravened s.716(5) of the Fair Work Act 2009 (Cth) (Fair Work Act) by failing to comply with the Compliance Notice.
The Court declares that the Second Respondent was involved in (within the meaning of s.550(2) of the Fair Work Act) the First Respondent's contravention set out in order 1 above, and therefore by reason of s.550(1) of the Fair Work Act is taken to have contravened s.716(5) of the Fair Work Act.
Pursuant to s.546(1) of the Fair Work Act, the First Respondent is to pay a pecuniary penalty of $9,450 in respect of the contravention of s.716(5) of the Fair Work Act to the Consolidated Revenue Fund of the Commonwealth within 28 days of these orders.
Pursuant to s.546(1) of the Fair Work Act, the Second Respondent is to pay a pecuniary penalty of $1,890 in respect of his involvement in the contravention set out in order 1 above to the Consolidated Revenue Fund of the Commonwealth within 28 days of these orders.
Pursuant to s.545(1) of the Fair Work Act, that the Second Respondent:
a)within two months of the date of this order, register with the Fair Work Ombudsman’s "My Account" portal at and complete the profile including the Award options;
b)within a further month after the period in order 5(a) above, provide to the Fair Work Ombudsman his "My Account" registration number; and
c)within a period of two months, register with the Applicant's Online Learning Centre at and complete all education courses designed for employers and provide the Fair Work Ombudsman with evidence of completion of those courses within a further one month.
The Fair Work Ombudsman has liberty to apply on seven days' notice in the event that any of the preceding orders are not complied with.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 69 of 2016
| FAIR WORK OMBUDSMAN |
Applicant
And
| GREEN CLEAN (AUST) PTY LTD |
First Respondent
| MICHAEL GIROWAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction and background
By way of a Statement of Agreed Facts dated 9 March 2016, the first respondent, Green Clean (Aust) Pty Ltd (Green Clean), has admitted to failing to comply with a Compliance Notice issued by the applicant, the Fair Work Ombudsman (FWO), on 2 December 2015 (Compliance Notice) under s.716 of the Fair Work Act 2009 (Cth) (Fair Work Act). The second respondent, Michael Girowal, has admitted to being involved in that contravention.
The FWO is seeking penalties against Green Clean for its failure to comply with the Compliance Notice and against Mr Girowal for his involvement in that contravention. The FWO claims that the penalties sought are appropriate because of the following factors:
d)the failure (at least up to the trial of this matter) by the respondents to rectify underpayments to Mr Edizon De La Cruz and Ms Jinky Amoloria (collectively, the Employees), two Filipino nationals on subclass 573 student visas;
e)the failure to comply with the Compliance Notice caused the FWO to commence proceedings in circumstances where such litigation could have been avoided;
f)Mr Girowal’s attitude when dealing with Fair Work Inspectors and towards the Employees; and
g)the need for specific deterrence against the respondents and general deterrence in the contract cleaning service industry.
In post hearing submissions filed on 23 August 2016 the respondents agree to the declaratory relief sought. They do not oppose the imposition of penalties in principle but submit that any penalties imposed should be in the lower range having regard to (among other things):
h)the modest amounts of the underpayments;
i)the nature and size of the business;
j)the partial and/or attempted compliance with the FWO’s notice(s); and
k)the alleged attempts by the respondents to avoid these legal proceedings.
Material filed in the proceedings
The FWO relies upon the following documents filed in these proceedings:
a)application filed on 14 January 2016;
b)Statement of Claim filed on 14 January 2016;
c)Statement of Agreed Facts filed on 9 March 2016;
d)affidavit of Craig Dangerfield, affirmed and filed on 14 June 2016 (Dangerfield affidavit); and
e)affidavit of Myles Vincent, affirmed and filed on 14 June 2016 (Vincent affidavit).
The respondents seek to rely upon the affidavit of Kareena Colton made on 22 August 2016 and filed the following day. I had given leave for post hearing submissions but I gave no leave for post hearing affidavits. No affidavit evidence was filed by the respondents in accordance with the Court’s pre trial timetable. In submissions in reply field on 30 August 2016, the FWO objects to the receipt of the Colton affidavit due to prejudice, which it says could only be alleviated by a re-opened hearing. The FWO submits that, if the hearing was not to be re-opened, the Colton affidavit should be given no weight.
I have given careful thought about what should be done with the Colton affidavit in these circumstances. It would unnecessarily prolong the proceedings and cause the parties to incur additional legal costs if the hearing were to be re-opened. It is open to me to reject the Colton affidavit outright as it has not been filed in accordance with the Court’s orders and no leave was granted for post hearing evidence. On the other hand, the respondents have, albeit rather belatedly, attempted to come to terms with the issues in the proceedings and their engagement of professional legal representation has been a positive step. Their solicitors, with little time available before the trial, have genuinely attempted to assist the Court and their clients. The solicitors were only instructed on 5 August 2016 and, by letter dated the same day, sought an adjournment of the penalty hearing to prepare submissions on penalty. They also raised the possible need for affidavit evidence. An oral application for an adjournment was pressed at the trial on 8 August 2016 but I declined to grant an adjournment on the basis that the respondents would be given time after the hearing to prepare written submissions. Affidavits by Mr Girowal and Ms Colton had been prepared on 8 August 2016 but were not read. The Colton affidavit duplicates in part her earlier unread affidavit. The Colton affidavit raises factual matters relevant to the assessment of penalty. In all the circumstances I have decided to receive the Colton affidavit but to give no weight to it to the extent that it conflicts with the Agreed Statement of Facts and the FWO’s evidence.
Background to the contravention
Green Clean operates a commercial cleaning service in Sydney. It is a proprietary company limited by shares and registered on 28 June 2010[1].
[1] Statement of Agreed Facts at [7]
Mr Girowal is the sole director and secretary of Green Clean, and was appointed to these roles on the day the company was registered[2]. Mr Girowal agrees he was at all relevant times the person responsible for the overall management of the affairs of Green Clean’s business, including in relation to employment arrangements, wages and conditions for Green Clean’s employees[3].
[2] Statement of Agreed Facts at [8]
[3] Statement of Agreed Facts at [8]
In December 2014 and January 2015, the Employees were engaged by Green Clean as part−time cleaners, classified as "Cleaning Services Level 1" under the Cleaning Services Award 2010 (Cleaning Award).
On 3 February 2015, the FWO received complaints from the Employees regarding their employment with the respondents. The Employees complained that they were paid in cash by Mr Girowal, receiving flat rates of $20 an hour[4].
[4] Statement of Agreed Facts at [13]; Dangerfield affidavit at [36]
Following an investigation, Inspector Ingle formed a reasonable belief that during the Employees’ short period of employment with Green Clean, they were underpaid a total of $2,943.78 as a result of contraventions of the Fair Work Act and the Cleaning Award (Underpayments)[5].
[5] Statement of Agreed Facts at [14]-[15]
On 22 September 2015, Inspector Ingle gave the respondents a compliance notice seeking, among other things, rectification of the Underpayments (First Compliance Notice). Green Clean did not comply with the First Compliance Notice. However, due to errors contained in the First Compliance Notice, the FWO withdrew the First Compliance Notice on 2 December 2015[6].
[6] Statement of Agreed Facts at [17]
On 2 December 2015, Inspector Dangerfield formed a reasonable belief that the respondents committed the Underpayments in contravention of the Fair Work Act and the Cleaning Award[7]. Accordingly, Inspector Dangerfield gave Green Clean the Second Compliance Notice, which was the same as the First Compliance Notice with the exception of the rectification of the errors identified by the FWO[8].
[7] Statement of Agreed Facts at [18]-[19]
[8] Statement of Agreed Facts at [19]-[20]
The Compliance Notice required Green Clean to, within seven days:
a)pay Mr Dela Cruz a total of $1,589.00 in respect of minimum rates of pay, part−time allowance, penalty rates, payment of annual leave entitlements on termination and wages in lieu of notice of termination;
b)pay Mrs Amoloria a total of $1,354.78 in respect of minimum rates of pay, part−time allowance, penalty rates payment of annual leave entitlements on termination and wages in lieu of notice of termination; and
c)produce reasonable evidence to the FWO demonstrating that the above payments have been made to the Employees within seven days of those payments being made[9].
[9] Statement of Agreed Facts at [21]
At the time of the trial of this matter, the Underpayments had not been rectified and the Employees entitlements remained unpaid[10]. It is accepted that the required payments were made on or about 19 August 2016.
[10] Statement of Agreed Facts at [28]; Dangerfield affidavit at [49]; Vincent Affidavit at [22]
Admitted contraventions
Green Clean has admitted to contravening s.716(5) of the Fair Work Act, by failing to comply with the Compliance Notice[11].
[11] Statement of Agreed Facts at [4(a)]
Mr Girowal has admitted to his involvement, within the meaning of s.550 of the Fair Work Act, in Green Clean’s contravention of s.716(5) of the Fair Work Act[12].
[12] Statement of Agreed Facts at [4(b)]
Approach to penalty
I accept the FWO’s submissions on the general principles to be applied. The authorities establish that the appropriate penalties are to be determined as follows.
The first step is to identify the separate contraventions involved. Each contravention of each separate obligation found in the Fair Work Act is a separate contravention of a civil remedy provision for the purposes of s.539(2) of the Fair Work Act[13]. Section 557 of the Fair Work Act provides for treating multiple contraventions of the same civil remedy provision that result from a single course of conduct, as a single contravention.
[13] Gibbs v The Mayor, Councillors and Citizens of City of Altona (1992) 37 FCR 216 at 223; McIver v Healey [2008]
Secondly, to the extent that two or more contraventions have common elements, this should be taken into account in considering what an appropriate penalty is 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[14]. This task is distinct from and in addition to the final application of the "totality principle"[15].
[14] Australian Ophthalmic Supplies Pty Ltd v McAlary−Smith [2008] FCAFC 8; (2008) 165 FCR 560 at 576 at [71] (per Graham J) (Merringtons)
[15] Mornington Inn Pty Ltd v Jordan [2008] FCAFC 70; (2008) 168 FCR 383 at [41]−[46] (per Stone and Buchanan JJ) (Mornington Inn)
Thirdly, consider an appropriate penalty to impose in respect of each contravention, whether a single contravention, a course of conduct or group of contraventions, having regard to all of the circumstances of the case.
Finally, having fixed an appropriate penalty for each contravention (or, if relevant, each group of contraventions), consider the aggregate penalty, to determine whether it is an appropriate response to the contravening conduct[16]. The Court should apply an "instinctive synthesis" in making this assessment[17]. This is known as the totality principle.
[16] See Kelly v Fitzpatrick [2007] FCA 1080; (2007) 166 IR 14 at [30] (per Tracey J) (Kelly); Merringtons at [23] (per Gray J), [71] (per Graham J) and [102] (per Buchanan J)
[17] Merringtons at [27] (per Gray J), and [55] and [78] (per Graham J)
Maximum penalty
As this matter relates to one contravention of a civil remedy provision, being s.716(5) of the Fair Work Act, course of conduct and common element considerations are not relevant. The penalty that could be imposed for Green Clean is a maximum of $27,000 and for the Mr Girowal is a maximum of $5,400[18].
[18] These amounts are calculated based on the penalty unit amount of $180 which applied at the time of the contraventions. Section 12 of the Fair Work Act provides that "penalty unit" has the same meaning as s.4AA of the Crimes Act 1912 (Cth). From 31 July 2015, the Crimes Legislation Amendment (Penalty Unit) Act 2015 (Cth) increased the amount of a penalty unit in s.4AA of the Crimes Act from $180
Factors relevant to penalty
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 (Pangaea)[19]. Those factors include[20]:
[19] [2007] FMCA 7 at [26] to [59]
[20] 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 in imposing a penalty; Sharpe v Dogma Enterprises Pty Ltd [2007] FCA 1550, [11]; Merringtons at [91] (Buchanan J)
a)the nature and extent of the conduct which led to the contravention;
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 contravention;
d)whether there had been similar previous conduct by the respondent;
e)whether the contravention was properly distinct or arose out of the one course of conduct;
f)the size of the business enterprise involved;
g)whether or not the contravention was deliberate;
h)whether senior management was involved in the contravention;
i)whether the party committing the contravention has exhibited contrition;
j)whether the party committing the contravention has taken corrective action;
k)whether the party committing the contravention has co-operated with the enforcement authorities;
l)the need to ensure compliance with minimum standards by provision of an effective means for investigation and enforcement of employee entitlements; and
m)the need for specific and general deterrence.
Nature, extent and circumstances of the conduct leading to the contravention
The power of a Fair Work Inspector to issue a compliance notice was introduced into the Fair Work Act to provide a mechanism for dealing with non−compliance with minimum entitlements in the Fair Work Act, as an alternative to commencing litigation for each underlying contravention[21].
[21] Fair Work Bill 2008, Explanatory Memorandum at [2673]
This has been emphasised in recent cases where compliance notices have not been complied with[22].
[22] Fair Work Ombudsman v The Syndicate Group Pty Ltd & Anor [2015] FCCA 2847 at [27]; Fair Work Ombudsman v Absynthe Restaurant Pty Ltd & Anor [2015] FCCA 58 at [36]; Fair Work Ombudsman v Blu Homsby Pty Ltd & Anor [2016] FCCA 1150 at [29]
A compliance notice creates an opportunity for a person to whom it is served to rectify the matters set out in the notice and gain protection from civil remedy proceedings in respect of the underlying contravention(s). If that person complies with the compliance notice:
a)no civil remedy proceedings can be brought against the person in respect of an underlying contravention, pursuant to s.716(4A); and
b)the person is not taken to have admitted or been found to have contravened the civil remedy provision in respect of an underlying contravention, pursuant to s.716(4B).
Should a person fail to comply with a compliance notice, item 33 of s.539(2) of the Fair Work Act allows only Fair Work Inspectors to bring civil remedy proceedings against that person and seek appropriate orders to remedy the contravention, including pecuniary penalties under s.546 of the Fair Work Act.
The respondents were given a significant amount of time and several opportunities to comply with the Compliance Notice and avoid this litigation, but failed to do so up to the time of the trial[23]. The respondents have been aware of the outcome of the FWO’s investigation into its employment of the Employees and the amount of the Underpayments since at least late September 2015, when the First Compliance Notice was issued[24]. Since that time, the respondents have also been on notice of the FWO’s intention to seek civil penalties should they fail to comply with the Compliance Notice[25].
[23] Dangerfield affidavit at [27]−[39]
[24] Dangerfield affidavit at [17]
[25] Dangerfield affidavit at [19]
The withdrawal of the First Compliance Notice and the issuing of the Second Compliance Notice is a relevant factor. The alleged attempts by the respondents to comply with either or both of the Compliance Notices are not relevant as they admitted non compliance.
The Compliance Notice required payment to the Employees by 9 December 2015. Green Clean failed to make any payment within the time required by the Compliance Notice[26].
[26] Statement of Agreed Facts at [21] and [25]
As early as 27 October 2015, Mr Girowal stated that the Underpayments would be rectified[27]. The FWO submits and I accept that it was willing to consider any reasonable proposal by the respondents to pay the Underpayments via instalments provided documents supported the need for an instalment plan. However the respondents failed to provide any material or meaningfully engage[28].
[27] Dangerfield affidavit at [22]
[28] Dangerfield affidavit at [23] to [29]
At the trial of these proceedings, and no doubt under the positive influence of their solicitors, the respondents recognised the importance of rectifying the Underpayments. Various payments were made in small amounts with the final required payment being made on 19 August 2016[29].
[29] Colton affidavit at [22]
Nature and extent of the loss
A substantial portion of the underpayments arose from the Employees working long and infrequent unsocial hours over the Christmas and January period. The Employees were not compensated adequately for this work, as they did not receive the correct base rates of pay, part−time allowances, afternoon, weekend or public holiday penalties. The Employees were also terminated without notice by Mr Girowal, and did not receive any annual leave on termination or wages in lieu of notice[30].
[30] Dangerfield affidavit at [25]
The amounts were outstanding to the Employees for well over a year and, although the amounts appeared small to the respondents, they are not insignificant amounts for part−time students on student visas.
Any similar previous conduct
The respondents have not previously been the subject of court proceedings by the FWO for contraventions of workplace laws. However both respondents are known to the FWO. Between 2010 and June 2016, the FWO received nine other complaints regarding underpayment of wages and non−payment of annual leave regarding the respondents. These complaints have been resolved or closed without the need for litigation[31].
[31] Dangerfield affidavit at [43]
Size of the business enterprise
The respondents have stated that Green Clean is a small business with limited funds[32]. In light of the respondents' assertions, the FWO invited the respondents to provide financial information. Despite these invitations, the respondents failed to engage with the FWO[33]. Nevertheless, there is some evidence to support this assertion[34].
[32] Respondents’ submissions at [15] and [16] and Dangerfield affidavit at [14]
[33] Dangerfield affidavit at [23]-[29]
[34] Colton affidavit at [3]-[4]
Regardless of the size of the business or its financial position, however, I accept that an employer cannot be absolved of its legal responsibility to comply with the law in relation to employees through financial difficulty or otherwise[35]. In the context of compliance notices, Judge Jarrett noted[36]:
The obligation to comply with the Fair Work Act and, in particular, s.716 falls just as heavily on small corporations and small businesses — and individuals, for that matter — as it does on large employers or business. Put shortly, one cannot shirk one's responsibilities imposed by law simply because one might be described as a small business or because the business has a particular size. It is incumbent on all employers to comply with the requirements of the Fair Work Act.
[35] Kelly at [28]; Rajagopalan v BM Sydney Building Materials Pty Ltd [2007] FMCA 1412 at [27]
[36] Fair Work Ombudsman v Extrados Solutions Pty Ltd [2014] FCCA 815 at [10]
Whether the contravention was deliberate
Mr Girowal was aware of his obligations under the Compliance Notice, and the repercussions of non-compliance[37]. The Compliance Notice set out the potential for litigation for non−compliance and indicated that the respondents were entitled to seek a review of the Compliance Notice and that the respondents could provide a reasonable excuse[38].
[37] Statement of Agreed Facts at [30]; Dangerfield affidavit at [17]
[38] Dangerfield affidavit at [25]
The FWO corresponded with the respondents both before and after the Compliance Notice was given, explaining the avenues for review, options for agreeing to a possible instalment plan and repercussions of non−compliance[39]. For a considerable period, the respondents did not meaningfully engage with the FWO[40]. There are allegations on both sides of offensive behaviour but the important factor is the slow and rather tortuous path that the eventual compliance took.
[39] Dangerfield affidavit at [26]−[32]
[40] Dangerfield affidavit at [17]−[33]
Whether senior management was involved
Mr Girowal is, and was at all relevant times, the sole director and secretary and sole shareholder of Green Clean. He was the controlling mind of Green Clean. Mr Girowal was the person responsible for the Green Clean’s compliance[41], and has admitted to his involvement in the contraventions.
[41] Statement of Agreed Facts at [31]
Contrition and corrective action and cooperation with authorities
The FWO acknowledges that the respondents have cooperated by agreeing to and signing the Statement of Agreed Facts and has thus saved the Court and the FWO the resources and costs associated with a contested liability hearing. On this basis, a penalty discount is appropriate, although, in contrast to the FWO’s submissions, I have not calculated that discount separately from my general assessment of penalty.
There is some evidence in the FWO’s affidavits of a cavalier attitude being displayed by Mr Girowal, particularly in the early stages of the dispute. Nevertheless, I accept from the Colton affidavit that the respondents’ understanding of the issues was limited until they engaged legal representation and I accept from the respondents’ submissions that the steps taken to remedy the Underpayments are relevant. Also relevant is the acceptance by the respondents of the non financial relief sought by the FWO.
Need to ensure compliance with minimum standards
The respondents accept the FWO’s submissions on this issue. The failure to comply with a notice properly issued by the FWO is serious. In Fair Work Ombudsman v VS Investment Group Pty Ltd Judge Jarrett commented on the significance of failure to comply with notices issued by the FWO[42]:
The failure to comply with a notice properly issued by the Applicant in the course of its investigations and the discharge of its statutory functions is serious. Recipients of such notices should be left under no misapprehension about their obligations to comply with those notices.
[42] Fair Work Ombudsman vVS Investment Group Pty Ltd [2013] FCCA 208 at [51]
The power to issue a compliance notice is an important tool of Fair Work Inspectors and compliance with such notices avoids the need for litigation or the imposition on any penalties[43]. Ordering penalties at a meaningful level for a compliance notice breach allows a court to show that there are serious consequences for failing to comply with a compliance notice. In so doing, the Court will deter other parties from failing to comply with compliance notices.
[43] Fair Work Ombudsman v Blu Homsby Pty Ltd & Anor [2016] FCCA 1150 at [29]
General and specific deterrence
The FWO submits and I (and the respondents) accept that general deterrence is important in order to send a message to others who receive notices issued by the regulator; who employ students and subclass 573 visa holders; and who operate in the Contract Cleaning Services industry in general.
The data collated by the FWO reveals the strong need for general deterrence in the Cleaning Services industry because of the large number of complaints received in relation to that industry[44].
[44] Dangerfield affidavit at [44]
Further, there is some need for specific deterrence. Green Clean remains registered and Mr Girowal remains the sole director, shareholder and member of Green Clean[45]. Furthermore, Mr Girowal is the sole director of another cleaning company which operates in the same industry as Green Clean[46].
[45] Dangerfield affidavit at [41]
[46] Dangerfield affidavit at [41]
Nevertheless, the non financial relief sought by the FWO, to which the respondents have consented, will in my view provide a reasonable assurance that these respondents will learn from their mistakes.
Totality
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[47].
[47] See Kelly, supra at [30]; Merringtons, supra at [23] per Gray J, [71] per Graham J, [102] per Buchanan J
While the penalty imposed must not be crushing or oppressive, it must nevertheless bear relativity to the seriousness of the conduct engaged in[48].
[48] See also Fair Work Ombudsman vPromoting U Pty Ltd & Anor [2012] FMCA 58
The FWO submits that the penalties in the table below are appropriate:
| Respondent | Section | Contravention | Max Penalty | Percentage Discount | Suggested Penalty | Penalty Amount |
| Green Clean (Aust) Pty Ltd | 716(5) | Failure to comply with a compliance notice | $27,000 | 15% | 60% of balance | $13,770 |
| Michael Girowal | 716(5) | Failure to comply with a compliance notice | $5,400 | 15% | 60% of balance | $2,754 |
The respondents submit that a penalty of no more than $1,145 for Green Clean and $229 for Mr Girowal should be imposed. The FWO’s submissions were prepared prior to the rectification of the Underpayments and the quantum proposed was not altered in the FWO’s submissions in reply. Having regard to the issues addressed above and the totality principle, I have come to the view that a penalty of $9,450 (35%) should be imposed on Green Clean and $1,890 (35%) on Mr Girowal. This reflects my view that a mid to high range penalty is unrealistic in this case. In particular, the penalties sought by the FWO are disproportionate to the amount of the Underpayments, the circumstances of the respondents and the overall conduct of the respondents, which improved significantly after they consented to the Statement of Agreed Facts, obtained legal representation and rectified the Underpayments. The totality of the circumstances, in my view, calls for a penalty in the moderate range.
I certify that the preceding fifty-three (53) paragraphs are a true copy of the reasons for judgment of Judge Driver
Date: 28 October 2016
Key Legal Topics
Areas of Law
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Employment Law
Legal Concepts
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Breach
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Penalty
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Remedies
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