Fair Work Ombudsman v Green Clean (Aust) Pty Ltd (No.2)
[2023] FedCFamC2G 260
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Fair Work Ombudsman v Green Clean (Aust) Pty Ltd (No.2) [2023] FedCFamC2G 260
File number(s): SYG 1100 of 2020 Judgment of: JUDGE OBRADOVIC Date of judgment: 6 April 2023 Catchwords: INDUSTRIAL LAW – PENALTY – contraventions of the Fair Work Act 2009 (Cth) – underpayments pursuant to the Cleaning Services Award 2010 – previous contraventions Legislation: Fair Work Act 2009 (Cth) ss 541, 546 Cases cited: Australian Building and Construction Commission v Construction, Forestry, Mining and Energy Union [2018] HCA 3
Australian Ophthalmic Supplies Pty Ltd v McAlary-Smith [2008] FCAFC 8
Commonwealth of Australia v Director, Fair Work Building Industry Inspectorate [2015] HCA 46
Construction, Forestry, Mining and Energy Union v Cahill (2010) 269 ALR 1
Fair Work Ombudsman v Kentwood Industrial Pty Ltd (No.3) [2011] FCA 579
Fair Work Ombudsman v NSH North Pty Ltd trading as New Shanghai Charlestown [2017] FCA 1301
Fair Work Ombudsman v Offshore Marine Services Pty Ltd [2012] FCA 498
Fair Work Ombudsman v Promoting U Pty Ltd & Anor [2012] FMCA 58
Kelly v Fitzpatrick [2007] FCA 1080
Mason v Harrington Corporation Pty Ltd t/as Pangaea Restaurant & Bar [2007] FMCA 7
Mornington Inn Pty Ltd v Jordan [2008] FCAFC 70
Trade Practices Commission v CSR Ltd [1990] FCA 521
Division: Division 2 General Federal Law Number of paragraphs: 78 Date of hearing: 30 January 2023 Place: Parramatta Counsel for the Applicant: Ms Brigden Solicitors for the Applicant: Fair Work Ombudsman Appearing for the First Respondent: Mr Girowal as Director Appearing for the Third Respondent: No appearance ORDERS
SYG 1100 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: FAIR WORK OMBUDSMAN
Applicant
AND: GREEN CLEAN (AUST) PTY. LTD.
First Respondent
MS KAREENA COLTON
Third Respondent
order made by:
JUDGE OBRADOVIC
DATE OF ORDER:
6 April 2023
THE COURT ORDERS THAT:
1.Pursuant to s.545(1) of the Fair Work Act 2009 (Cth) (“FW Act”), the first respondent is to make superannuation contributions to each of Mr Shashi Parajuli’s and Ms Riddhi Sangacche’s nominated superannuation funds consisting of the minimum required superannuating contributions prescribed by the Superannuation Guarantee (Administration) Act 1992 (Cth) within 28 days of this order.
2.Pursuant to s.546(1) of the FW Act:
(a)The first respondent pay pecuniary penalties of $105,840 to the Consolidated Revenue Fund of the Commonwealth within 28 days of this order for its contraventions of ss.45, 536(1) and 718A of the FW Act declared on 3 June 2022; and
(b)The third respondent pay pecuniary penalties of $18,346 to the Consolidated Revenue Fund of the Commonwealth within 28 days of this order for her contraventions of ss.45, 536(1) and 718A of the FW Act declared on 3 June 2022.
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 OBRADOVIC:
INTRODUCTION
On 3 June 2022, the Court delivered its Reasons for Judgment in Fair Work Ombudsman v Green Clean (Aust) Pty Ltd [2022] FedCFamC2G 426 (“liability judgment”).
In the liability judgment, the Court declared that:
1.The First Respondent contravened:
a. Section 45 of the Fair Work Act 2009 (Cth) (“FW Act”) by failing to pay Mr Shashi Parajuli and Ms Riddhi Sangachhe (“the Employees”) the minimum hourly rate as required by clause 16 of the Cleaning Services Award 2010 (“Cleaning Award”);
b. Section 45 of the FW Act by failing to pay the Employees casual loading as required by clause 12.5(a) of the Cleaning Award;
c. Section 45 of the FW Act by failing to pay the Employees shiftwork penalty rates as required by clause 27.1 of the Cleaning Award;
d. Section 45 of the FW Act by failing to pay the Employees overtime rates as required by clause 28.2 of the Cleaning Award;
e. Section 45 of the FW Act by failing to pay the Employees broken shift allowances as required by clause 17.1 of the Cleaning Award;
f. Section 45 of the FW Act by failing to pay the Employees amounts due within seven days of termination as required by clause 20.5 of the Cleaning Award;
g. Section 45 of the FW Act by failing to make superannuation contributions on behalf of the Employees as required by clause 23.2 of the Cleaning Award;
h. Section 536 of the FW Act by failing to provide pay slips to the Employees within one working day of paying amounts to them in relation to the performance of work; and
i. Section 718A of the FW Act by producing documents to a Fair Work Inspector with knowledge or recklessness as to whether the documents were false or misleading.
2.The Third Respondent was involved, within the meaning of section 550 of the FW Act, in the first respondent’s contraventions of sections 45, 536 and 718A of the FW Act as set out in paragraph 1(a) to (f), (h) and (i) above.
These are Reasons for Judgment in respect of the penalty to be imposed on the first and third respondent, pursuant to s.546 of the Fair Work Act 2009 (Cth) (“FW Act”), for contravention of civil remedy provisions.
These Reasons for Judgment should be read together with the liability judgment.
Mr Girowal is the sole director and shareholder of the first respondent and he appeared on behalf of the company.
PRINCIPLES RELEVANT TO THE DETERMINATION OF PENALTY
The primary purpose of a pecuniary penalty is to promote the public interest in compliance. It is “to put a price on contravention that is sufficiently high to deter repetition by the contravener and by others who might be tempted to contravene the Act.”[1] The “price” must be such that it is not regarded by the contravener as an “acceptable cost of doing business.”[2]
[1] Commonwealth of Australia v Director, Fair Work Building Industry Inspectorate [2015] HCA 46 (“FW Building Industry Inspectorate”) at [55], citing Trade Practices Commission v CSR Ltd [1990] FCA 521.
[2] FW Building Industry Inspectorate at [55] and [110], citing Singtel Optus Pty Ltd v Australian Competition and Consumer Commission (2012) 287 ALR 249.
The greater the impact of the penalty on the contravener, the more potent will be the example that the penalty sets for other potential contraveners. Likewise, it will be more likely that the contravener will seek to avoid the risk of subjection to further penalties and be deterred from further contravention.[3]
[3] Australian Building and Construction Commission v Construction, Forestry, Mining and Energy Union [2018] HCA 3 at [116].
Penalties should however be just and appropriate,[4] and a penalty should not be oppressive or crushing.[5]
[4] Australian Ophthalmic Supplies Pty Ltd v McAlary-Smith [2008] FCAFC 8 (“McAlary-Smith”) at [95] citing CPSU v Telstra Corporation Ltd [2001] FCA 1264.
[5] Kelly v Fitzpatrick [2007] FCA 1080 (“Kelly”) at [30].
An appropriate method to determine the question of penalty may be summarised as follows:[6]
(a)Identify the separate contraventions;
(b)Consider whether each separate contravention should be dealt with independently or whether separate contraventions constitute a single course of conduct within the meaning of s 557(1) FW Act;
(c)Consider whether the contraventions should be further grouped;
(d)Consider an appropriate penalty as to each contravention (i.e. each final individual group of contraventions, taken in isolation); and
(e)Review the aggregate penalty by application of the “totality principle”.
[6] Fair Work Ombudsman v Kentwood Industrial Pty Ltd (No.3) [2011] FCA 579 at [10]; Fair Work Ombudsman v NSH North Pty Ltd trading as New Shanghai Charlestown [2017] FCA 1301 (“NSH North”) at [36].
Factors Relevant to Penalty
The relevant factors going to penalty have been identified as follows:[7]
[7] Kelly at [14] adopting Mason v Harrington Corporation Pty Ltd t/as Pangaea Restaurant & Bar [2007] FMCA 7 at [26]-[59].
(a)The nature and extent of the conduct which led to the breaches;
(b)The circumstances in which that conduct took place;
(c)The nature and extent of any loss or damage sustained as a result of the breaches;
(d)Whether there had been similar previous conduct by the respondent;
(e)Whether the breaches were properly distinct or arose out of the one course of conduct;
(f)The size of the business enterprise involved;
(g)Whether or not the breaches were deliberate;
(h)Whether senior management was involved in the breaches;
(i)Whether the party committing the breach had exhibited contrition;
(j)Whether the party committing the breach had taken corrective action;
(k)Whether the party committing the breach had cooperated with the enforcement authorities;
(l)The need to ensure compliance with minimum standards by provision of an effective means for investigation and enforcement of employee entitlements; and
(m)The need for specific and general deterrence.
Consideration of the well-known penalty factors is to be undertaken within the overarching consideration of what penalty will achieve the principal object of deterrence, both specific and general. These factors are well-settled, but not a “rigid catalogue of matters for attention.”[8]
[8] McAlary-Smith at [88] to [91].
The identified factors while a convenient checklist, do not restrict the Court in the exercise of its discretion.
CONTRAVENTIONS AND COMMONALITIES
The first respondent contravened s.45 of the FW Act seven times by contravening terms of a modern award, relevantly the Cleaning Services Award 2010 (“Cleaning Award”), by failing to pay minimum hourly rates, casual loading, shift work penalty rates, overtime rates, broken shift allowances, entitlements within seven days of termination and by failing to make superannuation contributions. The first respondent contravened s.536 of the FW Act by failing to provide payslips within one working day of payment. The first respondent contravened s.718A by producing documents to a Fair Work Inspector with knowledge or recklessness as to whether they were false or misleading.
The third respondent was involved, within the meaning of s.550 of the FW Act, in the first respondent’s contraventions save for the failure to pay superannuation, being one of the s.45 contraventions.
The Court before it has the Statement of Agreed Facts in respect of the contraventions, as it did in the liability hearing, as well as the Court’s findings in respect of the contravention of s.718A in the liability judgment.
GROUPING
Section 557 of the FW Act states:
(1)For the purposes of this Part, 2 or more contraventions of a civil remedy provision … are … taken to constitute a single contravention if:
(a) the contraventions are committed by the same person; and
(b) the contraventions arose out of a course of conduct by the person.
The Fair Work Ombudsman (“FWO”) submits, generally, that in accordance with s.557(1) of the FW Act, the respondents are entitled to grouping, with respect to contraventions of the same clause of the Cleaning Award or section of the FW Act, where they occur on multiple occasions but submit that no other common law grouping is appropriate. On the specific facts of this case, the FWO submits that the first respondent separately contravened the FW Act on nine separate occasions and each of these breaches should be dealt with separately. Further, the FWO argues that the third respondent separately contravened the FW Act on eight occasions and likewise that each breach should be dealt with separately with regard to penalty.
The respondents both submit that:
The various contraventions stem from the one act that is classifying the parties as subcontractors not employees. So, the various contraventions stemming from this act should be grouped and penalised accordingly. Subsection 557(1) of the FW Act provides that two or more contraventions of specified civil remedy provisions will be treated as a single contravention where those contraventions were committed by the same person and arose from the same course of conduct.
The respondents have the onus of demonstrating any overlap or commonality of the substratum of facts. They have not done so.
The Court accepts the submissions of the FWO, that the contraventions should be treated separately for the purposes of s.571 of the FW Act.
Appropriate allowance for any commonality will be considered under the totality principle.
What is the appropriate penalty?
Nature and extent of the conduct which led to the breaches
The liability judgment sets out the contraventions by the first and third respondent.
All contraventions except the contravention of s.718A of the FW Act relate to the first respondent’s purported engagement of two workers as independent contractors when they were, in reality, casual employees and covered by the Cleaning Award and the respondents knew this.
Circumstances in which that conduct took place
The two employees were international students holding student visas at the time of the contraventions. International students are vulnerable and unlikely to be aware of minimum Australian labour standards.
In relation to the s.718A contravention, one of the principal objects of the FW Act is to provide a guaranteed safety net of fair, relevant and enforceable minimum terms and conditions for all employees. A Notice to Produce seeks to allow the FWO to have enough information to properly investigate and ensure that employees are provided their minimum entitlements. Where a person provides false or misleading information in response to a Notice to Produce, it undermines the FW Act’s enforcement framework and the very purpose of the FW Act.
Nature and extent of any loss or damage sustained as a result of the breaches
The itemised loss suffered by the two employees can be found in the Statement of Agreed Facts that is annexed to the liability judgment.
In total, the first respondent underpaid the employees by $3,358.76 plus superannuation entitlements. The Court acknowledges that this quantum is small, although it would likely have been significant to the two employees who were international students.
The first respondent rectified the underpayments on 17 February 2020 save for the superannuation contributions, approximately 8 months after the employees ceased employment with the first respondent. The superannuation contributions are yet to be paid.
Whether there had been similar previous conduct by the first and third respondent
In 2016, the Federal Circuit Court found that the first respondent and Mr Girowal had contravened s.716(5) of the FW Act by failing to comply with a compliance notice issued to them by the FWO.[9] This contravention occurred in very similar circumstances to the present case: the first respondent had underpaid two employees who were Filipino nationals and were residing in Australia on student visas.[10] The employees in that instance were paid a flat rate of $20 per hour in cash in contravention of the Cleaning Award and were underpaid a total of $2,943.78.
[9] Fair Work Ombudsman v Green Clean (Aust) Pty Ltd & Anor [2016] FCCA 2676.
[10] Ibid [2(d)].
The first respondent was ordered to pay a pecuniary penalty of $9,450 for its admitted contravention of s 716(5) of the FW Act in that case.
The third respondent gave evidence in those proceedings relevant to the issue of penalty, however she was not found to have contravened the FW Act herself and the Court acknowledges this.[11] Notwithstanding, at the very least, the third respondent was aware that the first respondent and Mr Girowal has previously contravened the FW Act in circumstances relating to the underpayment of employees on student visas where they should have been covered by the Cleaning Award.
[11] Ibid [4].
Further, the third respondent admits in the Statement of Agreed Facts to knowing that the Cleaning Award covered the employees, that it prescribed minimum rates and entitlements and the amounts (which were below the amounts stipulated by the Cleaning Award) that were actually paid to the employees.
Whether the breaches were properly distinct or arose out of the one course of conduct
The “course of conduct” principle and its potential application has been described as follows:
[T]he principle recognises that where there is an interrelationship between the legal and factual elements of two or more offences for which an offender has been charged, care must be taken to ensure that the offender is not punished twice for what is essentially the same criminality. That requires careful identification of what is “the same criminality” and that is necessarily a factually specific enquiry. [12]
[12] Construction, Forestry, Mining and Energy Union v Cahill (2010) 269 ALR 1 at [39] cited in Fair Work Ombudsman v Offshore Marine Services Pty Ltd [2012] FCA 498 at [25]
The contraventions, for the most part, occurred as a result of the two employees not being correctly classified as employees, but treated rather as independent contractors, despite the respondents’ knowledge that they were in fact employed and covered by the Cleaning Award.
The size of the business enterprise involved
All employers, regardless of size and financial circumstance, have an obligation to comply with minimum labour rights and entitlements.
The first respondent submitted that it “is a micro business” and that Mr Girowal, who is the director and manager of the first respondent, “has very limited financial resources.” It is also submitted that the penalties sought by the FWO would require Mr Girowal to “declare bankruptcy… leaving him unemployed and unable to provide for his family.”
The first respondent in its written submissions makes a number of self-serving statements in respect of Mr Girowal:
(a)That he is “an upstanding and honest person” who tries “to do the right thing in business and life”;
(b)That he “funded water wells in developing nations” building “4 wells in the last 12 months”;
(c)That his “conscience wouldn’t allow [him] to deliberately underpay international students”; and
(d)That he is “not in the habit of taking advantage of people”.
It is not necessary for the Court to determine whether two instances of the underpayment of two international students fulfils the definition of ‘habit’. The fact is that this is not the first time that the first respondent underpaid its employees.
The first respondent also says the following in relation to Mr Girowal’s financial situation:
I also plead that your honour take the following into account when imposing any penalties: my father passed away in July and as the only son I had to shoulder the cost of the funeral as well as providing for my elderly mother who without my support can’t provide for herself and would end up homeless. The small amount of savings I had has been exhausted and I barely have enough funds to run the business. I’ve been diagnosed with depression and anxiety, and I’ve been prescribed medication. I’m struggling to work and as a result I’ve lost 80% of my revenue.
After struggling through the pandemic and barely remaining afloat I have very limited financial resources and I don’t think it would be fair to bankrupt me and Green Clean by fining me an amount that is well above my means.
The Court notes that these penalty proceedings do not relate to any contraventions by Mr Girowal. It is unclear as to why he would need to declare bankruptcy because of any penalty imposed on the first respondent, a private company, and it is not relevant.
The third respondent did not appear at the penalty hearing and emailed the Court written submissions which were tendered in the proceedings. The third respondent submits:
I am unemployed and not likely to re-join the work force any time soon due to my bipolar disorder as such have very limited financial resources. The penalties suggested by FWO would result in me becoming homeless as I have no family support due to my behaviours while unwell.
And that:
I am an usually a trustworthy and honest person but my illness takes over at times and I have no control over my actions. At those times my behaviour becomes dangerous and unpredictable. I was hospitalised shortly after the contraventions took place and several times since then. I struggle day to day and I beg that you don’t impose a high penalty as I fear I may become suicidal.
The respondents did not give any evidence in the penalty proceedings. In these circumstances, the weight given to their submissions is minimal.
Whether or not the breaches were deliberate
As discussed above, the first respondent had previously contravened the FW Act in circumstances relating to the underpayment of international students in breach of the Cleaning Award.
In the Statement of Agreed Facts, the parties agreed that third respondent had actual knowledge or was an intentional participant in all of the admitted contraventions of the first respondent save for the non-payment of superannuation contravention.
Apropos of the s.718A contravention, the Court found in the liability judgment at [33] that the third respondent:
knew that she on behalf of the first respondent, produced documents in response to the Notice to Produce and that she knew that she knew or that she was reckless, in whether the documents were false or misleading at the time she produced them.
Whether senior management was involved in the breaches
Mr Girowal is the director of the first respondent, and its manager. The third respondent worked for the first respondent and assisted in managing and operating the company. The third respondent was given access to the company email address of Mr Girowal and the Court found in the liability judgment that the third respondent had the first respondent’s authority to reply to the FWO’s Notice to Produce. This indicates a seniority of her position.
Whether the party committing the breach had exhibited contrition and Whether the party committing the breach had taken corrective action.
The first respondent rectified the underpayments to the two employees on 17 February 2020.
The respondents made admissions as to liability for all contraventions save for the s 718A contravention. This demonstrates a recognition of wrongdoing and a willingness to facilitate and expedite the course of justice.
In Mornington Inn Pty Ltd v Jordan at [76],[13] the Full Federal Court said:
[A] discount should not be available simply because a respondent has spared the community the cost of a contested trial. Rather, the benefit of such a discount should be reserved for cases where it can be fairly said that an admission of liability: (a) has indicated an acceptance of wrongdoing and a suitable credible expression of regret; and/or (b) has indicated a willingness to facilitate the course of justice
[13] [2008] FCAFC 70.
There is no evidence that the first responded has amended its work practices in light of its contraventions. The first respondent nonetheless submits that:
This was not a deliberate act but an honest mistake and there was no premeditation or intention to underpay the parties nor to not meet our obligations.
This submission was not supported by evidence and also contradicts the admissions in the Statement of Agreed Facts and the fact that the respondents have had interactions with the FWO in relation to underpayments in contravention of the Cleaning Award in the past.
The first respondent also submits with regard to the s.718A contravention:
I’ve certainly learned my lesson regarding performing due diligence in such important matters. I will never allow this situation to arise in the future.
The Court does not accept this submission. It is made without any reference to fact.
Whether the party committing the breach had cooperated with the enforcement authorities
With regard to all contraventions of the FW Act save for the s.718A contravention, the respondents cooperated with the FWO by admitting to the contraventions and by rectifying the underpayments.
The s.718A contravention inherently stems from a failure to properly cooperate with the FWO and therefore it would be inappropriate to aggravate that contravention on this basis.
The need to ensure compliance with minimum standards by provision of an effective means for investigation and enforcement of employee entitlements
The s.718A contravention had the intention and/or effect of frustrating the effective investigation of contraventions of minimum employment standards by the FWO.
The need for specific or general deterrence.
There is no evidence before the Court to suggest that the first respondent does not continue to operate its cleaning business.
Mr Girowal continues to hold his position as director and will presumably continue to have responsibility for overseeing employee’s entitlements.
The first respondent has previously failed to comply with compliance notices in respect of underpayment of employees in breach of the Cleaning Award.
Specific deterrence is therefore particularly relevant to this case.
General deterrence is also an important factor for the Court’s consideration. It is vital for the purposes of the FW Act that the public is left in no doubt as to there being obligations to afford employees their minimum entitlements and to cooperate with statutory notices issued by FWO, such as a Notice to Produce.
The FWO has provided evidence of and submits, and the Court accepts, that those in the cleaning industry and those in Australia on visas are overrepresented in disputes received by the FWO.
Apropos of the s.718A contravention, there is particular need for general deterrence when there has been the provision of false and misleading documents because such documents intend to undermine the workplace relations system, and its enforcement, as a whole.
Penalty Imposed
The totality principle seeks to ensure that whilst the penalty imposed must not be crushing or oppressive, it must be proportionate to the conduct engaged in by the respondents and not have the effect of exonerating the conduct.[14]
[14] Kelly at [30]; McAlary-Smith at [23] per Gray J, at [66]-[73] per Graham J, at [98]-[102] per Buchanan J; Fair Work Ombudsman v Promoting U Pty Ltd & Anor [2012] FMCA 58 at [55]- [57].
The maximum penalty that the Court could award for these contraventions is $567,000 for the first respondent and $100,800 for the third respondent.
The FWO has sought a nominal penalty only for the contraventions of s.45 of the FW Act with regard to cl.27.1 of the Cleaning Award (shift work penalty rates) and does not press for penalties in relation contraventions of s.45 of the FW Act relating to contraventions of cl.28.2 (overtime rates) and cl.17.1 (broken shift allowances) of the Cleaning Award.
There is no evidence before the Court as to the specific financial position of the first or third respondent, and as such, it is difficult to accept their respective submissions that the penalty sought by the FWO would be crushing or oppressive.
The FWO seeks penalties within the range of $100,396.80 - $128,142 inclusive of a 20% total reduction against the first respondent and penalties in the range of $17,508.96 - $22,201.20 inclusive of a 20% total reduction against the third respondent.
At Annexure B to the FWO’s written submissions, the FWO provides a table containing a detailed breakdown of the breaches and the penalty which the FWO says should be attributed to each contravention of the FW Act.
The determination of an appropriate penalty is of course, a matter that must be determined by the Court.
The first respondent’s breaches were serious. They affected particularly vulnerable workers. The maximum penalties speak to the seriousness with which such conduct is considered by the legislature, as does the grouping permitted by s.557. However, the contraventions arose out of a particular course of conduct, they have been rectified and the respondents have co-operated to a reasonable extent.
The following penalties will therefore be imposed:
(a)For the s.45 contraventions, the appropriate penalty is 40% of the maximum for each contravention, except for those contraventions which resulted in only very minor underpayments which will not have any penalty imposed, with an overall 20% discount;
(b)For the s.536 contravention, the appropriate penalty is also 40% of the maximum with a 20% discount; and
(c)For the s.718A contravention, being the most serious, the appropriate penalty is 80% of the maximum, with no discount.
In respect of the first respondent the appropriate penalties are determined as follows:
First Respondent Contravention Penalty Section 45 of the FW Act by failing to pay the Employees the minimum hourly rate as required by cl.16 of the Cleaning Award. $20,160 Section 45 of the FW Act by failing to pay the Employees casual loading as required by cl.12.5(a) of the Cleaning Award. $20,160 Section 45 of the FW Act by failing to pay the Employees shiftwork penalty rates as required by cl.27.1 of the Cleaning Award. $0 Section 45 of the FW Act by failing to pay the Employees overtime rates as required by cl.28.2 of the Cleaning Award. $0 Section 45 of the FW Act by failing to pay the Employees broken shift allowances as required by cl.17.1 of the Cleaning Award. $0 Section 45 of the FW Act by failing to pay the Employees amounts due within seven days of termination as required by cl.20.5 of the Cleaning Award. $20,160 Section 45 of the FW Act by failing to make superannuation contributions on behalf of the Employees as required by cl.23.2 of the Cleaning Award. $20,160 Section 536 of the FW Act by failing to provide pay slips to the Employees within one working day of paying amounts to them in relation to the performance of work on six occasions. $20,160 Section 718A of the FW Act by producing documents to a Fair Work Inspector with knowledge or recklessness as to whether the documents were false or misleading. $50,400 TOTAL Amount of Penalty for First Respondent: $151,200
The third respondent was instrumental in the first respondent’s breaches, and the penalties applied to her contraventions will be determined in a similar fashion to that of the first respondent.
In respect of the third respondent the appropriate penalties are determined as follows:
Third Respondent Contravention Penalty Section 45 of the FW Act by failing to pay the Employees the minimum hourly rate as required by cl.16 of the Cleaning Award.
$4,032
Section 45 of the FW Act by failing to pay the Employees casual loading as required by cl.12.5(a) of the Cleaning Award.
$4,032
Section 45 of the FW Act by failing to pay the Employees shiftwork penalty rates as required by cl.27.1 of the Cleaning Award.
$0
Section 45 of the FW Act by failing to pay the Employees overtime rates as required by cl.28.2 of the Cleaning Award.
$0
Section 45 of the FW Act by failing to pay the Employees broken shift allowances as required by cl.17.1 of the Cleaning Award.
$0
Section 45 of the FW Act by failing to pay the Employees amounts due within seven days of termination as required by cl.20.5 of the Cleaning Award.
$4,032
Section 536 of the FW Act by failing to provide pay slips to the Employees within one working day of paying amounts to them in relation to the performance of work on six occasions.
$4,032
Section 718A of the FW Act by producing documents to a Fair Work Inspector with knowledge or recklessness as to whether the documents were false or misleading.
$10,080
TOTAL Penalty to be imposed on the Third Respondent: $26,208
Lastly, by reference to the principle of totality in respect of each of the respondents, it is appropriate that there be a further reduction in the amount of 30%.
As such, the aggregate penalties are in respect of the first respondent $105,840 and in respect of the third respondent $18,346.
In all of the circumstances, given the respondents’ conduct, the total penalty, while significant so as to bear relativity to the seriousness of the conduct, is not oppressive or crushing.
I certify that the preceding seventy-eight (78) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Obradovic. Deputy Associate:
Dated: 6 April 2023
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