Fair Work Ombudsman v Grouped Property Services Pty Ltd (No 2)

[2017] FCA 557

FEDERAL COURT OF AUSTRALIA

Fair Work Ombudsman v Grouped Property Services Pty Ltd (No 2)
[2017] FCA 557

File number:

NSD 659 of 2014

Judge:

KATZMANN J

Date of judgment:

24 May 2017

Catchwords:

INDUSTRIAL LAW — compensation and penalties — pecuniary penalty — appropriate penalty to be imposed — multiple contraventions of Fair Work Act 2009 (Cth) and industrial awards — applicable penalty where value of penalty unit increased during period of contraventions — whether multiple contraventions should be grouped and treated as a single contravention — whether contraventions arose out of a single course of conduct — application of totality principle

PRACTICE AND PROCEDURE — application by successful party to vary earlier orders and judgment — proper application of slip rule — Federal Court Rules 2011 (Cth), r 39.05

Legislation:

Acts Interpretation Act 1901 (Cth), s 7(2)(d)

Bankruptcy Act 1966 (Cth), ss 58(3), 82

Crimes Act 1914 (Cth), ss 4AA, 4F

Crimes Legislation Amendment (Serious Drugs, Identity Crime and Other Measures) Act 2012 (Cth)

Fair Work Act 2009 (Cth), ss 16(1), 44, 45, 86, 87, 90, 99, 116, 117, 293, 323, 340, 357, 535(2), 536(1), 539(2), 544, 545, 546, 547, 549, 557, 570

Federal Court of Australia Act 1976 (Cth), s 51A(1)

Federal Court Rules 2011 (Cth), r 39.05

Explanatory Memorandum to the Fair Work Bill 2008 (Cth)

Cases cited:

Attorney‑General (SA) v Tichy (1982) 30 SASR 84

Australian Building and Construction Commissioner v Inner Strength Steel Fixing Pty Ltd [2012] FCA 499

Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union [2017] FCAFC 53

Australian Competition and Consumer Commission v Australian Safeway Stores Pty Ltd (1997) 145 ALR 36

Australian Competition and Consumer Commission v Reckitt Benckiser (Australia) Pty Ltd [2016] FCAFC 181

Australian Competition and Consumer Commission v TPG Internet Pty Ltd (2013) 250 CLR 640

Australian Ophthalmic Supplies Pty Ltd v McAlary-Smith (2008) 165 FCR 560

Camilleri’s Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683

Commonwealth v Director, Fair Work Building Industry Inspectorate; Construction, Forestry, Mining and Energy Union v Director, Fair Work Building Industry Inspectorate [2015] HCA 46, (2015) 90 ALJR 113, 255 IR 87, 326 ALR 476

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v QR Ltd (No 2) [2010] FCA 652

Construction, Forestry, Mining and Energy Union v Cahill [2010] FCAFC 39; (2010) 269 ALR 1

Construction, Forestry, Mining and Energy Union v Williams [2009] FCAFC 171; (2009) 262 ALR 417

Director of the Fair Work Building Industry Inspectorate v Stephenson [2014] FCA 1432; (2014) 146 ALD 75

Director, Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union (2015) 229 FCR 331

Director, Fair Work Building Industry Inspectorate v Foxville Projects Group Pty Ltd [2015] FCA 492

Fair Work Ombudsman v AJR Nominees Pty Ltd (No 2) [2014] FCA 128

Fair Work Ombudsman v Grouped Property Services Pty Ltd [2016] FCA 1034; (2016) 152 ALD 209

Fair Work Ombudsman v Jetstar Airways Ltd [2014] FCA 33

Fair Work Ombudsman v Kentwood Industries Pty Ltd (No 3) [2011] FCA 579

Fair Work Ombudsman v Lifestyle SA Pty Ltd [2014] FCA 1151

Fair Work Ombudsman v South Jin Pty Ltd (No 2) [2016] FCA 832

Fair Work Ombudsman v Taj Palace Tandoori Indian Restaurant Pty Ltd [2012] FMCA 258

Fair Work Ombudsman v Pucci [2011] FMCA 997

Fryar v System Services Pty Ltd (1996) 137 ALR 321

General Manager of the Fair Work Commission v Thomson (No 4) [2015] FCA 1433

Kelly v Fitzpatrick [2007] FCA 1080

Legal Services Commissioner v O’Donnell [2015] NSWCATOD 17

Markarian v The Queen (2005) 228 CLR 357

Mornington Inn Pty Ltd v Jordan (2008) 168 FCR 383

Murrihy v Betezy.com.au Pty Ltd (No 2) (2013) 221 FCR 118

Pearce v The Queen (1998) 194 CLR 610

QR Ltd v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia [2010] FCAFC 150; (2010) 204 IR 142

R v McInerney (1986) 42 SASR 111

R v White (BC9101745, NSWCCA, 25 July 1991, unreported)

Re Gillies; Ex Parte Official Trustee in Bankruptcy (1993) 42 FCR 571

Rocky Holdings Pty Ltd v Fair Work Ombudsman (2014) 221 FCR 153

Royer v Western Australia [2009] WASCA 139

Samuels v Songalia (1977) 16 SASR 397

Singtel Optus Pty Ltd v Australian Competition and Consumer Commission [2012] FCAFC 20; (2012) 287 ALR 249

TPG Internet Pty Ltd v Australian Competition and Consumer Commission (2012) 210 FCR 277

Wong v The Queen (2001) 207 CLR 584

Date of hearing:

31 January and 1, 2 and 3 February 2017

Date of last submissions:

12 May 2017

Registry:

New South Wales

Division:

Fair Work Division

National Practice Area:

Employment & Industrial Relations

Category:

Catchwords

Number of paragraphs:

609

Counsel for the Applicant:

Mr Y Shariff with Ms V Bulut

Solicitor for the Applicant:

Fair Work Ombudsman

Counsel for the First Respondent:

The First Respondent did not appear

Counsel for the Third Respondent:

The Third Respondent appeared in person

Counsel for the Fourth Respondent:

The Fourth Respondent appeared in person

ORDERS

NSD 659 of 2014

BETWEEN:

FAIR WORK OMBUDSMAN

Applicant

AND:

GROUPED PROPERTY SERVICES PTY LTD (ACN 121 762 534)

First Respondent

NATIONAL CONTRACTORS PTY LTD (ACN 159 741 518)

Second Respondent

ROSARIO PUCCI (and another named in the Schedule)

Third Respondent

JUDGE:	KATZMANN J
DATE OF ORDER:	24 MAY 2017

THE COURT ORDERS THAT:

Compensation

1.Pursuant to s 545(2) of the Fair Work Act 2009 (Cth) (the Act), within 28 days of these orders coming into effect, the first respondent, Grouped Property Services Pty Ltd (GPS), pay compensation to the applicant, the Fair Work Ombudsman, in the sum of $223,244.66.

2.Within 60 days of receipt of the sum mentioned in order 1, the Ombudsman distribute to the persons named in Annexure 1 to these orders the amounts appearing beside their names.

3.Pursuant to s 547(2) of the Act, within 28 days of these orders coming into effect, GPS pay the Ombudsman interest on the amounts set out in Annexure 1.

4.For the purpose of order 3, interest be calculated from the end of  the employment of each of the persons named in Annexure 1 at the rates specified in cl 2.2 of Practice Note GPN-INT, namely:

(a)in respect of the period from 1 January to 30 June in any year, the rate that is 4% above the cash rate last published by the Reserve Bank of Australia before that period commenced; and

(b)in respect of the period from 1 July to 31 December in any year, the rate that is 4% above the cash rate last published by the Reserve Bank of Australia before that period commenced.

5.Within 60 days of receipt, the Ombudsman distribute the sum paid under order 3 to the persons named in Annexure 1.

6.In the event that the Ombudsman receives a partial payment of the amount due under orders 1 and/or 3, the amount received be distributed to the persons listed in Annexure 1 in accordance with the percentages set out in that annexure.

7.Pursuant to s 545(2) of the Act, within 28 days of these orders coming into effect, GPS and the fourth respondent, Enrico Pucci, pay the Ombudsman the sum of $307.68 as compensation for the contravention of s 340 of the Act.

8.Within 28 days of receipt of the sum mentioned in order 7, the Ombudsman pay the sum to Moona Hasan.

9.Pursuant to s 547(2) of the Act, within 28 days of these orders coming into effect, GPS and Enrico Pucci pay the Ombudsman interest on the sum set out in order 7 from 26 March 2013, being the date Ms Hasan’s employment ended, and at the rates specified in cl 2.2 of Practice Note GPN–INT, specifically by reference:

(a)in respect of the period from 1 January to 30 June in any year — to the rate that is 4% above the cash rate last published by the Reserve Bank of Australia before that period commenced, and

(b)in respect of the period from 1 July to 31 December in any year — to the rate that is 4% above the cash rate last published by the Reserve Bank of Australia before that period commenced.

10.Within 28 days of receipt of the interest payment referred to in order 9, the Ombudsman pay the sum to Moona Hasan.

11.In the event that within 60 days of receipt of the above sums the Ombudsman cannot locate any of the persons to whom compensation is payable in accordance with these orders, within a further 14 days GPS publish, at its own expense, a notice:

(a)in the following newspapers:

(i)The Sunday Telegraph;

(ii)The Sun Herald;

(iii)The Sunday Mail (Queensland);

(iv)The Sunday Mail (South Australia);

(v)The Sunday Times (Western Australia);

(vi)The Herald Sun;

(vii)The Sunday Age; and

(viii)The Canberra Times,

(b)which:

(i)notifies the readers of the Court’s orders;

(ii)bears the GPS company name and logo;

(iii)appears on any of pages 3, 5 or 7 of the relevant newspaper; and

(iv)measures at least 10 centimetres high by 5 centimetres wide.

12.In the event that a person to whom compensation is payable in accordance with these orders cannot be located, within 28 days of the publication of the advertisements the Ombudsman pay the amount due to that person to the Consolidated Revenue Fund.

Penalties

13.Pursuant to s 546(1) of the Act, GPS pay the penalties referred to in Annexure 2 to these orders.

14.Pursuant to s 546(1) of the Act, the third respondent, Rosario Pucci, pay the penalties referred to in Annexure 3 to these orders.

15.Pursuant to s 546(1) of the Act, Enrico Pucci pay a penalty of $3,000 for his involvement in the contravention by GPS of s 340 of the Act.

16.Within 28 days of these orders coming into effect, pursuant to s 546(3) of the Act, GPS, Rosario and Enrico Pucci respectively pay the penalties set out in orders 13, 14 and 15 to the Consolidated Revenue Fund.

Variations to earlier orders and judgment

17.Pursuant to sub-rule 39.05(f) of the Federal Court Rules 2011 (Cth) (the Rules), with the consent of the Ombudsman, the declarations made on 26 August 2016 be varied by:

(a)substituting the number “31” for the number “32” in declaration 1.2;

(b)substituting “s 99” for “s 97” in declaration 1.3;

(c)substituting the number “21” for the number “23” in declaration 2.15;

(d)substituting the number “17” for the number “19” in declaration 2.16;

(e)substituting “six” for “seven” in declaration 2.19;

(f)substituting the number “49” for the number “50” in declaration 4;

(g)substituting “one” for “two” in declaration 10.4;

(h)substituting the number “8” for the number “11” in declaration 10.12;

(i)substituting “21” for “23” in declaration 10.16; and

(j)substituting the number “51” for “one” in declaration 10.23.

18.Pursuant to sub-rules 39.05(e), (f), (g) and/or (h) of the Rules, the orders and judgment in Fair Work Ombudsman v Grouped Property Services Pty Ltd [2016] FCA 1034 be varied by:

(a)inserting the word “free” after the words “award/agreement” in declaration 3;

(b)replacing the references to “s 97” in [33](3) and [995] and the third row of each of the two tables in Annexure B with “s 99”;

(c)substituting “Juliana Botero Hernandez” for “Jessica Alvarado Palma” in [268] and “Jessica Alvarado Palma” for “Juliana Botero Hernandez” in [269];

(d)substituting “2012” for “2013” in the first sentence of [339];

(e)replacing the words “dated 12 January 2013” in [394] with the phrase “received by the Ombudsman on 14 February 2013”;

(f)substituting “s 117(2)” for “s 90(2)” in [399] and [405];

(g)substituting “cl 27.1(b)” for “cl 27.2(b)” in [706];

(h)inserting after “18 January 2013” in [762] the words: “save for one payment of $500”;

(i)removing the third sentence from [767];

(j)substituting “Boxing Day 2011” for “Boxing Day 2012” in [775];

(k)substituting “5 April 2012” for “15 April 2012” in [812];

(l)substituting “s 90(2)” for “s 87(1)” in [986];

(m)substituting “2012” for “2013” and “$15.96” for “16.37” in the penultimate sentence of [879]; and

(n)substituting the male pronoun for the female pronoun in all references to Wendy Bong.

Costs

19.Costs be reserved.

Procedural matters

20.By 5.00pm on 31 May 2017, the parties inform the Court of any agreed arithmetical or clerical errors or slips in the orders or reasons for judgment published today or, in default of agreement, notify the Court of any such error(s) in submissions not exceeding 5 pages.

21.Unless the Court otherwise orders, orders 1–19 above come into effect on 1 June 2017.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

ANNEXURE 1

Compensation

Employee	Amount	Percentage
Alfonso Alcuitas	$20,487.14	9.177%
Jessica Alvarado Palma	$1,648.80	0.739%
Abraham Arguello	$18,057.82	8.089%
Paul Bacon	$715.42	0.320%
Wendy Bong	$2,148.07	0.962%
Juliana Botero Hernandez	$1,159.95	0.520%
Angela Bustos Alvarado	$3,646.15	1.633%
Mariana De Queiroz	$6,823.84	3.057%
Marco Diaz	$3,572.42	1.600%
Rangana Dissanayake	$4,237.60	1.898%
Barry Dowling	$10,560.88	4.731%
Aisling Dunn	$2,392.23	1.072%
Fawaz El Rahman	$7,291.80	3.266%
Andrea Grigoletto	$213.01	0.095%
Marissa Hall	$1,141.88	0.511%
Moona Hasan	$1,173.97	0.526%
Alyson Hellyer	$2,536.49	1.136%
Freddy Herrera	$23,474.19	10.515%
Fiona Holland	$1,288.76	0.577%
Martyn Jones	$954.47	0.428%
Michael Kallee	$761.49	0.341%
Khaga Kandel	$2,450.19	1.098%
Bibek Luitel	$58.84	0.026%
Robin Malla	$3,700.34	1.658%
Charles Mascarenhas	$2,628.72	1.178%
Tammy May	$10,034.24	4.495%
Christine Meager	$415.22	0.186%
Kian Mu	$6,249.26	2.799%
Giang Ngo	$814.70	0.365%
Helen Pakas	$13,069.49	5.854%
Employee	Amount	Percentage
Jose Pena	$4,711.15	2.110%
Barbara Piper	$820.66	0.368%
Anna Plows	$2,358.09	1.056%
Tuula Rintala	$1,274.09	0.571%
Linda Robinson	$3,893.58	1.744%
Paul Saint James	$1,212.96	0.543%
Sumit Salhotra	$4,273.94	1.914%
Lara Satchell	$1,557.34	0.698%
Md Shamsuzzoha	$2,158.99	0.967%
Baljinder Singh	$1,528.91	0.685%
Dianne Sjoberg	$1,934.28	0.866%
Cheryl Sorrell	$1,004.09	0.450%
Thomas Sung Hong	$21,995.51	9.853%
Tui Tane	$968.98	0.434%
Xiao Teng	$2,803.07	1.256%
Sekson Thinathin	$4,927.16	2.207%
Tashi Wangchuck	$1,059.80	0.475%
Robert Wilkey	$8,829.85	3.955%
Wen Yang	$2,224.83	0.997%
Total	$223,244.66	100.000%

ANNEXURE 2

Penalties to be paid by Grouped Property Services Pty Ltd

No.	Contravention	Penalty
1	Failing to pay annual leave when leave taken contrary to s 90(1) of the Act	$1,500
2	Failing to pay accrued untaken annual leave on termination contrary to s 90(2) of the Act	$25,000
3	Failing to pay personal leave contrary to s 99 of the Act	$1,000
4	Failing to pay for public holidays ordinarily worked contrary to s 116 of the Act	$4,000
5	Failing to give written notice of termination contrary to s 117(1) of the Act	$6,000
6	Failing to give adequate notice or payment in lieu contrary to s 117(2) of the Act	$12,500
7	Failing to pay minimum award rate under the Cleaning Services Award 2010	$3,500
8	Failing to pay minimum award rates under the Clerks — Private Sector Award 2010	$10,000
9	Failing to pay superannuation under the Clerks Award	$5,000
10	Failing to pay overtime under the Clerks Award	$2,000
12	Failing to give part-time employees written agreements on patterns of work contrary to cl 12.4(a) of the Cleaning Services Award	$7,500
13	Failing to pay the part-time allowance under the Cleaning Services Award	$7,500
14	Failing to pay broken shift allowance under the Cleaning Services Award	$3,000
16	Failing to pay for travel time under the Clerks Award	$500
17	Failing to pay employees covered by the Cleaning Services Award either weekly or fortnightly as required by cl 20.1	$30,000
18	Failing to pay employees kept waiting for their wages as required by cl 20.3 of the Cleaning Services Award	$25,000
19	Failing to pay superannuation contributions under cl 23.2 of the Cleaning Services Award	$25,000
22	Failing to pay penalty rates for early morning, afternoon and non-permanent night shift under Cleaning Services Award	$20,000
23	Failing to pay penalty rates for permanent night shift under the Cleaning Services Award	$15,000
24	Failing to pay Saturday penalty relates under the Cleaning Services Award	$10,000
25	Failing to pay Sunday penalty rates under the Cleaning Services Award	$4,000
26	Failing to pay  public holiday penalty rates under the Cleaning Services Award	$9,000
No.	Contravention	Penalty
27	Failing to pay penalty rates for overtime worked Monday to Saturday as required by the Cleaning Services Award	$22,000
28	Failing to pay penalty rates for overtime worked on Sunday as required by the Cleaning Services Award	$8,000
29	Failing to pay penalty rates for overtime worked on public holidays as required by the Cleaning Services Award	$1,000
30	Failing to pay annual leave loadings as required by the Cleaning Services Award	$2,000
31	Failing to pay non-award employees the national minimum wage contrary to s 293 of the Act	$10,000
32	Failing to pay employees in full at least monthly contrary to s 323 of the Act	$25,000
33	Taking adverse action against Moona Hasan contrary to s 340 of the Act	$15,000
34	Falsely representing employment contracts as contracts for services contrary to s 357(1) of the Act	$35,000
35	Failing to keep prescribed records contrary to s 535(2) of the Act	$13,000
36	Failing to provide pay slips in accordance with the Regulations contrary to s 536(1) of the Act	$12,000
Total	$370,000

ANNEXURE 3

Penalties to be paid by Rosario Pucci

No.	Contravention	Penalty
1	Failing to pay annual leave when leave taken contrary to s 90(1) of the Act	$1,300
2	Failing to pay accrued untaken annual leave on termination contrary to s 90(2) of the Act	$1,800
5	Failing to give written notice of termination contrary to s 117(1) of the Act	$1,300
6	Failing to give adequate notice or payment in lieu contrary to s 117(2) of the Act	$1,300
7	Failing to pay minimum award rates under the Cleaning Services Award	$2,000
8	Failing to pay minimum award rates under the Clerks Award	$2,000
9	Failing to pay superannuation under the Clerks Award	$1,300
10	Failing to pay overtime  under the Clerks Award	$1,300
12	Failing to give part-time employees written agreements on patterns of work contrary to cl 12.4(a) of the Cleaning Services Award	$1,000
13	Failing to pay the part-time allowance under the Cleaning Services Award	$1,300
17	Failing to pay employees covered by the Cleaning Services Award either weekly or fortnightly as required by cl 20.1	$8,000
18	Failing to pay employees kept waiting for their wages as required by cl 20.3 of the Cleaning Services Award	$6,000
19	Failing to pay superannuation contributions under cl 23.2 of the Cleaning Services Award	$6,000
22	Failing to pay penalty rates for early morning, afternoon and non-permanent night shift under the Cleaning Services Award	$6,000
23	Failing to pay penalty rates for permanent night shift under the Cleaning Services Award	$1,300
24	Failing to pay Saturday penalty relates under the Cleaning Services Award	$6,000
25	Failing to pay Sunday penalty rates under the Cleaning Services Award	$3,000
27	Failing to pay penalty rates for overtime worked Monday to Saturday as required by the Cleaning Services Award	$1,300
28	Failing to pay  penalty rates for Sunday overtime as required by the Cleaning Services Award	$1,300

No.	Contravention	Penalty
30	Failing to pay annual leave loadings as required by the Cleaning Services Award	$1,300
31	Failing to pay non-award employees the national minimum wage contrary to s 293 of the Act	$5,000
34	Falsely representing employment contracts as contracts for services contrary to s 357(1) of the Act	$8,000
35	Failing to keep prescribed records contrary to s 535(2) of the Act	$3,500
36	Failing to provide pay slips in accordance with the Regulations contrary to s 536(1) of the Act	$3,000
Total	$74,300

REASONS FOR JUDGMENT
Table of Contents

The application to vary the judgment and declarations	[5]
Compensation	[36]
The legal parameters	[36]
The Ombudsman’s application	[38]
The problem of classification	[42]
Calculation of the underpayments	[45]
The extent of the underpayments	[54]
Contravention 1: Failing to pay annual leave, contrary to s 90(1) of the Act	[54]
Contravention 2: Failing to pay accrued annual leave on termination, contrary to s 90(2) of the Act	[60]
Contravention 3: Failing to pay basic rates for personal leave, contrary to s 99 of the Act	[82]
Contravention 4: Failing to pay employees for public holidays or part thereof when they would ordinarily have worked, contrary to s 116 of the Act	[84]
Contravention 5: Failing to give written notice of termination of employment, contrary to s 117(1) of the Act	[92]
Contravention 6: Failing to give adequate notice or payment in lieu, contrary to s 117(2) of the Act	[93]
Contravention 7: Failing to pay the minimum rate prescribed by cl 16.1 of the Cleaning Services Award	[108]
Contravention 8: Failing to pay administrative employees at a rate of pay at least equal to the Level 1 rate of pay prescribed by cl 16 and item A.2.5 of the Clerks Award	[109]
Contravention 9: Failing to pay superannuation to administrative employees, contrary to cl 24.2 of the Clerks Award	[115]
Contravention 10:  Failing to pay for overtime, contrary to cl 25 of the Clerks Award	[116]
Contravention 12:  Failing to give part-time employees written agreements on patterns of work, contrary to cl 12.4(a) of the Cleaning Services Award	[120]
Contravention 13:  Failing to pay 15% allowance to part-time employees, contrary to cl 12.4(b)(iii) of the Cleaning Services Award	[121]
Contravention 14: Failing to pay broken shift allowance, contrary to cl 17.1 of the Cleaning Services Award	[140]
Contravention 16:  Failing to pay for travel time, contrary to cl 17.10 of the Cleaning Services Award	[148]
Contravention 17: Failing to pay employees on a weekly or fortnightly basis, contrary to cl 20.1 of the Cleaning Services Award	[149]
Contravention 18: Failing to pay employees kept waiting, contrary to cl 20.3 of the Cleaning Services Award	[150]
Contravention 19: Failing to pay superannuation, contrary to cl 23.2 of the Cleaning Services Award	[151]
Contravention 22: Failing to pay penalty rates for early morning, afternoon and non-permanent night shift, contrary to cl 27.1(a) of the Cleaning Services Award	[152]
Contravention 23: Failing to pay penalty rate for permanent night shift, contrary to cl 27.1(b) of the Cleaning Services Award	[176]
Contravention 24: Failing to pay Saturday penalty rates, contrary to cl 27.2 of the Cleaning Services Award	[184]
Contravention 25: Failing to pay Sunday penalty rates, contrary to cl 27.2(b) of the Cleaning Services Award	[210]
Contravention 26: Failing to pay part-time employees public holiday penalty rates, contrary to cl 27.3 of the Cleaning Services Award	[235]
Contravention 27: Failing to pay part-time employees for overtime worked on Monday–Saturday, contrary to cl 28.2 of the Cleaning Services Award	[254]
Contravention 28: Failing to pay for overtime part-time employees for overtime worked on a Sunday, contrary to cl 28.3 of the Cleaning Services Award	[254]
Contravention 29: Failing to pay for overtime worked on a public holiday, contrary to cl 28.4 of the Cleaning Services Award	[323]
Contravention 30: Failing to pay annual leave loading contrary to cl 29.4 of the Cleaning Services Award	[331]
Contravention 31: Failing to pay non-award employees the national minimum wage in contravention of s 293 of the Act	[338]
Contravention 32: Failing to pay employees in full in contravention of s 323 of the Act	[341]
Contravention 33: Taking adverse action against Moona Hasan in contravention of s 340 of the Act	[372]
Summary	[375]
The award of compensation	[376]
Interest	[378]
Penalties	[386]
The power to impose pecuniary penalties	[386]
General principles applicable to the imposition of civil penalties	[387]
The maximum penalties	[390]
Contraventions arising out of a course of conduct	[402]
The evidence	[440]
GPS	[454]
The penalties	[483]
Contravention 1: Failing to pay annual leave, contrary to s 90(1) of the Act	[483]
Contravention 2: Failing to pay accrued untaken annual leave on termination, contrary to s 90(2) of the Act	[485]
Contravention 3: Failing to pay basic rates for personal leave, contrary to s 99 of the Act	[486]
Contravention 4: Failing to pay employees for public holidays or part thereof when they would ordinarily have worked, contrary to s 116 of the Act	[487]
Contravention 5: Failing to give written notice of termination of employment, contrary to s 117(1) of the Act	[488]
Contravention 6: Failing to give adequate notice or payment in lieu, contrary to s 117(2) of the Act	[489]
Contravention 7:  Failing to pay the minimum rate prescribed by cl 16.1 of the Cleaning Services Award	[493]
Contravention 8:  Failing to pay administrative employees at a rate of pay at least equal to the Level 1 rate of pay prescribed by cl 16 and item A.2.5 of the Clerks Award	[495]
Contravention 9:  Failing to pay superannuation to administrative employees, contrary to cl 24.2 of the Clerks Award	[496]
Contravention 10:  Failing to pay for overtime, contrary to cl 25 of the Clerks Award	[497]
Contravention 12:  Failing to provide written agreements specifying work patterns to part-time employees, contrary to cl 12.4(a) of the Cleaning Services Award	[498]
Contravention 13:  Failing to pay 15% allowance to part-time employees, contrary to cl 12.4(b)(iii) of the Cleaning Services Award	[499]
Contravention 14:  Failing to pay broken shift allowance, contrary to cl 17.1 of the Cleaning Services Award	[500]
Contravention 16:  Failing to pay for travel time, contrary to cl 17.10 of the Cleaning Services Award	[501]
Contravention 17:  Failing to pay employees on a weekly or fortnightly basis, contrary to cl 20.1 of the Cleaning Services Award	[502]
Contravention 18:  Failing to pay employees kept waiting, contrary to cl 20.3 of the Cleaning Services Award	[505]
Contravention 19:  Failing to pay superannuation, contrary to cl 23.2 of the Cleaning Services Award	[507]
Contravention 22:  Failing to pay penalty rates for early morning, afternoon and non-permanent night shift, contrary to cl 27.1(a) of the Cleaning Services Award	[509]
Contravention 23:  Failing to pay penalty rate for permanent night shift, contrary to cl 27.1(b) of the Cleaning Services Award	[510]
Contravention 24:  Failing to pay Saturday penalty rates, contrary to cl 27.2 of the Cleaning Services Award	[511]
Contravention 25:  Failing to pay Sunday penalty rates, contrary to cl 27.2(b) of the Cleaning Services Award	[511]
Contravention 27: Failing to pay part-time employees for overtime worked on Monday–Saturday, contrary to cl 28.2 of the Cleaning Services Award	[514]
Contravention 28: Failing to pay for overtime part-time employees for overtime worked on a Sunday, contrary to cl 28.3 of the Cleaning Services Award	[514]
Contravention 26: Failing to pay part-time employees public holiday penalty rates, contrary to cl 27.3 of the Cleaning Services Award	[516]
Contravention 29: Failing to pay for overtime worked on a public holiday, contrary to cl 28.4 of the Cleaning Services Award	[516]
Contravention 30: Failing to pay annual leave loading, contrary to cl 29.4 of the Cleaning Services Award	[519]
Contravention 31: Failing to pay non-award employees the national minimum wage, in contravention of s 293 of the Act	[520]
Contravention 32: Failing to pay employees in full, in contravention of s 323 of the Act	[522]
Contravention 33: Taking adverse action against Moona Hasan, in contravention of s 340 of the Act	[530]
Contravention 34: Falsely representing employment contracts as contracts for services, in contravention of s 357 of the Act	[537]
Contravention 35: Failing to keep proper employee records, in breach of s 535(2) of the Act	[541]
Contravention 36: Failing to provide pay slips, in breach of s 536(1) of the Act	[547]
Conclusion	[551]
Enrico Pucci	[553]
Rosario Pucci	[555]
Contravention 1: Non-payment of annual leave, contrary to s 90(1) of the Act	[575]
Contravention 2: Non-payment of annual leave on termination, contrary to s 90(2) of the Act	[576]
Contravention 5: Failing to give written notice of termination, contrary to s 117(1) of the Act	[578]
Contravention 6: Failing to give adequate notice or payment in lieu, contrary to s 117(2) of the Act	[579]
Contravention 7:  Failing to pay the minimum rate prescribed by cl 16.1 of the Cleaning Services Award	[580]
Contravention 8:  Failing to pay award rates to administrative employees	[581]
Contravention 9:  Failing to pay superannuation to administrative employees, contrary to cl 24.2 of the Clerks Award	[583]
Contravention 10:  Failing to pay overtime, contrary to cl 25 of the Clerks Award	[584]
Contravention 12:  Failing to provide written agreements specifying work patterns to part-time employees, contrary to cl 12.4(a) of the Cleaning Services Award	[585]
Contravention 13:  Failing to pay 15% allowance to part-time employees, contrary to cl 12.4(b)(iii) of the Cleaning Services Award	[586]
Contravention 17:  Failing to pay employees on a weekly or fortnightly basis, contrary to cl 20.1 of the Cleaning Services Award	[587]
Contravention 18:  Failing to pay employees kept waiting, contrary to cl 20.3 of the Cleaning Services Award	[587]
Contravention 19:  Failing to pay superannuation, contrary to cl 23.2 of the Cleaning Services Award	[592]
Contravention 22:  Failing to pay allowances for early morning, afternoon and non-permanent night shift, contrary to cl 27.1(a) of the Cleaning Services Award	[593]
Contravention 23:  Failing to pay penalty rate for permanent night shift, contrary to cl 27.1(b) of the Cleaning Services Award	[594]
Contravention 24:  Failing to pay Saturday penalty rates, contrary to cl 27.2 of the Cleaning Services Award	[595]
Contravention 25:  Failing to pay Sunday penalty rates, contrary to cl 27.2(b) of the Cleaning Services Award	[595]
Contravention 27: Failing to pay penalty rates for weekly and Saturday overtime, contrary to cl 28.2 of the Cleaning Services Award	[596]
Contravention 28: Failing to pay penalty rates for Sunday overtime, contrary to cl 28.2 of the Cleaning Services Award	[596]
Contravention 30: Failing to pay annual leave loading, contrary to cl 29.4 of the Cleaning Services Award	[597]
Contravention 31: Failing to pay the national minimum wage, in breach of s 293 of the Act	[598]
Contravention 32: Failing to pay employees in full, in breach of s 323 of the Act	[600]
Contravention 34: Falsely representing employment contracts as contracts for services, in contravention of s 357 of the Act	[601]
Contravention 35: Failing to keep proper employee records, in breach of s 535(2) of the Act	[603]
Contravention 36: Failing to provide pay slips, in breach of s 536(1) of the Act	[604]
Conclusion	[605]
Costs	[608]

1. On 26 August 2016 I found that Grouped Property Services Pty Ltd (GPS) contravened the Fair Work Act 2009 (Cth) (FW Act) in numerous respects, that Enrico Pucci, a director of GPS, was involved in one of those contraventions, and that his brother Rosario Pucci, a former director, in a large number of them:  Fair Work Ombudsman v Grouped Property Services Pty Ltd [2016] FCA 1034; (2016) 152 ALD 209 (the Liability Judgment).  The vast majority of the contraventions consisted of failures to adhere to minimum employment standards, including by not paying award wages and other entitlements under the operative industrial awards.  GPS had denied liability.  Indeed, it disputed that it was the employer of any of the employees in respect of whom the allegations had been made, claiming that they were either independent contractors or employees of another company established by the Pucci family — National Contractors Pty Limited — which it maintained contracted with GPS to supply labour.  Yet, none of the respondents offered any evidence to support these claims, challenged the Ombudsman’s evidence, or filed any submissions, and none of them appeared at the hearing. 

2. GPS’s position was untenable in the light of the Ombudsman’s evidence.  On the basis of that evidence, I found that the so-called independent contractors were employees of GPS and that the alleged labour hire arrangement was a sham.  I proceeded to make declarations and a number of other orders.

3. At the time of publication of the Liability Judgment, three matters remained outstanding.  They were the questions of compensation, penalties, and costs.  This judgment is primarily concerned with the questions of compensation and penalties.  It should be read with the Liability Judgment.  For reasons of clarity and convenience, consistently with the approach I took in the Liability Judgment and without intending any disrespect, I shall refer to each of the Pucci respondents by his first name.

4. On 7 October 2016 I made orders for the filing and service of evidence and submissions on the outstanding matters and appointed hearing dates.  Those orders were made with Rosario’s consent and without opposition from Enrico.  The timetable was varied by consent on 21 November 2016 to afford the Ombudsman additional time to file and serve her evidence.  The Ombudsman’s evidence and submissions were filed and served on 2 December 2016.  The respondents’ evidence and submissions were due to be filed and served by 20 January 2017.  But once again, none of the respondents filed any evidence or submissions.  This time, however, both Rosario and Enrico attended the hearing and made submissions.  There was no appearance for GPS.  At the hearing Enrico was advised that he might apply for leave to make submissions on behalf of GPS but he did not make any such application. 

   THE APPLICATION TO VARY THE JUDGMENT AND DECLARATIONS

5. Before dealing with the questions of compensation and penalties, there is a preliminary matter which requires attention.

6. The Ombudsman applied to vary some of the declarations and to correct some clerical and other errors in the Liability Judgment.

7. The application was supported by an affidavit sworn by Eric Leahy, a Principal Lawyer in the Ombudsman’s office and the lawyer supervising the conduct of the proceeding on the Ombudsman’s behalf.

8. Rule 39.05 of the Federal Court Rules 2011 (Cth) relevantly provides that the Court may vary a judgment or order after it has been entered in a number of circumstances including if:

   (e)it does not reflect the intention of the Court; or

   (f)the party in whose favour it was made consents; or

   (g)there is a clerical mistake in [the] judgment or order; or

   (h)there is an error arising in [the] judgment or order from an accidental slip or omission.

9. The application to vary the judgment and declarations was made, not only with the consent, but at the behest, of the Ombudsman.  As the Ombudsman is the party in whose favour they were made, there can be no doubt that the Court has the power to do as the Ombudsman asks — provided, in the case of the application to vary the judgment, that it involves a variation of the kind contemplated by the rule.  Nevertheless, it is well-established that this power should only be exercised “where it is just and appropriate to do so”:  Perre v Apand [2004] FCA 1220 (Selway J at [11]).

10. To the extent that the Ombudsman seeks variations of the declarations, I am satisfied that in all but two cases it is indeed just and appropriate to make them.

11. The first matter raised by the Ombudsman concerns the erroneous inclusion of one particular employee in declaration 1.2. That declaration related to the contravention of s 44 of the FW Act by failing to pay 32 employees for their accrued untaken annual leave as prescribed by s 90(2) of the Act. The right to be paid for accrued annual leave is a right conferred on all employees except for casuals: FW Act, s 86. The employee whom the Ombudsman contended was wrongly included in this declaration was Bibek Luitel (see Liability Judgment at [292]). The Ombudsman characterised Mr Luitel as a part-time employee. Later in my reasons (at [496]), however, I found that Mr Luitel was not a part-time employee but a casual. I was not conscious of the discrepancy and I regret to say that it was not detected during the proof-reading process. I am indebted to the Ombudsman for drawing it to my attention. It was an obvious oversight. The declaration should be varied to reduce the number of employees from 32 to 31.

12. The Ombudsman also sought a variation of the judgment relating to Rosario’s involvement in contravention 23, which concerns the failure to pay employees the applicable penalty rate for working permanent night shifts contrary to cl 27.1(b) of the Cleaning Services Award 2010 (Cleaning Services Award). 

13. In the Liability Judgment (at [1087]), I observed that, in order to find that Rosario was “involved in” GPS’s contravention, it must be established that Rosario had knowledge that:

    (1)an employee was covered by the Cleaning Services Award;

    (2)the employee worked a shift finishing after midnight and at or before 8.00am;

    (3)the shift did not alternate or rotate with another shift or day work; and

    (4)the employee was not paid an additional 30% of the ordinary hourly rate for the appropriate classification.

14. The error resulted from my consideration of elements (2) and (3).

15. I found that Rosario was involved in this contravention because of his knowledge of the shift rosters for Alfonso Alcuitas.  Yet, I did not find that GPS had contravened the award in respect of Mr Alcuitas.  Indeed, the Ombudsman had made no such allegation. This was an undoubted error. 

16. The Ombudsman submitted that this was a slip and I could amend the reasons to correct the error.  I reject the submission.

17. This was not a slip because it was not an error arising from a clerical mistake or omission and it was not unintentional because the reasons reflected my intention at the time, misconceived though it was, to find that Rosario was culpable because of his knowledge of the elements of a contravention involving Alfonso Alcuitas. The slip rule, which is reflected in r 39.05 (formerly O 35 r 7 of the Federal Court Rules 1979 (Cth)), does not extend to mistakes that result from deliberate decisions:  Elyard Corporation Pty Ltd v DDB Needham Sydney Pty Ltd (1995) 61 FCR 385 at 391 (Lockhart J). Furthermore, I do not consider that it is open to me to amend the reasons to correct the error as an error in reasoning is not “an error arising in a judgment or order”:  Austal Ships Sales Pty Ltd v Stena Rederi Aktiebolag (2009) 263 ALR 384; [2009] FCAFC 179 at [25]. As Finn and Dowsett JJ went on to explain in that case:

    The court may be in error in its reasoning, but a judgment or order which reflects the consequences of that error is, itself, free from error, although appealable.  We do not understand these propositions to have ever been doubted, although it may be, that from time to time, the operation of the rule has been stretched to accommodate a hard case.

1. While reasons may always be revised to correct errors of form, they may not be revised to correct errors of substance:  Todorovic v Moussa (2001) 53 NSWLR 463 at [47]–[48] (Beazley JA, Powell JA agreeing at [1] and Sperling J at [61]).

2. The only relevant order that this error affects is declaration 10.14, which was to the effect that Rosario was involved in the contravention by GPS of s 45 of the FW Act in failing to pay penalty rates prescribed by cl 27.1(b) of the Cleaning Services Award in relation to one employee. The employee was not named. The order requires no correction because, as the Ombudsman submitted, there is an independent foundation for it. That independent foundation consists of the evidence and findings concerning Robert Wilkey. Rosario did not argue otherwise. Nor, as the following exposition indicates, could he have done so.

3. Rosario (together with a woman named only as “Rosie”) interviewed Mr Wilkey for a cleaning job.  They offered him a permanent part-time cleaning position “for 2.5 hours a night Monday to Thursday, and Friday” and three hours on Saturday and Sunday.  When Mr Wilkey told them that he had other work and that it would be better for him to come in “between 1am and 1:30am”.  He received the following reply:

   That's good.  Everyone will be gone by then.  You will just need to do the alarm and clock on.  It’s no problem.

4. These, then, were some of the terms of his employment.  They were negotiated either by Rosario or in his presence.  He plainly knew of them. 

5. Mr Wilkey’s evidence was that he finished every shift between midnight and 8.00am from 29 March 2012 onwards but was paid a flat rate of $17.95 with no allowances (Liability Judgment [718]).  I accepted this evidence and found the contravention proved against GPS in this respect, amongst others (at [711]).  As I noted at [259] of the Liability Judgment, on 12 July 2012 Mr Wilkey complained to Janil (also known as “Jay”) Modi, the assistant accountant, that he had received no pay for a few months.  Over the next few days he received $200 but nothing since.  From this evidence it is apparent that he was not paid a shift allowance.  After numerous futile efforts to contact the payroll office to chase up the rest of his pay, on 1 August 2012 he telephoned Rosario.  Rosario did not answer but Mr Wilkey left him a message “on his message bank” asking him when he was getting his money.  Rosario did not return his call.  Mr Wilkey decided that the only way he would get a response from Rosario was if he called him at 1am.  So this is what he did.  He then told Rosario that “payroll keeps saying to me that they will pay the money owed to me but they haven’t paid it”.  Rosario assured him that he would make sure someone looked into it in the morning and “someone will get back to you”.  Later that day, however, Rosario called him and abused him for ringing him, saying: 

   You are a fucking idiot. You are a fucking cunt. How dare you ring me at 1am.

6. Mr Wilkey said that he could not remember anything else he said during the three-minute tirade that followed because he was in shock and unable to get a word in.  Then, either Rosario hung up or the connection was lost.  Rosario rang back, saying:

   Don't you fucking call me up when my wife’s sleeping, I'm going to call Yvette [an obvious reference to Yvette Cooley, the then South Australian State Manager of GPS] and you're out. I'm not going to have you ringing me like that when my wife's there, give me the keys, you're done.

7. When Mr Wilkey inquired about his outstanding pay, Rosario replied:

   You will see nothing. You can do what you like you won't be getting your money.  Go to Fair Work, I'll leave the paperwork on the desk and it will be there for 3-4 months and you won't get anything.

8. Regrettably, eloquent though it is, my attention was not drawn to this evidence in the context of any of the submissions the Ombudsman made on the subject of Rosario’s liability.  Having regard to this evidence, Rosario unquestionably had the requisite knowledge to make him liable as an accessory to GPS’s contravention of cl 27.1(b) of the Cleaning Services Award in relation to Mr Wilkey.  In these circumstances, there is no reason to vary the terms of declaration 10.14.

9. The Ombudsman also drew my attention to an error at [318] in the context of discussing contravention 2 (the failure to pay untaken accrued annual leave) where I mistook the hours that Wen Yang worked for the hours of his friend, Xiao Teng, whose details were in the email annexed to Mr Yang’s affidavit to which I referred.  To correct this error would also involve a correction to the reasons.  Yet, nothing turns on it.  That is because the evidence shows that Mr Yang, who was employed for only two and a half weeks in November 2012, did not take annual leave and was not paid for his untaken leave.

10. Most of the variations that the Ombudsman sought, however, did concern slips or clerical errors.  Apart from the slip concerning Mr Luitel, they are set out in Appendix A to these reasons. 

11. Otherwise, the variations the Ombudsman sought resulted from a review conducted by the Ombudsman after the publication of the Liability Judgment, which allegedly disclosed that certain underpayments affecting four employees had been the subject of inadvertent double‑counting and that the claims in these cases should never have been made.  They are said to affect the findings and declarations in relation to contraventions 25, 26, 28 and 29. 

12. The Ombudsman submitted that, notwithstanding the case it ran at the liability hearing, the findings that Alyson Hellyer and Helen Pakas were not paid the applicable penalty rates for working on a Sunday (contraventions 25) and the finding that Ms Pakas was not paid overtime rates for overtime worked on a Sunday (contravention 28) should not have been made.  In Ms Hellyer’s case, this is because her hours worked on a Sunday are classified as overtime hours and are wholly captured by contravention 28.  Therefore to claim these hours again under contravention 25 would be “double‑counting”.  

13. In Ms Pakas’s case, the Ombudsman applied for both contraventions 25 and 28 to be varied to undo the findings that GPS failed to pay Ms Pakas both penalty rates and overtime rates for Sunday work.  This is because the Ombudsman is only claiming compensation for the hours Ms Pakas worked between 16 April 2012 and 19 April 2013.  During this period Ms Pakas only worked on one Sunday:  24 June 2012.  In the Liability Judgment at [733] and [808], however, I found that Ms Pakas also worked on six Sundays on  24 and 31 July 2011 and 7, 14, 21, and 28 August 2011.  While these findings were not erroneous, the hours worked on these Sundays were all overtime hours.  I accept the Ombudsman’s submission that an employee who must be paid overtime rates for working on a Sunday is not also entitled to Sunday penalty rates in relation to the overtime hours.  I therefore accept that the declaration in respect of contravention 25 should be varied to exclude Ms Pakas.  But I see no reason to vary contravention 28.

14. The Ombudsman also submitted that the finding that Ms Hellyer was not paid for working overtime on the Queen’s Birthday public holiday in 2012 (contravention 29) should not have been made and there should be a consequential amendment to the relevant declaration.  The Ombudsman submitted that, because the hours she worked that day were covered under contravention 26, which concerns the failure to pay cleaners the applicable penalty rate for work on a public holiday, GPS did not contravene the Cleaning Services Award in this respect.  I accept the Ombudsman’s submission.  The Ombudsman further submitted that a similar kind of error affected contravention 26 and the declaration relating to it in that Tammy May and Thomas Sung Hong were wrongly included.  I accept this submission too.  The declarations relating to this contravention should therefore be amended to correct those errors. 

15. I regret to say that there are a number of other slips and clerical errors that I have since picked up and brought to the parties’ attention. First there is an additional clerical error in one of the declarations where the wrong section of the FW Act was referred to and I will vary that declaration to rectify that error. There are also two slips in the penultimate sentence of [879] in which I referred to the National Minimum Wage Order 2013 instead of the National Minimum Wage Order 2012 and a national minimum wage of $16.37 per hour instead of $15.96. These slips should be corrected.

16. Finally, I will vary four declarations to correct slips or clerical errors so as to accurately reflect my findings concerning contravention 32 in respect of GPS and contraventions 6, 19 and 21 in respect of Rosario.  In declaration 4, which concerns contravention 32, “49” should replace “50”; in declaration 10.4, which concerns contravention 6, “one” should replace “two”; in declaration 10.12, which concerns contravention 19, “eight” should replace “11”; and in declaration 10.23, which also concerns contravention 32, “51” should replace “one”.  The Ombudsman consents to all these variations and neither GPS nor Rosario raised an objection to them being made.

17. To the extent that the declarations are varied, corresponding changes will be made to the table of contraventions in Annexure B to the Liability Judgment.  I omitted to record the outcome in one instance — relating to Rosario’s culpability for contraventions 17 and 18 insofar as they concerned Paul Bacon — and I will rectify that omission at the same time.

18. With only one possible exception (the case of declaration 10.23), the alterations to the declarations I intend to make are either neutral or favour the respondents.  I am satisfied that it is in the interests of justice that they all be made.

    COMPENSATION

    The legal parameters

19. Where the Court is satisfied that a person has contravened a civil remedy provision, the Court may make any order it considers appropriate, including an order awarding compensation for loss suffered by a person because of the contravention: FW Act, s 545. The only express limitation on this power is that an order in relation to an underpayment may not be made in relation to a period earlier than six years before the proceeding commenced: s 545(5). The limitation is of no consequence in the present case as all the conduct with which it is concerned took place within six years before the filing of the originating application on 1 July 2014. The conduct in question occurred between 1 July 2011 and 14 September 2013, a period referred to by the Ombudsman as “the Audit Period”. 

20. An order for compensation is undoubtedly appropriate in the present case.

    The Ombudsman’s application

21. The compensation orders are sought against GPS in relation to contraventions 1, 2, 3, 4, 6, 7, 8, 10, 13, 14, 16, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32 and 33.  These contraventions concern the company’s failure to afford minimum standards of employment prescribed by the National Employment Standards (NES) contained in Pt 2–2 of the FW Act and to comply with its obligations under two modern awards, including by failing to pay minimum wages. The Ombudsman seeks an order that GPS pay the amount of the underpayments by way of compensation to the employees concerned or, if they cannot be found, to the Consolidated Revenue Fund.

22. I found that Enrico was involved in contravention 33 and the Ombudsman asks that the order for compensation for this contravention be made against him as well as GPS.

23. No compensation order is sought from Rosario because, as an undischarged bankrupt, an order for compensation would be a provable debt in his bankruptcy, and the Ombudsman made no application for leave to proceed against him in respect of the debt:  see Bankruptcy Act 1966 (Cth), ss 58(3), 82.

24. The Ombudsman relied on the evidence upon which the findings in the Liability Judgment were made and those findings, subject to the variations mentioned above.  In addition, the Ombudsman read a further affidavit from a GPS employee, Abraham Arguello, sworn on 29 November 2016, touching upon the amount of annual leave owing to him on termination.  At the hearing, Rosario objected to the evidence, but only because he quarrelled with its contents, despite not having filed any evidence or required Mr Arguello’s attendance for cross-examination.  The evidence was admitted over his objection.

    The problem of classification

25. Rates of pay under the relevant awards are determined by reference to the job classifications set out in the awards.  It is therefore impossible to determine the amount of the underpayments without first ascertaining the relevant classifications for the relevant employees. 

26. In the Liability Judgment I made findings as to the awards governing the employment of the relevant employees and as to whether they were employed on a part-time, full-time, or casual basis and the classifications in which the cleaners were employed.  I did not, however, make findings about the job classifications of the clerical employees, described by the Ombudsman and in the Liability Judgment as the administrative employees.  Their employment was covered by the Clerks–Private Sector Award 2011 (Clerks Award).  The Clerks Award stipulates that employees be classified according to the structure set out in Schedule B to the award.  Clause B.2.1 of Schedule B lists “indicative typical duties and skills”.  Having regard to the terms of the Schedule, the Ombudsman contended that the administrative employees came within the following classifications:

Name	Role	Classification
Aisling Dunn	Receptionist	Level 2 Clerical Employee
Moona Hasan	Preparing tenders and proposals	Level 3 Clerical Employee
Christine Meager	Telemarketer	Level 3 Clerical Employee
Janil Modi	Assistant accountant	Level 4 Clerical Employee
Lara Satchell	Human resources officer	Level 4 Clerical Employee
Md Shamsuzzoha	Data entry	Level 3 Clerical Employee

1. In her written submissions the Ombudsman explained in detail, by reference to the evidence, why these classifications were the appropriate ones.  In the absence of any argument to the contrary, I accept the Ombudsman’s submissions.  Accordingly, I find that the employees listed in the above table were within the classifications recorded alongside their names.  Consequently, they will be compensated at the rates applicable to those classifications.

   Calculation of the underpayments

2. The calculation of the appropriate rates and the extent of the underpayments is complicated by several matters. 

3. First, the employees in question worked for GPS in six jurisdictions (NSW, Victoria, Queensland, South Australia, Western Australia, and the Australian Capital Territory) and the rates vary between the jurisdictions.  This is because, during the period in question, transitional rates were set in each modern award as part of the award modernisation process.  In that process similar awards operating in different states and territories were consolidated into a single instrument, using transitional provisions to phase in changes in wages, loadings, and penalties until they were consistent across all jurisdictions.  Transitional increases differed in the various jurisdictions and changed annually between July 2011 and July 2013.  These variations affect the majority of employees covered by the Cleaning Services Award, but not the five employees covered by the Clerks Award, as they all worked in NSW.

4. Secondly, the rates of pay vary according to the periods in which the employees worked.  Under the Cleaning Services Award, the transitional rates changed annually between 2011 and 2014, with incremental increases to wages, loadings and penalties coming into force at the start of each financial year.  The rates of pay for employees covered by the Clerks Award also changed at the start of each financial year between 2011 and 2013.

5. Thirdly, on the assumption that GPS and National Contractors produced all the documents they were required to produce in answer to the various notices to produce issued by the Ombudsman, the records kept by the companies were in a very poor state.  One example is the records generated by the computer system GPS used to record the start and finish times for the cleaners.  As I observed in the Liability Judgment at [228], this system, referred to in the evidence as “Praxeo”, would often fail to record log on or log off times.  On some occasions it would record that an employee had logged in one minute and logged off the next.  As it is inconceivable that any employee would work for one minute, the records generated by the system are an incomplete record of the hours the employees worked.  To the extent that the Ombudsman is forced to rely on this information, the result is that in most, if not all, of these cases employees will be undercompensated for their losses. 

6. The Ombudsman tendered 13 lever arch files of material. This material comprised extracts of the evidence adduced during the liability hearing and copies of the relevant sections of the FW Act and the relevant awards. Included with them were 102 “summary sheets” for each employee affected by each contravention. Those summary sheets set out the employee’s relevant classification, state or territory in which he or she was employed, hours worked, and applicable rates of pay, including the minimum award rates, loadings, allowances, and penalties, cross-referenced to the evidence, the relevant sections of the Act, the relevant awards, and the relevant findings. I was informed that this material was served on Rosario and Enrico in both hard copy and electronic form on 5 December 2016. Where accurate, these summary sheets were of great assistance.

7. These summary sheets were revised, however, on 17 February 2017 to correct several errors in the figures conceded by the Ombudsman during the course of oral argument, and upon a review conducted after the hearing concluded which uncovered some “double-counting” errors.  46 of the 102 summary sheets were amended by this review and a number of others since.  At no time did the respondents contend that any of the references were incorrect or that the rates upon which the calculations were made were not the correct award rates for the relevant classifications of employee.  Nor did they contend that the hours recorded in the summary sheets were an inaccurate record of what they purported to be. 

8. Rosario was given the opportunity to make submissions concerning the amendments.  He provided submissions on 13 March 2017.  The submissions were accompanied by an affidavit he swore on 11 March 2017, which he was not invited, or given leave, to file.  Be that as it may, none of the matters raised in the affidavit or the submissions was to the point.  Instead, Rosario took issue with a number of the findings made in the Liability Judgment.  As on this occasion no leave was given for the filing of an affidavit and as it is irrelevant to the remaining issues, it must be rejected and, to the extent that the submissions relied on the statements in the affidavit or dealt with the same or similar matters, I give them no weight. 

9. Rosario submitted that the Ombudsman’s calculations should reflect the terms of an enterprise bargaining agreement made by RPEP Holdings Pty Ltd and to which GPS was not a party.  As I found that all the individuals in question were employed by GPS, the enterprise bargaining agreement is also irrelevant. 

10. Unless otherwise indicated, in the absence of any relevant challenge to the Ombudsman’s calculations, I accept the figures in the summary sheets and, where revised, in the revised summary sheets.  Where I refer in these reasons to hours or shifts worked by the employees in question, I have relied on the Ombudsman’s summary sheets in which the sources are identified.  There were, however, some errors and inconsistencies in the summary sheets, even after the Ombudsman’s review.  The most notable inconsistency was that in some cases, the Ombudsman assumed (often despite findings to the contrary) that a particular employee was paid a flat rate of pay throughout his or her employment, yet in other cases assumed (correctly) that the same employee was unpaid, or paid at different rates, in different periods. 

    The extent of the underpayments

    Contravention 1: Failing to pay annual leave, contrary to s 90(1) of the Act

1. Contravention 1 was proved in relation to two part-time employees:  Tammy May and Robert Wilkey.

2. Section 90(1) of the FW Act provides:

   If, in accordance with this Division, an employee takes a period of paid annual leave, the employer must pay the employee at the employee’s base rate of pay for the employee’s ordinary hours of work in the period.

3. “Base rate of pay” is defined in s 16(1) in this way:

   The base rate of pay of a national system employee is the rate of pay payable to the employee for his or her ordinary hours of work, but not any of the following:

   (a)       incentive-based payments and bonuses;

   (b)       loadings;

   (c)       monetary allowances;

   (d)       overtime or penalty rates;

   (e)       any other separately identifiable amounts.

4. Tammy May took 10 days of annual leave in August 2011 for which she was not paid. The Ombudsman claims, however, only 7.53 hours, rightly or wrongly ignoring the hours accrued before the commencement of the Audit Period. Ms May’s minimum rate of pay as a level 1 cleaner under the Cleaning Services Award was $16.57 per hour. Multiplying that figure by 7.53 hours gives a base rate of pay within the meaning of s 16(1) of the Act of $124.77.

5. Robert Wilkey took annual leave over the period from 7 to 20 May 2012.  His leave entitlement is restricted to his ordinary hours of work of which there are 30 in this period.  His minimum hourly rate under the award as a level 1 cleaner was $16.57.  That figure multiplied by 30 gives a base rate of $497.10. 

6. The Ombudsman also claimed additional amounts referable to the part-time allowance of 15% of the hourly rate to which the employees were entitled under cll 29.3(d) and 12.4(b)(iii) of the award. Having regard to the definition of “base rate of pay”, however, to which the Ombudsman did not refer in her submissions, the allowance should not be taken into account in the calculation of annual leave entitlements under s 90(1). It is either a monetary allowance or another separately identifiable amount. Accordingly, Ms May was underpaid $124.77 and Mr Wilkey $497.10.

   Contravention 2: Failing to pay accrued annual leave on termination, contrary to s 90(2) of the Act

7. This contravention was proved in relation to 31 employees:  Alfonso Alcuitas, Abraham Arguello, Paul Bacon, Juliana Botero Hernandez, Rangana Dissanayake, Barry Dowling, Fawaz El Rahman, Marissa Hall, Freddy Herrera, Fiona Holland, Michael Kallee, Charles Mascarenhas, Tammy May, Christine Meager, Kian Mu, Jose Pena, Barbara Piper, Mariana de Queiroz, Tuula Rintala, Linda Robinson, Sumit Salhotra, Baljinder Singh, Dianne Sjoberg, Cheryl Sorrell, Thomas Sung Hong, Tui Tane, Xiao Teng, Sekson Thinathin, Tashi Wangchuck, Robert Wilkey, and Wen Yang.

8. Section 90(2) provides that:

   If, when the employment of an employee ends, the employee has a period of untaken paid annual leave, the employer must pay the employee the amount that would have been payable to the employee had the employee taken that period of leave.

9. The amount that would have been payable to each of these 31 employees had they taken leave would have included any allowances and loadings provided for under a modern award: see Centennial Northern Mining Services Pty Ltd v Construction, Forestry, Mining and Energy Union (2015) 231 FCR 298. In Centennial at [38] the Full Court held that:

   Section 90(1) creates the minimum standard: payment at the base rate for ordinary hours worked. The effect of s 90(2) is that if that is the rate at which the employee is paid when he or she takes annual leave, then that is the minimum amount that must be paid for any accrued untaken annual leave. If, on the other hand, there is a modern award or enterprise agreement which provides for payment at a higher rate for annual leave that is taken, then s 90(2) stipulates that that is the rate which is payable where annual leave has accrued but has not been taken. This is the natural way to read the section and there is nothing in the legislative context which would require a different interpretation.

10. The Cleaning Services Award is a modern award which provides for payment at a higher rate for annual leave than the minimum rate of pay.  Clause 29.3 provides that:

    For the purposes of payment of annual leave, an employee’s ordinary pay means remuneration for the employee’s normal weekly number of hours or work calculated at the ordinary time rate of pay and in addition will include:

    (a)       leading hand allowance;

    (b)       first aid allowance;

    (c)penalty rates paid for shiftwork or rostered ordinary hours of work on Saturday and/or Sunday; and

    (d)part-time allowance for part-time employees working shiftwork (Monday to Friday) or rostered ordinary hours on a Saturday and/or a Sunday.

11. All but one of the 31 employees affected by this contravention were covered by the Cleaning Services Award.  Accordingly, in all but that one case, accrued but untaken annual leave owing to those 30 employees must be paid in accordance with cl 29.3 of the Cleaning Services Award.  These 30 employees are also entitled to a 17.5% annual leave loading under cll 29.4(a) and 29.7 of the award.  Clause 29.4(a) relevantly provides that:

    The terms of the NES prescribed the basis for payment for annual leave, including payment for untaken leave upon the termination of employment.  In addition to the terms of the NES an employer is required to pay an additional leave loading of 17.5% calculated on an employee’s ordinary time rate of pay.

12. Clause 29.7 is in substantially the same terms as cl 29.4(a).

13. There is no definition in the Cleaning Services Award of “ordinary time rate of pay”.  As the Ombudsman submitted, however, the meaning of the phrase can be gleaned by comparison with the term “ordinary pay”, which is defined in cl 29.3 to include various allowances and penalties in addition to the employee’s ordinary time rate of pay.  Consequently, an employee’s ordinary time rate of pay refers to the employee’s rate of pay excluding the allowances and penalties mentioned in cl 29.3.

14. The only employee not covered by the Cleaning Services Award, Christine Meager, was covered by the Clerks Award.  This award similarly provides for a 17.5% annual leave loading.  Clause 29.3 of the Clerks Award relevantly states:

    (a)During a period of annual leave an employee will receive a loading calculated on the rate of wage prescribed in clause 16—Minimum weekly wages.  Annual leave loading payment is payable on leave accrued.

    (b)       The loading is as follows:

    (i)        Day work

    Employees who would have worked on day work only had they not been on leave—17.5% or the relevant weekend penalty rates, whichever is the greater but not both.

15. Christine Meager was employed throughout on day work.

16. Each of the 31 employees covered by this contravention is therefore entitled to a 17.5% loading on top of his or her ordinary pay.  No claim was made that Ms Meager was entitled to any greater amount. 

17. Of these 31 employees, 22 were part-time cleaners who the Ombudsman submitted, and I accept, were entitled to the 15% part-time allowance as they worked shiftwork (Monday to Friday) or were rostered on ordinary hours on weekends:  see cll 29.3(d) and 12.4(b)(iii) of the Cleaning Services Award.  No account is taken, however, of shift or weekend penalties, notwithstanding the terms of cl 29.3 of the Cleaning Services Award.  When this omission was drawn to the Ombudsman’s attention, she acknowledged the error but did not seek to vary her claim, in substance because she considered that, the costs of the exercise could not be justified. 

18. The underpayments for which compensation is sought for GPS’s failure to pay untaken accrued annual leave on termination for the 22 part-time employees are as follows:

    (1)$2,962.40 for Alfonso Alcuitas.

    Mr Alcuitas had accrued 131.13 hours of untaken annual leave.  His minimum award rate of pay at the time his employment ended was $17.05 per hour.  His accrued annual leave entitlement was $2,235.77 (131.13 hours x $17.05), the 15% allowance of $335.37 and the 17.5% loading of $391.26.  The total is $2,962.40.

    (2)$566.00 for Rangana Dissanayake.

    Mr Dissanayake accrued 25.78 hours of untaken annual leave.  At the time his employment ended the minimum rate of pay for his position under the award was $16.57 per hour.  Over 25.78 hours that amounts to $427.17.  When the 15% allowance of $64.08 and the 17.5% loading of $74.75 are added, he should have been paid $566.

    (3)$1,167.06 for Barry Dowling.

    Mr Dowling accrued 51.66 hours of untaken annual leave.  His minimum award rate of pay at the time his employment ended was $17.05 per hour.  Over 51.66 hours that amounts to $880.80.  When the 15% allowance of $132.12 and the 17.5% loading of $154.14 are added, he should have been paid $1,167.06.

    (4)$959.01 for Fawaz El Rahman.

    Mr El Rahman accrued 43.68 hours of untaken annual leave.  His minimum award rate of pay at the time his employment ended was $16.57 per hour.  Over 43.68 hours that amounts to $723.78.  When the 15% allowance of $108.57 and the 17.5% loading of $126.66 are added, he should have been paid $959.01. 

    (5)$3,777.93 for Freddy Herrera.

    Mr Herrera accrued 167.23 hours of untaken annual leave.  His minimum award rate of pay at the time his employment ended was $17.05 per hour.  Over 167.23 hours that amounts to $2,851.27.  When the 15% allowance of $427.69 and the 17.5% loading of $498.97 are added, he should have been paid $3,777.93.

    (6)$307.24 for Fiona Holland.

    Ms Holland accrued 13.60 hours of untaken annual leave.  Her minimum award rate of pay at the time her employment ended was $17.05 per hour.  Over 13.60 hours that amounts to $231.88.  When the 15% allowance of $34.78 and the 17.5% loading of $40.58 are added, she should have been paid $307.24.

    (7)$225.26 for Michael Kallee.

    Mr Kallee accrued 10.26 hours of untaken annual leave.  His minimum award rate of pay at the time his employment ended was $16.57 per hour.  Over 10.26 hours that amounts to $170.01.  When the 15% allowance of $25.50 and the 17.5% loading of $29.75 are added, he should have been paid $225.26.

    (8)$350.62 for Charles Mascarenhas.

    Mr Mascarenhas accrued 15.52 hours of untaken annual leave.  His minimum award rate of pay at the time his employment ended was $17.05 per hour.  Over 15.52 hours that amounts to $264.62.  When the 15% allowance of $39.69 and the 17.5% loading of $46.31 are added, he should have been paid $350.62.

    (9)$1,950.99 for Tammy May.

    Ms May accrued 86.36 hours of untaken annual leave.  Her minimum award rate of pay at the time her employment ended was also $17.05 per hour.  Over 86.36 hours that amounts to $1,472.44.  When the 15% allowance of $220.87 and the 17.5% loading of $257.68 are added, she should have been paid $1,950.99.

    (10)$708.91 for Jose Pena.

    Mr Pena accrued 31.38 hours of untaken annual leave.  His minimum award rate of pay at the time his employment ended was $17.05 per hour.  Over 31.38 hours that amounts to $535.03.  When the 15% allowance of $80.25 and the 17.5% loading of $93.63 are added, he should have been paid $708.91.

    (11)$66.65 for Barbara Piper.

    Ms Piper accrued 2.95 hours of untaken annual leave.  Her minimum award rate of pay at the time her employment ended was $17.05 per hour.  Over 2.95 hours that amounts to $50.30.  When the 15% allowance of $7.55 and the 17.5% loading of $8.80 are added, she should have been paid $66.65.

    (12)$1,342.47 for Mariana De Queiroz.

    Ms De Queiroz accrued 59.38 hours of untaken annual leave.  Her minimum award rate of pay at the time her employment ended was $17.05 per hour.  Over 59.38 hours that amounts to $1,012.43.  When the 15% allowance of $151.86 and the 17.5% loading of $178.18 are added, she should have been paid $1,342.47.

    (13)$222.40 for Tuula Rintala.

    Ms Rintala accrued 10.13 hours of untaken annual leave.  Her minimum award rate of pay at the time her employment ended was $16.57 per hour.  Over 10.13 hours that amounts to $167.85.  When the 15% allowance of $25.18 and the 17.5% loading of $29.37 are added, she should have been paid $222.40.

    (14)$919.48 for Sumit Salhotra.

    Mr Salhotra accrued 41.88 hours of untaken annual leave.  His minimum award rate of pay at the time his employment ended was $16.57 per hour.  Over 41.88 hours that amounts to $693.95.  When the 15% allowance of $104.09 and the 17.5% loading of $121.44 are added, he should have been paid $919.48.

    (15)$88.57 for Baljinder Singh.

    Mr Singh accrued 3.92 hours of untaken annual leave.  His minimum award rate of pay at the time his employment ended was $17.05 per hour.  Over 3.92 hours that amounts to $66.84.  When the 15% allowance of $10.03 and the 17.5% loading of $11.70 are added, he should have been paid $88.57.

    (16)$600.70 for Dianne Sjoberg.

    Ms Sjoberg accrued 27.36 hours of untaken annual leave.  Her minimum award rate of pay at the time her employment ended was $16.57 per hour.  Over 27.36 hours that amounts to $453.36.  When the 15% allowance of $68.00 and the 17.5% loading of $79.34 are added, she should have been paid $600.70.

    (17)$432.52 for Cheryl Sorrell.

    Ms Sorrell accrued 19.70 hours of untaken annual leave.  Her minimum award rate of pay at the time her employment ended was also $16.57 per hour.  Over 19.70 hours that amounts to $326.43.  When the 15% allowance of $48.96 and the 17.5% loading of $57.13 are added, she should have been paid $432.52.

    (18)$3,655.96 for Thomas Sung Hong.

    Mr Hong accrued 157.76 hours of untaken annual leave.  His minimum award rate of pay at the time his employment ended was $17.49 per hour.  Over 157.76 hours that amounts to $2,759.22.  When the 15% allowance of $413.88 and the 17.5% loading of $482.86 are added, he should have been paid $3,655.96.

    (19)$243.92 for Tui Tane.

    Ms Tane accrued 11.11 hours of untaken annual leave.  Her minimum award rate of pay at the time her employment ended was $16.57 per hour.  Over 11.11 hours that amounts to $184.09.  When the 15% allowance of $27.61 and the 17.5% loading of $32.22 are added, she should have been paid $243.92.

    (20)$751.31 for Sekson Thinathin.

    Mr Thinathin accrued 34.22 hours of untaken annual leave. His minimum award rate of pay at the time his employment ended was $16.57 per hour.  Over 34.22 hours that amounts to $567.03.  When the 15% allowance of $85.05 and the 17.5% loading of $99.23 are added, he should have been paid $751.31.

    (21)$1,214.96 for Robert Wilkey.

    Mr Wilkey accrued 53.78 hours of untaken annual leave.  His minimum award rate of pay at the time his employment ended was $17.05 per hour.  Over 53.78 hours that amounts to $916.95.  When the 15% allowance of $137.54 and the 17.5% loading of $160.47 are added, he should have been paid $1,214.96.

    (22)$109.11 for Wen Yang.

    Mr Yang accrued 4.83 hours of untaken annual leave.  His minimum award rate of pay at the time his employment ended was also $17.05 per hour.  Over 4.83 hours that amounts to $82.35.  When the 15% allowance of $12.35 and the 17.5% loading of $14.41 are added, he should have been paid $109.11.

19. The Ombudsman submitted that the remaining nine employees were not entitled to the 15% part-time allowance.  No explanation was offered, but, save in one case, I take it that this was because these employees were employed full-time, did not work shiftwork during the week or rostered ordinary hours on a Saturday and/or a Sunday, or were not covered by the Cleaning Services Award.  The one exception is Xiao Teng, who was a part-time employee and regularly worked shiftwork within the meaning of cl 27.1(a) of the award.  I cannot fathom why she was excluded.

20. Abraham Arguello worked full-time as a building supervisor/manager and was found to be a level 3 cleaning services employee under the Cleaning Services Award.  He accrued 190.94 hours of untaken annual leave.  His ordinary rate of pay at the time his employment ended was $50.61 per hour, calculated by reference to his salary.  Over 190.94 hours that amounts to $9,663.47. When the 17.5% annual leave loading of $1,691.11 is added, he should have been paid $11,354.58.

21. Paul Bacon was a part-time cleaner.  He accrued 19.33 hours of untaken annual leave.  His minimum award rate of pay at the time his employment ended was $17.05 per hour.  Over 19.33 hours that amounts to $329.58.  When the 17.5% loading of $57.68 is added, he should have been paid $387.26.

22. Juliana Botero Hernandez was also a part-time employee who accrued 4.21 hours of untaken annual leave.  Her minimum award rate of pay at the time her employment ended was $17.05 per hour.  Over 4.21 hours that amounts to $71.78.  When the 17.5% loading of $12.56 is added, she should have been paid $84.34.

23. Marissa Hall accrued 4.14 hours of untaken annual leave.  Her minimum award rate of pay at the time her employment ended was $17.05 per hour.  Over 4.14 hours that amounts to $70.59.  When the 17.5% loading of $12.35 is added, she should have been paid $82.94.

24. Christine Meager worked part-time in a customer service role. She accrued 3.76 hours of annual leave.  Her minimum award rate of pay at the time her employment ended was $19.23 per hour.  Over 3.76 hours that amounts to $72.30.  When the 17.5% loading of $12.65 is added, she should have been paid $84.95.

25. Kian Mu worked as a level 1 Cleaning Services Employee, part-time for the first two months of his employment and full-time thereafter.  He accrued 102.98 hours of annual leave.  His minimum award rate of pay at the time his employment ended was $17.05 per hour.  Over 102.98 hours that amounts to $1,755.81.  When the 17.5% loading of $307.27 is added, he should have been paid $2,063.08.

26. Linda Robinson worked full-time as a level 3 Cleaning Services Employee.  She accrued 44.31 hours of annual leave.  Her minimum award rate of pay at the time her employment ended was $18.06 per hour.  Over 44.31 hours that amounts to $800.24.  When the 17.5% loading of $140.04 is added, she should have been paid $940.28.

27. Xiao Teng was a part-time cleaner.  Ms Teng accrued 17.47 hours of untaken annual leave.  Her minimum award rate of pay at the time her employment ended was $17.05 per hour.  Over 17.47 hours that amounts to $297.86.  When the 17.5% loading of $52.13 is added, she should have been paid $349.99.

28. Tashi Wangchuck was also a part-time cleaner.  Ms Wangchuck accrued 4.68 hours of untaken annual leave.  Her minimum award rate of pay at the time her employment ended was $17.05 per hour.  Over 4.68 hours that amounts to $79.79.  When the 17.5% loading of $13.96 is added, she should have been paid $93.75.

    Contravention 3: Failing to pay basic rates for personal leave, contrary to s 99 of the Act

29. Section 99 of the FW Act relevantly provides that, if an employee takes a period of paid personal leave in accordance with Subdivision A of Division 7 of Part 2–2 of the Act, the employer must pay the employee at the employee’s minimum award rate of pay for the employee’s ordinary hours of work in the period.

30. I found that one employee, Linda Robinson, took such a period of paid personal leave and was not paid for it.  Her minimum rate of pay under the Cleaning Services Award was $18.06 per hour.  She took 21.66 hours of personal leave.  Accordingly, she was entitled to be paid $391.18.  That is the extent of the underpayment for this contravention.

    Contravention 4: Failing to pay employees for public holidays or part thereof when they would ordinarily have worked, contrary to s 116 of the Act

31. Section 116 of the FW Act requires an employer to pay an employee who was absent from his or her employment on a public holiday (or part thereof) at the employee’s base rate of pay for the employee’s ordinary hours of work on that day (or part-day).

32. Contravention 4 was proved in relation to six employees:  Jessica Alvarado Palma, Angela Bustos Alvarado, Robin Malla, Helen Pakas, Thomas Sung Hong, and Xiao Teng.  None of them received payment in accordance with the section. 

1. Without accurate and complete records, the extent to which an employer is complying with its other obligations is difficult, if not impossible, to determine. The failure to make and keep proper records can frustrate the operation of the Act. In the present case, as the Ombudsman submitted, it has worked a substantial injustice both on the employees of GPS and on the Ombudsman:

   The direct result of the failure to keep prescribed pay records is that the former employees and the [Ombudsman] have been unable in many respects to identify their entitlements or their non-payment.  Moreover, the [Ombudsman] has been placed in the invidious position of having to rely upon incomplete and incoherent records to make out a case in respect of a number of former employees of GPS.  In part this led to the Ombudsman having to rely upon inferential based reasoning or ‘bootstrap’ arguments, some of which have been rejected by the Court.  Although the [Ombudsman]accepts that [she] bore the burden of proof in respect of the matters, the absence of records that were required to have been kept meant that potentially a greater number and other contraventions have been unable to be established or ventilated before the Court.  This is a serious matter that places GPS’s conduct at the highest level of seriousness. 

2. I agree.  I impose a penalty of $13,000. 

   Contravention 36: Failing to provide pay slips, in breach of s 536(1) of the Act

3. Contraventions of s 536(1) were proved in relation to 11 employees but the conduct was not isolated or occasional. They occurred during both periods.

4. I respectfully agree with the remarks made by Riethmuller FM in Fair Work Ombudsman v Taj Palace Tandoori Indian Restaurant Pty Ltd [2012] FMCA 258 at [66]–[67] to the effect that the requirement for the provision of pay slips is an important means of guarding against the exploitation of vulnerable workers. His Honour observed at [67]:

   Proper pay slips allow employees to understand how their pay is calculated and therefore easily obtain advice.  Pay slips provide the most practical check on false record keeping and underpayments, and allow for genuine mistakes or misunderstandings to quickly be identified.  Without proper pay slips employees are significantly disempowered, creating a structure within which breaches of the industrial laws can easily be perpetrated.

5. These consequences are evident in the present case.  A stark example is the case of Helen Pakas.  Ms Pakas worked for GPS throughout the entire Audit Period.  Yet, the Ombudsman only claimed compensation in respect of the underpayments to her during the period 16 April 2012 until 28 April 2013 on the stated basis that, owing to the lack of records, there was no evidence of payments received outside this period to substantiate her claims for underpayment. 

6. I impose a penalty of $12,000.

   Conclusion

7. The aggregate of these sums is $370,000.

8. I do not consider that it would be unjust or disproportionate to the culpability of the company to require that GPS pay this amount.  The level of culpability and the extent of the contravening conduct far exceeds, for example, that which attracted an aggregate penalty of $145,000 in Director, Fair Work Building Industry Inspectorate v Foxville Projects Group Pty Ltd [2015] FCA 492, a case in which (in contrast to the present) the contravener admitted its wrongdoing and cooperated with the Ombudsman. Further, since GPS offered no evidence as to its financial position, there is no basis for concluding that the aggregate would be so crushing as to warrant a reduction of the total: see, for example, Director of the Fair Work Building Industry Inspectorate v Stephenson[2014] FCA 1432; (2014) 146 ALD 75 at [152]–[153] (White J).

   Enrico Pucci

9. Enrico was found to be involved in contravention 33, Ms Hasan’s dismissal.  Indeed, he was the person who constructively dismissed her and who ignored her repeated requests for payment.  It is apparent that he is not contrite.  Indeed, by seeking to go behind the findings made in the Liability Judgment, his submissions demonstrate that he has no insight into his conduct and raise the very real prospect that he will continue to engage in conduct of this kind unless a penalty is imposed which is high enough to deter him.  There is one factor and one factor only which counts in Enrico’s favour.  That is that there is no evidence that he has previously engaged in similar conduct. 

10. The maximum penalty for an individual for this contravention is $10,200.  I impose a penalty of $3,000. 

    Rosario Pucci

11. I found that Rosario was involved in contraventions 1, 2, 5–10, 12, 13, 17–19, 22–25, 27, 28, 30–32 and 34–36.  In some instances I found that Rosario was involved in contraventions affecting a single employee but it is highly unlikely that these were isolated cases. 

12. As I mentioned earlier, the maximum penalty for an individual ranges from $6,600 for a contravention committed before 28 December 2012 and $10,200 on and from that date.

13. Rosario was well aware of an employer’s obligations under the FW Act. As I noted in the Liability Judgment (at [1021]), on 14 September 2009 Sally-Ann Wong, a Fair Work inspector, emailed Rosario with details of the relevant awards and legislation following a discussion she had apparently had with him three days earlier. In the email Ms Wong pointed out that the FW Act applied from 1 July 2009, superseding the Workplace Relations Act 1996 (Cth). She included a link to both Acts. She also advised that the Government intended to “roll out a set of modern awards in January 2010 to replace the current NAPSA system”. This was a reference to the Notional Agreement Preserving the Cleaning and Building Services Contractors (State) Award. She stated: “It is more than likely that your business will be covered by modern awards” and she attached a link to information on modern awards and the modern awards themselves. She added:

    For your cleaning staff, they will probably be covered by the Cleaning Services Award 2010.  I noticed that the award does not allow for notice of termination to be deducted from monies owing to employees who don’t provide notice.  You may wish to browse the award for yourself here:  cleaning.pdf, bearing in mind the awards do not come into force until 1 Jan 2010.

    (Original emphasis.)

14. On 19 August 2010 the Ombudsman wrote to Rosario at the registered office of RPEP Holdings (also the registered office of GPS from 1 September 2010).  The letter detailed the results of an investigation into a complaint by, or concerning the employment of, Andres Scheffer, allegedly an employee of RPEP Holdings.  It stated that Mr Scheffer was covered by the award, because RPEP Holdings was not covered by an enterprise agreement.  It also stated:

    On 1 January 2010 the Cleaning Services Award 2010 commenced operation.  Clause 4.1 of this award provides that “this industry award covers employers throughout Australia in the contract cleaning services industry and their employees in the classifications listed in Schedule D.”  Schedule D of the Cleaning Services Award 2010 provides for the classification of a Cleaning Services Employee Level one (CSE 1).  Therefore employees of RPEP Holding (sic) are covered by the Cleaning Services Award 2010 after 1 January 2010.

15. The letter continued, discussing, among other things:

    ·the relevant base or ordinary rates under the award;

    ·the substance of cl 27.2(a) and (b) of the award relating to the requirements for payment of weekend penalty rates at time and a half on Saturdays and double time and a half on Sundays;

    ·the way weekend pay should be calculated in order to comply with the award;

    ·the requirement in cl 27.3 to pay double time and half on public holidays;

    ·the method of calculating those rates;

    ·the substance of cl 16.1 of the award, including the rates that were prescribed until 1 July 2011;

    ·the obligation under cl 29.4 of the award to pay annual leave “as per the National Employment Standard (NES)), 17.5% leave loading”; and

    ·the terms of s 87 of the FW Act, which provides for an employee’s entitlement to annual leave.

16. On 31 August 2010 Rosario telephoned the Ombudsman’s “infoline” seeking information on penalty rates under the Cleaning Services Award.

17. Through 2010 and 2011 the Ombudsman’s office was periodically corresponding with Rosario about contraventions of the Cleaning Services Award and the Clerks Award.  Correspondence of this nature continued through the Audit Period.

18. In October 2010 the Ombudsman launched proceedings in the Federal Magistrates Court (now the Federal Circuit Court) against Wash and Go (then in liquidation) and Rosario, alleging that the company had contravened various provisions of the Workplace Relations Act with respect to three Wash and Go employees and that Rosario was knowingly involved in those contraventions within the meaning of s 728 of that Act. Rosario was the sole director of Wash and Go until its deregistration.

19. On 16 December 2011, after a hearing 10 days earlier, an agreed penalty of $4,400 was imposed on Rosario for his involvement in the contraventions by Wash and Go:  Fair Work Ombudsman v Pucci [2011] FMCA 997 (the Wash and Go case).  The contraventions related to underpayment of award wages to three employees, attracting a maximum penalty of $17,800; the failure to pay annual leave to two of these employees, attracting a maximum penalty of $13,200; and the failure to provide pay slips to all three, attracting a maximum penalty of $16,500. 

20. This conduct is relevant in the same way as previous convictions are relevant in criminal sentencing:  Stephenson at [78]. In that case, White J referred to the explanation given by King CJ in R v McInerney (1986) 42 SASR 111 at 113:

    Offences committed prior to sentence for the offence under consideration may affect the sentence in two ways.  They may diminish or abrogate any leniency by reason of good character.  They may, moreover, lead to a greater sentence than would otherwise be imposed, although within the proper limits indicated by the facts of the immediate crime, for the purpose of personal deterrence; the prisoner’s record may indicate that greater punishment is needed to protect the public by deterring him from further crime.  Where the other offences have been committed before the commission of the immediate offence, their relevance is clear in the generality of cases.  The offender has committed the offence not as a first offender but as a person whose character is affected by previous offending.  He must be sentenced against the background of his record … The effect of the prior offences is more cogent if they have been the subject of conviction before the immediate offence.  In such cases, the offender has committed the immediate offence notwithstanding the formal judgment and condemnation of the law in respect of the earlier offences and notwithstanding the warning as to the future which the conviction experience implies.

21. In her reasons for judgment in the Wash and Go case Emmett FM noted (at [17]):

    The respondent [Rosario] offered an unreserved apology to each of Ms Burns, Ms Nady and Mr Litson for the hardship his conduct has caused them.  The respondent told the Court that he never intended to be in a position of responsibility or control over employees again.  He expressed contrition for his conduct.  Although late in the piece, I accept the sincerity of the apologies proffered by the respondent to each of Ms Burns, Ms Nady and Mr Litson one of whom was in Court to hear the apology.  The respondent offered to provide a written apology to each of Ms Burns, Ms Nady and Mr Litson, however, an order to that effect was not sought by the applicant.

22. The statements Rosario made to the court in that case ring hollow now.  Even if the apology was sincere, what is to be made of the professed intention never again to be in a position of responsibility or control over employees?  At the very time he made this announcement, Rosario was occupying a position of great responsibility at GPS and, as the evidence in this case reveals, he was exercising considerable control over its employees. 

23. I do not know whether Rosario paid the penalty.  No evidence was led on this question.  In the absence of any evidence from the Ombudsman that he did not, I shall assume that he did.

24. There are no mitigating factors in the present case.  Like his brother, Rosario exhibited no contrition or insight into his conduct and the submissions he made tend to underscore his lack of insight.  This time he offered no apology and made no admissions.  He did acknowledge in his submissions that the contraventions were “very serious” but, like his brother, he contended that the business was trying to resolve them.  The evidence, however, does not support this contention.

25. Rosario told the Court he was involved in the establishment of either Wash and Go or RPEP Holdings, both Pucci companies purportedly supplying employees to GPS, but contended that it would not be open to the Court to infer from the evidence that he was involved with the establishment of National Contractors.  Not long afterwards, however, recalling that he had been a director of the company, he conceded that such a finding would be open.  Nevertheless, he insisted he had nothing to do with the sham contracting scheme.  He claimed that he reported to Ms Voytenko and was merely “following instructions”: 

    I was following instructions from Kristina Voytenko.  She had made a decision where she wanted to move away from engaging employees, then to wanting to implement contractors.

26. I reject these contentions.  There is no evidence to support them and they are not credible.  I concluded (at [136] of the Liability Judgment) that National Contractors was not in an independent relationship with GPS.  To the contrary, I found that National Contractors, like the other purported hire companies, functioned, not as an independent business, but as an instrument of GPS.  GPS was run by the Pucci family.  Rosario was its Chief Operating Officer.  Ms Voytenko was a human resources manager in her early twenties.  All the evidence indicated that Rosario was the master, Ms Voytenko the servant. 

27. I also reject Rosario’s submission that he “never conducted the first interview” with any of the employees.  This submission, too, is contrary to the evidence and the findings.  I referred above (at [20]) to the interview Rosario conducted with Robert Wilkey.  In addition, Abraham Arguello’s uncontradicted evidence was that, when he applied for a job as State Operations Manager for GPS, it was Rosario who interviewed him (Liability Judgment at [158]).  Rosario also interviewed Alfonso Alcuitas (Liability Judgment at [1055]) and was present at Christine Meager’s job interview in November 2013 (Liability Judgment at [99]).

28. As I made clear in my Liability Reasons, I have no doubt that Rosario was intimately involved in the establishment of the scheme to disguise the true nature of the employment relationship. Perhaps the best evidence of this came from Mr Arguello. I referred to it in the Liability Judgment at [110]. It bears repeating here:

    In about July 2012 Mr Arguello, then Queensland State Manager, queried why cleaners were telling him that they had received documents from National Contractors and were to be transferred “from TFN [presumably, ‘tax file number’] to ABN”.  Rosario told him that “everyone has to be on ABN from now on”, “so that they became subcontractors, like it or not”.  He explained that he did not want to have any problem with Fair Work Australia (now the Fair Work Commission) and said to Mr Arguello:

    [A]s a subcontractor the company could pay them whenever and whatever they want because they are subcontracted and there is not a specific law about subcontractors.

29. The history of offending, the want of contrition, and the lack of candour call for the imposition of substantial penalties. 

30. I determine that Rosario should pay the following penalties.

    Contravention 1: Non-payment of annual leave, contrary to s 90(1) of the Act

31. I found that Rosario was knowingly involved in the contravention of s 90(1) in relation to one of the two employees concerned: Robert Wilkey. The underpayment to him was $497.10 or 80% of the total. The maximum penalty is $6,600. Mr Wilkey repeatedly pressed for this and other outstanding payments and was given the run around. Rosario apparently told his State Manager that Mr Wilkey’s holiday pay would be transferred into his account (Liability Judgment at [973]) and, when it was not, that he was “dealing with pay roll” (Liability Judgment at [974]) or making sure that the matter was followed up (Liability Judgment at [975]). These were all empty promises. I impose a penalty of $1,300.

    Contravention 2: Non-payment of annual leave on termination, contrary to s 90(2) of the Act

32. The maximum penalty for this contravention is also $6,600.  This is not the first time Rosario was involved in a contravention by a company of a statutory requirement to pay accrued annual leave on termination.  Two of the three employees who were the subject of the 2010 prosecution were not paid their accrued annual leave when they finished working for Wash and Go. 

33. I found that Rosario was involved in the contravention affecting Ms Holland: Liability Judgment at [986]. I impose a penalty of $1,800.

    Contravention 5: Failing to give written notice of termination, contrary to s 117(1) of the Act

34. I found that Rosario was involved in the contravention concerning Lara Satchell.  I impose a penalty of $1,300.

    Contravention 6: Failing to give adequate notice or payment in lieu, contrary to s 117(2) of the Act

35. I found that Rosario was involved in this contravention at least in Ms Satchell’s case.  Rosario dismissed her instantly, told her that her notice period had been “worked out” but no pay in lieu of notice was forthcoming:  Liability Judgment at [1007]–[1015].  The maximum penalty is $6,600.  I impose a penalty of $1,300. 

    Contravention 7:  Failing to pay the minimum rate prescribed by cl 16.1 of the Cleaning Services Award

36. This is the contravention involving Abraham Arguello only.  As this contravention took place after 28 December 2012, the maximum penalty was $10,200.  I impose a penalty of $2,000.

    Contravention 8:  Failing to pay award rates to administrative employees

37. I found that Rosario was involved in the contraventions involving Ms Meager and Mr Shamsuzzoha. Both contraventions occurred before 28 December 2012. Rosario ignored Ms Meager’s request that she be paid what she understood to be the money due to her despite her indication that she might bring legal proceedings if the money was not paid: Liability Judgment at [1038]–[1039]. He assured Mr Shamsuzzoha that he would be paid soon after he managed to speak with him, but he never was: Liability Judgment at [1042].

38. The maximum penalty is $6,600.  I impose a penalty of $2,000.

    Contravention 9:  Failing to pay superannuation to administrative employees, contrary to cl 24.2 of the Clerks Award

39. I found that Rosario was involved in the contravention relating to Christine Meager: Liability Judgment at [1047]. The maximum penalty is $6,600. I impose a penalty of $1,300.

    Contravention 10:  Failing to pay overtime, contrary to cl 25 of the Clerks Award

40. I found that Rosario was involved in the failure to pay overtime to Lara Satchell: Liability Judgment at [1051]. Again, the maximum penalty is $6,600. I impose a penalty of $1,300.

    Contravention 12:  Failing to provide written agreements specifying work patterns to part-time employees, contrary to cl 12.4(a) of the Cleaning Services Award

41. I found that Rosario knew that new employees hired on a part-time basis did not receive such agreements and that he was at least involved in the contravention by GPS in respect of Alfonso Alcuitas whom he directly hired: Liability Judgment at [1055]. Mr Alcuitas’s employment ended before 28 December 2012, which means that the maximum penalty is $6,600. I impose a penalty of $1,000. 

    Contravention 13:  Failing to pay 15% allowance to part-time employees, contrary to cl 12.4(b)(iii) of the Cleaning Services Award

1. I found that Rosario was involved in this contravention at least in the case of Anna Plows: Liability Judgment at [1062]. I impose a penalty of $1,300.

   Contravention 17:  Failing to pay employees on a weekly or fortnightly basis, contrary to cl 20.1 of the Cleaning Services Award

   Contravention 18:  Failing to pay employees kept waiting, contrary to cl 20.3 of the Cleaning Services Award

2. I was satisfied that Rosario was involved in GPS’s contravention of both sub-clauses of the award in relation to 13 of the 29 employees:  Liability Judgment at [1076]–[1077].  In each of these cases the employees had made complaints to him and in a number of these cases were threatened with reprisals or punished for doing so. 

3. Marco Diaz, for example, a Columbian national on a student visa, was threatened with deportation when he complained that he had been underpaid.  When Andrea Grigoletto, an Italian national, also on a student visa, complained that he had been underpaid, Rosario replied words to the effect of “kiss my arse”.  Rosario threatened to dismiss Kian Mu, an East Timorese immigrant, for disclosing to staff at the gym where he worked that he had not been paid. 

4. Like many others, Anna Plows made repeated attempts to get paid.  When she was finally able to speak to Rosario, she told him that she had not been paid for sick leave, public holidays and “half of January” and that she would not attend work the following day unless she was paid what she was owed.  That generated the following response:

   You have left the workplace without giving notice.  You've stood down so too bad, you're sacked and you're not getting any money until you give your notice.  You also breached your employment contract by speaking to the client (AMF) about your wages.  I know that you posted an ad on Gumtree regarding the practices of GPS. Don't come back to work.

5. Ms Plows remonstrated with him.  She said she did not know what he was talking about.  She had not spoken to anyone at AMF and she had not posted an advertisement.  She assured him she would recover her money, telling him she would report him, to which he replied:  “Yeah, do it”.

6. Rosario’s conduct is reprehensible.  The maximum penalty for both contraventions is $10,200.  I impose a penalty of $8,000 for the first and $6,000 for the second. 

   Contravention 19:  Failing to pay superannuation, contrary to cl 23.2 of the Cleaning Services Award

7. I found that Rosario was involved in at least eight cases:  the seven purported contractors, whom he set out to deceive, and Thomas Sung Hong.  The maximum penalty is $10,200.  I impose a penalty of $6,000. 

   Contravention 22:  Failing to pay allowances for early morning, afternoon and non-permanent night shift, contrary to cl 27.1(a) of the Cleaning Services Award

8. My findings in relation to Rosario’s involvement in this contravention are at [1083]–[1086] of the Liability Judgment.  Rosario insisted that the cleaners be paid at a flat rate.  Consequently, I found that he was involved in all 22 cases.  The maximum penalty is $10,200.  I impose a penalty of $6,000. 

   Contravention 23:  Failing to pay penalty rate for permanent night shift, contrary to cl 27.1(b)

9. This is the contravention referred to above at [13]–[25].  The maximum penalty is $6,600.  I impose a penalty of $1,300. 

   Contravention 24:  Failing to pay Saturday penalty rates, contrary to cl 27.2 of the Cleaning Services Award

   Contravention 25:  Failing to pay Sunday penalty rates, contrary to cl 27.2(b) of the Cleaning Services Award

10. These contraventions are in the same class as contravention 22.  The maximum penalty in each case is $10,200. I impose a penalty of $6,000 in relation to contravention 24 and $3,000 for contravention 25. 

    Contravention 27: Failing to pay penalty rates for weekly and Saturday overtime, contrary to cl 28.2 of the Cleaning Services Award

    Contravention 28: Failing to pay penalty rates for Sunday overtime, contrary to cl 28.2 of the Cleaning Services Award

11. I found that Rosario was involved in these contraventions, at least to the extent that they concerned the failure to pay penalty rates to Mr Alcuitas and Mr El Rahman:  Liability Judgment at [1103]–[1105].  Both these employees stopped working for GPS before December 2012.  I impose a penalty of $1,300 in respect of each of the two contraventions.

    Contravention 30: Failing to pay annual leave loading, contrary to cl 29.4 of the Cleaning Services Award

12. I found that Rosario was involved in the contravention to the extent that it concerned the failure to pay the loading to Robert Wilkey: Liability Judgment at [1109]. The maximum penalty is $6,600. I impose a penalty of $1,300.

    Contravention 31: Failing to pay the national minimum wage, in breach of s 293 of the Act

13. My findings in this regard are at [1110]–[1115] of the Liability Judgment.  I was only satisfied that Rosario was involved in the contravention concerning Martyn Jones.  Rosario treated Mr Jones shamefully.

14. The maximum penalty is $10,200.  I impose a penalty of $5,000.

    Contravention 32: Failing to pay employees in full, in breach of s 323 of the Act

15. In finding that Rosario was involved in GPS’s contravention of s 323, I relied solely on Rosario’s involvement in, and knowledge of, the other underpayment contraventions for which he has already been penalised. So as to avoid double punishment, I decline to impose a penalty on Rosario for this contravention.

    Contravention 34: Falsely representing employment contracts as contracts for services, in breach of s 357 of the Act

16. In the Liability Judgment I found, at [963], that:

    Whether or not Rosario was the architect of the scheme to move employees from employment contracts to contracts for service, he certainly directed the process.  He told Mr Arguello that “everyone” had to be on an ABN “so that they become subcontractors, like it or not”.  Lorne Jones, who was responsible for hiring new cleaners, was told by Rosario that “they must have an ABN”, because “all the cleaners are subcontractors, even the people in head office are subcontractors”.  Ms Satchell gave evidence to similar effect.  To Mr Arguello, Rosario explained the purpose of the “ABN” scheme: to avoid “any problem with Fair Work Australia” and enable the company to pay them “whenever and whatever they want because they are subcontracted and there is not a specific law about subcontractors”.  Mr Arguello said that Rosario told him to “terminate” anyone who didn’t want to “go on an ABN” (I take it that this was a reference to the “termination” of their employment only).

17. Rosario’s conduct in this regard is shameful.  I impose a penalty of $8,000. 

    Contravention 35: Failing to keep proper employee records, in breach of s 535(2) of the Act

18. I found that Rosario was well aware of an employer’s record-keeping obligations and that he had been informed of them more than once before the Audit Period commenced.  As Chief Operating Officer of the company he should have ensured that they were adhered to.  The maximum penalty is $5,100.  I impose a penalty of $3,500.

    Contravention 36: Failing to provide pay slips, in breach of s 536(1) of the Act

19. The maximum penalty for this contravention is also $5,100.  The failure to provide pay slips was a feature of the prosecution of Wash and Go in 2010.  Rosario offered no explanation as to why the company he subsequently managed would conduct itself in the same way.  I impose a penalty of $3,000.

    Conclusion

20. The aggregate of these amounts is $74,300.

21. In some instances the proportion of the maximum penalty is higher than the proportion GPS has been ordered to pay.  That is because GPS is entitled to be treated as a first offender.  Rosario, on the other hand, has a history of offending. 

22. I have had regard to the totality principle but I can see no reason to reduce the aggregate.  Rosario submitted that over the last eight years he has had “some personal issues” relating to his and his wife’s financial status.  He did not elaborate and, in the absence of any evidence as to what that might mean, I take it to be a reference to his bankruptcy.  I accept that he is bankrupt but he has been employed throughout his bankruptcy in a senior executive position for a national company.  In the absence of any evidence to the contrary, I infer that he has been paid a salary.  Income he derived since he became bankrupt does not vest in his trustee in bankruptcy (Re Gillies; Ex Parte Official Trustee in Bankruptcy (1993) 42 FCR 571 at 577), although he is required to make contributions to his trustee from income earned above a certain threshold (currently $23,687.30): Bankruptcy Act, Part VI, Div 4B. Rosario adduced no evidence, however, to indicate that the imposition of a penalty of the magnitude contemplated by the aggregate of the above sums would have a crushing effect on him or to indicate that it was otherwise unjust. I consider the aggregate amount appropriate, just, and proportionate to the nature and magnitude of the contravening conduct.

    COSTS

23. The Court’s power to award costs is governed by the terms of s 570 of the FW Act. Relevantly, a respondent to proceedings relating to a matter arising under the Act may only be ordered to pay the costs of another party if the court is satisfied that its “unreasonable act or omission” caused the other party to incur the costs: s 570(2)(b). The Ombudsman originally applied for orders that GPS pay its costs and, pursuant to r 40.02(b) of the Federal Court Rules 2011 (Cth), that the costs be fixed in the amount of $401,231.23.

24. Ultimately, however, the Ombudsman asked that costs be reserved until after publication of this judgment and I will make an order to that effect.

I certify that the preceding six hundred and nine (609) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Katzmann.

Associate:

Dated:        24 May 2017

APPENDIX A

Table of slips and clerical errors in Liability Judgment

Para	Employee(s)	Description
Declaration 3	Paul Saint James and Martyn Jones	The word “free” should be inserted after the words “award/agreement”.
[33(3)], [995]	Linda Robinson	References to “s 97” in these two paragraphs and in the third row of each of the two tables in Annexure B should be replaced by “s 99”.
[268], [269]	Juliana Botero Hernandez and Jessica Alvarado Palma	These employees’ names were switched by accident indicating that the contravention was proved in respect of Ms Alvarado but not Ms Botero, when in fact it had been proved in respect of Ms Botero and not Ms Alvarado.
[339]	Paul Saint James	The reference to “2013” should be replaced by “2012”.
[394]	Angela Bustos Alvarado	The words “dated 12 January 2013” should be replaced by “received by the Ombudsman on 14 February 2013”.
[399], [405]	Abraham Arguello, Wendy Bong, Angela Bustos Alvarado, Rangana Dissanayake, Barbara Piper and Linda Robinson	References to “s 90(2)” in these two paragraphs should be replaced by “s 117(2)”.
[706]	Tui Tane	The reference to “cl 27.2(b)” should be replaced by “cl 27.1(b)”.
[762]	Jessica Alvarado	I overlooked one pay slip.  The words “save for one payment of $500” should be inserted after the words “18 January 2013”.  This error makes no difference to the findings or orders but reduces the amount of compensation payable for the contravention.
[767]	Fawaz El Rahman	The third sentence (“His Praxeo records also reveal that he worked on Labour Day, 3 October 2011”) should be deleted.  I found that Mr El Rahman worked in Victoria, but 3 October 2011 was a public holiday only in NSW.
[775]	Linda Robinson	The reference to “Boxing Day 2012” should be replaced by “Boxing Day 2011”.
[812]	Tuula Rintala	The date “15 April 2012” should be replaced by “5 April 2012”.
Para	Employee(s)	Description
[879]	Martyn Jones	This paragraph refers to the National Minimum Wage Order in 2013, when the applicable National Minimum Wage Order was the 2012 order.  This, too, makes no difference to the findings or orders.
[986]	Fiona Holland	The reference to “s 87(1)” should be replaced by “s 90(2)”.
various	Wendy Bong	Wendy Bong is apparently a man.  Consequently, wherever the female pronoun is used to refer to him, the male pronoun should be substituted.

APPENDIX B

Employees’ periods of service

Employee	Period of employment	Compensation
Alfonso Alcuitas	28 June 2011 – 17 September 2012	$20,487.14
Jessica Alvarado Palma	26 November 2012 – 18 January 2013	$1,648.80
Abraham Arguello	9 October 2010 –  14 September 2013	$18,057.82
Paul Bacon	January 2009 –  7 December 2012	$715.42
Wendy Bong	1 February 2013 – 13 February 2013	$2,148.07
Juliana Botero Hernandez	20 March 2013 – 8 April 2013	$1,159.95
Angela Bustos Alvarado	14 June 2012 – 28 January 2013	$3,646.15
Mariana De Queiroz	7 February 2012 – 6 October 2012	$6,823.84
Marco Diaz	11 December 2012 – 5 April 2013	$3,572.42
Rangana Dissanayake	17 May 2011 – 28  October 2011	$4,237.60
Barry Dowling	March 2010 – 10  April 2013	$10,560.88
Aisling Dunn	4 March 2013 – 19 April 2013	$2,392.23
Fawaz El Rahman	1 August 2011 – 19 December 2011	$7,291.80
Andrea Grigoletto	January 2013 – 5 April 2013	$213.01
Marissa Hall	18 March 2013 – 12 April 2013	$1,141.88
Moona Hasan	5 February 2013 – 26 March 2013	$1,173.97
Alyson Hellyer	14 May 2012 – 30 August 2012	$2,536.49
Freddy Herrera	8 September 2010 – 8 March 2013	$23,474.19
Fiona Holland	9 May 2012 – 19 July 2012	$1,288.76
Martyn Jones	14 February 2013 – 8 April 2013	$954.47
Michael Kallee	27 February 2012 – 25 May 2012	$761.49
Khaga Kandel	15 March 2013 – 19 April 2013	$2,450.19
Bibek Luitel	9 May 2012 – 25 May 2012	$58.84
Robin Malla	10 April 2012  – 27 February 2013	$3,700.34
Charles Mascarenhas	14 March 2013 – 11 May 2013	$2,628.72
Tammy May	21 August 2010 – 22 January 2013	$10,034.24
Christine Meager	27 November 2012 – 20 December 2012	$415.22
Kian Mu	9 September 2010 – 13 January 2012	$6,249.26
Giang Ngo	19 February 2013 – 8 March 2013	$814.70

Employee	Period of employment	Compensation
Helen Pakas	27 October 2008 – Unknown (still employed by GPS in May 2015)	$13,069.49
Jose Pena	15 October 2012 – 9 March 2013	$4,711.15
Barbara Piper	10 July 2012 – 8 August 2012	$820.66
Anna Plows	3 May 2012 – 31 January 2013	$2,358.09
Tuula Rintala	30 January 2012 – 5 April 2012	$1,274.09
Linda Robinson	1 December 2011 – 16 March 2012	$3,893.58
Paul Saint James	22 October 2012 – 20 December 2012	$1,212.96
Sumit Salhotra	19 May 2011 – 21 May 2012	$4,273.94
Lara Satchell	24 January 2012 – 21 June 2012	$1,557.34
Md Shamsuzzoha	15 June 2012 – 6 July 2012	$2,158.99
Baljinder Singh	1 August 2012 – 28 August 2012	$1,528.91
Dianne Sjoberg	17 January 2011 – 5 February 2012	$1,934.28
Cheryl Sorrell	31 January 2011  – 3 February 2012	$1,004.09
Thomas Sung Hong	4 January 2010 – November 2013	$21,995.51
Tui Tane	18 November 2011 – 5 February 2012	$968.98
Xiao Teng	17 September 2012 – 16 November 2012	$2,803.07
Sekson Thinathin	13 January 2011 – 2 December 2011	$4,927.16
Tashi Wangchuck	3 July 2012 – 31 July 2012	$1,059.80
Robert Wilkey	15 March 2011 – 2 August 2012	$8,829.85
Wen Yang	1 November 2012 – 16 November 2012	$2,224.83

SCHEDULE OF PARTIES

NSD 659 of 2014
Respondents
Fourth Respondent:	ENRICO PUCCI