Fair Work Ombudsman v Hadya Nominees Pty Ltd
[2018] FCCA 2961
•19 October 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| FAIR WORK OMBUDSMAN v HADYA NOMINEES PTY LTD & ANOR | [2020] FCCA 2961 |
| Catchwords: INDUSTRIAL LAW – Declarations as to liability – made on admissions – penalties. |
| Legislation: Crimes Act 1914, s.4AA General Retail Industry Award 2010, cls.13.2, 17, 18.1, 20.2(b)(ii), 23, 27, 27.2(a), 27.2(b)(ii), 28, 29.2(a), 29.4(a), 29.4(b), 29.4(c), 29.4(d)(i), 31.2(b), 32.3, A.7.3 of Schedule A |
| Cases cited: Australian Competition and Consumer Commission v Dataline.net.au Pty Ltd (2006) 236 ALR 665; (2008) ASAL 55-176; (2007) ATPR 42-138; [2006] FCA 1427 Fair Work Ombudsman v Deja Vu Elite Security Pty Ltd & Anor [2018] FCCA 1402 Fair Work Ombudsman v Grandcity (GW) Travel & Tour Pty Ltd [2015] FCCA 1759 |
| Applicant: | FAIR WORK OMBUDSMAN |
| First respondent: | HADYA NOMINEES PTY LTD (ACN 161 534 765) |
| Second respondent: | SAID HADDAD |
| File number: | MLG 180 of 2017 |
| Judgment of: | Judge Riley |
| Hearing date: | 17 July 2018 |
| Date of last submission: | 17 July 2018 |
| Delivered at: | Melbourne |
| Delivered on: | 19 October 2018 |
REPRESENTATION
| Counsel for the applicant: | Cathy Dowsett |
| Solicitors for the applicant: | Fair Work Ombudsman |
| Counsel for the respondents: | John Ribbands |
| Solicitors for the respondents: | P. W. Sotir & Co |
THE COURT DECLARES THAT, having regard to the admissions made by the first and second respondents in the statement of agreed facts filed in this proceeding:
The first respondent contravened:
(a)s.44 of the Fair Work Act 2009 (“the Act”), by contravening:
(i)s.90(1); and
(ii)s.116;
of the Act;
(b)s.45 of the Act, by contravening:
(i)clause 13.2;
(ii)clause 17;
(iii)clause 18.1;
(iv)clause 20.2(b)(ii);
(v)clause 23;
(vi)clause 29.2(a);
(vii)clause 29.4(a) and clause A.7.3 of Schedule A;
(viii)clause 29.4(b) and clause A.7.3 of Schedule A;
(ix)clause 29.4(c) and clause A.7.3 of Schedule A;
(x)clause 29.4(d)(i) and clause A.7.3 of Schedule A;
(xi)clause 31.2(b); and
(xii)clause 32.3;
of the General Retail Industry Award 2010 (“the Award”);
(c)s.535(1) of the Act, by contravening regulations 3.33(1) and 3.33(2) of the Fair Work Regulations 2009 (“the Regulations”);
(d)s.536(1) of the Act; and
(e)s.536(2) of the Act, by contravening regulation 3.46(1)(c) of the Regulations.
Pursuant to s.550 of the Fair Work Act 2009, the second respondent was involved in each of the first respondent’s contraventions identified in declaration 1.
By reason of the first respondent’s contraventions of ss.44 and 45 of the Act, Ms Echo Liao (“Ms Liao”) and Ms Shelley Everitt (“Ms Everitt”) have suffered a loss of wages in the amounts of:
(a)$6,563.14 for Ms Everitt; and
(b)$902.69 for Ms Liao.
ORDER BY CONSENT
Pursuant to s.545(1) of the Act, within 28 days, the first respondent make contributions on behalf of Ms Liao and Ms Everitt to their nominated superannuation funds in respect of the loss of wages referred to in declaration 3 at the superannuation guarantee charge rate prescribed by applicable superannuation legislation as at the date these orders are made.
ORDERS
The first respondent pay penalties in the amount of $108,936 pursuant to s.546(1) of the Act for the contraventions of the Act identified in declaration 1.
The second respondent pay penalties in the amount of $21,787.20 pursuant to s.546(1) of the Act, for the contraventions of the Act identified in declaration 1.
ORDERS BY CONSENT
Pursuant to s.546(3)(a) of the Act, all penalties imposed on the first respondent and the second respondent be paid to the Commonwealth within 28 days.
The applicant have liberty to apply on seven days’ notice in the event that any of the preceding orders are not complied with.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 180 of 2017
| FAIR WORK OMBUDSMAN |
Applicant
And
| HADYA NOMINEES PTY LTD (ACN 161 534 765) |
First respondent
And
| SAID HADDAD |
Second respondent
REASONS FOR JUDGMENT
Introduction
This matter concerns declarations to be made for certain admitted contraventions of the Fair Work Act 2009 (“the Act”) and the penalties to be imposed for those contraventions.
This matter (“the Hadya matter”) was heard with the penalty hearing in Fair Work Ombudsman v Deja Vu Elite Security Pty Ltd & Anor, MLG179/2017 (“the Deja Vu matter”). The applicant in this matter, the Fair Work Ombudsman, was also the applicant in the Deja Vu matter. The first respondent in the Hadya matter and the first respondent in the Deja Vu matter were different companies. Said Haddad was the director and the manager of both companies. Mr Haddad is the second respondent in the Hadya matter and the second respondent in the Deja Vu matter.
The penalty hearing in the Hadya matter was adjourned at the request of the parties until liability had been resolved in the Deja Vu matter. The respondents in the Deja Vu conceded liability in some respects but took issue with liability in other respects. Liability on the contested issues in the Deja Vu matter was determined following a hearing in this court. The decision and reasons for decision on liability in the Deja Vu matter were given in Fair Work Ombudsman v Deja Vu Elite Security Pty Ltd & Anor [2018] FCCA 1402.
It was anticipated that the respondents in the Hadya matter would make admissions as to the matters alleged by the applicant and consent to the relief sought save as to the quantum of penalties. It was anticipated that the penalty hearing in both matters would occur simultaneously. That occurred.
On 10 May 2017, a statement of agreed facts was filed in the Hadya matter. In the statement of agreed facts, the respondents made full admissions with respect to the contraventions alleged in the statement of claim filed by the applicant on 30 January 2017.
In the statement of agreed facts, the parties jointly proposed that the court make certain declarations as to the contraventions and make certain orders. However, the parties disagreed on the aggregate penalties.
The applicant submitted that penalties in the range of:
a)$78,948 to $108,936 were appropriate for the first respondent; and
b)$15,790 to $21,787 were appropriate for the second respondent.
The respondents submitted that penalties in the range of:
a)$14,917 to $22,185 were appropriate for the first respondent; and
b)$2,983 to $4,437 were appropriate for the second respondent.
The statement of agreed facts included certain declarations and orders to which the parties consented. Those declarations were as follows:
118. Declarations that Hadya Nominees contravened the following civil remedy provisions:
(a) section 45 of the FW Act by contravening clause 17 of the Award;
(b) section 45 of the FW Act by contravening clause 18.1 of the Award;
(c) section 45 of the FW Act by contravening clause 13.2 of the Award;
(d) section 45 of the FW Act by contravening clause 29.2(a) of the Award;
(e) section 45 of the FW Act by contravening clause 29.4(a) of the Award and clause A.7.3 of Schedule A to the Award;
(f) section 45 of the FW Act by contravening clause 29.4(b) of the Award and clause A.7.3 of Schedule A to the Award;
(g) section 45 of the FW Act by contravening clause 29.4(c) of the Award and clause A.7.3 of Schedule A to the Award;
(h) section 45 of the FW Act by contravening clause 29.4(d)(i) of the Award and clause A.7.3 of Schedule A to the Award;
(i) section 45 of the FW Act by contravening clause 20.2(b)(ii) of the Award;
(j) section 44 of the FW Act by contravening section 90(1) of the FW Act;
(k) section 45 of the FW Act by contravening clause 32.3 of the Award;
(l) section 44 of the FW Act by contravening section 116 of the FW Act;
(m) section 45 of the FW Act by contravening clause 31.2(b) of the Award;
(n) section 45 of the FW Act by contravening clause 23 of the Award;
(o) section 535(1) of the FW Act by contravening regulations 3.33(1) and 3.33(2) of the FW Regulations;
(p) section 536( 1) of the FW Act; and
(q) section 536(2) of the FW Act by contravening regulation 3.46(1)(c) of the FW Regulations.
119. A declaration that Mr Haddad was involved, pursuant to section 550 of the FW Act, in each of the contraventions committed by Hadya Nominees as set out in paragraph 118 above.
120. A declaration that by reason of Hadya Nominees’ contraventions of sections 44 and 45 of the FW Act, the Employees have suffered a loss of wages in the amount of:
(a) $6,563.14 for Shelley; and
(b) $902.69 for Echo.
There has been authority in the past to the effect that it is not appropriate for a court to make declarations by consent. However, there is more recent authority that in certain cases it is appropriate for the court to make declarations based on admissions.
In particular, in Australian Competition and Consumer Commission v Dataline.net.au Pty Ltd (2006) 236 ALR 665; (2008) ASAL 55-176; (2007) ATPR 42-138; [2006] FCA 1427, Kiefel J, as her Honour then was, considered at paragraphs 52 to 59 the rationale for the previous approach taken by the courts. Her Honour came to the view that the previous approach may no longer be warranted, particularly in public interest cases such as this, and particularly if the declarations are preceded by a statement that they are made upon admissions.
In all the circumstances of this case, I am satisfied that it is appropriate to make the declarations sought by the parties on the basis of the admissions made by the respondents, provided that the declarations are preceded by an appropriate preamble. Those declarations will be made accordingly.
In the agreed statement of facts, the parties jointly sought orders as follows:
121. An order pursuant to section 545(1) of the FW Act, that within 28 days, Hadya Nominees make contributions on behalf of the Employees to their nominated superannuation funds in respect of the Total Underpayments referred to in paragraph 120 at the superannuation guarantee charge rate prescribed by applicable superannuation legislation as at the date these orders are made.
122. An order that Hadya Nominees pay penalties pursuant to section 546(1) of the FW Act for the contraventions of the FW Act as admitted herein.
123. An order that Mr Haddad pay penalties pursuant to section 546(1) of the FW Act, for the contraventions of the FW Act as admitted herein.
124. Orders under section 546(3)(a) of the FW Act that all penalties imposed on the Hadya Nominees and Mr Haddad be paid to the Commonwealth within 28 days.
125. An order that the Applicant have liberty to apply on seven days’ notice in the event that any of the preceding orders are not complied with.
126. Such further or other orders as the Court thinks fit.
Subject to the determination of penalty, I consider that it is appropriate to make those orders.
Documents relied on
For the penalty hearing, the applicant relied on:
a)the statement of claim filed on 30 January 2017;
b)the response filed on 22 March 2017;
c)the statement of agreed facts filed on 10 May 2017;
d)the applicant’s written submissions on penalty filed on 5 July 2018; and
e)the affidavits:
i)sworn by Shelley Joy Everitt on 25 June 2018 and filed in court on 17 July 2018 (which was in substitution for her affidavit sworn on 19 June 2018, which was incorrectly witnessed);
ii)affirmed by Patricia Louise Campbell, Fair Work Inspector, on 20 June 2018;
iii)affirmed by Ms Campbell on 15 December 2017 and 16 February 2018 and filed in the Deja Vu matter;
iv)affirmed by Sally Patti McLeod, Fair Work Inspector, on 15 December 2017 and filed in the Deja Vu matter; and
v)affirmed by Beverly Reid on 18 December 2017 and filed in the Deja Vu matter.
The respondents did not object to the applicant relying in this matter on the affidavits filed in the Deja Vu matter. The respondents did not expressly state what documents they relied upon. The respondents incorrectly filed written submissions for the penalty hearing in this matter in the Deja Vu matter. In addition, the respondents’ written submissions in this matter largely adopted their written submissions for the Deja Vu penalty hearing and included some additional submissions.
Agreed facts
The statement of agreed facts was filed on 10 May 2017. Paragraphs 18 to 134 below are taken almost verbatim from the statement of agreed facts, although the paragraph numbers have been altered.
a) application
On [30] January 2017, the applicant filed an application and statement of claim in this court against the first respondent and the second respondent in respect of various contraventions of the Act, the Regulations, and the Award. The contraventions resulted in a total underpayment of $7,465.83 to Ms Shelley Everitt and Ms Echo Liao (collectively, “the employees”).
b) admitted contraventions
On the basis of the facts set out below, the first respondent admits that it contravened the following civil remedy provisions:
a)s.45 of the Act by contravening cl.17 of the Award;
b)s.45 of the Act by contravening cl.18.1 of the Award;
c)s.45 of the Act by contravening cl.13.2 of the Award;
d)s.45 of the Act by contravening cl.29.2(a) of the Award;
e)s.45 of the Act by contravening cl.29.4(a) of the Award and cl.A.7.3 of Schedule A to the Award;
f)s.45 of the Act by contravening cl.29.4(b) of the Award and cl.A.7.3 of Schedule A to the Award;
g)s.45 of the Act by contravening cl.29.4(c) of the Award and cl.A.7.3 of Schedule A to the Award;
h)s.45 of the Act by contravening cl.29.4(d)(i) of the Award and cl.A.7.3 of Schedule A to the Award;
i)s.45 of the Act by contravening cl.20.2(b)(ii) of the Award;
j)s.44 of the Act by contravening s.90(1) of the Act;
k)s.45 of the Act by contravening cl.32.3 of the Award;
l)s.44 of the Act by contravening s.116 of the Act;
m)s.45 of the Act by contravening cl.31.2(b) of the Award;
n)s.45 of the Act by contravening cl.23 of the Award;
o)s.535(1) of the Act by contravening regs.3.33(1) and 3.33(2) of the Regulations;
p)s.536(1) of the Act; and
q)s.536(2) of the Act by contravening reg.3.46(1)(c) of the Regulations,
(“the admitted contraventions”).
The second respondent admits that pursuant to s.550 of the Act, he was involved in each of the contraventions committed by the first respondent as set out in paragraph 19 above.
c) the parties and the employees
The applicant is and was at all times relevant to this proceeding:
a)a statutory appointee of the Commonwealth appointed by the Governor-General by written instrument pursuant to s.687 of the Act;
b)a Fair Work Inspector pursuant to s.701 of the Act; and
c)a person with standing to bring these proceedings pursuant to s.539(2) of the Act and reg.4.01A of the Regulations.
The first respondent is and was at all relevant times:
a)a corporation incorporated under the Corporations Act 2001, having been incorporated on 5 December 2012;
b)capable of being sued in its corporate name;
c)a constitutional corporation within the meaning of s.12 of the Act;
d)a national system employer within the meaning of s.14(1 )(a) of the Act;
e)the employer of Ms Everitt and Ms Liao; and
f)engaged in the business of operating a retail supermarket store trading as “IGA Altona” in Altona in the State of Victoria (“the business”).
The business used:
a)a weekly roster to plan the days and hours upon which its employees were required to work (“rosters”); and
b)a clock card system to record the hours worked by its employees (“clock cards”, and “clock card” when referred to in the singular).
The second respondent is and was at all relevant times:
a)a natural person capable of being sued;
b)also known by the name “Sam Haddad”;
c)a director and company secretary of the first respondent;
d)the majority shareholder of the first respondent;
e)also a director and secretary of Deja Vu Elite Security Pty Ltd (“Deja Vu”) and has been since September 2008; and
f)the majority shareholder of Deja Vu.
Ms Everitt was employed by the first respondent:
a)from at least 21 November 2013 to 21 March 2015 (“Ms Everitt’s employment period”);
b)on a full time basis from 21 November 2013 to in or around the week ending 13 April 2014; and
c)on a part time basis from in or around the week beginning 14 April 2014 to 21 March 2015.
Ms Everitt was employed by the first respondent:
a)as a customer service supervisor from 21 November 2013 to 30 March 2014, during which time she:
i)supervised retail assistants working on the cash registers;
ii)cashed up and put away the registers;
iii)brought out and put away the cigarettes;
iv)was responsible for monitoring the level of tobacco products and preparing a list of such products that needed to be ordered;
v)opened and closed the business; and
vi)reported to the service manager;
b)as a customer service manager from 31 March 2014 to 21 March 2015, during which time she:
i)prepared rosters each week for customer service staff (which were then reviewed and finalised by the second respondent);
ii)opened the business on the days that she worked;
iii)had keys to the business; and
iv)supervised between four to six employees.
Ms Liao was employed by the first respondent:
a)from around 30 March to 29 April 2015 (“Ms Liao’s employment period”); and
b)as a casual employee.
Ms Liao was employed by the first respondent in the position of deli assistant and cashier, performing the following duties:
a)serving customers in the deli;
b)preparing customers’ orders of deli meat;
c)using the meat slicer and scales;
d)cooking chickens;
e)cleaning; and
f)operating a cash register, serving customers and taking payment for goods purchased.
Ms Liao’s date of birth is 31 January 1996, and during Ms Liao’s employment period she was 19 years old.
d) legislation and applicable instruments
At all relevant times, the first respondent was bound by the Act and the Regulations in respect of the employment of the employees.
At all relevant times, the first respondent was covered by the Award with respect to the employment of the employees.
At all relevant times, the work performed by the employees fell within the following classifications in Schedule B to the Award during their respective employment periods as follows:
Employee
Period
Classification
Ms Everitt
21 November 2013 to 30 March 2014
Retail Employee Level 3
31 March 2014 to 21 March 2015
Retail Employee Level 4
Ms Liao
Ms Liao’s employment period
Retail Employee Level 1
At all relevant times, the first respondent was required to comply with the Award with respect to the terms and conditions of the employment of the employees.
For the purposes of Schedule A to the Award, from 21 November 2013 to 6 July 2014, the Australian Pay and Classification Scale derived from the Shop, Distributive and Allied Employees Association - Victorian Shops Interim Award 2000 was the relevant transitional minimum wage instrument.
The transitional arrangements set out in Schedule A to the Award ceased to apply to the employment of the first respondent’s employees on 7 July 2014.
e) employees’ hours worked and actual amounts paid
During Ms Everitt’s employment period, Ms Everitt was paid for and worked at least the total weekly hours set out in column F of schedule A to the statement of claim (“total weekly hours”), on the days and within the hours set out in columns B and C of schedule A to the statement of claim [and schedule A to these reasons], save that:
a)Ms Everitt worked the additional hours as set out in column D of schedule A; and
b)Ms Everitt did not work the hours set out in column E of schedule A.
During Ms Everitt’s employment period, the first respondent paid Ms Everitt:
a)a flat hourly rate of $18.50 for all hours worked with the exception of:
i)the week ending 20 April 2014, where she was paid $526.32 for 28 hours of work (which works out to be $18.80 per hour);
ii)the week ending 28 December 2014 where Ms Everitt was paid $323.73 for 17.5 hours of work (which works out to $18.50 per hour);
iii)the week ending 4 January 2015 where Ms Everitt was paid $375.62 for 17.5 hours of work (which works out to $21.46 per hour); and
iv)the week ending 11 January 2015 where Ms Everitt was paid $314.50 for 25.5 hours of work (which works out to $12.33 per hour);
b)during periods of annual leave, for every hour of annual leave taken:
i)an annual leave rate of $18.50 per hour; and
ii)an annual leave loading rate of $3.2375 per hour; and
c)a total of $235.68 for two occasions of public holiday days not worked on 25 December 2014 and 1 January 2015.
During Ms Liao’s employment period, Ms Liao worked the days and hours set out in paragraph 18 of the statement of claim, namely:
Date Day Hours worked 30.03.15 Monday 17.00-18.00 02.04.15 Thursday 10.00-13.00 04.04.15 Easter Saturday (public holiday) 13.00-20.00 05.04.15 Easter Sunday (public holiday) 15.00-19.00 16.04.15 Thursday 15.00-21.00 18.04.15 Saturday 14.00-20.00 19.04.15 Sunday 14.00-19.00 22.04.15 Wednesday 06.30-13.00 23.04.15 Thursday 14.00-21.00 25.04.15 Saturday (Anzac Day public holiday) 14.00-20.00 26.04.15 Sunday 14.00-19.00 29.04.15 Wednesday 06.30-13.00 and 17.00-21.00
During Ms Liao’s employment period, Ms Liao received a flat hourly rate of $15 for all hours worked, with the exception of hours worked on 29 April 2015, for which she was not paid at all.
f) underpayment contraventions
failure to pay the adult minimum hourly rate
During Ms Everitt’s employment period, pursuant to cl.17 of the Award, the first respondent was required to pay Ms Everitt the following hourly rates (“adult minimum rates”) for all ordinary hours worked:
Period
Rate of pay
21 November 2013 to 30 March 2014
$18.70
31 March 2014 to 6 July 2014
$19.07
7 July 2014 to 21 March 2015
$19.64
During Ms Everitt’s employment period, Ms Everitt:
a)worked a total of 2,141.3 ordinary hours;
b)was entitled to be paid $41,176.99 in respect of the adult minimum rates; and
c)was paid $39,478.80 in respect of the adult minimum rates.
The first respondent underpaid Ms Everitt $1,698.19 in respect of the adult minimum rates.
By reason of the matters set out in paragraphs 40 to 42 above, the first respondent contravened s.45 of the Act, by contravening cl.17 of the Award.
failure to pay the junior minimum rate
During Ms Liao’s employment period, pursuant to cl.18.1 of the Award, the first respondent was required to pay Ms Liao $14.82 per hour (“junior minimum rate”) for all ordinary hours worked.
During Ms Liao’s employment period, Ms Liao:
a)worked 10.5 ordinary hours on 29 April 2015;
b)was entitled to be paid $155.61 in respect of ordinary hours worked on 29 April 2015; and
c)was not paid any amount for the hours worked on 29 April 2015.
The first respondent underpaid Ms Liao $155.61 in respect of the junior minimum rate.
By reason of the matters set out in paragraphs 44 to 46 above, the first respondent contravened s.45 of the Act by contravening of cl.18.1 of the Award.
failure to pay the casual loading
During Ms Liao’s employment period, pursuant to cl.13.2 of the Award, the first respondent was required to pay Ms Liao an additional casual loading of 25% which equated to $3.71 per hour for all hours worked except hours worked on a Sunday (“casual loading”).
During Ms Liao’s employment period, Ms Liao:
a)worked 57 hours attracting the casual loading;
b)was entitled to be paid $211.47 in respect of the casual loading; and
c)was paid $8.37 in respect of the casual loading.
The first respondent underpaid Ms Liao $203.10 in respect of the casual loading.
By reason of the matters set out in paragraphs 48 to 50 above, the first respondent contravened s.45 of the Act by contravening cl.13.2 of the Award.
failure to pay overtime rates
During Ms Everitt’s employment period, pursuant to cl.29.2(a) of the Award, the first respondent was required to pay Ms Everitt the following amounts per hour (“overtime rates”) for each of the hours she worked on a Monday to Friday in accordance with cl.29.2(a) of the Award:
Period
Overtime rates
21 November 2013 to 30 March 2014
$28.05
31 March 2014 to 6 July 2014
$28.60
7 July 2014 to 21 March 2015
$29.46
Clause 29.2(a) of the Award provides that hours worked in excess of the ordinary hours, outside the span of hours (excluding shift work), or roster conditions prescribed in cls.27 and 28 of the Award are to be paid at time and a half for the first three hours and double time thereafter (“overtime hours”).
Ms Everitt worked outside the spread of hours provided for in cls.27.2(a) and 27.2(b)(iii) of the Award.
Ms Everitt did not work overtime hours of more than three hours on a single day.
During Ms Everitt’s employment period, Ms Everitt:
a)worked a total of 117.5 overtime hours on a Monday to Friday;
b)was entitled to be paid $3,390.46 in respect of the overtime rates; and
c)was paid $2,184.67 in respect of the overtime rates.
The first respondent underpaid Ms Everitt $1,205.79 in respect of the overtime rates.
By reason of the matters set out in paragraphs 52 to 57 above, the first respondent contravened s.45 of the Act by contravening cl.29.2(a) of the Award.
failure to pay evening penalty loading
During Ms Everitt’s employment period, pursuant to cl.29.4(a) of the Award and cl.A.7.3 of Schedule A to the Award, the first respondent was required to pay Ms Everitt the following amounts per hour in respect of all ordinary hours worked after 6pm on a Monday to Friday (“evening loading”):
Period
Evening loading - 20% of the adult minimum rate
21 November 2013 to 30 March 2014
$3.74
31 March 2014 to 6 July 2014
$3.81
During Ms Everitt’s employment period, Ms Everitt:
a)worked a total of 39 evening loading hours;
b)was entitled to be paid $146.07 in respect of the evening loading; and
c)was not paid any amount in respect of the evening loading.
The first respondent underpaid Ms Everitt $146.07 in respect of the evening loading.
By reason of the matters set out in paragraphs 59 to 61 above the first respondent contravened s.45 of the Act by contravening cl.29.4(a) of the Award and cl.A.7.3 of Schedule A to the Award.
failure to pay Saturday penalty rates
During their respective employment periods, pursuant to cl.29.4(b) of the Award and cl.A.7.3 of Schedule A to the Award, the first respondent was required to pay the following additional amounts per hour:
a)for Ms Everitt:
i)$3.74 from 21 November 2013 to 30 March 2014;
ii)$3.81 from 31 March 2014 to 6 July 2014; and
iii)$4.91 from 7 July 2014 to 21 March 2015,
for all ordinary hours worked on a Saturday; and
b)for Ms Liao, $1.48 during Ms Liao’s employment period for work performed on a Saturday between 7 am and 6 pm,
(collectively, “Saturday penalty”).
In respect of Ms Everitt, pursuant to cl.29.4(b) of the Award and cl.A.7.3 of Schedule A to the Award, the applicable Saturday penalty was:
a)20% of the adult minimum rates from 21 November 2013 to 6 July 2014; and
b)25% of the adult minimum rates from 7 July 2014 to 21 March 2015.
In respect of Ms Liao, cl.29.4(b) of the Award provides that the Saturday penalty was 10% of the casual loading for a casual employee for work performed on a Saturday between 7 am and 6pm.
During Ms Everitt’s employment period, Ms Everitt:
a)worked a total of 306 ordinary hours on a Saturday;
b)was entitled to be paid $1,343.64 in respect of the Saturday penalty; and
c)was paid $22.10 in respect of the Saturday penalty.
During Ms Liao’s employment period, Ms Liao:
a)worked four hours on a Saturday between 7 am and 6 pm;
b)was entitled to be paid $5.92 in respect of the Saturday penalty; and
c)was not paid any amount in respect of the Saturday penalty.
The first respondent underpaid:
a)Ms Everitt $1,321.54; and
b)Ms Liao $5.92,
in respect of the Saturday Penalty.
By reason of the matters set out in paragraphs 63 to 68 above, the first respondent contravened s.45 of the Act by contravening:
a)cl.A.7.3 of Schedule A to the Award in the period 21 November 2013 to 6 July 2014; and
b)cl.29.4(b) of the Award in the period 7 July 2014 to 21 March 2015.
failure to pay Sunday penalty rates
During their respective employment periods, pursuant to cl.29.4(c) of the Award and cl.A.7.3 of Schedule A to the Award, the first respondent was required to pay the following additional amounts per hour for all ordinary hours worked on a Sunday (“the Sunday penalty”):
a)for Ms Everitt, $14.96 from 21 November 2013 to 30 March 2014; and
b)for Ms Liao, $14.82 during Ms Liao’s employment period.
In respect of Ms Everitt, pursuant to cl.29.4(c) and clause A.7.3 of Schedule A to the Award, the applicable Sunday penalty was 80% of the adult minimum rate.
In respect of Ms Liao, cl.29.4(c) of the Award provided that the Sunday penalty payment of 100% applies for ordinary hours worked on a Sunday for a casual employee, instead of the casual loading.
During Ms Everitt’s employment period, Ms Everitt:
a)worked a total of 19 hours on a Sunday;
b)was entitled to be paid $284.24 in respect of the Sunday penalty; and
c)was not paid any amount in respect of the Sunday penalty.
During Ms Liao’s employment period, Ms Liao:
a)worked a total of 10 hours on a Sunday;
b)was entitled to be paid $148.20 in respect of the Sunday penalty; and
c)was paid $1.80 in respect of the Sunday penalty.
The first respondent underpaid:
a)Ms Everitt $284.24; and
b)Ms Liao $146.40,
in respect of the Sunday Penalty.
By reason of the matters set out in paragraphs 70 to 75 above, the first respondent contravened s.45 of the Act by contravening:
a)cl.A.7.3 of Schedule A to the Award in the period 21 November 2013 to 6 July 2014; and
b)cl.29.4(c) of the Award during the period 7 July 2014 to 21 March 2015.
failure to pay public holiday penalty rates
During their respective employment periods, pursuant to cl.29.4(d)(i) of the Award and cl.A.7.3 of Schedule A to the Award, the first respondent was required to pay the employees the following amounts per hour for all ordinary hours worked on a public holiday (“public holiday penalty rates”):
a)for Ms Everitt:
i)$22.44 from 21 November 2013 to 30 March 2014;
ii)$22.87 from 1 March 2014 to 6 July 2014; and
iii)$29.46 from 7 July 2014 to 21 March 2015; and
b)for Ms Liao, $22.23 during Ms Liao’s employment period.
In respect of Ms Everitt, pursuant to cl.29.4(d)(i) and cl.A.7.3 of Schedule A to the Award, the public holiday penalty rates were:
a)120% of the minimum adult wage from 21 November 2013 to 6 July 2014; and
b)150% of the minimum adult wage from 7 July 2014 to 21 March 2015.
In respect of Ms Liao, cl.29.4(d)(i) of the Award provides that the public holiday penalty rate is an additional 150% for ordinary hours worked on a public holiday.
During Ms Everitt’s employment period, Ms Everitt:
a)worked a total of 29 hours on a public holiday;
b)was entitled to be paid $694.97 in respect of the public holiday penalty rates; and
c)was paid $5.18 in respect of the public holiday penalty rates.
During Ms Liao’s employment period, Ms Liao:
a)worked 17 hours on a public holiday;
b)was entitled to be paid $377.91 in respect of the public holiday penalty rates; and
c)was not paid any amount in respect of the public holiday penalty rates.
The first respondent underpaid:
a)Ms Everitt $689.79; and
b)Ms Liao $377.91,
in respect of the public holiday penalty rates.
By reason of the matters set out in paragraphs 77 to 82 above, the first respondent contravened s.45 of the Act by contravening:
a)cl.A.7.3 of Schedule A to the Award in the period 21 November 2013 to 6 July 2014; and
b)cl.29.4(d)(i) of the Award in the period 7 July 2014 to 21 March 2015.
uniform allowance
The employees were required to wear a jumper, shirt and vest bearing an “IGA” logo, being the logo of the business, during each shift worked at the business.
During their respective employment periods, pursuant to cl.20.2(b)(ii) of the Award, the first respondent was required to pay the employees a uniform allowance of $1.25 per shift worked where the employees were required to launder any special uniform (“uniform allowance”).
During their respective employment periods, the employees were entitled to be paid a uniform allowance as follows:
Employee
Number of shifts worked
Amount payable in respect of the uniform allowance
Ms Everitt
330
$412.50
Ms Liao
11
$13.75
During their respective employment periods, the employees were not paid any amount in respect of the uniform allowance.
The first respondent underpaid:
a)Ms Everitt, $412.50; and
b)Ms Liao $13.75;
in respect of the uniform allowance.
By reason of the matters set out in paragraphs 84 to 88 above, the first respondent contravened s.45 of the Act by contravening cl.20.2(b)(ii) of the Award.
failure to pay for annual leave
During Ms Everitt’s employment period, pursuant to s.87 of the Act, Ms Everitt was entitled to accrue, on a progressive basis, four weeks of paid annual leave for each year of her employment with the first respondent.
During Ms Everitt’s employment period, pursuant to s.90(1) of the Act, the first respondent was required to pay Ms Everitt the adult minimum rates for any period of annual leave.
During Ms Everitt’s employment period, Ms Everitt:
a)took 74 hours of annual leave;
b)was entitled to be paid $1,453.36 in respect of annual leave taken; and
c)was paid $1,369 in respect of annual leave.
The first respondent underpaid Ms Everitt $84.36 in respect of annual leave.
By reason of the matters set out in paragraphs 90 to 93 above, the first respondent contravened s.44 of the Act by contravening s.90(1) of the Act.
failure to pay for annual leave loading
During Ms Everitt’s employment period, pursuant to cl.32.3 of the Award, the first respondent was required to pay Ms Everitt 17.5% of the adult minimum rates during any period of annual leave (“annual leave loading”).
During Ms Everitt’s employment period, Ms Everitt:
a)took 74 hours of annual leave;
b)was entitled to be paid $254.56 in respect of the annual leave loading; and
c)was paid $239.55 in respect of the annual leave loading.
The first respondent underpaid Ms Everitt $15.01 in respect of the annual leave loading.
By reason of the matters set out in paragraphs 95 to 97 above, the first respondent contravened s.45 of the Act by contravening cl.32.3 of the Award.
failure to pay ordinary hours for a public holiday not worked
During Ms Everitt’s employment period, pursuant to s.116 of the Act, the first respondent was required to pay Ms Everitt the adult minimum rates for any ordinary hours for which she was absent from work on a public holiday.
During Ms Everitt’s employment period, Ms Everitt:
a)was absent from work by reason of a public holiday for 19 hours;
b)was entitled to be paid $369.17 in respect of hours not worked on a public holiday; and
c)was paid $235.68 in respect of hours not worked on a public holiday.
The first respondent underpaid Ms Everitt $133.49 in respect of hours not worked on a public holiday.
By reason of the matters set out in paragraphs 99 to 101 above, the first respondent contravened s.44 of the Act by contravening s.116 of the Act.
failure to provide breaks between work periods
During Ms Everitt’s employment period:
a)pursuant to cl.31.2(a) of the Award, the first respondent was required to grant Ms Everitt a 12-hour rest period between the completion of work on one day and the commencement of work on the next day (“the rest period”); and
b)pursuant to cl.31.2(b) of the Award, the first respondent was required to pay Ms Everitt double the adult minimum rates on any occasion where the first respondent did not provide her with the rest period, until such time as she was granted a break of at least 12 hours (“the rest period entitlement”).
During Ms Everitt’s employment period, Ms Everitt:
a)worked a total of 37.5 ordinary hours at the business on five separate occasions without having the rest period as required;
b)was entitled to be paid $1,265.88 in respect of the rest period entitlement; and
c)was paid $693.72 in respect of the rest period entitlement.
The first respondent underpaid Ms Everitt $572.16 in respect of the rest period entitlement.
By reason of the matters set out in paragraphs 103(b) to 105 above, the first respondent contravened s.45 of the Act by contravening cl.31.2(b) of the Award.
total underpayment
By reason of the contraventions admitted at paragraphs 43, 47, 51, 58, 62, 69, 76, 83, 89, 94, 98, 102 and 106 above, during their respective employment periods, the first respondent underpaid:
a)Ms Everitt a gross amount of $6,563.14; and
b)Ms Liao a gross amount of $902.69,
(collectively, the “total underpayment”).
The underpayments in respect of Ms Liao and Ms Everitt have been rectified.
g) non-monetary contraventions
failure to make payment weekly
During the Ms Liao’s employment period, pursuant to cl.23 of the Award, the first respondent was required to pay Ms Liao wages in relation to the performance of work on a weekly or fortnightly basis.
For the reasons set out in paragraph 45 above, the first respondent failed to pay Ms Liao on a weekly or fortnightly basis for work performed on 29 April 2015, the only day that Ms Liao worked in the week ending 3 May 2015.
By reason of the matters set out in paragraphs 109 and 110 above, the first respondent contravened s.45 of the Act by failing to provide Ms Liao with payment in relation to the performance of work on a weekly or fortnightly basis for the week ending 3 May 2015, in contravention of cl.23 of the Award.
h) record-keeping contraventions
failure to make and keep records: amounts paid to Ms Liao
The first respondent was required by s.535(1) of the Act and reg.3.33(1) of the Regulations to make and keep records in respect of Ms Liao that specify:
a)the rate of remuneration paid to her;
b)the gross and net amounts paid to her; and
c)any deductions made from the gross amount paid to her.
The first respondent did not make or keep any pay records of the kind described by reg.3.33(1) of the Regulations.
By reason of the matters set out in paragraphs 112 to 113 above, the first respondent contravened s.535(1) of the Act in respect of Ms Liao by failing to comply with the requirements of reg.3.33(1) of the Regulations.
failure to make and keep records: hours worked by Ms Liao
The first respondent was required by s.535(1) of the Act and reg.3.33(2) of the Regulations to make and keep records that set out the hours worked by Ms Liao.
The first respondent did not make and keep records of the hours worked by Ms Liao on 30 March 2015 and 2 April 2015.
By reason of the matters set out in paragraphs 115 and 116 above, the first respondent contravened s.535(1) of the Act in respect of Ms Liao by failing to comply with the requirements of reg.3.33(2) of the Regulations.
failure to provide pay slips
The first respondent was at all relevant times required by s.536(1) of the Act to provide Ms Liao with a pay slip within one working day of paying an amount to Ms Liao in relation to the performance of work.
The first respondent did not provide any pay slips to Ms Liao during Ms Liao’s employment period.
By reason of the matters set out in paragraphs 118 and 119 above, the first respondent contravened s.536(1) of the Act.
failure to provide pay slips specifying the pay period to which it relates
The first respondent was at all relevant times required by s.536(2) of the Act and reg.3.46(1)(c) of the Regulations, to provide Ms Everitt with a pay slip that specified the period to which the pay slip relates.
The first respondent provided the pay slips to Ms Everitt (“Ms Everitt’s pay slips”) for each weekly pay period in Ms Everitt’s employment period.
Ms Everitt’s pay slips did not set out the correct pay period to which they related, as they showed Ms Everitt’s pay period beginning on a Thursday and ending on a Wednesday, despite Ms Everitt’s pay period actually beginning on a Monday and ending on a Sunday.
By reason of the matters set out in paragraphs 121 to 123 above, the first respondent contravened s.536(2) of the Act.
accessorial liability
legislative and Award knowledge
At all relevant times, the second respondent knew that:
a)the Act and the Regulations applied to the first respondent;
b)the Act and the Regulations prescribed minimum terms and conditions of employment such as leave entitlements and record keeping requirements;
c)the Award applied to the first respondent and covered employees of the first respondent engaged at IGA supermarkets;
d)the Award prescribed minimum wages and conditions to the employees covered by the Award, including in relation to minimum hourly rates of pay, casual loading, public holiday and weekend penalty rates; and
e)the Award applied to the employment of the employees.
The second respondent was informed about the Act, the Regulations and the Award, including being informed about minimum rates of pay, casual loadings, public holiday penalty rates and weekend penalty rates under the Award, and record-keeping requirements.
The second respondent had been informed about the matters stated in paragraph 126 above through his previous interactions with the applicant, which included:
a)six separate complaints;
b)correspondence issued to him on 5 October 2012, 2 May 2013 and 25 November 2013; and
c)a letter of caution dated 28 March 2014.
The second respondent received correspondence from Master Grocers Australia with a notice referring to the Fair Work Commission’s annual wage increases and that the new wage rates would be available on its website.
employees’ hours of work and amounts paid
At all relevant times, the second respondent was responsible for:
a)the overall direction, management and supervision of the operation of the business;
b)setting the pay rates, wages and conditions of the employees;
c)making decisions on behalf of the first respondent regarding:
i)the terms and conditions upon which the employees were employed;
ii)the work to be performed by the employees; and
iii)the time, method and manner of payments to employees;
d)rostering the employees to work in the business; and
e)processing payments to the employees, either by way of electronic transfer or the payment of cash.
At all relevant times, the second respondent:
a)was present at the business on a regular basis;
b)calculated and paid wages to the employees;
c)approved Ms Everitt’s periods of annual leave;
d)adjusted Ms Everitt’s wages to pay annual leave on public holidays not worked;
e)prepared pay slips for Ms Everitt on the first respondent’s behalf;
f)provided pay slips to Ms Everitt if she was working at the time they were prepared; and
g)disposed of the clock cards after the wages had been processed.
By reason of the matters set out in paragraphs 125 to 130 above, the second respondent knew:
a)the days and hours worked by the employees, including the annual leave and public holiday days worked by Ms Everitt;
b)that Ms Everitt was engaged on a full time basis;
c)that Ms Liao was engaged on a casual basis; and
d)the amounts paid to the employees as set out in paragraphs 37 and 39 above.
record keeping
At all relevant times the second respondent was responsible for:
a)creating and maintaining employee records; and
b)preparing and issuing pay slips.
accessorial liability
By reason of the matters set out in paragraphs 24 and 125 to 132 above, the second respondent:
a)had actual knowledge of; and
b)was an intentional participant in,
each of the contraventions admitted by the first respondent set out in paragraphs 43, 47, 51, 58, 62, 69, 76, 83, 89, 94, 98, 102, 106, 114, 117, 120 and 124 above.
By reason of the matters admitted in paragraph 133 above, and pursuant to s.550(1) of the Act, the second respondent was involved in, and is therefore treated as having personally contravened, each of the provisions that the first respondent is herein admitted to have contravened.
Approach to determining penalty
In general, the proper approach to determining penalty in cases such as this is as follows. The first step for the court is to identify each separate contravention involved.
Where there are multiple contraventions, the second step is to consider whether any of the various contraventions constituted a single course of conduct, such that multiple breaches should be treated as a single breach.
The third step is for the court to consider the extent, if any, to which two or more contraventions have common elements. A person should not be penalised more than once for the same conduct.
The penalty imposed by the court should be an appropriate response to the contravenor’s conduct.[1] This is a separate process from the application of the totality principle.[2]
[1] Australian Ophthalmic Supplies Pty Ltd v McAlary-Smith (2008) 165 FCR 560; (2008) 246 ALR 35; [2008] FCAFC 8 at [46] (Graham J).
[2] Mornington Inn Pty Ltd v Jordan (2008) 168 FCR 383; (2008) 247 ALR 714; (2008) 171 IR 455; [2008] FCAFC 70 at [41]-[46] (Stone and Buchanan JJ).
The fourth step is for the court to consider the appropriate penalty for each breach, treating multiple breaches arising from a course of conduct as a single breach, and taking into account any common elements shared by the various breaches.
The fifth step is for the court to apply the totality principle.
This requires the court to consider the aggregate penalty overall, and determine whether it is an appropriate response to the conduct which resulted in the breaches.[3] The court in this step makes an “instinctive synthesis”.[4]
[3] See Kelly v Fitzpatrick (2007) 166 IR 14 at [30] (Tracey J) (Kelly); Ophthalmic, supra at [23] (Gray J), [71] (Graham J) and [102] (Buchanan J).
[4] Ophthalmic, supra at [27] (Gray J) and [55] and [78] (Graham J).
A convenient checklist of the factors that the court might consider in determining penalty include the matters that were identified by Mowbray FM in Mason v Harrington Corporation Pty Ltd [2007] FMCA 7 at [26]-[59] and adopted by Tracey J in Kelly v Fitzpatrick (2007) 166 IR 14; [2007] FCA 1080 at [14]. That list is as follows, (with paragraph letters inserted):
(a)The nature and extent of the conduct which led to the breaches.
(b)The circumstances in which that conduct took place.
(c)The nature and extent of any loss or damage sustained as a result of the breaches.
(d)Whether there had been similar previous conduct by the respondent.
(e)Whether the breaches were properly distinct or arose out of the one course of conduct.
(f)The size of the business enterprise involved.
(g)Whether or not the breaches were deliberate.
(h)Whether senior management was involved in the breaches.
(i)Whether the party committing the breach had exhibited contrition.
(j)Whether the party committing the breach had taken corrective action.
(k)Whether the party committing the breach had cooperated with the enforcement authorities.
(l)The need to ensure compliance with minimum standards by provision of an effective means for investigation and enforcement of employee entitlements.
(m)The need for specific and general deterrence.
The court must, of course, be mindful of the caution expressed by Buchanan J in Australian Ophthalmic Supplies Pty Ltd v McAlary-Smith (2008) 165 FCR 560; (2008) 246 ALR 35; [2008] FCAFC 8 at [91] as follows:
Check lists of this kind can be useful providing they do not become transformed into a rigid catalogue of matters for attention. At the end of the day the task of the Court is to fix a penalty which pays appropriate regard to the circumstances in which the contraventions have occurred and the need to sustain public confidence in the statutory regime which imposes the obligations. There is no suggestion in the present case that the learned Magistrate made any relevant error in her identification of the matters which she should consider in fixing penalties.
The court will consider the circumstances of the case under the various headings suggested by Mowbray FM, and then consider whether any other matters are relevant.
There was no cross examination of any witnesses. Subject to the discussion of certain objections to one of the applicant’s affidavits set out below, I accept all of the affidavit evidence.
Step 1: identifying the breaches
As stated above, the first respondent breached:
a)s.44 of the Act, by contravening:
i)s.90(1); and
ii)s.116 of the Act;
b)s.45 of the Act, by contravening:
i)cl.13.2;
ii)cl.17;
iii)cl.18.1;
iv)cl.20.2(b)(ii);
v)cl.23;
vi)cl.29.2(a);
vii)cl.29.4(a) and cl.A.7.3 of Schedule A;
viii)cl.29.4(b) and cl.A.7.3 of Schedule A;
ix)cl.29.4(c) and cl.A.7.3 of Schedule A;
x)cl.29.4(d)(i) and cl.A.7.3 of Schedule A;
xi)cl.31.2(b); and
xii)cl.32.3
of the Award;
c)s.535(1) of the Act, by contravening regs.3.33(1) and 3.33(2) of the Regulations;
d)s.536(1) of the Act; and
e)s.536(2) of the Act, by contravening reg.3.46(1)(c) of the Regulations,
and the second respondent was involved in each of those contraventions.
Step 2: single course of conduct
The applicant stated in her submissions on penalty that:
20. Section 557(1) of the FW Act provides that, for specified contraventions of the FW Act,24 two or more contraventions of the same civil remedy provision will be treated as a single contravention where that contravention was committed by the same person, and arose from the same course of conduct. Particularly relevant is whether the acts arose out of separate acts or decisions of the Respondents or out of the same act or decision.
21. … the Applicant accepts that contraventions of the same term of the Award in relation to multiple employees, may be treated as one contravention under section 557(1) of the FW Act, provided that there is one course of conduct.
24 Including contraventions of sections 44, 45, 535 and 536 of the FW Act.
The respondents did not make any submissions specifically on the course of conduct point.
I accept that the respondents’ multiple contraventions of a single provision can appropriately be treated a single contravention, even where the contravention occurred numerous times and in respect of numerous employees.
Step 3: grouped breaches
Applying s.557 of the Act, the applicant submitted that the breaches identified in paragraphs 142(b)(ii) and (iii) above should be treated as a single grouped breach, as they both arose from the underpayment of minimum wages to the employees, the only distinction being the ages of the employees. Further, the applicant also submitted that the breaches identified in paragraphs 142(a)(i) and (b)(xii) should be treated as another single grouped breach, as they both arose as a result of an employee taking a period of annual leave. The applicant submitted that the remaining breaches were sufficiently distinct in their character and obligations and should not be grouped.
Having said, in table A annexed to the applicant’s written submissions, she grouped together the breaches of s.535(1) of the Act consisting of contraventions of reg.3.33(1) and (2), being respectively, the failure to make and keep records relating to payments to Ms Liao, and the failure to make and keep records relating to hours worked by Ms Liao.
The grouping proposed by the applicant resulted in 15 contraventions as follows:
a)minimum rate contraventions (adult and junior), being breaches of s.45 of the Act by contravening cls.17 and 18.1 of the Award;
b)casual loading, being breaches of s.45 of the Act by contravening cl.13.2 of the Award;
c)overtime rates, being breaches of s.45 of the Act by contravening cl.29.2(a) of the Award;
d)evening penalty, being breaches of s.45 of the Act by contravening cl.29.4(a) of the Award and cl.A.7.3 of Schedule A to the Award;
e)Saturday penalty, being breaches of s.45 of the Act by contravening cl.29.4(b) of the Award and cl.A.7.3 of Schedule A to the Award;
f)Sunday penalty, being breaches of s.45 of the Act by contravening cl.29.4(c) of the Award and cl.A.7.3 of Schedule A to the Award;
g)public holiday penalty, being breaches of s.45 of the Act by contravening cl.29.4(d)(i) of the Award and cl.A.7.3 of Schedule A to the Award;
h)uniform allowance, being breaches of s.45 of the Act by contravening cl.20.2(b)(ii) of the Award;
i)annual leave entitlements, being breaches of s.44 of the Act by contravening s.90(1) of the Act and breaches of s.45 of the Act by contravening cl.32.3 of the Award;
j)public holiday not worked, being breaches of s.44 of the Act by contravening s.116 of the Act;
k)failure to provide breaks between work periods, being breaches of s.45 of the Act by contravening cl.31.2(b) of the Award;
l)failure to pay weekly, being breaches of s.45 of the Act by contravening cl.23 of the Award;
m)failure to make and keep records of amounts paid and hours worked, being breaches of s.535(1) of the Act by contravening regs.3.33(1) and 3.33(2) of the Regulations;
n)failure to issue pay slips at all, being the breaches of s.536(1) of the Act; and
o)failure to provide pay slips with the required information, being breaches of s.536(2) of the Act by contravening reg.3.46(1)(c) of the Regulations.
The respondents submitted that:
6. There is no hard and fast established test for the manner in which contraventions are grouped. The underlying principle is to avoid the potential duplication of punishment for the same or substantially similar conduct.
“There is no exact science in this decision. It is a question of considering the nature of the contraventions and the nature of the ‘criminality’ involved.”1
7. In Sureguard Barker J accepted the submissions on the part of the Respondents which resulted in the grouping together of contraventions related to minimal hourly rates and separate groupings in respect to casual loading contraventions and night time penalty rates.
1Fairwork Ombudsman v Sureguard Security Pty Ltd [2017] FCA 1566 per Barker J at [43]
The respondents agreed that the minimum rate contraventions for adults and juniors (cls.17 and 18.1 of the Award) should be grouped as one breach and that contraventions of annual leave entitlements (s.90(1) of the Act and cl.32.3 of the Award) should be grouped as one breach. The respondents also accepted that the failure to make and keep records of amounts paid and hours worked (s.535(1) of the Act by contravening regs.3.33(1) and 3.33(2) of the Regulations) should be treated as one contravention.
However, the respondents submitted that there should be additional groupings as follows:
a)casual loading and allowances, being breaches of s.45 of the Act by contravening cl.13.2 of the Award and breaches of s.45 of the Act by contravening cl.20.2(b)(ii) of the Award;
b)penalty rates, being breaches of s.45 of the Act by contravening cl.29.2(a) of the Award and breaches of s.45 of the Act by contravening cl.29.4(a), (b), (c) and (d)(i) of the Award and cl.A.7.3 of Schedule A to the Award;
c)work conditions, being breaches of s.44 of the Act by contravening s.116 of the Act and breaches of s.45 of the Act by contravening cls.23 and 31.2(b) of the Award; and
d)issue of pay slips, being the breaches of s.536(1) of the Act and breaches of s.536(2) of the Act by contravening reg.3.46(1)(c) of the Regulations.
The respondents’ groupings would result in seven contraventions as opposed to the applicant’s 15. The respondents submitted that:
9. A grouping in this manner reflects the approach that is consistent with principle and takes into account the common elements and overlap that exist in the contraventions that are placed within each group.
The applicant relied on the Full Court of the Federal Court in Rocky Holdings Pty Ltd v Fair Work Ombudsman (2014) 221 FCR 153; (2014) 243 IR 244; [2014] FCAFC 62, where North, Flick and Jagot JJ stated:
18. … The object and purpose of provisions such as s 557 and its predecessor provisions is to ensure that an “offender is not punished twice for what is essentially the same criminality”. When considering the principles to be applied when imposing a penalty for contraventions of the Building and Construction Industry Improvement Act 2005 (Cth) Middleton and Gordon JJ in Construction, Forestry, Mining and Energy Union v Cahill [2010] FCAFC 39, (2010) 269 ALR 1 stated the issue to be resolved in that appeal as follows:
[35] The appellants submitted that the sentencing discretion miscarried because her Honour failed to consider a relevant matter (whether the three contraventions ought properly be seen as arising out of the one course of conduct) or because her Honour misdirected herself in the application of the “one course of conduct” or the “one transaction” principle…
In resolving that argument, their Honours concluded:
[39] As the passages in Construction, Forestry, Mining and Energy Union v Williams (2009) 191 IR 445 explain, a “course of conduct” or the “one transaction principle” is not a concept peculiar to the industrial context. It is a concept which arises in the criminal context generally and one which may be relevant to the proper exercise of the sentencing discretion. The principle recognises that where there is an interrelationship between the legal and factual elements of two or more offences for which an offender has been charged, care must be taken to ensure that the offender is not punished twice for what is essentially the same criminality. That requires careful identification of what is “the same criminality” and that is necessarily a factually specific enquiry. Bare identity of motive for commission of separate offences will seldom suffice to establish the same criminality in separate and distinct offending acts or omissions.
…
19. Fifth, there are contrary decisions. The reasoning of Logan J in QR Limited FCA at [16] to [19] is against the appellants. Logan J said:
16 In my view, the course of conduct must be associated with the particularised term of the particularised instrument. That is the contravention of the term of the transitional instrument. One does not look at course of conduct for the purposes of s 557 at a level of abstraction divorced from the contravened provision as particularised (ie the term in question and the transitional instrument in question).
…
20. We agree with this reasoning. The appellants’ argument to the contrary, that the controlling mechanism is that the contraventions arise from a course of conduct, is not a persuasive answer, particularly in light of his Honour’s observations about the operation of s 557(3).
…
26. Eighth, the FWO’s construction is not counter-intuitive. To the contrary, the appellants’ argument would lead to arbitrary and capricious outcomes. Adopting the FWO’s submissions in this regard:
For example, an employer who has contravened a range of provisions under a modern award resulting in large widespread underpayments to a number of employees would be subject to the same maximum penalty of $33,000 as an employer who has contravened one award provision for one employee on one occasion.
Similarly, an employee’s employment may be governed exclusively by a modern award, an enterprise agreement, or an NES, or it may be governed by a combination of all three. If all the terms or provisions contravened appear in a single instrument, there would be but a single contravention and single penalty. If, however, there was more than one source of the terms or provisions, even though the contraventions were in substance identical, the maximum available penalties could be doubled or tripled, depending upon the number of applicable instruments.
Further, the appellants’ construction would have the effect that multiple breaches of different modern awards would be treated as a single contravention so long as they arose from a single course of conduct…
These arbitrary and capricious results are avoided if it be accepted that s. 557 operates to group together contraventions of the same provision or term.
Further, the applicant argued that there was no commonality between s.536(1) and s.536(2) of the Act. Subsection 536(1) of the Act is as follows:
An employer must give a pay slip to each of its employees within one working day of paying an amount to the employee in relation to the performance of work.
Subsection 536(2) of the Act is as follows:
The pay slip must:
(a)if a form is prescribed by the regulations – be in that form; and
(b)include any information prescribed by the regulations.
The respondents relied on a statement made by the applicant in paragraph 32 of her written submissions filed in the Deja Vu matter, which was as follows:
In addition to the statutory course of conduct provisions, is open to the Court to group separate contraventions where the contraventions contain common elements or can be said to overlap with each other. It is appropriate for the Court to group contraventions where, if they were treated separately, this would potentially penalise the Respondents twice for the same or substantially similar conduct. (footnote omitted)
That is, the respondents argued that the statement in Rocky Holdings that grouping should be confined to contraventions of the same provision related only to grouping under s.557 of the Act and did not incorporate the common law principles relating to grouping. In that regard, the respondents relied particularly on the statement made in Construction, Forestry, Mining and Energy Union (CFMEU) v Cahill (2010) 269 ALR 1; (2010) 194 IR 461; [2010] FCAFC 39 by Middleton and Gordon JJ at [39], concerning the grouping principle that:
The principle recognises that where there is an interrelationship between the legal and factual elements of two or more offences for which an offender has been charged, care must be taken to ensure that the offender is not punished twice for what is essentially the same criminality. That requires careful identification of what is “the same criminality” and that is necessarily a factually specific enquiry. Bare identity of motive for commission of separate offences will seldom suffice to establish the same criminality in separate and distinct offending acts or omissions.
In relation to the groupings proposed by the respondents, I am not persuaded that they contain the necessary degree of overlap. To my mind, the groupings proposed by the applicant are appropriate.
Step 4: the appropriate penalty for the breaches
a. the nature and extent of the conduct which led to the breach
The applicant argued that the nature of the conduct was that the breaches were deliberate. The applicant noted that the second respondent was well aware of his employees’ minimum entitlements because, prior to the breaches in the present proceeding, the applicant had given him specific information about the Award and the first respondent’s obligations as an employer. In addition, the second respondent was a member of Master Grocers Australia which provided information to him about his employees’ entitlements. The second respondent conceded these matters in the statement of agreed facts. The respondents did not dispute that their conduct in this case was deliberate.
The extent of the conduct is considerable in the sense that there was a plethora of different breaches. While the offending conduct in relation to Ms Liao only lasted one month, it lasted about 16 months in relation to Ms Everitt. The respondents’ contraventions of the Act, Regulations and the Award resulted in underpayments to the employees totalling $7,465.83.
On the other hand, as submitted by the respondents, the offending conduct concerned only two employees out of a large number employed by the first respondent.
b. the circumstances in which that conduct took place
The conduct took place in the context of the first respondent’s operation of an IGA supermarket in Altona. The second respondent was aware of the first respondent’s obligations to its employees, as it had dealings with the applicant which consisted of:
a)six separate complaints;
b)correspondence dated 5 October 2012, 2 May 2013 and 25 November 2013; and
c)a letter of caution dated 28 March 2014.
c. the nature and extent of any loss or damage sustained
The applicant argued that the respondents’ conduct caused significant losses to the employees, that were both financial and non-financial. The applicant argued that the losses were aggravated by the vulnerability of the employees concerned.
The respondents’ total underpayments were:
a)$6,563.14 to Ms Everitt in approximately 16 months; and
b)$902.69 to Ms Liao in one month.
The underpayments were not rectified until May 2017.
The applicant submitted that, even though the sums underpaid may not be high, there were significant underpayments to employees who were predominantly classed at the lowest level of the Award. The applicant referred to Fair Work Ombudsman v Viper Industries Pty Ltd [2015] FCCA 492, where Judge Emmett accepted the applicant’s submission in that matter that:
7. …
36.… While this amount is not objectively large, this does not mean it is not significant for [the employee].
Ms Liao was 19 years old at the time of her employment and the applicant submitted that [t]he combination of her age and low-paid position made her vulnerable to exploitation,56 and made the loss she suffered more significant. The applicant relied on Fair Work Ombudsman v Soleimani [2014] FCCA 2380 where it was said at [50] that:
I am satisfied, having regard to [the employee’s] young age at the time she was employed, the fact she was reliant on the minimum wage, had limited employment experience and hence limited knowledge of her entitlements, that she was a vulnerable employee.
56 See Fair Work Ombudsman v Lifestyle SA Pty Ltd [2014] FCA 1151 at [85]; Fair Work Ombudsman v Soleimani [2014] FCCA 2380 at [50].
The applicant also relied on Fair Work Ombudsman v Bound for Glory Enterprises Pty Ltd & Anor [2014] FCCA 432 at [52] where it was said that:
It is no answer to addressing the gravity of the conduct and loss involved in the aggregate to seek to emphasise the individual amounts for some of the employees. The amounts involved may seem trifling to some but they were required to be paid to young employees for whom they were far from trifling and for which they’ve had to wait.
Ms Everitt was aged 53 years at the time of her employment. The applicant submitted that vulnerability by reason of maturity was recognised in Fair Work Ombudsman v Happy Cabby Pty Ltd [2013] FCCA 397 where it was said that:
60. The Fair Work Ombu[d]sman submits that the nature of the contraventions is particularly serious in circumstances where the employees were vulnerable because the Company’s workforce generally consists of mature workers. At the commencement of the Claim Period the drivers were aged between 50 and 71 years of age. The age of the drivers meant that it may have been more difficult for the drivers to find alternative work, especially in a regional centre. (footnote omitted)
61. The respondents do not dispute that failure to meet workplace laws is a serious matter but point to the relevantly modest underpayments per driver and the total underpayment of $26,082.22 as being relatively moderate. That, however, does not detract from the issue of vulnerability.
Ms Everitt said in her affidavit sworn on 25 June 2018:
9. Before I applied for this job, I had been looking for work for about seven months. I was receiving Centrelink payments and I had to apply for about 20 jobs a month. I didn’t get very many interviews, and even when I did get an interview, I didn’t get the job. I felt that this had a lot to do with my age. (I was 53 years old at the time I applied for the job at Altona IGA.) I felt like the older I got, the harder it was to find a job.
10. I found out what my rate of pay was when I got my first pay slip. I saw that the pay rate was $18.50. I also noticed that when I worked on weekends or public holidays, my rate stayed at $18.50. I knew that the rates were not correct straight away, because I had worked at Safeway previously and knew that I should be getting higher rates for weekends and public holidays.
11. I did not say anything to Sam Haddad about my pay rates because I was just so happy to have a job after seven months of looking for one. I was happy that I had an income so I could pay my rent and bills and take care of my two kids. Even though I wasn't happy with the pay, I was worried that if I left, I wouldn't be able to find another job because of my age and because I knew how hard it was to find this job. My daughter is a type 1 diabetic, so I had also had medical expenses for her that I had to take care of.
The respondents argued that the losses to the employees were of relatively small amounts. However, the respondents accepted that the amounts in question did cause loss to the employees concerned.
The respondents emphasised that the applicant had only found two employees who had been underpaid, notwithstanding the first respondent having a substantial number of employees.
I accept the submissions of all parties as outlined above, save that I consider that the losses would have been significant to the employees involved.
d. whether there had been similar previous conduct
In relation to this factor, the applicant sought to rely on paragraphs 27 to 45 of the affidavit affirmed by Ms Campbell on 20 June 2018. Those paragraphs detailed various complaints made to the applicant by employees associated with the second respondent and administrative action taken by the applicant in response. The respondents objected to those paragraphs being accepted into evidence.
The basis of the respondents’ objection was expressed in their written submissions in the Deja Vu matter as follows:
33. The paragraphs in the affidavit are inadmissible and consequentially the submissions inappropriate for a number of reasons but primarily;
a. There were no such matters alleged in the Statement of Claim;
b. There were no such matters contended for in the SOAF;
c. As a consequence of (a) and (b) above, there has been no opportunity for the Respondents to enquire into the accuracy or otherwise of the assertions that have been made. It represents a fundamental denial of procedural fairness and natural justice.
34. If, contrary to our submission, the Court finds that the evidence is admissible then it is of such little weight that the Court should have little or no regard to the content.
Essentially, the respondents’ complaint about paragraphs 27 to 45 of Ms Campbell’s affidavit was that the issues raised in it were raised too late for the respondents to deal with them. That submission flies in the face of orders made by consent on 31 May 2018 to the effect that the applicant was to file and serve any affidavit relating to penalty by 21 June 2018 and the respondents were to file and serve any affidavit relating to penalty by 28 June 2018. In oral submissions, the respondents acknowledged that the applicant’s affidavit was served on them on 20 June 2018. The respondents did not file any affidavit in reply by 28 June 2018 or at all.
The penalty hearing before this court was on 17 July 2018. If the respondents had been genuinely prejudiced by having only one week to respond to Ms Campbell’s affidavit, they had over three weeks prior to the penalty hearing to prepare an affidavit and seek an extension of time to file and serve it. Alternatively, they could have sought an adjournment of the penalty hearing. However, they did not do so.
It emerged during oral submissions that the second respondent was overseas and had been for a few weeks prior to the penalty hearing. The second respondent presumably knew when he was required to file material and knew the date of the penalty hearing, but went overseas anyway. Of course, with electronic communication, being overseas is no bar to providing instructions.
In any event, the basis of the objection raised by the respondents in their written submissions is not sound. In a worst case scenario, the respondents could have sought an adjournment to respond to Ms Campbell’s affidavit.
In oral submissions, the respondents also said that paragraphs 27 to 45 of Ms Campbell’s affidavit did not claim that there had been findings by a court of prior contraventions, but only that there had been complaints and administrative action. The respondents said that they had admitted that they were aware of their actions, so paragraphs 27 to 45 of Ms Campbell’s affidavit did not take the matter significantly further. This was not an objection to admissibility as such.
In maintaining that the paragraphs should be admitted into evidence, the applicant relied on Fair Work Ombudsman v Grandcity (GW) Travel & Tour Pty Ltd [2015] FCCA 1759 where it was said at [53] that:
This is a case where there has been previous conduct that resulted in intervention by the applicant. Whilst there has not been a previous imposition of penalty, that intervention should have left the second respondent (and through her other companies she controls including the first respondent) well aware of their obligations.
The applicant also relied on Fair Work Ombudsman v Bound for Glory Enterprises Pty Ltd & Anor [2014] FCCA 432 where it was said at [56] that:
Whilst it is correct to observe that the respondents have not previously been convicted of contraventions of workplace laws, it could hardly be contended that the respondents hadn’t previously come to the attention of the authorities. Unfortunately it would appear the attempts to secure voluntary compliance were [un]successful in deterring or preventing further unlawful conduct.
The applicant relied on Fair Work Ombudsman v Jay Group Services Pty Ltd & Ors [2014] FCCA 2869, where it was said that:
64.Any suggestion that the above respondents were new to the business environment, naïve in respect of the requirements of employing staff or the general tenets of employment law are completely unsustainable. The Lang Penalty Affidavit has a section headed “Compliance history of the First and Third Respondent” that states the following at [25]-[29]:
25.On 17 February 2014, in preparation of this affidavit, I conducted a search of the FWO’s Internal case management system. This records all complaints received by the FWO.
26.I searched for all complaints lodged against “Jay Group Services Pty Ltd” and discovered that 7 complaints have been lodged against the first respondent, in addition to the twelve complaints lodged by the Employees listed…
27. I received the electronic file for each of the 7 complaints and saw that:
(a) 3 of the matters concerned the alleged underpayment of labourers but these matters were closed due to insufficient evidence being available to the FWO;
(b) 3 of the matter[s] involved underpayments of employees employed as cleaners and were resolved through the FWO’s voluntary compliance mechanisms; and
(c) 1 of the matters involved underpayments of an employee employed as a carwasher and was resolved through the FWO’s voluntary compliance mechanisms.
28.In relation to one of the matters … that were closed due insufficient evidence, I saw from the “Case Decision Record” dated 11 July 2012 (CDR) on the file that the FWO issued a Notice to Produce to the third respondent which was not complied with. I also saw that a Record of Interview was offered to the third respondent but the offer was not accepted.
29. The CDR also indicated that there were purported subcontracting arrangements in place between the first, third and fifth respondents similar to those in the current proceedings…
65.Also contained in the Lang Penalty Affidavit is the “Compliance History of the Fourth Respondent and his related companies” which states at [30]-[35]:
30.I am aware that the current proceedings are the third set of legal proceedings brought by the FWO and its predecessors against the fourth respondent. I am aware of this because I was one of the inspectors involved in an earlier investigation into the activities of the fourth respondent and his previous company Xidis Pty Ltd.
31.The FWO’s predecessor agencies have undertaken the following proceedings against the fourth respondent and his previous company Xidis Pty Ltd (which also traded as Effective Supermarket Services):
(a) Inspector Dekic v Xidis Pty Ltd & Nick Iksidis (2007) in which the Melbourne Magistrates Court imposed a penalty of $12,500 against Xidis Pty Ltd and $12,500 against Nick Iksidis for the underpayment of trolley collection workers in Victoria…
(b) Inspector Lang v Xidis Pty Ltd & Nick Iksidis [2008] FMCA 1009 in which the Federal Magistrates Court imposed a penalty of $120,000 against Xidis Pty Ltd for the underpayment of trolley collection workers in NSW and Victoria. No penalty was imposed against Nick Iksidis as he undertook to personally pay the penalty of Xidis Pty Ltd…
32. I currently have carriage of a number of other trolley collection investigations and compliance activities in the trolley collection industry.
33.On or about 12 February 2014, I received a phone call from an employer in the trolley collection industry in relation to another trolley collection investigation of which I have carriage. During the conversation, the employers said to me words to the following effect:
“Nick Iksidis rang me the other day looking for trolley collection work.”
34. On or about 18 February 2014, I received a further telephone call from the employer referred to in the paragraph immediately above in relation to another trolley collection investigation. During the conversation, the employer said to me words to the following effect:
“There was a tender for a trolley collection contract at Aldi’s North Sydney last week. One of my contacts at Aldi’s told me that Nick Iksidis has put a tender in.”
35.As a result of the above conversations and the fourth respondent’s compliance history, it is my understanding that the fourth respondent may still be operating in the trolley collection industry or may seek to in the near future.
66.I further note the submissions made by FWO under the heading “Factors Relating to Penalty for the First and Third Respondent - Deliberateness of the Breaches” using the approach in Mason v Harrington Corporation (supra), states:
59.At the very least, Jay Group and Mr Singh would have known that an employee is entitled to be paid for worked performed given the past operations of Jay Group in the cleaning industry. Mr Singh has now admitted that he knew that the terms and conditions of the Employees would have been covered by an award (Jay Group SOAF at [77(e)] and that he knew, or ought to have known, that the amount of $15,730 invoiced by Jay Group to Xidis Aust trading as ESS (Jay Group SOAF at [21]) would not be sufficient to meet the minimum wage obligations payable to the Employees (Jay Group SOAF at [77(g)]).
60. FWO submits that the breaches occurred in circumstances where Jay Group and Mr Singh were at least reckless in relation to their obligations.
67.This logically leads to the issue of deterrence. I accept the submissions of FWO in respect of “Factors Relating to Penalty for the First and Third Respondents – General deterrence”, which state at [65] and [69]:
65.It is indisputable that the most fundamental purpose of a civil penalty is to ensure compliance with the law. The setting of a penalty in respect of contravening conduct deliberately marks the seriousness with which the public regards such compliance, and naturally is designed to act as a deterrent, both by encouraging compliance in the first instance and also by imposing serious financial consequences for non-compliance.
…
69.The contraventions in the current proceedings concern the removal of key employment entitlements by way of a failure to pay employees for work performed during the Claim Period. The penalties in this case should be imposed on a meaning level so as to deter other employers from committing similar contraventions, especially in industries and circumstances where the employees are vulnerable (Lang Penalty Affidavit at [36] to [46]) and may have less awareness of their entitlements. Directors and managers of such companies should be under no misapprehension that a decision to rely on employees’ unpaid labour, particularly in circumstances of vulnerable employees will not be met with significant penalties.
68.Based on material before the Court, I believe the significantly more important issue concerns specific deterrence. The nature of the contraventions is not in the category of business operators who undertake the venture where they inadvertently and unintentionally breach the law due to lack of familiarity or experience in a particular aspect of the venture. In this matter it was more than a miscalculation or misunderstanding of an award requirement, but rather, a total failure to meet minimum standards of the most fundamental kind being a complete non-payment of wages and entitlements. Consequently, I believe this places greater emphasis on submissions made by FWO in respect “Factors relating to penalty for the first and third respondent – Specific Deterrence”, which state at [70]-[71]:
70. As Justice Gray in Plancor Pty Ltd v Liquor, Hospitality and Miscellaneous Union ([2008] FCAFC 170) at [37] observed:
“…Specific deterrence focuses on the party on whom the penalty is to be imposed and the likelihood of that party being involved in a similar breach in the future. Much will depend on the attitude expressed by that party as to things like remorse and steps taken to ensure that no future breach will occur…”
71.The need for specific deterrence is significant in this case as Jay Group continues to operate a cleaning business (Lang Penalty Affidavit at [10(a)] and [10(c)]) and may continue to employ employees (although no evidence of this has been filed). The cleaning industry is known for high levels on non-compliance (See the FWO’s National Cleaning Services Campaign 2010 –
2011 Final Report at ArticleDocuments/714/national-cleaning-services-campaign-final-report.pdf.aspx, Fair Work Ombudsman v Jooine (Investment) Pty Ltd & Anor [2013] FCCA 2144; Fair Work Ombudsman v Glad Group Pty Ltd [2011] FMCA 233; Fair Work Ombudsman v Cleaners New South Wales [2009] FMCA 683). As outlined… Jay Group also has a history of non-compliance (similar previous conduct)(Lang Penalty Affidavit at [27] to [28]).
72. Where a business continues to operate, this will be an important consideration for specific deterrence, as referred to in Fair Work Ombudsman v Fortcrest Investments Pty Ltd ([2010] FMCA 18 at [96]):
“The respondent continues in business and it is important that a penalty be imposed at a sufficient level to deter the respondent from acting so recklessly in the future when it comes to properly acquainting itself with its obligations as an employer.”
73. There is no evidence of any systems, processes or other measures adopted by Jay Group to ensure compliance in the future. Driver FM, as he was at the time, referred to this consideration in Fair Work Ombudsman v Roselands Fruit Market & Anor ([2010] FMCA 599), where he stated (at [75]):
“…I am not persuaded that the respondents have put in place systems to prevent a recurrence of the breaches and accordingly, specific deterrence plays an important factor.”
74. Mr Singh is still currently employed as the Operations Manager for Jay Group (Singh Penalty Affidavit at [2]) and may therefore have some involvement in engaging employees and have some responsibility for determining their terms and conditions of employment.
75. Further… the penalty evidence filed by Mr Singh indicates no real contrition (Singh Penalty Affidavit at [30]) for the contraventions that have occurred.
The applicant acknowledged that the respondents had made full admissions, which facilitated these proceedings. The applicant argued that the respondents were entitled to a 20% discount on the maximum penalty for these reasons.
The respondents in their table of proposed penalties proposed a 25% discount for admissions.
It seems to me that a 20% discount for admissions is appropriate in this case where there is no significant evidence of contrition or corrective action.
j. the need to ensure compliance with minimum standards
The applicant urged the court to give this factor considerable weight, particularly in relation to the record keeping requirements. That was said to be because the respondents had deliberately created false and misleading records. However, that submission seems to relate to the Deja Vu matter rather than the present matter. The agreed facts in the present case do not include the deliberate creation of false and misleading records.
In any event, the applicant submitted that, if the employees had not kept and provided to the applicant their own payslips, the extent of the contraventions may have gone undetected. The applicant also emphasised that it is employers who are legally obliged to keep proper records, not employees.
The applicant relied on Fair Work Ombudsman v Nerd Group Pty Ltd (No 2) [2012] FMCA 6; (2012) 262 FLR 315 at [118], where Federal Magistrate Lucev, as his Honour then was, said:
… It is clear that, subject to any reasonable excuse, Parliament intended that the FW Ombudsman be able to require a person, particularly an employer, to produce documents and records, for without them the FW Ombudsman may not be able to properly fulfil the statutory remit to ensure compliance with guaranteed minimum standards by means of inquiry, investigation and the commencing of court proceedings. It is, therefore, abundantly clear that the requirement to produce records or documents is critical to the effectiveness of the means of ensuring one of the FW Act’s most important objects.
The respondents did not make any specific submissions on this issue in their written submissions of the present matter but relied on their written submissions on penalty filed in the Deja Vu matter. Those submissions do not appear to address the circumstances of the present matter.
I consider that it is appropriate to give this matter considerable weight.
k. the need for specific and general deterrence
The applicant argued that specific and general deterrence are central to the imposition of penalties in fair work matters. The applicant relied on Commonwealth of Australia v Director, Fair Work Building Industry Inspectorate (2015) 258 CLR 482; (2015) 326 ALR 476; (2015) 90 ALJR 113; (2015) 255 IR 87; [2015] HCA 46 where the High Court said:
55. No less importantly, whereas criminal penalties import notions of retribution74 and rehabilitation, the purpose of a civil penalty, as French J explained in Trade Practices Commission v CSR Ltd, is primarily if not wholly protective in promoting the public interest in compliance75:
“Punishment for breaches of the criminal law traditionally involves three elements: deterrence, both general and individual, retribution and rehabilitation. Neither retribution nor rehabilitation, within the sense of the Old and New Testament moralities that imbue much of our criminal law, have any part to play in economic regulation of the kind contemplated by Pt IV [of the Trade Practices Act]. ... The principal, and I think probably the only, object of the penalties imposed by s 76 is to attempt to put a price on contravention that is sufficiently high to deter repetition by the contravenor and by others who might be tempted to contravene the Act.”
74Gapes (1979) 27 ALR 87 at 90 per Smithers J; cf Ingleby (2013) 39 VR 554 at 565 [44] per Weinberg JA.
75 (1991) ATPR ¶41-076 at 52,152; cf FWBII v CFMEU (2015) 229 FCR 331 at 357-358 [65]-[67].
…
110. It is because the Commissioner may, on occasion, be too pragmatic in taking such a stance that the court must exercise its function to ensure that the penalty imposed is just, bearing in mind competing considerations of principle, including that of equality before the law and the need to maintain effective deterrence to other potential contraveners. In this latter regard, in Australian Competition and Consumer Commission v TPG Internet Pty Ltd146, French CJ, Crennan, Bell and Keane JJ approved the statement by the Full Court of the Federal Court in Singtel Optus Pty Ltd v Australian Competition and Consumer Commission147 that a civil penalty for a contravention of the law:
“must be fixed with a view to ensuring that the penalty is not such as to be regarded by [the] offender or others as an acceptable cost of doing business”.
146 (2013) 250 CLR 640 at 659 [66]; [2013] HCA 54.
147 (2012) 287 ALR 249 at 265 [62]-[63].
In relation to specific deterrence, Gray J observed in Plancor Pty Ltd v Liquor, Hospitality and Miscellaneous Union (2008) 171 FCR 357; (2008) 177 IR 243; [2008] FCAFC 170 at [37] that:
… Specific deterrence focuses on the party on whom the penalty is to be imposed and the likelihood of that party being involved in a similar breach in the future. Much will depend on the attitude expressed by that party as to things like remorse and steps taken to ensure that no future breach will occur. …
The applicant relied on Plancor to argue that a relevant consideration is that the second respondent, through the entity Deja Vu, continues to operate an IGA in Fairfield. This IGA is subject to continuing Fair Work investigation for complaints of non-compliance. However, as discussed, there is insufficient evidence before the court to form a view that the complaints are well-founded.
In any event, the applicant submitted in her written submissions on penalty that:
74. … there is a need to send a message in the strongest terms that the Court does not tolerate the contravening conduct. The Respondents need to be deterred specifically from any future similar contravening conduct.
In relation to general deterrence, Lander J noted in Ponzio v B & P Caelli Constructions Pty Ltd (2007) 158 FCR 543; (2007) 162 IR 444; [2007] FCAFC 65 at [93]:
… In regard to general deterrence, it is assumed that an appropriate penalty will act as a deterrent to others who might be likely to offend. The penalty therefore should be of a kind that it would be likely to act as a deterrent in preventing similar contraventions by like minded persons or organisations. If the penalty does not demonstrate an appropriate assessment of the seriousness of the offending, the penalty will not operate to deter others from contravening the section. However, the penalty should not be such as to crush the person upon whom the penalty is imposed or used to make that person a scapegoat. In some cases, general deterrence will be the paramount factor in fixing the penalty…(citations omitted)
Similarly, in Community and Public Sector Union (CPSU) v Telstra Corp Ltd (2001) 108 IR 228; [2001] FCA 1364, Finkelstein J said at [9]:
… even if there be no need for specific deterrence, there will be occasions when general deterrence must take priority, and in that case a penalty should be imposed to mark the law’s disapproval of the conduct in question, and to act as a warning to others not to engage in similar conduct ….
The applicant submitted that general deterrence is a critical factor in this matter. The applicant relied on the observations of Marshall J in Fair Work Ombudsman v Maclean Bay Pty Ltd (No 2) [2012] FCA 557 at [29]:
…It is important to ensure that the protections provided by the Act to employees are real and effective and properly enforced. The need for general deterrence cannot be understated. Rights are a mere shell unless they are respected. ...
The applicant relied on data from their Industry Profile, which is set out in Ms Campbell’s affidavit affirmed on 20 June 2018. The Industry Profile shows the following statistics:
(a) 26.5% of requests for assistance received by the FWO were from individuals aged between 15 to 24 years, while 26.1% were from individuals aged 45 years and older;
(b) since July 2017, per thousand businesses in the general retail industry (Industry), the FWO received disputes relating to 21.2%. This is approximately 212 disputes per thousand general retail businesses; and
(c) sales assistants were the most common occupation for the Industry, comprising 25.2% of the Industry’s workforce. Sales assistants have an ANZSCO skill level of 5, which has the lowest educational skill level, being commensurate with an Australian Qualifications Framework Certificate 1 or compulsory secondary education.
The applicant argued that the vulnerabilities of Ms Everitt and Ms Liao in this matter, being young and mature aged, is reflected in the overall disputes received by the applicant from these categories of workers. Further, the applicant noted that Ms Liao was in a sales assistant role, which is the most common and lowest-skilled occupation for this industry. The applicant argued that the above statistics indicate that the general retail business is an industry in high need of deterrence in relation to workplace defaults.
It appears that similar data was provided to the court in Fair Work Ombudsman v Mhoney Pty Ltd [2017] FCCA 811, where Judge Burchardt said:
66. I accept that the materials provided by the applicant are open to some measure of qualification. It is not important to embark on a detailed analysis of why this is so. That is because it is notorious, in my view, that the retail industry is prone to underpayment. This court has dealt with this industry on numerous occasions in the past. It seems to be a fact of life that persons in the retail industry are unpaid. I note in this instance the employment was that of a recently arrived person in Australia with no English. Mr Taleb’s own affidavit seems to suggest that he employed similar persons in the past (his endeavours to help other refugees and the like).
67. In my view, general deterrence is important, and particularly in an industry such as this characterised often by small operators with little understanding of industrial instruments and the law.
In response, the respondents argued in relation to general deterrence that the industry materials provided by the applicant were open to some measure of qualification, as noted by Judge Burchardt in Mhoney. I accept that submission. Such statistics are obviously capable of many interpretations and should only be given to a court via appropriately qualified experts. Having said that, the respondents accepted that the court had dealt with participants in the retail industry on many occasions in respect of wage underpayments. It seems to me that it can be taken as accepted that there is a significant level of underpayment of employees in the retail industry.
Otherwise, the respondents argued that the need for general deterrence should be weighed against the scale of the business concerned, bearing in mind that larger enterprises often have dedicated human resources departments. As discussed above, the size of a business is of limited relevance in assessing penalty.
The respondents also argued that large penalties can and frequently do cripple small businesses. That is a bold submission coming from parties who did not file any evidence of their financial circumstances. In any event, it seems to me that this is an issue better dealt with in relation to the totality principle.
For the reasons discussed above, I consider that general deterrence is a significant factor in this matter.
In relation to specific deterrence, the respondents argued in their written submissions on penalty at [6] that:
At [72] and following the FWO submits that specific deterrence is relevant for the first Respondent based upon the same arguments which are put as against Deja Vu. In our submission it amounts to double punishment to seek to attribute the same matters in respect of the first Respondent in this proceeding. Moreover, the issue becomes otiose given that the first Respondent no longer trades.
The fact that the first respondent no longer trades may be relevant to specific deterrence in relation to the first respondent. However, that fact has no bearing on the second respondent who continues to manage at least one other store. Moreover, as noted by the respondents, the first respondent has not gone into liquidation. It is possible that the first respondent will resume retail operations in the future. Therefore, the requirement for specific deterrence in relation to the first respondent still exists.
For some reason, the parties thought it would be more efficient to have one penalty hearing for both this matter and the Deja Vu matter, and the respondents intended their written submissions in the Deja Vu matter to sometimes apply to the present matter. It seems to me that that approach has made this matter unnecessarily complicated and cumbersome.
In any event, the applicant said specifically in oral submissions that the court should take nothing from the present matter into the Deja Vu matter and vice versa, as both matters will be considered simultaneously[5]. I accept that that is the correct approach and that is the basis upon which I will determine the penalties in this case.
[5] Transcript page 20 line 22.
Other issues
I do not consider that there are any other relevant issues in this case.
Step 4: the appropriate penalty
Sections 539 and 546 of the Act provide that the maximum penalties for:
a)a breach of ss. 44 and 45 of the Act is 60 penalty units for a natural person and 300 penalty units for a corporation; and
b)a breach of ss.535(1), 536(1) and 536(2) of the Act is 30 penalty units for a natural person and 150 penalty units for a corporation.
A penalty unit at the relevant times was $170.[6]
[6] Section 4AA of the Crimes Act 1914.
In her written submissions, the applicant said:
91. In summary, for the different groups of contraventions the Applicant has recommended the following varied penalty ranges:
(a) medium range penalties of between 40% and 50% for the contraventions in respect of minimum rates, overtime, Saturday penalties, Sunday penalties, and the failure to make and keep records of amounts paid and hours worked;
(b) low range penalties of between 5% and 10% for the grouped annual leave contraventions, and the contraventions relating to the failure to pay weekly and failure to provide pay slips with the required information; and
(c) low, and low-to-medium, range contraventions of between 10% and 40% for the remaining contraventions.
92. The Applicant has recommended the same penalty ranges for both Respondents on the basis that Mr Haddad was at all relevant times the primary actor and decision maker of Hadya Nominees. In other words, Mr Haddad was centrally involved in all of the contraventions.
In tabular form, the applicant proposed penalties for the first respondent as follows:
| Contravention | Grouping | Maximum penalty – first respondent | Maximum penalty with 20% discount – first respondent | Proposed range for first respondent | Penalty range – first respondent |
| Section 45 of the FW Act by contravening clause 17 of the Award | Minimum rate contraventions (adult and junior) | $51,000 | $40,800 | Medium 40-50% | $16,320 – $20,400 |
| Section 45 of the FW Act by contravening clause 18.1 of the Award | |||||
| Section 45 of the FW Act by contravening clause 13.2 of the Award | Casual loading | $51,000 | $40,800 | Low to medium 20-30% | $8,160 – $12,240 |
| Section 45 of the FW Act by contravening clause 29.2(a) of the Award | Overtime rates | $51,000 | $40,800 | Medium 40-50% | $16,320 – $20,400 |
| Section 45 of the FW Act by contravening clause 29.4(a) of the Award and clause A.7.3 of Schedule A to the Award | Evening penalty | $51,000 | $40,800 | Low 20-30% | $8,160 – $12,240 |
| Section 45 of the FW Act by contravening clause 29.4(b) of the Award and clause A.7.3 of Schedule A to the Award | Saturday penalty | $51,000 | $40,800 | Medium 40-50% | $16,320 – $20,400 |
| Section 45 of the FW Act by contravening clause 29.4(c) of the Award and clause A.7.3 of Schedule A to the Award | Sunday penalty | $51,000 | $40,800 | Medium 40-50% | $16,320 – $20,400 |
| Section 45 of the FW Act by contravening clause 29.4(d)(i) of the Award and clause A.7.3 of Schedule A to the Award | Public holiday penalty | $51,000 | $40,800 | Low to medium 30-40% | $12,240 – $16,320 |
| Section 45 of the FW Act by contravening clause 20.2(b)(ii) of the Award | Uniform allowance | $51,000 | $40,800 | Low 20-30% | $8,160 – $12,240 |
| Section 44 of the FW Act by contravening section 90(1) of the FW Act | Annual leave entitlements | $51,000 | $40,800 | Low 5-10% | $2,040 – $4,080 |
| Section 45 of the FW Act by contravening clause 32.3 of the Award | |||||
| Section 44 of the FW Act by contravening section 116 of the FW Act | Public holiday not worked | $51,000 | $40,800 | Low 10-20% | $4,080 – $8,160 |
| Section 45 of the FW Act by contravening clause 31.2(b) of the Award | Failure to provide breaks between work periods | $51,000 | $40,800 | Low 20-30% | $8,160 – $12,240 |
| Section 45 of the FW Act by contravening clause 23 of the Award | Failure to pay weekly | $51,000 | $40,800 | Low 5-10% | $2,040 – $4,080 |
| Section 535(1) of the FW Act by contravening regulations 3.33(1) and 3.33(2) of the FW Regulations | Failure to make and keep records of amounts paid and hours worked | $25,500 | $20,400 | Medium 40-50% | $8,160 – $10,200 |
| Section 536(1) of the FW Act | Failure to issue pay slips at all | $25,500 | $20,400 | Low 20-30% | $4,080 – $6,120 |
| Section 536(2) of the FW Act by contravening regulation 3.46(1)(c) of the FW Regulations | Failure to provide pay slips with the required information | $25,500 | $20,400 | Low 5-10% | $1,020 – $2,040 |
| TOTALS | $688,500 | $550,800 | $131,580 – |
In tabular form, the respondents proposed penalties for the first respondent as follows[7]:
[7] Some of the respondents’ calculations are wrong.
| Maximum Penalties as per FWO (prior to grouping as proposed by Respondents) | $688,500 | |||
| Maximum Penalties (post grouping) | $306,000 | |||
| Discount for admissions | 25% | |||
| Maximum (including 25% discount) | $229,500 | |||
| Contraventions | Maximum | Inc. 25% discount | % | Amount |
| a. Minimum rate | $51,000 | $38,250 | 30-40% | $11,475-$15,300 |
| b. Loading and allowances | $51,000 | $38,250 | 10-20% | $3,825-$7,650 |
| c. Penalty Rate | $51,000 | $38,250 | 30-40% | $11,475-$15,300 |
| d. Annual leave | $51,000 | $38,250 | 5-10% | $1,912-$3,825 |
| e. Work conditions | $51,000 | $38,250 | 5-10% | $1,912-$3,825 |
| f. Record keeping | $25,500 | $19,125 | 30-40% | $5,737-$7,650 |
| g. Pay slips | $25,500 | $19,125 | 5-10% | $956-$1,912 |
| TOTAL RANGE | $37,292- $55,462 | |||
In tabular form, the applicant proposed the following penalties for the second respondent:
| Contravention | Grouping | Maximum penalty – second respondent | Maximum penalty with 20% discount – second respondent | Proposed range for second respondent | Penalty range – second respondent |
| Section 45 of the FW Act by contravening clause 17 of the Award | Minimum rate contraventions (adult and junior) | $10,200 | $8,160 | Medium 40-50% | $3,264 – $4,080 |
| Section 45 of the FW Act by contravening clause 18.1 of the Award | |||||
| Section 45 of the FW Act by contravening clause 13.2 of the Award | Casual loading | $10,200 | $8,160 | Low to medium 20-30% | $1,632 – $2,448 |
| Section 45 of the FW Act by contravening clause 29.2(a) of the Award | Overtime rates | $10,200 | $8,160 | Medium 40-50% | $3,264 – $4,080 |
| Section 45 of the FW Act by contravening clause 29.4(a) of the Award and clause A.7.3 of Schedule A to the Award | Evening penalty | $10,200 | $8,160 | Low 20-30% | $1,632 – $2,448 |
| Section 45 of the FW Act by contravening clause 29.4(b) of the Award and clause A.7.3 of Schedule A to the Award | Saturday penalty | $10,200 | $8,160 | Medium 40-50% | $3,264 – $4,080 |
| Section 45 of the FW Act by contravening clause 29.4(c) of the Award and clause A.7.3 of Schedule A to the Award | Sunday penalty | $10,200 | $8,160 | Medium 40-50% | $3,264 – $4,080 |
| Section 45 of the FW Act by contravening clause 29.4(d)(i) of the Award and clause A.7.3 of Schedule A to the Award | Public holiday penalty | $10,200 | $8,160 | Low to medium 30-40% | $2,448 – $3,264 |
| Section 45 of the FW Act by contravening clause 20.2(b)(ii) of the Award | Uniform allowance | $10,200 | $8,160 | Low 20-30% | $1,632 – $2,448 |
| Section 44 of the FW Act by contravening section 90(1) of the FW Act | Annual leave entitlements | $10,200 | $8,160 | Low 5-10% | $408 – $816 |
| Section 45 of the FW Act by contravening clause 32.3 of the Award | |||||
| Section 44 of the FW Act by contravening section 116 of the FW Act | Public holiday not worked | $10,200 | $8,160 | Low 10-20% | $816 – $1,632 |
| Section 45 of the FW Act by contravening clause 31.2(b) of the Award | Failure to provide breaks between work periods | $10,200 | $8,160 | Low 20-30% | $1,632 – $2,448 |
| Section 45 of the FW Act by contravening clause 23 of the Award | Failure to pay weekly | $10,200 | $8,160 | Low 5-10% | $408 – $816 |
| Section 535(1) of the FW Act by contravening regulations 3.33(1) and 3.33(2) of the FW Regulations | Failure to make and keep records of amounts paid and hours worked | $5,100 | $4,080 | Medium 40-50% | $1,632 – $2,040 |
| Section 536(1) of the FW Act | Failure to issue pay slips at all | $5,100 | $4,080 | Low 20-30% | $816 – $1,224 |
| Section 536(2) of the FW Act by contravening regulation 3.46(1)(c) of the FW Regulations | Failure to provide pay slips with the required information | $5,100 | $4,080 | Low 5-10% | $204 – $408 |
| TOTALS | $137,700 | $110,160 | $26,316 – |
In tabular form, the respondents proposed the following penalties for the second respondent[8]:
[8] Some of the respondents’ calculations are wrong.
| Maximum Penalties as per FWO (prior to grouping as proposed by Respondents) | $137,700 |
| Maximum Penalties (post grouping) | $61,200 |
| Discount for admissions | 25% |
| Maximum (including 25% discount) | $45,900 |
| Contraventions | Maximum | Inc. 25% discount | % | Amount |
| a. Minimum rate | $10,200 | $7,650 | 30-40% | $2,295-$3,060 |
| b. Loading and allowances | $10,200 | $7,650 | 10-20% | $765-$1,530 |
| c. Penalty Rate | $10,200 | $7,650 | 30-40% | $2,295-$3,060 |
| d. Annual leave | $10,200 | $7,650 | 5-10% | $382-$765 |
| e. Work conditions | $10,200 | $7,650 | 5-10% | $382-$765 |
| f. Record keeping | $5,100 | $3,825 | 30-40% | $1,147-$1,530 |
| g. Pay slips | $5,100 | $3,825 | 5-10% | $191-$382 |
| TOTAL RANGE | $7,457-$11,092 | |||
As discussed above, I do not accept the respondents’ arguments about grouping.
The parties did not explain why they proposed a different percentage of the maximum penalty for different breaches. However, they appear to have agreed that it is appropriate to impose differential penalties and, broadly speaking, they appear to have agreed on which breaches should incur lower levels of penalty.
In my view, it is appropriate in all the circumstances of this case to order penalties for both respondents at the top of the ranges proposed by the applicant. It seems to me that the conduct of the respondents in this case was particularly egregious. It was deliberate. There has been no apology to the employees affected by the respondents’ conduct. The second respondent continues to be involved in the retail industry. The first respondent remains in existence and could resume activity in the retail industry in the future. There is a considerable need in this case for both general and specific deterrence.
On the other hand, I accept that the respondents made full admissions and spared the regulator, the relevant employees and the court the necessity of a hearing on liability. As such, they are entitled to a significant discount. However, I do not consider that the circumstances of the case warrant a discount of the size the respondents submitted.
Consequently, the penalties for the first respondent for each breach would be as follows:
Contravention Grouping Penalty – first respondent Section 45 of the FW Act by contravening clause 17 of the Award Minimum rate contraventions (adult and junior) $20,400 Section 45 of the FW Act by contravening clause 18.1 of the Award Section 45 of the FW Act by contravening clause 13.2 of the Award Casual loading $12,240 Section 45 of the FW Act by contravening clause 29.2(a) of the Award Overtime rates $20,400 Section 45 of the FW Act by contravening clause 29.4(a) of the Award and clause A.7.3 of Schedule A to the Award Evening penalty $12,240 Section 45 of the FW Act by contravening clause 29.4(b) of the Award and clause A.7.3 of Schedule A to the Award Saturday penalty $20,400 Section 45 of the FW Act by contravening clause 29.4(c) of the Award and clause A.7.3 of Schedule A to the Award Sunday penalty $20,400 Section 45 of the FW Act by contravening clause 29.4(d)(i) of the Award and clause A.7.3 of Schedule A to the Award Public holiday penalty $16,320 Section 45 of the FW Act by contravening clause 20.2(b)(ii) of the Award Uniform allowance $12,240 Section 44 of the FW Act by contravening section 90(1) of the FW Act Annual leave entitlements $4,080 Section 45 of the FW Act by contravening clause 32.3 of the Award Section 44 of the FW Act by contravening section 116 of the FW Act Public holiday not worked $8,160 Section 45 of the FW Act by contravening clause 31.2(b) of the Award Failure to provide breaks between work periods $12,240 Section 45 of the FW Act by contravening clause 23 of the Award Failure to pay weekly $4,080 Section 535(1) of the FW Act by contravening regulations 3.33(1) and 3.33(2) of the FW Regulations Failure to make and keep records of amounts paid and hours worked $10,200 Section 536(1) of the FW Act Failure to issue pay slips at all $6,120 Section 536(2) of the FW Act by contravening regulation 3.46(1)(c) of the FW Regulations Failure to provide pay slips with the required information $2,040 TOTAL
$181,560
The penalties for the second respondent for each breach would be as follows:
Contravention Grouping Penalty – second respondent Section 45 of the FW Act by contravening clause 17 of the Award
Minimum rate contraventions (adult and junior) $4,080 Section 45 of the FW Act by contravening clause 18.1 of the Award Section 45 of the FW Act by contravening clause 13.2 of the Award Casual loading $2,448 Section 45 of the FW Act by contravening clause 29.2(a) of the Award Overtime rates $4,080 Section 45 of the FW Act by contravening clause 29.4(a) of the Award and clause A.7.3 of Schedule A to the Award Evening penalty $2,448 Section 45 of the FW Act by contravening clause 29.4(b) of the Award and clause A.7.3 of Schedule A to the Award Saturday penalty $4,080 Section 45 of the FW Act by contravening clause 29.4(c) of the Award and clause A.7.3 of Schedule A to the Award Sunday penalty $4,080 Section 45 of the FW Act by contravening clause 29.4(d)(i) of the Award and clause A.7.3 of Schedule A to the Award Public holiday penalty $3,264 Section 45 of the FW Act by contravening clause 20.2(b)(ii) of the Award Uniform allowance $2,448
Section 44 of the FW Act by contravening section 90(1) of the FW Act Annual leave entitlements $816 Section 45 of the FW Act by contravening clause 32.3 of the Award Section 44 of the FW Act by contravening section 116 of the FW Act Public holiday not worked $1,632 Section 45 of the FW Act by contravening clause 31.2(b) of the Award Failure to provide breaks between work periods $2,448 Section 45 of the FW Act by contravening clause 23 of the Award Failure to pay weekly $816 Section 535(1) of the FW Act by contravening regulations 3.33(1) and 3.33(2) of the FW Regulations Failure to make and keep records of amounts paid and hours worked $2,040 Section 536(1) of the FW Act Failure to issue pay slips at all $1,224 Section 536(2) of the FW Act by contravening regulation 3.46(1)(c) of the FW Regulations Failure to provide pay slips with the required information $408 TOTAL $36,312
Step 5: the totality principle
The applicant submitted that a 40% totality discount would be appropriate in the circumstances. The respondents agreed with this discount.
In the absence of evidence from the respondents about their financial circumstances, I am not in a position to form the view that the penalties will be crushing or otherwise excessive.
In relation to the check that is required by the totality principle, I would have considered that the aggregate penalties set out above are appropriate for the whole of the contravening conduct engaged in by the respondents. However, I am prepared to accept the discount conceded by the applicant. Consequently, the total penalties for the first respondent will be $108,936 and the total penalties for the second respondent will be $21,787.20.
Conclusion
There will be orders accordingly.
I certify that the preceding two hundred and fifty-seven (257) paragraphs are a true copy of the reasons for judgment of Judge Riley
Date: 19 October 2018
Schedule A
| Column A | Column B | Column C | Column D | Column E | Column F |
| Week ending | Days worked | Start and Finish Times | Additional Hours worked | Hours not worked | Total Weekly Hours |
| 24.11.13 | No rosters available | No rosters available | Nil | Nil | 44 hours |
| 01.12.13 | No rosters available | No rosters available | Nil | Nil | 41 hours |
| 08.12.13 | No rosters available | No rosters available | Nil | Nil | 39 hours |
| 15.12.13 | No rosters available | No rosters available | Nil | Nil | 42 hours |
| 22.12.13 | No rosters available | No rosters available | Nil | Nil | 43 hours |
| 29.12.13 | No rosters available | No rosters available | Nil | Nil | 30 hours |
| 05.01.14 | Wednesday | 10.00-12.00 | 5 hours | - | 29 hours |
| Thursday | 06.30-15.00 | ||||
| Saturday | 13.00-20.00 | ||||
| Sunday | 08.30-15.00 | ||||
| 12.01.14 | Monday | 06.30-15.00 | 0.5 hours | - | 37 hours |
| Wednesday | 06.30-14.00 | ||||
| Friday | 14.00-21.00 | ||||
| Saturday | 07.30-15.00 | ||||
| Sunday | 13.00-19.00 | ||||
| 19.01.14 | Monday | 15.00-21.00 | 1 hour | - | 37 hours |
| Tuesday | 06.30-15.00 | ||||
| Thursday | 06.30-14.00 | ||||
| Friday | 14.00-21.00 | ||||
| Saturday | 13.00-20.00 | ||||
| 26.01.14 | Monday | 15.00-21.00 | 0.5 hours | - | 39 hours |
| Wednesday | 06.30-15.00 | ||||
| Thursday | 13.00-21.00 | ||||
| Friday | 06.30-15.00 | ||||
| Saturday | 07.30-15.00 | ||||
| 02.02.14 | Tuesday | 06.30-15.00 | Nil | Nil | 38 hours |
| Wednesday | 06.30-14.00 | ||||
| Friday | 06.30-15.00 | ||||
| Saturday | 13.00-20.00 | ||||
| Sunday | 08.30-15.00 | ||||
| 09.02.14 | Tuesday | 06.30-15.00 | 1 hour | - | 38 hours |
| Wednesday | 06.30-14.00 | ||||
| Thursday | 13.00-21.00 | ||||
| Friday | 14.00-21.00 | ||||
| Saturday | 14.00-20.00 | ||||
| 16.02.14 | Monday | 15.00-21.00 | 0.5 hours | - | 36 hours |
| Tuesday | 06.30-15.00 | ||||
| Wednesday | 06.30-14.00 | ||||
| Friday | 15.00-21.00 | ||||
| Saturday | 07.30-15.00 | ||||
| 23.02.14 | Monday | 15.00-21.00 | Nil | Nil | 37 hours |
| Tuesday | 06.30-15.00 | ||||
| Wednesday & Friday | 06.30-14.00 | ||||
| Saturday | 07.30-15.00 | ||||
| 02.03.14 | Monday | 13.00-21.00 | Nil | Nil | 37 hours |
| Tuesday, Wednesday & Friday | 06.30-14.00 | ||||
| Saturday | 07.30-14.00 | ||||
| 09.03.14 | Monday & Tuesday | 06.30-15.00 | - | - 0.5 hours | 37 hours |
| Wednesday & Friday | 06.30-14.00 | ||||
| Saturday | 07.30-13.00 | ||||
| 16.03.14 | Monday & Tuesday | 06.30-15.00 | 0.5 hours | - | 38 hours |
| Wednesday & Friday | 06.30-14.00 | ||||
| Saturday | 07.30-13.00 | ||||
| 23.03.14 | Monday to Wednesday | 06.30-14.00 | 0.5 hours | - | 39 hours |
| Friday | 14.00-21.00 | ||||
| Saturday | 11.00-20.00 | ||||
| 30.03.14 | Monday to Friday | 06.30-14.00 | Nil | Nil | 43 hours |
| Saturday | 07.30-13.00 | ||||
| 06.04.14 | Tuesday | 06.30-14.00 | 11 hours | - | 40 hours |
| Wednesday | 06.30-13.00 | ||||
| Thursday & Friday | 06.30-14.00 | ||||
| 13.04.14 | Tuesday to Friday | 06.30-14.00 | - | - 0.5 hours | 35 hours |
| Saturday | 07.30-13.00 | ||||
| 20.04.14 | Tuesday to Thursday | 06.30-14.00 | Nil | Nil | 28 hours |
| Saturday | 07.30-13.00 | ||||
| 27.04.14 | Tuesday to Friday | 06.30-14.00 | 0.5 hours | - | 36 hours |
| Saturday | 07.30-13.00 | ||||
| 04.05.14 | Tuesday, Thursday & Friday | 06.30-14.00 | 0.3 hours | 28.3 hours | |
| Saturday | 07.30-13.00 | ||||
| 11.05.14 | Tuesday to Friday | 06.30-14.00 | 0.5 hours | - | 36 hours |
| Saturday | 07.30-13.00 | ||||
| 18.05.14 | Tuesday to Friday | 06.30-14.00 | 0.5 hours | - | 36 hours |
| Saturday | 07.30-13.00 | ||||
| 25.05.14 | Tuesday & Wednesday | 06.30-14.00 | 1.5 hours | - | 36 hours |
| Thursday | 07.30-14.00 | ||||
| Friday | 06.30-14.00 | ||||
| Saturday | 07.30-13.00 | ||||
| 01.06.14 | Tuesday & Wednesday | 06.30-14.00 | 0.5 hours | - | 35 hours |
| Thursday | 07.30-14.00 | ||||
| Friday | 06.30-14.00 | ||||
| Saturday | 07.30-13.00 | ||||
| 08.06.14 | Tuesday to Thursday | 06.30-14.00 | Nil | Nil | 35 hours |
| Friday | 14.00-21.00 | ||||
| Saturday | 07.30-13.00 | ||||
| 15.06.14 | Tuesday to Friday | 06.30-14.00 | 0.5 hours | - | 36 hours |
| Saturday | 07.30-13.00 | ||||
| 22.06.14 | Tuesday & Wednesday | 07.00-14.00 | 1 hour | - | 35 hours |
| Thursday | 06.30-14.00 | ||||
| Friday | 07.00-14.00 | ||||
| Saturday | 07.30-13.00 | ||||
| 29.06.14 | Tuesday to Friday | 06.30-14.00 | 0.5 hours | - | 36 hours |
| Saturday | 07.30-13.00 | ||||
| 06.07.14 | Tuesday to Friday | 06.30-14.00 | 0.5 hours | - | 36 hours |
| Saturday | 07.30-13.00 | ||||
| 13.07.14 | Tuesday, Wednesday & Friday | 06.30-14.00 | 1 hour | - | 29 hours |
| Saturday | 07.30-13.00 | ||||
| 20.07.14 | Tuesday to Friday | 06.30-13.00 | 1 hour | - | 31.5 hours |
| Saturday | 07.30-12.00 | ||||
| 27.07.14 | Tuesday to Thursday | 06.30-13.00 | 0.5 hours | - | 32 hours |
| Friday | 06.30-14.00 | ||||
| Saturday | 07.30-12.00 | ||||
| 03.08.14 | Tuesday & Thursday | 06.30-13.00 | 1 hour | - | 26 hours |
| Friday | 06.30-14.00 | ||||
| Saturday | 07.30-12.00 | ||||
| 10.08.14 | Tuesday & Wednesday | 06.30-13.00 | 0.5 hours | - | 33 hours |
| Thursday & Friday | 06.30-14.00 | ||||
| Saturday | 07.30-12.00 | ||||
| 17.08.14 | Tuesday to Thursday | 06.30-13.00 | 0.5 hours | - | 32 hours |
| Friday | 06.30-14.00 | ||||
| Saturday | 07.30-12.00 | ||||
| 24.08.14 | Tuesday to Thursday | 06.30-13.00 | 1.5 hours | - | 33 hours |
| Friday | 06.30-14.00 | ||||
| Saturday | 07.30-12.00 | ||||
| 31.08.14 | Tuesday to Thursday | 06.30-13.00 | 1.5 hours | - | 33 hours |
| Friday | 06.30-14.00 | ||||
| Saturday | 07.30-12.00 | ||||
| 07.09.14 | Tuesday to Thursday | 06.30-13.00 | 1 hour | - | 33 hours |
| Friday | 06.30-14.00 | ||||
| Saturday | 07.00-12.00 | ||||
| 14.09.14 | Tuesday to Thursday | 06.30-13.00 | Nil | Nil | 32 hours |
| Friday | 06.30-14.00 | ||||
| Saturday | 07.00-12.00 | ||||
| 21.09.14 | Tuesday to Thursday | 06.30-13.00 | 1 hour | - | 33 hours |
| Friday | 06.30-14.00 | ||||
| Saturday | 07.00-12.00 | ||||
| 28.09.14 | Tuesday & Wednesday | 06.30-13.00 | 3 hours | - | 21 hours |
| Saturday | 07.00-12.00 | ||||
| 05.10.14 | Tuesday & Wednesday | 06.30-13.00 | 2.5 hours | - | 35 hours |
| Thursday & Friday | 06.30-14.00 | ||||
| Saturday | 07.30-12.00 | ||||
| 12.10.14 | Tuesday to Thursday | 06.30-13.00 | 1 hour | - | 33 hours |
| Friday | 06.30-14.00 | ||||
| Saturday | 07.00-12.00 | ||||
| 19.10.14 | Tuesday to Thursday | 06.30-13.00 | 0.5 hours | - | 25 hours |
| Saturday | 07.00-12.00 | ||||
| 26.10.14 | Tuesday to Thursday | 06.30-13.00 | 1 hour | - | 33 hours |
| Friday | 06.30-14.00 | ||||
| Saturday | 07.00-12.00 | ||||
| 02.11.14 | Tuesday to Friday | 06.30-13.00 | 1 hour | - | 32 hours |
| Saturday | 07.00-12.00 | ||||
| 09.11.14 | Tuesday | 07.30-13.00 | 4.5 hours | - | 34 hours |
| Wednesday | 06.30-13.00 | ||||
| Thursday | 07.00-12.00 | ||||
| Friday | 06.30-14.00 | ||||
| Saturday | 07.00-12.00 | ||||
| 16.11.14 | Tuesday | 06.30-13.00 | 1 hour | - | 32 hours |
| Wednesday | 06.30-12.00 | ||||
| Thursday | 06.30-13.00 | ||||
| Friday | 06.30-14.00 | ||||
| Saturday | 07.00-12.00 | ||||
| 23.11.14 | Tuesday | 06.30-13.00 | 3 hours | - | 34 hours |
| Wednesday | 06.30-12.00 | ||||
| Thursday | 06.30-13.00 | ||||
| Friday | 06.30-14.00 | ||||
| Saturday | 07.00-12.00 | ||||
| 30.11.14 | Tuesday and Wednesday | 06.30-13.00 | - | - 0.5 hours | 25 hours |
| Friday | 06.30-14.00 | ||||
| Saturday | 07.00-12.00 | ||||
| 07.12.14 | Tuesday to Thursday | 06.30-13.00 | Nil | Nil | 32 hours |
| Friday | 06.30-14.00 | ||||
| Saturday | 07.00-12.00 | ||||
| 14.12.14 | Tuesday to Thursday | 06.30-13.00 | Nil | Nil | 32 hours |
| Friday | 06.30-14.00 | ||||
| Saturday | 07.00-12.00 | ||||
| 21.12.14 | Tuesday to Thursday | 06.30-13.00 | - | - 1 hour | 31 hours |
| Friday | 06.30-14.00 | ||||
| Saturday | 07.00-12.00 | ||||
| 28.12.14 | Tuesday & Wednesday | 06.30-13.00 | Nil | Nil | 17.5 hours |
| Saturday | 07.30-12.00 | ||||
| 04.01.15 | Tuesday & Wednesday | 06.30-13.00 | Nil | Nil | 17.5 hours |
| Saturday | 07.30-12.00 | ||||
| 11.01.15 | Tuesday to Thursday | 06.30-13.00 | - | - 6 hours | 25.5 hours |
| Friday | 06.30-14.00 | ||||
| Saturday | 07.30-12.00 | ||||
| 18.01.15 | Tuesday | 06.30-15.00 | Nil | Nil | 21.5 hours |
| Wednesday & Thursday | 06.30-13.00 | ||||
| 25.01.15 | Friday | 06.30-14.00 | Nil | Nil | 12 hours |
| Saturday | 07.30-12.00 | ||||
| 01.02.15 | Tuesday to Thursday | 06.30-13.00 | - | - 0.5 hours | 31 hours |
| Friday | 06.30-14.00 | ||||
| Saturday | 07.30-12.00 | ||||
| 08.02.15 | Tuesday to Thursday | 06.30-13.00 | - | - 0.5 hours | 32 hours |
| Friday | 06.30-15.00 | ||||
| Saturday | 07.30-12.00 | ||||
| 15.02.15 | Tuesday to Thursday | 06.30-13.00 | 0.5 hours | - | 33 hours |
| Friday | 06.30-15.00 | ||||
| Saturday | 07.30-12.00 | ||||
| 22.02.15 | Tuesday to Thursday | 06.30-13.00 | - | - 0.5 hours | 32 hours |
| Friday | 06.30-15.00 | ||||
| Saturday | 07.30-12.00 | ||||
| 01.03.15 | Tuesday & Thursday | 06.30-13.00 | Nil | Nil | 26 hours |
| Friday | 06.30-15.00 | ||||
| Saturday | 07.30-12.00 | ||||
| 08.03.15 | Tuesday to Thursday | 06.30-13.00 | - | - 0.5 hours | 32 hours |
| Friday | 06.30-15.00 | ||||
| Saturday | 07.30-12.00 | ||||
| 15.03.15 | Tuesday to Thursday | 06.30-13.00 | - | - 0.5 hours | 32 hours |
| Friday | 06.30-15.00 | ||||
| Saturday | 07.30-12.00 | ||||
| 22.03.15 | Tuesday to Thursday | 06.30-13.00 | - | - 0.5 hours | 32 hours |
| Friday | 06.30-15.00 | ||||
| Saturday | 07.30-12.00 |
0
35
5