Fair Work Ombudsman v Hasegawa & Ye International Pty Ltd

[2019] FCCA 1424

FEDERAL CIRCUIT COURT OF AUSTRALIA

FAIR WORK OMBUDSMAN v HASEGAWA & YE INTERNATIONAL PTY LTD & ANOR [2019] FCCA 1424

Catchwords:
INDUSTRIAL LAW – Fair Work Act 2009 (Cth) – Fair Work Regulations 2009 (Cth) – fast food industry – admitted contraventions for underpayment of employees – contraventions objectively serious – pecuniary penalties imposed as well as other agreed relief.

Legislation:

Evidence Act 1995 (Cth), s.191
Fair Work Act 2009 (Cth), ss.45, 535, 545, 546, 547, 550, 557

Fair Work Regulations 2009 (Cth)

Cases cited:

Commonwealth v Director, Fair Work Building Inspectorate (2015) 258 CLR 482
Fair Work Ombudsman v Phua & Foo Pty Ltd [2018] FCA 137
Fair Work Ombudsman v Yogurberry World Square Pty Ltd [2016] FCA 1290
Kelly v Fitzpatrick [2007] FCA 1080
Markarian v The Queen (2005) 228 CLR 357
Rocky Holdings Pty Ltd v Fair Work Ombudsman (2014) 221 FCR 153

Applicant: FAIR WORK OMBUDSMAN

First Respondent: HASEGAWA & YE INTERNATIONAL PTY LTD

Second Respondent: KIYOSHI HASEGAWA

File Number: SYG 2030 of 2017

Judgment of: Judge Dowdy

Hearing date: 16 May 2018

Date of Last Submission: 18 May 2018

Date Reserved: 30 May 2018

Delivered at: Sydney

Delivered on: 28 May 2019

REPRESENTATION

Counsel for the Applicant: Ms R. Gall of Counsel

Solicitors for the Applicant: Office of the Fair Work Ombudsman

Counsel for the Respondents: Mr R. Crow of Counsel

Solicitor for the Respondents: Ms Louise Jackson of
Raymond W M Wong & Co.

BY CONSENT THE COURT DECLARES AS FOLLOWS:

(1)In the events and circumstances which have happened the First Respondent, Hasegawa & Ye Pty Ltd, contravened the following civil remedy provisions:

(a)section 45 of the Fair Work Act 2009 (Cth) (FW Act) by failing to pay employees Takiguchi Yuki, Noriko Hasegawa, Miyako Okamoto, Masonori Matsuda, Anju Arnot, Keiko Matsumoto, Hikaru Fisher, Rewadee Jomsuetrong, Janice Lagunzad, Chiew Peng Ban, Yasuyo Takai and Kyoko Smith the minimum hourly rate of pay in accordance with clause 17 of the Fast Food Industry Award 2010 (Award);

(b)section 45 of the FW Act by failing to pay junior employee Jack Hunter the minimum hourly rate of pay in accordance with clause 18 of the Award;

(c)section 45 of the FW Act by failing to pay employees Jack Hunter, Takiguchi Yuki, Noriko Hasegawa, Miyako Okamoto, Masonori Matsuda, Anju Arnot, Keiko Matsumoto, Hikaru Fisher, Rewadee Jomsuetrong, Chung Ying Cheng, Yumi Tashiro, Janice Lagunzad, Chiew Peng Ban, Yasuyo Takai, Rie Titus and Kyoko Smith the casual loading in accordance with clause 13.2 of the Award;

(d)section 45 of the FW Act by failing to pay employees Jack Hunter, Takiguchi Yuki, Miyako Okamoto, Anju Arnot, Keiko Matsumoto, Hikaru Fisher, Rewadee Jomsuetrong, Janice Lagunzad, Chiew Peng Ban and Yasuyo Takai the Saturday loading in accordance with clause 25.5(b) of the Award;

(e)section 45 of the FW Act by failing to pay employees Takiguchi Yuki, Anju Arnot, Hikaru Fisher, Rewadee Jomsuetrong, Chung Ying Cheng, Yumi Tashiro, Janice Lagunzad, Chiew Peng Ban, Yasuyo Takai, Rie Titus and Kyoko Smith the Sunday loading in accordance with clause 25.5(c)(ii) of the Award;

(f)section 45 of the FW Act by failing to pay employees Jack Hunter, Takiguchi Yuki, Anju Arnot, Keiko Matsumoto, Hikaru Fisher, Rewadee Jomsuetrong, Chung Ying Cheng, Yumi Tashiro, Janice Lagunzad, Chiew Peng Ban, Yasuyo Takai, Rie Titus and Kyoko Smith the public holiday penalty rate in accordance with clause 30.3 of the Award;

(g)section 45 of the FW Act by failing to pay superannuation in accordance with clause 21.2 of the Award; and

(h)section 535(1) of the FW Act by failing to make and keep employee records as prescribed by regulation 3.40 of the Fair Work Regulations 2009 (Cth) (FW Regulations).

(2)The Second Respondent was involved in each of the contraventions alleged against the First Respondent, pursuant to section 550(1) of the FW Act, as set out in paragraph 1 above.

BY CONSENT THE COURT ORDERS THAT:

(3)Pursuant to section 545(1) of the FW Act, the First and Second Respondents, jointly and severally, pay to the Applicant the following amounts owing to the employees set out below, less any payments made before the date of the order, within 28 days of the date of this order:

(a)Hikaru Fisher: $291.91;

(b)Rewadee Jomsuetrong: $11.86;

(c)Chung Ying Cheng: $111.10;

(d)Yumi Tashiro: $8.25;

(e)Janice Lagunzad: $270.55;

(f)Chiew Peng Ban: $407.02;

(g)Yasuyo Takai: $500.76;

(h)Rie Titus: $485.65; and

(i)Kyoko Smith: $1,298.06.

(4)Pursuant to section 545(1) of the FW Act, the First and Second Respondents, jointly and severally, make superannuation contributions on behalf of employees Takiguchi Yuki, Noriko Hasegawa, Miyako Okamoto, Anju Arnot, Keiko Matsumoto, Hikaru Fisher, Janice Lagunzad, Chiew Peng Ban and Rie Titus to their nominated superannuation funds at the superannuation guarantee charge rate prescribed by applicable superannuation legislation less any payment made before the date of the order, within 28 days of the date of this order.

(5)Pursuant to section 547(2) of the FW Act, interest be paid by the First and Second Respondents, jointly and severally, on any amounts ordered to be paid to employees Hikaru Fisher, Rewadee Jomsuetrong, Chung Ying Cheng, Yumi Tashiro, Janice Lagunzad, Chiew Peng Ban, Yasuyo Takai, Rie Titus and Kyoko Smith pursuant to orders 3 to 4 above, within 28 days of the date of this order.

(6)Pursuant to section 546(3)(a) of the FW Act, any pecuniary penalties be paid to the Commonwealth within 28 days of the date of this order.

(7)Pursuant to section 545(1) of the FW Act, the First Respondent, at its expense, engage a third party with qualifications in accounting or workplace relations to undertake an audit of compliance with the FW Act and the Award on the following terms:

(a)the audit period will be the period commencing on 1 June 2019 and ending 30 November 2019 (Audit Period);

(b)the audit is to be completed within 60 days of the end of the Audit Period (Audit Completion Date);

(c)the audit will apply to all employees and persons otherwise engaged to perform work for the First Respondent;

(d)the audit will assess the First Respondent's compliance with the following obligations according to each employee's classification of work, category of employment and hours worked during the Audit Period:

(i)wages and work related entitlements under the Award;

(ii)accrual and payment of entitlements under the National Employment Standards in Part 2-2 of the FW Act; and

(iii)record keeping and pay slip obligations in Division 3 of Part 3-6 of the FW Act and Part 3-6 of the FW Regulations; and

(e)within 30 days of the Audit Completion Date, the First Respondent provide to the Applicant:

(i)a copy of the audit report which will include a statement  of the methodology  used in the audit;

(ii)a copy of the source materials and records used to conduct the audit; and

(iii)written details of any contraventions identified in the audit, the steps the First Respondent will take to rectify any identified contravention(s) and by when the rectification will occur.

(8)Pursuant to section 545(1) of the FW Act, the First Respondent will, within 30 days of being ordered, display a notice in a prominent position in the premises of Tokyo Sushi - The Corner Store and Tokyo Sushi -Sushi Train that can be easily viewed by all employees (Workplace Notice) on the following terms:

(a)the Workplace Notice must contain:

(i)information on entitlements contained in the Award;

(ii)a link to the Fair Work Ombudsman's webpage at hours-app where employees can obtain information about the Fair Work Ombudsman's 'Record My Hours' app; and

(iii)information on how to contact the Fair Work Ombudsman;

(b)the Workplace Notice must be in a form approved by the Applicant at least 7 days prior to the First Respondent displaying the Workplace Notice;

(c)the First Respondent will provide proof of the display of the Workplace Notice to the Applicant within 14 days of the Workplace Notice being approved by the Applicant; and

(d)the Workplace Notice must be displayed for a period of one year.

(9)Pursuant to sections 545(1) and/or 545(2)(a) of the FW Act, the Second Respondent comply with the requirements set out in order 8 above in respect of any other business owned and/or operated by a body corporate of which the Second Respondent is an officer.

(10)The parties have general liberty to apply on seven days' notice in relation to the working out of these orders, including in the event that there is non-compliance with any of the preceding orders.

THE COURT FURTHER ORDERS THAT:

(11)Pursuant to section 546(1) of the FW Act, the First Respondent pay pecuniary penalties to a total of $150,120 in respect of the contraventions declared and set out in paragraph 1 above.

(12)Pursuant to section 546(1) of the FW Act, the Second Respondent pay pecuniary penalties to a total of $30,024 in respect of her accessorial involvement in the contraventions declared and set out in paragraph 1 above.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2030 of 2017

FAIR WORK OMBUDSMAN

Applicant

And

HASEGAWA & YE INTERNATIONAL PTY LTD

First Respondent

KIYOSHI HASEGAWA

Second Respondent

REASONS FOR JUDGMENT

1.By Application and Statement of Claim filed on 27 June 2017 the Applicant seeks declaratory, pecuniary and other relief against the Respondents in relation to contraventions of the Fair Work Act 2009 (Cth) (FW Act) and the Fair Work Regulations 2009 (Cth) (FW Regulations).

2.In substance the contraventions involve failure in relation to the payment of sixteen casual employees of the First Respondent (Hasegawa & Ye) under the Fast Food Industry Award 2010 (Award) during the six month period from 4 January 2016 to 3 July 2016 (the assessment period).

3.The Respondents did not file Defences, but rather entered into a Statement of Agreed Facts dated 4 September 2017 (H & Y SOAF) pursuant to s.191 of the Evidence Act 1995 (Cth). On 28 September 2017 it was ordered that evidence and submissions filed in the related matter of Fair Work Ombudsman v Heiwa International Pty Ltd & Hasegawa (SYG2029/2017) also stand as evidence and submissions in this matter, insofar as relevant. I note that at the hearing [46] of the H & Y SOAF was deleted by consent.

4.By the H & Y SOAF the Respondents admitted to the contraventions alleged in the Statement of Claim and, except for the quantum of penalties to be imposed by the Court, all other relief has been agreed, including declaratory relief. I consider it appropriate and convenient for the H & Y SOAF to be annexed to and form part of these Reasons.

Relevant Facts and Background

5.Hasegawa & Ye was incorporated on 22 May 2001 with the Second Respondent (Ms Hasegawa) being since incorporation a joint director with her husband, Mr William Ye, who died on 13 April 2018. She also beneficially held 10 ordinary shares and her husband beneficially held 5 shares of the issued capital of Hasegawa & Ye. 

6.Hasegawa & Ye operated two takeaway sushi outlets located at Erina Fair Shopping Centre on the Central Coast of New South Wales (sushi shops), the first opening in 2003 and the second in 2009. All of the employees were adult employees except for one and they were for the most part employed as casual shop assistants whose duties included making sushi, cutting vegetables, cleaning the premises and serving customers, but one employee also drafted rosters, undertook stock control and cut salmon as well as making sushi.

7.I note that the two sushi shops at Erina Fair and the sushi shop operated by Heiwa International Pty Ltd (Heiwa) at Fletcher in New South Wales formed part of a broader network of 17 Tokyo Ramen and Tokyo Sushi stores that operated in New South Wales under the ultimate control of Ms Hasegawa and her husband, until his decease.

8.During the assessment period Ms Hasegawa was responsible for the management of the employees of Hasegawa & Ye and their conditions, determined and calculated the rates to be paid to employees, had control of Hasegawa & Ye’s bank accounts and was responsible for its financial affairs, including processing payroll and paying employees by cheque.

9.In general terms Hasegawa & Ye has admitted to contravening s.45 of the FW Act by failing to:

a)pay adult employees the minimum hourly rate of pay in accordance with clause 17 of the Award;

b)pay one junior employee the minimum hourly rate of pay in accordance with clause 18 of the Award;

c)pay employees the casual loading in accordance with clause 13.2 of the Award;

d)pay employees the Saturday loading in accordance with clause 25.5(b) of the Award;

e)pay employees the Sunday Loading in accordance with clause 25.5(c)(ii) of the Award;

f)pay employees the public holiday penalty rate in accordance with clause 30.3 of the Award; and

g)pay superannuation to nine employees in accordance with clause 21.2 of the Award.

10.Further, Hasegawa & Ye has admitted to contravening s.535(1) of the FW Act by failing to make and keep employee records as prescribed by reg.3.40 of the FW Regulations (all admitted contraventions being the Admitted Contraventions). 

11.I note at this point that the parties have not regarded it as necessary for the determination of the issues to place before the Court evidence or agreement of the quantum of actual separate contraventions committed by Hasegawa & Ye during the assessment period.

12.As a result of the Admitted Contraventions it is admitted that during the assessment period the employees of Hasegawa & Ye were underpaid a total of $48,318.52, comprised as follows:

Unpaid minimum hourly rate under clauses 17 and 18 of the  Award (after crediting some overpayments totalling $9.54)	$10,085.54
Unpaid casual loading under clause 13.2 of the Award.	$26,609.52
Unpaid Saturday loading.	$523.73
Unpaid Sunday loading.	$5,705.85
Unpaid public holiday penalty rate.	$5,393.88
TOTAL	$48,318.52

13.I note that Hasegawa & Ye, like Heiwa, paid the extra Saturday and Sunday loadings and the underpayment of those loadings resulted from the applicable percentages of 25% and 50% being calculated on the minimum hourly rates paid which were less than required under clauses 17 and 18 of the Award.   

14.With respect to accessorial liability under s.550 of the FW Act (such accessorial liability being agreed at the hearing to be pursuant to s.550(2)(a) and (c)) Ms Hasegawa admits that:

a)she set the rates of pay for the employees of Hasegawa & Ye and was responsible for paying them or ensuring that they were paid – see [43] of the H & Y SOAF;

b)she knew that employment awards existed and set rates of pay for employees, that employees who worked on Saturdays and Sundays were entitled to an extra 25% and 50% penalty respectively and that employees were paid mainly in cash – see [44] of the H & Y SOAF; and

c)she was involved in and is to be treated as herself contravening the Admitted Contraventions of Hasegawa & Ye.

15.Without any grouping the parties agree that the maximum penalties which may be imposed by the Court upon the Respondents respectively are as follows:

a)Hasegawa & Ye - $405,000; and

b)Ms Hasegawa - $81,000.

(see TP52.45 - 47)

General Principles Guiding Exercise of Discretionary Power to Impose Penalties and Quantum of Such Penalties

16.Under s.546 of the FW Act the Court has power to order the payment of a pecuniary penalty for each of the Admitted Contraventions.

17.The Admitted Contraventions are contraventions of civil remedy provisions and the penalties to be imposed for them are to be imposed by the application of the principles relating to civil rather than criminal penalties. The purpose of a civil penalty is to promote compliance with the relevant legislative requirements. In Commonwealth v Director, Fair Work Building Inspectorate (2015) 258 CLR 482 at 506 [55] French CJ, Kiefel, Bell, Nettle and Gordon JJ said as follows:

[55] No less importantly, whereas criminal penalties import notions of retribution 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 compliance:

“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.”

(citation omitted)

18.The fixing of the quantum of penalty has repeatedly been said to be a process of “instinctive synthesis”: Markarian v The Queen (2005) 228 CLR 357 at 373 – 374 [37]. However, a non-exhaustive range of considerations giving content to the process of “instinctive synthesis”, and to each of which I have had regard, has been approved by Tracey J in Kelly v Fitzpatrick [2007] FCA 1080 at [14] as being:

·The nature and extent of the conduct which led to the breaches.

·The circumstances in which that conduct took place.

·The nature and extent of any loss or damage sustained as a result of the breaches.

·Whether there had been similar previous conduct by the respondent.

·Whether the breaches were properly distinct or arose out of the one course of conduct.

·The size of the business enterprise involved.

·Whether or not the breaches were deliberate.

·Whether senior management was involved in the breaches.

·Whether the party committing the breach had exhibited contrition.

·Whether the party committing the breach had taken corrective action.

·Whether the party committing the breach had cooperated with the enforcement authorities.

·The need to ensure compliance with minimum standards by provision of an effective means for investigation and enforcement of employee entitlements.

·The need for specific and general deterrence.

19.At [15] above I have referred to “grouping”. This refers to the effect of s.557 of the FW Act which provides that two or more contraventions of a term of a civil remedy provision committed by the same person and arising out of a course of conduct by that person are taken to constitute a single contravention.

Findings Relevant to Penalties

20.I make the following findings relevant to the question of the appropriate penalties.

21.The discovery of the Admitted Contraventions arose out of the Applicant’s investigation into the sushi industry in the Hunter and Central Coast regions of New South Wales which commenced in April 2016. The investigation commenced as a result of previous complaints received by the Applicant from former employees of sushi businesses located in northern New South Wales and the Gold Coast region of Queensland. In this respect I note that a relevant factor in this case which involves the “fast-food” industry is that this industry has been notorious in recent years for employers underpaying staff. In Fair Work Ombudsman v Yogurberry World Square Pty Ltd [2016] FCA 1290 at [26] – [27] Flick J said:

[26]The need for general deterrence arises by reason of the fact that the employees concerned were employed in the “fast-food” industry, where:

• employees are commonly employed on a casual basis;

and where:

• employees are commonly vulnerable by reason of their age, limited education and limited English communication skills.

[27] Albeit only one of the considerations to be taken into account in fixing the quantum of penalties, the relevance of both specific and general deterrence assumes some considerable importance on the facts of the present case. The importance of general deterrence includes the need to ensure that any penalty that may be imposed is not seen as “the cost of doing business”.

22.The Admitted Contraventions are on any basis objectively serious. The simple fact of the matter is that persons who engage in business activities which necessitate the employment of staff are under a strict obligation to pay their staff the just entitlements of the staff in accordance with law, whether the relevant employer is a major corporation or, as here, a family business. Whilst I accept that the sushi shops were a family business, Ms Hasegawa and her deceased husband were not unsophisticated innocents abroad. They took out a loan for $250,000 in 2001 and set up a restaurant at the Westfield Hornsby Shopping Centre and opened a ramen restaurant called Tokyo Ramen for which Hasegawa & Ye was formed in order to own and operate and which was a shelf company obtained from an accountant at Wahroonga named Mr Raymond Wong. Heiwa was also a shelf company obtained from Mr Wong. In around 2003 Mr Ye and Ms Hasegawa commenced operating the Tokyo Sushi branded stores, and as at 4 September 2017 there were some 17 Tokyo Sushi and Tokyo Ramen stores in operation within New South Wales, each operated by a separate corporate entity. A separate shelf company by the name of Nippon Gourmet Pty Ltd was obtained from Mr Wong for the purpose of initially holding leases and later of expanding the Tokyo Sushi business through franchising arrangements, subject to a Franchise Agreement between the relevant franchisee and Nippon Gourmet Pty Ltd. Mr Wong was acting on behalf of Hasegawa & Ye when on 3 August 2016 he provided records and documents to the Applicant on behalf of Hasegawa & Ye and the solicitor on the record in this proceeding for Hasegawa & Ye and Ms Hasegawa is an employee of Mr Wong.

23.In other words, whilst Hasegawa & Ye and Ms Hasegawa ran a family business, it was a substantial family business which clearly had access when needed to reasonably sophisticated financial advisers who created reasonably complex and sophisticated Franchise Agreements and registered trademarks for Tokyo Sushi in 2013. In my view there is no excuse for a family business of this type to not pay its employees in accordance with law. Employees are entitled to respect and part of that respect is to pay them their full entitlements which must be recognised and known to the employer.

24.During the assessment period the adult employees were paid at a rate of pay between $14 per hour and $19 per hour, five being paid as low as $14 per hour to $16 per hour, when they should have been paid at the rate of $18.99 per hour or $20.13 per hour, dependent on their staff classification. The total amount of the underpayment for the adult employees on these minimum hourly rates was $9,721.03. The one junior employee was paid at the rate of pay of $11 per hour when he should have been paid at the rate of $11.39 per hour, which led to an underpayment of $374.05. Underpayments on these minimum hourly rates led into the underpayments of the Saturday and Sunday loadings. Although the employees were engaged as casual employees, no casual loading was paid to them, and nine of the employees were not paid any amounts on account of superannuation as required by law.

25.In my view Ms Hasegawa has not given, nor could she give in the circumstances, any proper or reasonable excuse for Hasegawa & Ye’s failure to comply with its legal obligations towards its staff who vis a vis Hasegawa & Ye were in a position of some vulnerability as employees. Nevertheless, I accept that her affidavit of 20 October 2017 establishes that she now understands the requirement of complying with the Award and the FW Act, has taken steps to have others comply with those requirements which she will monitor and that she is truly and sincerely remorseful and contrite for the Admitted Contraventions. I am of the view that repetition of contraventions of the Award and the FW Act in the future by her or her companies is unlikely. The entitlements of the employees have now been paid insofar as has been possible to date.

26.I further take into account that the Admitted Contraventions were first offences. When the first complaint was made in early January 2016, prior to the commencement of the Applicant’s investigation in the Hunter and Central Coast regions, by an employee at Tokyo Sushi Katoomba about an underpayment of $1,635.42, such amount was paid to the complaining employee by 18 January 2016 and thereafter Hasegawa & Ye and Ms Hasegawa have generally co-operated with the Applicant and not sought to deceive or mislead the Applicant in its investigations, as is quite regularly the case in matters of this type.

27.Finally, I have generally had regard to general and specific deterrence.

Dispute About Grouping

28.There is no dispute between the parties that the failure to pay minimum hourly rates of pay in breach of clauses 17 and 18 of the Award should be grouped. I agree and have done so: see Group 1 in the tables below at [33] and [34].

29.However, Mr Crow of Counsel who appeared for the Respondents also sought the grouping as a single course of conduct of the failures to pay the Saturday and Sunday loadings together with the failure to pay the minimum hourly rates of pay under clauses 17 and 18 of the Award, because the failure to pay the correct amounts for the weekend loadings flowed from and was causally related to the failure to pay the minimum hourly rates of pay. I further note that in oral submissions at the hearing Mr Crow also appeared to submit that the failure to pay the weekend loadings might be grouped together, even if not grouped with the failure to pay the minimum hourly rates of pay.

30.Ms Gall of Counsel, who appeared for the Applicant, maintained that the only proper grouping was of the failure to pay the minimum hourly rates of pay.

31.I accept the submission of the Applicant that the only grouping should be the failures to pay the minimum hourly rates. In my view there is no interrelationship between “the legal and factual elements” comprising the failure to correctly pay the Saturday and Sunday loadings and the failure to pay the minimum hourly rates or between the failure to correctly pay the Saturday loading and the failure to correctly pay the Sunday loading. The contraventions under consideration here were separate contraventions of different terms of the Award which, on the reasoning and authority of the decision of the Full Court of the Federal Court of Australia in Rocky Holdings Pty Ltd v Fair Work Ombudsman (2014) 221 FCR 153 (Rocky Holdings), ought not to be grouped together: see in particular the table recording the separate contraventions and the penalties imposed by the primary judge and upheld by the Full Court in Rocky Holdings at 155 – 157 [6].

32.The same approach was taken by Siopis J in Fair Work Ombudsman v Phua & Foo Pty Ltd [2018] FCA 137 (Foo) where he did not group, but treated separately as four contraventions:

a)the failure to pay the required minimum rate of pay;

b)the failure to pay the casual loading;

c)the failure to pay the Saturday penalty rate; and

d)the failure to pay the Sunday penalty rate;

because each was a contravention of a different term of the relevant award: see Foo at [4] and [33] – [36].

Penalties for Hasegawa & Ye

33.Having regard to the facts and circumstances as established by the H & Y SOAF, the other evidence before the Court and my views as expressed in [20] – [32] above, I am of the view that I should impose a penalty on Hasegawa & Ye of $150,120, calculated as follows:

Penalty Calculations for Hasegawa & Ye
Group	Possible Maximum Penalty After Grouping	Imposed Percentage of Maximum Penalty	Quantum of Imposed Percentage of Maximum Penalty	Less 20% Discount Final Penalty Imposed
Group 1 (as per  [9(a)&(b)] above)	$54,000.	75%	$40,500.	$32,400.
Group 2 (as per [9(c)] above)	$54,000.	80%	$43,200.	$34,560.
Group 3 (as per [9(d)] above)	$54,000.	20%	$10,800.	$8,640.
Group 4 (as per [9(e)] above)	$54,000.	30%	$16,200.	$12,960.
Group 5 (as per [9(f)] above)	$54,000.	50%	$27,000.	$21,600.
Group 6 (as per [9(g)] above)	$54,000.	80%	$43,200.	$34,560.
Group 7 (as per [10] above)	$27,000.	25%	$6,750.	$5,400.
TOTALS	$351,000.	$187,650.	$150,120.

Penalties for Ms Hasegawa

34.Ms Hasegawa has accepted that she is accessorily liable for the Admitted Contraventions and she was herself closely and intimately involved in the committing by Hasegawa & Ye of those Admitted Contraventions. However, under the FW Act there are different and much lower penalties for individuals than for corporations and hence the maximum penalty which can be imposed upon Ms Hasegawa, after grouping of the failures to pay minimum hourly rates, is $70,200. In the circumstances I consider that I should impose a penalty of $30,024, calculated as follows:

Penalty Calculations for Ms Hasegawa
Group	Possible Maximum Penalty After Grouping	Imposed Percentage of Maximum Penalty	Quantum of Imposed Percentage of Maximum Penalty	Less 20% Discount Final Penalty Imposed
Group 1 (as per  [9(a)&(b)] above)	$10,800.	75%	$8,100.	$6,480.
Group 2 (as per [9(c)] above)	$10,800.	80%	$8,640.	$6,912.
Group 3 (as per [9(d)] above)	$10,800.	20%	$2,160.	$1,728.
Group 4 (as per [9(e)] above)	$10,800.	30%	$3,240.	$2,592.
Group 5 (as per [9(f)] above)	$10,800.	50%	$5,400.	$4,320.
Group 6 (as per [9(g)] above)	$10,800.	80%	$8,640.	$6,912.
Group 7 (as per [10] above)	$5,400.	25%	$1,350.	$1,080.
TOTALS	$70,200.	$37,530.	$30,024.

Totality Principle

35.For the purposes of the totality principle I have considered whether or not the penalties I have regarded as appropriate to impose for each contravention are appropriate to the entire and total contravening conduct. In my view the appropriate overall penalties could certainly not be any less but are sufficient, if only just sufficient. They are sufficient in totality to deter repetition by the Respondents as well as others who might be inclined to contravene the FW Act in a similar fashion. They are required by the objective seriousness of the contraventions in themselves. They are not oppressive or crushing and there is no plea of impecuniosity.

Conclusion

36.In the result Hasegawa & Ye is to pay a penalty of $150,120 and Ms Hasegawa is to pay a penalty of $30,024, such penalties to be paid to the Consolidated Revenue Fund of the Commonwealth within 28 days of the orders which I shall make.

I certify that the preceding thirty-six (36) paragraphs are a true copy of the reasons for judgment of Judge Dowdy

Associate: 

Date:  28 May 2019

ANNEXURE

IN THE FEDERAL CIRCUIT COURT                File number: SYG2030/2017

OF AUSTRALIA
SYDNEY REGISTRY
FAIR WORK DIVISION

FAIR WORK OMBUDSMAN
Applicant

HASEGAWA & YE INTERNATIONAL PTY LTD
(ACN 096 887 955)
First Respondent

KIYOSHI HASEGAWA
Second Respondent

STATEMENT OF AGREED FACTS

This Statement of Agreed Facts is an agreed document between the Applicant and the First Respondent and Second Respondent (together, the Respondents) in these proceedings. The parties agree and intend that it be received into evidence by the Court for the purposes of section 191 of the Evidence Act 1995 (Cth).

The parties agree as set out below.

PART A: BACKGROUND

Applicant

1.The Applicant is and was at all material times:

(a) a statutory appointee of the Commonwealth appointed by the Governor-General by written instrument pursuant to section 687 of the Fair Work Act 2009 (Cth) (FW Act);

(b) a Fair Work Inspector pursuant to section 701 of the FW Act; and

(c) a person with standing to bring these proceedings pursuant to section 539(2) of the FW Act.

First Respondent

2.Hasegawa & Ye International Pty Ltd (ACN 096 887 955) (First Respondent) admits that it is and was at all material times:

(a)  since 22 May 2001, a corporation incorporated under the Corporations Act 2001 (Cth);

(b)  capable of being sued in its corporate name;

(c) a constitutional corporation within the meaning of section 12 of the FW Act;

(d) a national system employer within the meaning of section 14(1)(a) of the FW Act; and

(e)  the operator of a two takeaway sushi outlets located at Erina Fair shopping centre, located at Erina in the state of New South Wales, trading as:

i. Tokyo Sushi – The Corner Store;

ii. Tokyo Sushi – Sushi Train,

(collectively, the Business).

3.During the period of 4 January 2016 to 3 July 2016 (Assessment Period), the First Respondent admits that it employed the following employees:

(a)    Jack Hunter (Jack);

(b)    Takiguchi Yuki (Takiguchi);

(c)    Noriko Hasegawa (Noriko);

(d)    Miyako Okamoto (Miyako);

(e)    Masonori Matsuda (Masonori);

(f)     Anju Arnot (Anju);

(g)    Keiko Matsumoto (Keiko);

(h)    Hikaru Fisher (Hikaru);

(i)     Rewadee Jomsuetrong (Rewadee);

(j)     Chung Yin Cheng (Chung);

(k)    Yumi Tashiro (Yumi);

(l)     Janice Lagunzad (Janice);

(m)  Chiew Peng Ban (Chiew Peng);

(n)    Yasuyo Takai (Yasuyo);

(o)    Rie Titus (Rie); and

(p)    Kyoko Smith (Kyoko),

(collectively, the Employees).

The Second Respondent

4.Ms Kiyoshi Hasegawa (Second Respondent), is and was at all relevant times:

(a)  a natural person capable of being sued;

(b)  from 22 May 2001, a director of the First Respondent;

(c)  from 22 May 2001, the secretary of the First Respondent;

(d)  the holder of all 10 shares issued in the First Respondent; and

(e)  a person:

i.with responsibility for management of employees and their conditions during the Assessment Period;

ii.who determined what amounts the Employees would be paid;

iii.who calculated amounts paid to the Employees using the Microsoft excel program; and

iv.who had control of the First Respondent’s bank accounts and was responsible for its financial affairs including processing payroll and paying employees by cash.

The Employees

5.The First Respondent admits that during the Assessment Period:

(a)    each of the Employees was engaged as a casual employee for the purposes of clause 13.1 of the Fast Food Industry Award 2010 (Award);

(b)    it employed each of the Employees, except for Kyoko, to;

i.make sushi;

ii.cut vegetables;

iii.clean the Business; and

iv.serve customers;

(c)    it employed Kyoko to;

i.draft rosters;

ii.undertake stock control;

iii.cut salmon; and

iv.make sushi;

(d)    Jack’s date of birth is 3 December 1998. Jack was 17 years old;

(e)    the Employees, except for Jack, were adult employees;

(f)     it paid the Employees the following rates of pay for ordinary hours worked:

6.      

Rate per hour	Employees
$10.00	Jack (from commencement of the Assessment Period until 18 June 2016)
$11.00	Jack (from 19 June 2016 until conclusion of the Assessment Period)
$14.00	Takiguchi
$15.00	Noriko, Miyako, Masonori
$16.00	Anju
$17.00	Keiko, Janice
$17.50	Hikaru
$18.00	Rewadee, Chiew Peng, Yasuyo
$19.00	Chung, Yumi, Rie, Kyoko

(g)  it paid the Employees an additional 25% of their rate of pay set out in paragraph 5 (f) for hours worked on a Saturday; and

(h)  it paid the Employees an additional 50% of their rate of pay set out in paragraph 5 (f) for hours worked on a Sunday.

7.The following Employees performed work over the following periods within the Assessment Period:

(a)  Noriko: 10 April 2016 to 19 June 2016;

(b)  Miyako: 28 February 2016 to 3 July 2016; and

(c)  Masonori: 10 April 2016 to 24 April 2016.

8.The remaining Employees performed work for the duration of the Assessment Period.

The Tokyo Sushi Franchise

9.The Tokyo Ramen business was started by Hasegawa & Ye International Pty Ltd in May 2001, by Mr William Ye and the Second Respondent who were both directors of the entity at the relevant time.

10.In around 2003, Mr Ye and the Second Respondent commenced operating the Tokyo Sushi branded stores.

11.At the time of entry into this Statement of Agreed Facts there are 17 Tokyo Sushi and Tokyo Ramen stores (Tokyo Brand Stores) in operation, all located in the state of New South Wales.

12.Each of the Tokyo Brand Stores:

(a)    is operated by a separate corporate entity; and

(b)     for those Tokyo Brand Stores operating through a franchising arrangement, subject to a franchise agreement between the relevant operating entity and Nippon Gourmet Pty Ltd (Nippon Gourmet).

13.Ms Hasegawa held 100 shares in Heiwa International Pty Ltd between 1 October 2008 and 2 July 2015.

14.Mr Ye is:

(a)    the husband of the Second Respondent;

(b)    the sole director of Nippon Gourmet;

(c)    responsible for the operation of Nippon Gourmet;

(d)    a director of four separate entities that operate a Tokyo Brand Store (being, Nippon Gourmet Pty Ltd; Heiwa Holdings Pty Ltd; Heiwa International Pty Ltd; and Red Diamond (W&M) Pty Ltd); and

(e)    not a party to these proceedings.

PART B: LEGISLATION AND APPLICABLE INSTRUMENTS

Legislation and Industrial instruments

15.At all relevant times, the First Respondent was bound by the FW Act and the Fair Work Regulations 2009 (FW Regulations) in respect of the employment of the Employees.

Industrial instruments

16.At all relevant times the First Respondent was bound by the Award in respect of the Employees’ employment.

17.The First Respondent admits that:

(a)    the Employees, except for Kyoko, were properly classified as Fast Food Employees Level 1 under the Award;

(b)    Kyoko was properly classified as a Fast Food Employee Level 2 under the Award; and

(c)    when Jack performed work for the First Respondent, he was properly classified as a junior employee and was entitled to be paid junior rates under clause 18 of the Award.

PART C: ALLEGED CONTRAVENTIONS OF THE FAIR WORK ACT

SECTION 45 – CONTRAVENING AN AWARD

Minimum Wages – Clauses 17 and 18

18.During the Assessment Period, the First Respondent was required to pay to the Employees, except Jack, the minimum hourly rates in accordance with clause 17 of the Award, as set out below:

(a)    Fast Food Employees Level 1: $18.99 per hour; and

(b)    Fast Food Employees Level 2: $20.13 per hour.

19.The First Respondent was required to pay Jack 60% of the applicable minimum hourly rate of $18.99 per hour, in accordance with clause 18 of the Award, being $11.39 per hour.

20.During the Assessment Period, the Employees, except Jack, listed in Column 1 of Table 1 (the Minimum Wage Employees):

(a)    worked the number of ordinary hours as set out in Column 2 of Table 1;

(b)     were entitled to be paid the amounts by the First Respondent for ordinary hours worked as set out in Column 3 of Table 1; and

(c)    were paid the rates set out in Paragraph 5(f), and amounts set out in Column 4 of Table 1 for ordinary hours worked, which were insufficient to meet their entitlements to the minimum hourly rate.

21.The First Respondent admits that it:

(a) contravened section 45 of the FW Act by contravening clause 17 of the Award in respect of the Minimum Wage Employees;

(b)    underpaid the Minimum Wage Employees $9,721.03 in respect of their entitlement to the minimum hourly rate as set out in Column 5 of Table 1;

(c) contravened section 45 of the FW Act by contravening clause 18 of the Award in respect of Jack’s junior minimum wage and

(d)    underpaid Jack $374.05 in respect of his entitlement to the junior minimum wage as set out in Column 5 of Table 1.

Casual Loading – Clause 13.2

22.The First Respondent was required to pay the Employees an additional casual loading of 25% of the minimum hourly rate in accordance with clause 13.2 of the Award, for ordinary hours worked from Monday to Saturday.

23.During the Assessment Period, the Employees:

(a)    were entitled to be paid the casual loading amounts per hour as set out in Column 2 of Table 2;

(b)    worked the number of hours in respect of which the casual loading was required to be paid as set out in Column 3 of Table 2;

(c)    were entitled to be paid the amounts by the First Respondent as set out in Column 4 of Table 3; and

(d)    were paid the amounts set out in Table 1 for ordinary hours worked, and were not paid any amounts in respect of the casual loading.

24.The First Respondent admits that it:

(a) contravened section 45 of the FW Act by contravening clause 13.2 of the Award;

(b)    underpaid the Employees $26,609.52 in respect of their entitlement to casual loading as set out in Column 6 of Table 2.

Saturday Loading – Clause 25.5(b)

25.The First Respondent was required to pay the Employees an additional Saturday loading of 25% (in addition to the 25% casual loading) for ordinary hours worked on a Saturday in accordance with clause 25.5(b) of the Award.

26.During the Assessment Period, the Employees listed in Column 1 of Table 3 (Saturday Loading Employees);

(a)    were entitled to be paid the Saturday loading amounts per hour as set out in Column 2 of Table 3;

(b)    worked the number of hours on a Saturday as set out in Column 3 of Table 3;

(c)    were entitled to be paid the amounts by the First Respondent with respect to the Saturday loading as set out in Column 4 of Table 3;

(d)    were paid amounts with respect to the Saturday loading as set out in Column 5 of Table 3, which were insufficient to meet their entitlements to Saturday loading.

27.The First Respondent admits that it:

(a) contravened section 45 of the FW Act by contravening clause 25.5(b) of the Award; and

(b)    underpaid the Saturday Loading Employees $523.73 in respect of their entitlement to Saturday loading payments as set out in Column 6 of Table 3.

Sunday Loading – Clause 25.5(c)(ii)

28.The First Respondent was required to pay the Employees an additional Sunday loading of 75% (inclusive of a 25% casual loading) when they worked ordinary hours on a Sunday in accordance with clause 25.5(c)(ii) of the Award.

29.During the Assessment Period, the Employees listed in Column 1 of Table 4 (Sunday Loading Employees):

(a)    were entitled were entitled to be paid the Sunday loading amounts per hour as set out in Column 2 of Table 4;

(b)    worked the number of hours on a Sunday as set out in Column 3 of Table 4;

(c)    were entitled to be paid the amounts by the First Respondent with respect to the Sunday loading as set out in Column 4 of Table 4;

(d)    were paid the amounts with respect to the Sunday loading as set out in Column 5 of Table 4, which were insufficient to meet their entitlements to Sunday loading.

30.The First Respondent admits that it:

(a) contravened section 45 of the FW Act by contravening clause 25.5(c)(ii) of the Award;

(b)    underpaid the Sunday Loading Employees $5,705.85 in respect of their entitlement to Sunday loading payments as set out in Column 6 of Table 4.

Public Holiday Rate – Clause 30.3

31.The First Respondent was required to pay the Employees at the rate of 275% (inclusive of the ordinary hourly rate and casual loading) for hours worked on a public holiday in accordance with clause 30.3 of the Award.

32.During the Assessment Period, the Employees listed in Column 1 of Table 5 (Public Holiday Rate Employees):

(a)    were entitled to be paid the public holiday loading amounts per hour as set out in Column 2 of Table 5;

(b)    worked the number of hours on a public holiday as set out in Column 3 of Table 5;

(c)    were entitled to be paid the amounts by the First Respondent with respect to work performed on a public holiday as set out in Column 4 of Table 5;

(d)    were paid the amounts with respect to the Public Holiday loading as set out in Column 5 of Table 5, which were insufficient to meet their entitlements to Public Holiday loading.

33.The First Respondent admits that it:

(a) contravened section 45 of the FW Act by contravening clause 30.3 of the Award;

(b)    underpaid the Public Holiday Rate Employees $5,393.88 in respect of their entitlement to public holiday loading payments as set out in Column 6 of Table 5.

Total Underpayment   

34.By reason of the contraventions admitted in paragraphs 21, 24, 27, 30 and 33 above, the First Respondent caused the Employees to be underpaid a total of $48,328.06 as set out in Column 2 of Table 6.

35.During the Assessment Period, Chung, Yumi and Rie were paid the following amounts in excess of their entitlements to Award minimum rates of pay:

(a)    Chung: $2.84;

(b)    Yumi: $1.24; and

(c)    Rie: $5.46.

36.The Applicant has deducted the amounts set out in paragraph 35 above from the Underpayment, resulting in an underpayment of $48,318.52 (Total Underpayment) as set out in Column 3 of Table 6.

Superannuation Contributions – Clause 21

37.Clause 21.2 of the Award provides that the First Respondent must make superannuation contributions for the benefit of the Employees as will avoid the First Respondent being required to pay the superannuation guarantee charge.

38.During the Assessment Period, the First Respondent:

(a)    was required to pay superannuation contributions at the rate of 9.5% percent of an employee’s ordinary time earnings;

(b)    did not make any superannuation contributions for the benefit of Takiguchi, Noriko, Miyako, Anju, Keiko, Hikaru, Janice, Chiew Peng or Rie.

39.The First Respondent admits that it contravened section 45 of the FW Act by contravening clause 21.2 of the Award.

SECTION 535 – FAILURE TO MAKE AND KEEP EMPLOYEE RECORDS

40.Pursuant to section 535(1) of the FW Act and regulation 3.40 of the FW Regulations, the First Respondent was required to keep records, if an employee’s employment was terminated, of:

(a)    whether the employment was terminated by consent, notice, summarily or in some other manner (regulation 3.40(a)); and

(b)    the name of the person who acted to terminate the employment (regulation 3.40(b)).

41.During the Assessment Period:

(a)    Masunori’s employment was terminated; and

(b) the First Respondent did not make or keep any records required by section 535(1) of the FW Act and regulation 3.40 of the FW Regulations for Masunori.

42.The First Respondent admits that it contravened section 535(1) of the FW Act.

PART D: ACCESSORIAL LIABILITY

43.At all relevant times the Second Respondent:

(a)    set the rates of pay for employees of the First Respondent on her assessment of each employee’s ability;

(b)    determined when to increase the rates of pay for employees of the First Respondent;

(c)    was responsible for paying employees of the First Respondent and/or ensuring that employees of the First Respondent were paid;

(d)    performed and/or oversaw the payroll functions for the First Respondent, including:

i.looking at the hours worked by the employees of the First Respondent as contained in rosters;

ii.paying wages to employees of the First Respondent each fortnight based on hours worked;

iii.calculating how much tax was required to be remitted in respect of wages paid to the employees of the First Respondent;

iv.making superannuation contributions for employees of the First Respondent; and

v.at times, instructing the First Respondent’s accountant to assist in performing payroll functions;

(e)    prepared payslips for the employees of the First Respondent;

(f)     provided employees of the First Respondent with payslips every fortnight

(g)    made and kept employee records for the First Respondent, except in relation to termination of employment.

44.At all times the Second Respondent knew that:

(a)    awards existed and that awards set rates of pay for employees of the First Respondent;

(b)    when employees of the First Respondent worked on Saturdays they were entitled to payment of an extra 25% penalty and on Sundays an extra 50% penalty;

(c)    employees of the First Respondent were paid mainly in cash,

45.During the Assessment Period, the Second Respondent knew the First Respondent paid employees an additional 25% or 50% of the rates set out in paragraph 5(f) above when they worked on Saturdays or Sundays.

46.During the assessment period, the Second Respondent:

(a)    had actual knowledge of; and

(b)    was an intentional participant in,

each of the admitted contraventions of the First Respondent.

47.By reason of the matters admitted and pursuant to section 550(1) of the FW Act, the Second Respondent admits she was involved in, and is therefore to be treated as having herself contravened, each of the provisions set out in paragraphs 21, 24, 27, 30, 33, 39, 42 above, being the provisions which the First Respondent is alleged to have contravened.

PART E: THE APPLICANT’S INVESTIGATION

Katoomba Complaint

48.In January 2016, a request for assistance was made to the Applicant by an employee of the Tokyo Sushi Katoomba store concerning underpayments (Katoomba Complaint).

49.Mr Ye and the Second Respondent were advised that the Katoomba Complaint concerned an employee underpayment, by Ms Jia Lu Xu (Lulu) who was the Director of Glorious Hills Pty Ltd t/as Tokyo Sushi Katoomba.

50.Payment of $1,635.42 was made by electronic funds transfer to the affected employee on around 18 January 2016.

Tokyo Sushi Erina Stores

51.The Applicant visited the Business on 13 April 2016 (First Site Visit), and on 23 June 2016 (Second Site Visit), as part of the Applicant’s 2016 Hunter & Central Coast Sushi Campaign to check compliance in these locations in sushi outlets.

52.Following the First Site Visit, the Second Respondent provided a completed employer entity form and supplementary documents by way of email to the Applicant on behalf of the First Respondent on 27 April 2016, indicating 15 employees were engaged to perform work for the First Respondent.

53.The First Respondent was issued with a Notice to Produce Records or Documents (NTP) by the Applicant on 27 June 2016, requiring production of records or document by 15 July 2016.

54.On 18 July 2016, the Applicant wrote to the First Respondent advising that the NTP had not been complied with, and on 22 July 2016 the First Respondent returned documents to the Applicant by way of an email from its accountant Mr Raymond Wong, which upon review by the Applicant demonstrated  that underpayment of wages had occurred.

55.On 28 July 2016 the Applicant requested further documents from the First Respondent that were not included in the response to the NTP, specifically, those concerning annual and personal leave, superannuation and termination of employment, as well as any other time records in addition to the pay slips provided.

56.On 3 August 2016, Mr Wong provided further payslips on behalf of the First Respondent and advised that the payslips provided were the only time records kept stating that his client “ does not have a proper system to keep [the] attendance records”. No other documents were provided.

57.A recorded of interview was held with Fair Work Inspector and the Second Respondent on 18 August 2016.

58.On 14 March 2017, the FWO issued a Findings of Contravention Letter on the First Respondent, identifying an underpayment of $45,189.15 (gross) in respect of 17 employees (Findings of Contravention Letter).

59.On 4 April 2017, the FWO issued a Final Contravention Letter on the First Respondent as no response had been received to the Findings of Contravention Letter (Final Contravention Letter).

60.On 7 April 2017, the First Respondent responded to the Findings of Contravention Letter and the Final Contravention Letter by way of a letter signed by the Second Respondent.

61.The First Respondent commenced rectification of the underpayments on 1 September 2016.

PART F: DECLARATIONS AND ORDERS SOUGHT

Recommendation as to declarations and orders

62.The Applicant and Respondents agreed to the following declarations and orders.

The Court declares that:

63.The First Respondent has contravened:

(a) section 45 of the FW Act by failing to pay the Minimum Wage Employees the minimum hourly rate of pay in accordance with clause 17 of the Award;

(b) section 45 of the FW Act by failing to pay Jack the minimum hourly rate of pay in accordance with clause 18 of the Award;

(c) section 45 of the FW Act by failing to pay the Employees the casual loading in accordance with clause 13.2 of the Award;

(d) section 45 of the FW Act by failing to pay the Saturday Loading Employees the Saturday loading in accordance with clause 25.5(b) of the Award;

(e) section 45 of the FW Act by failing to pay the Sunday Loading Employees the Sunday loading in accordance with clause 25.5(c)(ii) of the Award;

(f) section 45 of the FW Act by failing to pay the Public Holiday Rate Employees the public holiday penalty rate in accordance with clause 30.3 of the Award;

(g) section 45 of the FW Act by failing to pay superannuation in accordance with clause 21.1 of the Award; and

(h) section 535(1) of the FW Act by failing to make and keep employee records as prescribed by FW Regulation 3.40.

64.Declarations that the Second Respondent was involved in each of the contraventions alleged against the First Respondent, pursuant to section 550(1) of the FW Act as set out in paragraph 63 above.

65.An order pursuant to section 545(1) of the FW Act that the First and Second Respondents, jointly and severally, pay to the Applicant the following amounts owing to the Employees, less any payments made to the Employees before the date of the order, within 28 days:

(a)    Hikaru: $291.91;

(b)    Rewadee: $11.86;

(c)    Chung: $111.10;

(d)    Yumi: $8.25;

(e)    Janice: $270.55;

(f)     Chiew Peng: $407.02;

(g)    Yasuyo: $500.76;

(h)    Rie: $485.65; and

(i)     Kyoko: $1,298.06.

66.An order pursuant to section 545(1) of the FW Act that the First and Second Respondents, jointly and severally, make superannuation contributions on behalf of Takiguchi, Noriko, Miyako, Anju, Keiko, Hikaru, Janice, Chiew Peng and Rie to their nominated superannuation funds at the superannuation guarantee charge rate prescribed by applicable superannuation legislation less any payment made before the date of the order, within 28 days.

67.An order pursuant to section 547(2) of the FW Act that interest be paid on any amounts ordered to be paid to the Employees pursuant to paragraph 65 above, within 28 days.

68.An order pursuant to section 546(1) of the FW Act that the First Respondent pay pecuniary penalties in respect of the contraventions set out at paragraph 63 above.

69.An order pursuant to section 546(1) of the FW Act that the Second Respondent pay pecuniary penalties in respect of her involvement in the contraventions set out at paragraph 63 above.

70.An order pursuant to section 546(3)(a) of the FW Act that any pecuniary penalties be paid to the Commonwealth within 28 days.

71.An order pursuant to section 545(1) of the FW Act that the First Respondent, at its expense, engage a third party with qualifications in accounting or workplace relations to undertake an audit of compliance with the FW Act and the Award on the following terms:

(a)the audit period will be the period commencing on 1 March 2019 and ending 31 August 2019 (Audit Period);

(b)the audit is to be completed within 60 days of the end of the Audit Period (Audit Completion Date);

(c)the audit will apply to all employees and persons otherwise engaged to perform work for the First Respondent;

(d)the audit will assess the First Respondent’s compliance with the following obligations according to each employee’s classification of work, category of employment and hours worked during the Audit Period:

(i)    wages and work related entitlements under the Award;

(ii) accrual and payment of entitlements under the National Employment Standards in Part 2-2 of the FW Act; and

(iii) record keeping and pay slip obligations in Division 3 of Part 3-6 of the FW Act and Part 3-6 of the FW Regulations; and

(e)within 30 days of the Audit Completion Date, the First Respondent provide to the Applicant:

(i)    a copy of the audit report which will include a statement of the methodology used in the audit;

(ii)   a copy of the source materials and records used to conduct the audit; and

(iii)   written details of any contraventions identified in the audit, the steps the First Respondent will take to rectify any identified contravention(s) and by when the rectification will occur.

72.An order pursuant to section 545(1) of the FW Act that the First Respondent will, within 30 days of being ordered, display a notice in a prominent position in the premises of Tokyo Sushi – The Corner Store and Tokyo Sushi – Sushi Train that can be easily viewed by all employees (Workplace Notice) on the following terms:

(a)the Workplace Notice must contain:

(i)    information on entitlements contained in the Award;

(ii)   a link to the Fair Work Ombudsman’s webpage at where employees can obtain information about the Fair Work Ombudsman’s ‘Record My Hours’ app; and

(iii)   information on how to contact the Fair Work Ombudsman;

(b)the Workplace Notice must be in a form approved by the Applicant at least 7 days prior to the First Respondent displaying the Workplace Notice;

(c)the First Respondent will provide proof of the display of the Workplace Notice to the Applicant within 14 days of the Workplace Notice being approved by the Applicant; and

(d)the Workplace Notice must be displayed for a period of one year.

73.An order pursuant to sections 545(1) and/or 545(2)(a) of the FW Act that the Second Respondent comply with the requirements set out in paragraph 72 above in respect of any other business owned and/or operated by a body corporate of which the Second Respondent is an officer.

74.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.

75.Such further orders as the Court deems appropriate.

SCHEDULE 1: TOTAL UNDERPAYMENTS

TABLE 1: CLAUSES 17 AND 18 – MINIMUM WAGES

Employee	Hours Worked	Entitlement Amount	Amount Paid	Underpayment Amount
(a)	Jack	293.54	$3,343.45	$2,969.40	$374.05
(b)	Takiguchi	184.83	$3,509.93	$2,587.51	$922.42
(c)	Noriko	106.25	$2017.70	$1,593.75	$423.95
(d)	Miyako	169.79	$3,224.33	$2,546.81	$677.52
(e)	Masonori	17.25	$327.58	$258.75	$68.83
(f)	Anju	412.09	$7,825.60	$6,593.50	$1,232.10
(g)	Keiko	765.33	$14,533.63	$13,010.69	$1,522.94
(h)	Hikaru	445.68	$8,463.48	$7,799.40	$664.08
(i)	Rewadee	832.01	$15,799.89	$14,976.25	$823.64
(j)	Janice	826.30	$15,691.46	$14,047.00	$1,644.46
(k)	Chiew Peng	482.17	$9,156.44	$8,679.00	$477.44
(l)	Yasuyo	722.22	$13,714.99	$13,000.00	$714.99
(m)	Kyoko	485.50	$9,773.16	$9,224.50	$548.66
TOTAL:	$10,095.08

TABLE 2: CLAUSE 13.2 – CASUAL LOADING

Employee	Casual Loading Hourly Rate Payable	Hours Worked	Entitlement Amount	Amount Paid	Underpayment Amount
(a)	Jack	$2.85	293.54	$836.61	$0	$836.61
(b)	Takiguchi	$4.75	52	$247.00	$0	$247.00
(c)	Noriko	$4.75	106.25	$504.70	$0	$504.70
(d)	Miyako	$4.75	169.79	$806.51	$0	$806.51
(e)	Masonori	$4.75	17.25	$81.94	$0	$81.94
(f)	Anju	$4.75	225.84	$1,072.77	$0	$1,072.77
(g)	Keiko	$4.75	765.33	$3,635.34	$0	$3,635.34
(h)	Hikaru	$4.75	437.43	$2,077.82	$0	$2,077.82
(i)	Rewadee	$4.75	823.51	$3,911.69	$0	$3,911.69
(j)	Chung	$4.75	75.91	$360.57	$0	$360.57
(k)	Yumi	$4.75	30.75	$146.07	$0	$146.07
(l)	Janice	$4.75	792.30	$3,763.45	$0	$3,763.45
(m)	Chiew Peng	$4.75	395.67	$1,879.46	$0	$1,879.46
(n)	Yasuyo	$4.75	560.47	$2,662.26	$0	$2,662.26
(o)	Rie	$4.75	537.56	$2,553.45	$0	$2,553.45
(p)	Kyoko	$5.03	411.50	$2,069.88	$0	$2,069.88
TOTAL:	$26,609.52

TABLE 3: CLAUSE 25.5(b) – SATURDAY LOADING

Employee	Saturday Loading Hourly Rate Payable	Hours Worked	Entitlement Amount	Amount Paid	Underpayment Amount
(a)	Jack	$2.85	154.29	$439.73	$394.24	$45.49
(b)	Takiguchi	$4.75	37.25	$176.94	$130.38	$46.56
(c)	Miyako	$4.75	36.25	$172.20	$135.96	$36.24
(d)	Anju	$4.75	161.50	$767.15	$646.00	$121.15
(e)	Keiko	$4.75	165.50	$786.15	$703.38	$82.77
(f)	Hikaru	$4.75	29	$137.76	$126.87	$10.89
(g)	Rewadee	$4.75	103.75	$492.84	$466.89	$25.95
(h)	Janice	$4.75	221	$1,049.76	$939.27	$110.49
(i)	Chiew Peng	$4.75	62.50	$296.90	$281.26	$15.64
(j)	Yasuyo	$4.75	114.25	$542.70	$514.15	$28.55
TOTAL:	$523.73

TABLE 4: CLAUSE 25.5(c) – SUNDAY LOADING

Employee	Sunday Loading Hourly Rate Payable	Hours Worked	Entitlement Amount	Amount Paid	Underpayment Amount
(a)	Takiguchi	$14.24	132.83	$1,891.50	$929.74	$961.76
(b)	Anju	$14.24	186.25	$2,652.20	$1,490.00	$1,162.20
(c)	Hikaru	$14.24	8.25	$117.48	$72.19	$45.29
(d)	Rewadee	$14.24	8.50	$121.04	$76.50	$44.54
(e)	Chung	$14.24	214.25	$3,050.92	$2,035.92	$1,015.52
(f)	Yumi	$14.24	93.20	$1,327.17	$885.44	$441.73
(g)	Janice	$14.24	34	$484.16	$289.00	$195.16
(h)	Chiew Peng	$14.24	86.50	$1,231.76	$788.50	$453.26
(i)	Yasuyo	$14.24	161.75	$2,303.32	$1,455.75	$847.57
(j)	Rie	$14.24	26.25	$373.80	$249.38	$124.42
(k)	Kyoko	$15.10	74	$1,117.42	$703.02	$414.40
TOTAL:	$5,705.85

TABLE 5: CLAUSE 30.3 – PUBLIC HOLIDAY RATE

Employee	Public Holiday Hourly Rate Payable	Hours Worked	Entitlement Amount	Amount Paid	Underpayment Amount
(a)	Jack	$31.32	9	$281.88	$112.50	$169.38
(b)	Takiguchi	$52.22	6.75	$352.49	$141.75	$210.74
(c)	Anju	$52.22	12	$626.64	$264.00	$362.64
(d)	Keiko	$52.22	6.50	$339.43	$138.13	$201.30
(e)	Hikaru	$52.22	10.25	$535.26	$179.38	$355.88
(f)	Rewadee	$52.22	4	$208.88	$90	$118.88
(g)	Chung	$52.22	11.50	$600.53	$280.25	$320.28
(h)	Yumi	$52.22	4.50	$234.99	$128.25	$106.74
(i)	Janice	$52.22	24.50	$1,279.39	$503.62	$775.77
(j)	Chiew Peng	$52.22	23.50	$1,277.17	$507.38	$719.79
(k)	Yasuyo	$52.22	26.25	$1,370.78	$558.00	$812.78
(l)	Rie	$52.22	18.25	$953.02	$375.25	$577.77
(m)	Kyoko	$55.36	19.25	$1,065.68	$403.75	$661.93
TOTAL:	$5,393.88

TABLE 6: TOTAL UNDERPAYMENT

Employee	Underpayment Amounts	Total Underpayment after Deducted Amounts
(a)	Jack	$1,425.53	$1,425.53
(b)	Takiguchi	$2,388.48	$2,388.48
(c)	Noriko	$928.65	$928.65
(d)	Miyako	$1,520.27	$1,520.27
(e)	Masonori	$150.77	$150.77
(f)	Anju	$3,950.86	$3,950.86
(g)	Keiko	$5,442.35	$5,442.35
(h)	Hikaru	$3,153.96	$3,153.96
(i)	Rewadee	$4,924.70	$4,924.70
(j)	Chung	$1,696.37	$1693.57
(k)	Yumi	$694.54	$693.30
(l)	Janice	$6,489.33	$6,489.33
(m)	Chiew Peng	$3,545.59	$3,545.59
(n)	Yasuyo	$5,066.15	$5,066.15
(o)	Rie	$3,255.64	$3,250.18
(p)	Kyoko	$3,694.87	$3,694.87
UNDERPAYMENT:	$48,328.06
TOTAL UNDERPAYMENT:	$48,318.52