Decision
Reasons for decision
Notwithstanding considerable misgivings, concurrence is nevertheless expressed with the agreement proposed. The principal reason for doing so is that it would be oppressive – and go beyond the objective of deterrence – to impose upon each of the First and Second Respondents individual penalties of about $500,000 and a further penalty of about $350,000 for the third Respondent. Such a penalty, in the aggregate sum of about $1,350,000 would be “oppressive”: NW Frozen Foods (1996) 71 FCR 285 at 293 per Burchett and Kiefel JJ. CONCLUSIONS The quantum of the penalties ultimately to be imposed upon each of the Respondents, and in particular the First to Sixth Respondents, has occasioned considerable concern. But for the endorsement on the part of the Fair Work Ombudsman as to the appropriateness of those penalties, the Court itself may well have imposed considerably higher penalties. But those factors which have prevailed such that concurrence is expressed with the agreement reached between the parties as to the appropriateness of those penalties are:§the fact that the quantum of penalties was endorsed by the Fair Work Ombudsman, namely the Office with the accumulated expertise and experience in assessing what is an appropriate balance between securing compliance with the relevant legislative regime by means of agreement as opposed to litigation, and the expertise and experience in what the Office considers is adequate to deter the present Respondents and others from engaging in like conduct; §the fact that the Respondents, however belatedly, did co-operate with the Fair Work Ombudsman by admitting their wrongdoing and thereby avoiding a potentially lengthy hearing before this Court; and§the fact that the total amount of all underpayments to employees has either been made to those employees who have been identified or paid into the trust accounts of the Fair Work Ombudsman to be available for distribution to other employees who may be hereafter located. The material before the Court, together with the fact that the Respondents were separately represented by Counsel, enables the Court to be satisfied that the penalties as agreed are appropriate: cf. Commonwealth of Australia v Director, Fair Work Building Industry Inspectorate [2015] HCA 46 at [32], (2015) 258 CLR 482 at 498-499 per French CJ, Kiefel, Bell, Nettle and Gordon JJ. Appreciation is also expressed to the Office of the Fair Work Ombudsman and its legal representatives for the careful manner in which each of the contraventions – and the involvement of each of the Respondents in one or other of those contraventions – has been presented by way of written submissions. Although not all of those submissions have been expressly referred to, the attention to detail in those submissions provides considerable comfort in separately reaching the conclusion as to the appropriateness of each penalty sought to be imposed. Declarations should also be made in the form proposed. It is further noted that the parties have reached agreement as to the publication of Workplace Notices pursuant to s 545(1) of the Fair Work Act. BY CONSENT, THE COURT DECLARES THAT:(1)The First Respondent contravened the following civil remedy provisions:(a)during the Kotara First Period:(i)section 45 of the Fair Work Act 2009 (Cth) (“FW Act”), by failing to pay the minimum rates to the Kotara Minimum Rate Employees as required by cll 17 and 18 of the Fast Food Industry Award 2010 (“Award”);(ii)section 45 of the FW Act, by failing to pay casual loading to the Kotara Casual Employees as required by cl 13.2 of the Award;(iii)section 45 of the FW Act, by failing to pay Saturday loading rates to the Kotara Saturday Loading Employees as required by cl 25.5(b) of the Award;(iv)section 45 of the FW Act, by failing to pay Sunday loading rates to the Kotara Full-Time Employees as required by cl 25.5(c)(i) of the Award;(v)section 45 of the FW Act, by failing to pay Sunday loading rates to the Kotara Casual Sunday Employees as required by cl 25.5(c)(ii) of the Award;(vi)section 45 of the FW Act, by failing to pay public holiday penalty rates to the Kotara Public Holiday Rate Employees as required by cl 30.3 of the Award; and(vii)section 45 of the FW Act, by failing to pay overtime to the Kotara Full-Time Employees as required by cl 26 of the Award.(b)during the Kotara Second Period:(i)section 45 of the FW Act, by failing to pay Hyemi Jang, Minseok Yun and Yuxin Chen the minimum rates required by cll 17 and 18 of the Award;(ii)section 45 of the FW Act, by failing to pay casual loading to the Kotara Casual Employees as required by clause 13.2 of the Award;(iii)section 45 of the FW Act, by failing to pay Saturday loading rates to Hyemi Jang, Minha Kim, Minjae Park and Minseok Yun as required by cl 25.5(b) of the Award;(iv)section 45 of the FW Act, by failing to pay Sunday loading rates to Hyemi Jang and Kyoungho Kim as required by cl 25.5(c)(i) of the Award;(v)section 45 of the FW Act, by failing to pay Sunday loading rates to the Kotara Casual Sunday Employees as required by cl 25.5(c)(ii) of the Award;(vi)section 45 of the FW Act, by failing to pay public holiday penalty rates to the Kotara Public Holiday Rate Employees as required by cl 30.3 of the Award; and(vii)section 45 of the FW Act, by failing to pay overtime to the Kotara Full-Time Employees as required by cl 26 of the Award; (c)during the Kotara Assessment Period:(i)section 45 of the FW Act, by failing to make superannuation contributions on behalf of the Kotara Employees as required by cl 21.2 of the Award;(ii)section 45 of the FW Act, by failing to pay the special clothing allowance to the Kotara Employees as required by cl 19.2(b)(i) and (ii) of the Award;(iii)section 44(1) of the FW Act, by failing to pay accrued but untaken annual leave to the Kotara Annual Leave Employees on termination of employment as required by s 90(2) of the FW Act; and(iv)section 44(1) of the FW Act, by failing to pay the Kotara Public Holiday Absence Employees for their absence on a public holiday as required by s 116 of the FW Act;(d)regulation 3.44(1) of the Fair Work Regulations 2009 (Cth) (FW Regulations), by making and keeping the Kotara First Set of Records in relation to the Kotara First Set of Records Employees, knowing that those records were false or misleading;(e)regulation 3.44(1) of the FW Regulations, by making and keeping the Kotara Second Set of Records in relation to the Kotara Second Set of Records Employees, knowing that those records were false or misleading;(f)regulation 3.44(1) of the FW Regulations, by making and keeping the Kotara Third Set of Records in relation to the Kotara Employees listed therein, knowing that those records were false or misleading;(g)regulation 3.44(1) of the FW Regulations, by making and keeping the Kotara Fourth Set of Records in relation to the Kotara Employees listed therein, knowing that those records were false or misleading;(h)regulation 3.44(1) of the FW Regulations, by making and keeping the Kotara Fifth Set of Records in relation to the Kotara Employees listed therein, knowing that those records were false or misleading;(i)regulation 3.44(6) of the FW Regulations, by making use of entries in the Kotara First Set of Records in relation to the Kotara First Set of Records Employees by producing those records to the Applicant, knowing that those records were false or misleading;(j)regulation 3.44(6) of the FW Regulations, by making use of entries in the Kotara Second Set of Records in relation to the Kotara Second Set of Records Employees by producing those records to the Applicant, knowing that those records were false or misleading;(k)regulation 3.44(6) of the FW Regulations, by making use of entries in the Kotara Third Set of Records in relation to the Kotara Employees listed therein by producing those records to the Applicant, knowing that those records were false or misleading;(l)regulation 3.44(6) of the FW Regulations, by making use of entries in the Kotara Fourth Set of Records in relation to the Kotara Employees listed therein by producing those records to the Applicant, knowing that those records were false or misleading;(m)regulation 3.44(6) of the FW Regulations, by making use of entries in the Kotara Fifth Set of Records in relation to the Kotara Employees listed therein by producing those records to the Applicant, knowing that those records were false or misleading;(n)section 535(1) of the FW Act, by failing to make and keep records that the First Respondent was required to make and keep under the FW Act and the FW Regulations for seven (7) years; and(o)section 536(1) of the FW Act, by failing to give pay slips in the form prescribed by the FW Regulations in respect of the Kotara Employees within one working day of making payment.(2)The Second Respondent contravened the following civil remedy provisions:(a)during the Canberra First Period:(i)section 45 of the FW Act, by failing to pay the minimum rates to the Canberra Minimum Rate Employees as required by cll 17 and 18 of the Award;(ii)section 45 of the FW Act, by failing to pay casual loading to the Canberra Casual Employees as required by cl 13.2 of the Award;(iii)section 45 of the FW Act, by failing to pay Saturday loading rates to the Canberra Saturday Loading Employees as required by cl 25.5(b) of the Award;(iv)section 45 of the FW Act, by failing to pay Sunday loading rates to the Canberra Full-Time Sunday Employees as required by cl 25.5(c)(i) of the Award;(v)section 45 of the FW Act, by failing to pay Sunday loading rates to the Canberra Casual Sunday Employees as required by cl 25.5(c)(ii) of the Award;(vi)section 45 of the FW Act, by failing to pay public holiday penalty rates to the Canberra Public Holiday Rate Employees as required by cl 30.3 of the Award; and(vii)section 45 of the FW Act, by failing to pay overtime to the Canberra Full-Time Employees as required by cl 26 of the Award;(b)during the Canberra Second Period:(i)section 45 of the FW Act, by failing to pay casual loading to the Canberra Casual Employees as required by cl 13.2 of the Award;(ii)section 45 of the FW Act, by failing to pay Saturday loading rates to Jeongmi Yun as required by cl 25.5(b) of the Award;(iii)section 45 of the FW Act, by failing to pay Sunday penalty rates to Jeongmi Yun as required by cl 25.5(c)(i) of the Award;(iv)section 45 of the FW Act, by failing to pay Sunday penalty rates to Hyejin Jang, Nina Yu and Yoo Jin Lee as required by cl 25.5(c)(ii) of the Award;(v)section 45 of the FW Act, by failing to pay public holiday penalty rates to Ju Yeong Lee and Jeongmi Yun as required by cl 30.3 of the Award; and(vi)section 45 of the FW Act, by failing to pay overtime to the Canberra Full-Time Employees as required by cl 26 of the Award; (c)during the Canberra Assessment Period:(i)section 45 of the FW Act, by failing to pay the special clothing allowance to the Canberra Employees as required by cl 19.2(b)(i) and (ii) of the Award;(ii)section 45 of the FW Act, by failing to make superannuation contributions on behalf of the Canberra Employees as required by cl 21.2 of the Award;(iii)section 44(1) of the FW Act, by failing to pay accrued but untaken annual leave to the Canberra Annual Leave Employees on termination of employment as required by s 90(2) of the FW Act; and(iv)section 44(1) of the FW Act, by failing to pay the Canberra Public Holiday Absence Employees for their absence on a public holiday as required by s 116 of the FW Act;(d)regulation 3.44(1) of the FW Regulations, by making and keeping the Canberra First Set of Records in relation to the Canberra First Set of Records Employees, knowing that those records were false or misleading;(e)regulation 3.44(1) of the FW Regulations, by making and keeping the Canberra Second Set of Records in relation to the Canberra Employees listed therein, knowing that those records were false or misleading;(f)regulation 3.44(1) of the FW Regulations, by making and keeping the Canberra Third Set of Records in relation to the Canberra Employees listed therein, knowing that those records were false or misleading;(g)regulation 3.44(1) of the FW Regulations, by making and keeping the Canberra Fourth Set of Records in relation to the Canberra Employees listed therein, knowing that those records were false or misleading;(h)regulation 3.44(6) of the FW Regulations, by making use of entries in the Canberra First Set of Records in relation to the Canberra Employees listed therein by producing those records to the Applicant, knowing that those records were false or misleading;(i)regulation 3.44(6) of the FW Regulations, by making use of entries in the Canberra Second Set of Records in relation to the Canberra Employees listed therein by producing those records to the Applicant, knowing that those records were false or misleading;(j)regulation 3.44(6) of the FW Regulations, by making use of entries in the Canberra Third Set of Records in relation to the Canberra Employees listed therein by producing those records to the Applicant, knowing that those records were false or misleading;(k)regulation 3.44(6) of the FW Regulations, by making use of entries in the Canberra Fourth Set of Records in relation to the Canberra Employees listed therein by producing those records to the Applicant, knowing that those records were false or misleading;(l)section 535(1) of the FW Act, by failing to keep records that the Second Respondent was required to keep under the FW Act and the FW Regulations for seven (7) years; and(m)section 536(1) of the FW Act, by failing to give pay slips in the form prescribed by the FW Regulations in respect of the Canberra Employees within one working day of making payment.(3)The Third Respondent contravened the following civil remedy provisions during the Pacific Fair Assessment Period:(a)section 45 of the FW Act, by failing to pay the minimum rates to the Pacific Fair Minimum Rate Employees as required by cll 17 and 18 of the Award;(b)section 45 of the FW Act, by failing to pay casual loading to the Pacific Fair Casual Employees as required by cl 13.2 of the Award;(c)section 45 of the FW Act, by failing to pay Saturday loading rates to the Pacific Fair Saturday Loading Employees as required by cl 25.5(b) of the Award;(d)section 45 of the FW Act, by failing to pay Sunday loading rates to the Pacific Fair Full-Time Sunday Employees as required by cl 25.5(c)(i) of the Award;(e)section 45 of the FW Act, by failing to pay Sunday loading rates to the Pacific Fair Casual Sunday Employees as required by cl 25.5(c)(ii) of the Award;(f)section 45 of the FW Act, by failing to pay public holiday penalty rates to the Pacific Fair Public Holiday Rate Employees as required by cl 30.3 of the Award;(g)section 45 of the FW Act, by failing to pay overtime to the Pacific Fair Full-Time Employees as required by cl 26 of the Award; (h)section 45 of the FW Act, by failing to pay the special clothing allowance to the Pacific Fair Employees as required by cl 19.2(b)(i) and (ii) of the Award;(i)section 45 of the FW Act, by failing to make superannuation contributions on behalf of the Pacific Fair Employees as required by cl 21.2 of the Award;(j)section 44(1) of the FW Act, by failing to pay accrued but untaken annual leave to the Pacific Fair Annual Leave Employees on termination of employment as required by s 90(2) of the FW Act;(k)section 44(1) of the FW Act, by failing to pay the Pacific Fair Public Holiday Absence Employees for their absence on a public holiday as required by s 116 of the FW Act;(l)regulation 3.44(1) of the FW Regulations, by making and keeping the Pacific Fair First Set of Records in relation to the Pacific Fair Employees listed therein, knowing that those records were false or misleading;(m)regulation 3.44(1) of the FW Regulations, by making and keeping the Second Set of Records in relation to the Pacific Fair Employees listed therein, knowing that those records were false or misleading;(n)regulation 3.44(6) of the FW Regulations, by making use of entries in the Pacific Fair First Set of Records in relation to the Pacific Fair Employees listed therein by producing those records to the Applicant, knowing that those records were false or misleading;(o)regulation 3.44(6) of the FW Regulations, by making use of entries in the Pacific Fair Second Set of Records in relation to the Pacific Fair Employees listed therein by producing those records to the Applicant, knowing that those records were false or misleading;(p)section 535(1) of the FW Act, by failing to keep records that the Third Respondent was required to keep under the FW Act and the FW Regulations for seven (7) years; and(q)section 536(1) of the FW Act, by failing to give pay slips in the form prescribed by the FW Regulations in respect of the Pacific Fair Employees within one working day of making payment.(4)That:(a)the Fourth Respondent was involved, within the meaning of s 550(2) of the FW Act, in each of the contraventions by:(i)the First Respondent declared in paras 1(a)(i), 1(b)(i), 1(a)(ii), 1(b)(ii), 1(a)(iii), 1(b)(iii), 1(a)(iv), 1(b)(iv), 1(a)(v), 1(b)(v), 1(a)(vi), 1(b)(vi), 1(a)(vii), 1(b)(vii), 1(c)(iii), 1(d), 1(e), 1(f), 1(g), 1(h), 1(i), 1(j), 1(k), 1(l), 1(m) and 1(o) above of ss 44, 45 and 536 of the FW Act and regs 3.44(1) and 3.44(6) of the FW Regulations;(ii)the Second Respondent declared in paras 2(a)(i), 2(a)(ii), 2(b)(i), 2(a)(iii), 2(b)(ii), 2(a)(iv), 2(b)(iii), 2(a)(v), 2(b)(iv), 2(a)(vi), 2(b)(v), 2(a)(vii), 2(b)(vi), 2(c)(iii), 2(d), 2(e), 2(f), 2(g), 2(h), 2(i), 2(j), 2(k) and 2(m) above of ss 44, 45 and 536 of the FW Act and regs 3.44(1) and 3.44(6) of the FW Regulations; and(iii)the Third Respondent declared in paras 3(a), 3(b), 3(c), 3(d), 3(e), 3(f), 3(g), 3(j), 3(l), 3(m), 3(n), 3(o) and 3(q) above of ss 44, 45 and 536 of the FW Act and regs 3.44(1) and 3.44(6) of the FW Regulations;(b)the Fifth Respondent was involved, within the meaning of s 550(2) of the FW Act, in each of the contraventions by:(i)the First Respondent declared in paras 1(a)(i), 1(b)(i), 1(a)(ii), 1(b)(ii), 1(a)(iii), 1(b)(iii), 1(a)(iv), 1(b)(iv), 1(a)(v), 1(b)(v), 1(a)(vi), 1(b)(vi), 1(a)(vii), 1(b)(vii), 1(c)(iii), 1(d), 1(e), 1(f), 1(g), 1(h), 1(i), 1(j), 1(k), 1(l) and 1(m) above of ss 44 and 45 of the FW Act and regs 3.44(1) and 3.44(6) of the FW Regulations;(ii)the Second Respondent declared in paras 2(a)(i), 2(a)(ii), 2(b)(i), 2(a)(iii), 2(b)(ii), 2(a)(iv), 2(b)(iii), 2(a)(v), 2(b)(iv), 2(a)(vi), 2(b)(v), 2(a)(vii), 2(b)(vi), 2(c)(iii), 2(d), 2(e), 2(f), 2(g), 2(h), 2(i), 2(j) and 2(k) above of ss 44 and 45 of the FW Act and regs 3.44(1) and 3.44(6) of the FW Regulations; and(iii)the Third Respondent declared in paras 3(a), 3(b), 3(c), 3(d), 3(e), 3(f), 3(g), 3(j), 3(l), 3(m), 3(n) and 3(o) above of ss 44 and 45 of the FW Act and regs 3.44(1) and 3.44(6) of the FW Regulations;(c)the Sixth Respondent was involved, within the meaning of s 550(2) of the FW Act, in each of the contraventions by:(i)the First Respondent pleaded in paras 1(a)(i), 1(b)(i), 1(a)(ii), 1(b)(ii), 1(a)(iii), 1(b)(iii), 1(a)(iv), 1(b)(iv), 1(a)(v), 1(b)(v), 1(a)(vi), 1(b)(vi), 1(a)(vii), 1(b)(vii), 1(c)(iii), 1(d), 1(e), 1(f), 1(g), 1(h), 1(i), 1(j), 1(k), 1(l), 1(m) and 1(o) above of ss 44, 45 and 536 of the FW Act;(ii)the Second Respondent pleaded in paras 2(a)(i), 2(a)(ii), 2(b)(i), 2(a)(iii), 2(b)(ii), 2(a)(iv), 2(b)(iii), 2(a)(v), 2(b)(iv), 2(a)(vi), 2(b)(v), 2(a)(vii), 2(b)(vi), 2(c)(iii), 2(d), 2(e), 2(f), 2(g), 2(h), 2(i), 2(j), 2(k) and 2(m) above of ss 44, 45 and 536 of the FW Act and regs 3.44(1) and 3.44(6) of the FW Regulations; and(iii)the Third Respondent pleaded in paras 3(a), 3(b), 3(c), 3(d), 3(e), 3(f), 3(g), 3(j), 3(l), 3(m), 3(n), 3(o) and 3(q) above of ss 44, 45 and 536 of the FW Act and regs 3.44(1) and 3.44(6) of the FW Regulations;(d)the Seventh Respondent was involved, within the meaning of s 550(2) of the FW Act, in each of the contraventions by the First Respondent declared in paras 1(d), 1(e), 1(f), 1(g), 1(h), 1(i), 1(j), 1(k), 1(l) and 1(m) above of regs 3.44(1) and 3.44(6) of the FW Regulations; and(e)the Eighth Respondent was involved, within the meaning of s 550(2) of the FW Act, in each of the contraventions by:(i)the First Respondent declared in paras 1(a)(i), 1(b)(i), 1(a)(ii), 1(b)(ii), 1(a)(iii), 1(b)(iii), 1(a)(iv), 1(b)(iv), 1(a)(v), 1(b)(v), 1(a)(vi), 1(b)(vi), 1(a)(vii), 1(b)(vii), 1(c)(iii) and 1(o) above of ss 44, 45 and 536 of the FW Act;(ii)the Second Respondent pleaded in paras 2(a)(i), 2(a)(ii), 2(b)(i), 2(a)(iii), 2(b)(ii), 2(a)(iv), 2(b)(iii), 2(a)(v), 2(b)(iv), 2(a)(vi), 2(b)(v), 2(a)(vii), 2(b)(vi), 2(c)(iii), 2(d), 2(e), 2(f), 2(g), 2(h), 2(i), 2(j), 2(k) and 2(m) above of ss 44, 45 and 536 of the FW Act and regs 3.44(1) and 3.44(6) of the FW Regulations; and(iii)the Third Respondent pleaded in paras 3(a), 3(b), 3(c), 3(d), 3(e), 3(f), 3(g), 3(j), 3(l), 3(m), 3(n), 3(o) and 3(q) above of ss 44, 45 and 536 of the FW Act and regs 3.44(1) and 3.44(6) of the FW Regulations.THE COURT ORDERS THAT:Pecuniary Penalties5.Pursuant to s 546(1) of the FW Act, that each of the respondents pay pecuniary penalties in relation to the contraventions set out in paras 1 to 4 above respectively as follows:(a)First Respondent – $225,000 (b)Second Respondent – $225,000 (c)Third Respondent – $150,000(d)Fourth Respondent – $85,000(e)Fifth Respondent – $85,000(f)Sixth Respondent – $75,000(g)Seventh Respondent – $16,000(h)Eighth Respondent – $30,000 6.Pursuant to s 546(3)(a) of the FW Act, requiring the First to Eighth Respondents to pay their respective penalty amounts to the Commonwealth within 12 months of the date of this order.Workplace Notices7. Pursuant to s 545(1) of the FW Act, that within 28 days of the date of this order:(a)the First Respondent will display in the premises of the Kotara Store a notice in a prominent position that can be easily viewed by all employees (“Workplace Notice”);(b)the Second Respondent will display in the premises of the Canberra Store a Workplace Notice; and(c)the Third Respondent will display in the premises of the Pacific Fair Store a Workplace Notice;(d)each Workplace Notice displayed by the First, Second and Third Respondents must:(i)contain information on this proceeding and any orders made by the Court; information on entitlements contained in the Award; a link to the Applicant's webpage at where employees can obtain information about the Applicant’s ‘Record My Hours’ app; and information on how to contact the Applicant;(ii)be in a form approved by the Applicant at least 7 days prior to the Workplace Notice being displayed in the relevant Store; and(iii)be displayed for a period of one year; and(e)the First, Second and Third Respondents will each provide proof of the display of the relevant Workplace Notice to the Applicant within 14 days of the Workplace Notice being approved by the Applicant.Audit8.Pursuant to s 545(1) of the FW Act, that each of the First, Second and Third Respondents will, at their own expense, engage a third party with qualifications in accounting and/or workplace relations approved by the Applicant and in accordance with a methodology approved by the Applicant to undertake an audit of compliance with the FW Act, the FW Regulations and the Award on the following terms:(a)the audit period will be 6 months, and commence within 28 days of the date of order (“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, Second and Third Respondents;(d)the audit will assess the First, Second and Third Respondents’ 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 other work-related entitlements under the Award; (ii)accrual and payment of entitlements under the NES in Part 2-2 of the FW Act; and(iii)record keeping and pay slip obligations in Div 3 of Pt 3-6 of the FW Act and Pt 3-6 of the FW Regulations; and(e)within 28 days of the Audit Completion Date, the First, Second and Third Respondents will 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, Second Respondent and Third Respondents will take to rectify any identified contravention(s) and by when that rectification will occur.9.Pursuant to ss 545(1) and/or 545(2)(a) of the FW Act, that the Fourth and Fifth Respondents each comply with the requirements set out in para 8 above in respect of any other business owned and/or operated by a body corporate of which either the Fourth and Fifth Respondents are an officer.10.The Applicant have liberty to apply on seven days’ notice in the event that any of the preceding orders are not complied with.