Fair Work Ombudsman v Invivo Group Pty Ltd

The Federal Circuit Court of Australia heard proceedings brought by the Fair Work Ombudsman against Invivo Group Pty Ltd (in liquidation), Jonathan Paul William Stielow, and Claudio Salvador Locaso. The dispute concerned admitted contraventions of the *Fair Work Act 2009* (Cth) by the first respondent, Invivo Group Pty Ltd, in relation to its employees. The second and third respondents, Mr Stielow and Mr Locaso, were directors of Invivo Group Pty Ltd and were alleged to have been involved in these contraventions. Proceedings against the first respondent were stayed due to its liquidation.

The court was required to determine the pecuniary penalties to be imposed on the second and third respondents for their involvement in the contraventions. These contraventions included failing to pay eight employees in full and at least monthly, failing to keep proper employee records, and failing to provide pay slips to employees. The court also needed to consider the extent to which these contraventions should be treated as a single course of conduct and how to apply the totality principle when determining the aggregate penalty.

In its reasoning, the court accepted the applicant's submission that the contraventions should be resolved into three distinct categories: failure to pay under section 323(1) of the *Fair Work Act*, failure to keep records under section 535(1), and failure to provide pay slips under section 536(1). The court considered various factors in determining the appropriate penalty, including the nature and extent of the conduct, the circumstances in which it occurred, the loss sustained by the employees, the deliberate nature of the breaches, the involvement of senior management, and the need for deterrence. The court noted that the employees were often young, inexperienced workers, including international students and backpackers, who were more susceptible to exploitation. It also highlighted that the directors paid themselves substantial amounts during the period the employees were underpaid or not paid at all.

The court ordered that the second respondent, Jonathan Paul William Stielow, pay a pecuniary penalty of $11,880, and the third respondent, Claudio Salvador Locaso, pay a pecuniary penalty of $11,880. These penalties were to be paid to the Fair Work Ombudsman for distribution to nine named employees, with any remaining balance to be paid to the Consolidated Revenue Fund of the Commonwealth. The penalties were to be paid within 28 days.