Fair Work Ombudsman v Jaycee Trading Pty Ltd & Anor (No.2)
[2013] FCCA 2128
•12 December 2013
FEDERAL CIRCUIT COURT OF AUSTRALIA
| FAIR WORK OMBUDSMAN v JAYCEE TRADING PTY LTD & ANOR (No.2) | [2013] FCCA 2128 |
| Catchwords: INDUSTRIAL LAW – Deemed contravention of ss.712 and 716 of the Fair Work Act 2009 (Cth) by reason of default of the respondents – whether first respondent should be ordered to pay civil penalties pursuant to s.546 of Fair Work Act 2009 (Cth) for conduct contravening s.712(3) of the Fair Work Act 2009 (Cth) – whether first respondent should be ordered to pay civil penalties pursuant to s.546 of Fair Work Act 2009 (Cth) for conduct contravening s.716(5) of the Fair Work Act 2009 (Cth) – whether second respondent should be ordered to pay civil penalties for her involvement in the contraventions of the first respondent – whether declarations should be made in respect of the conduct of the first respondent – whether declarations should be made in respect of the involvement of the second respondent in the contraventions of the first respondent – declarations made in respect of the conduct of the first respondent – civil penalties to be paid by the first and second respondents. |
| Legislation: Federal Circuit Court Rules 2001 (Cth) r.13.03B. |
| Fair Work Ombudsman v Jaycee Trading Pty Ltd & Anor (No.1) [2013] FCCA 1926 |
| Applicant: | FAIR WORK OMBUDSMAN |
| First Respondent: | JAYCEE TRADING PTY LTD |
| Second Respondent: | RENEE MARTIN |
| File Number: | SYG 1416 of 2013 |
| Judgment of: | Judge Emmett |
| Hearing date: | 31 October 2013 |
| Date of Last Submission: | 21 November 2013 |
| Delivered at: | Sydney |
| Delivered on: | 12 December 2013 |
REPRESENTATION
| Solicitor for the Applicant: | Mr James Robertson (Fair Work Ombudsman) |
| No appearance by or on behalf of the Respondents. |
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1416 of 2013
| FAIR WORK OMBUDSMAN |
Applicant
And
| JAYCEE TRADING PTY LTD |
First Respondent
| RENEE MARTIN |
Second Respondent
REASONS FOR JUDGMENT
Contents
Background
The Contraventions
Principles Relevant to Determining Penalty
a) Nature and extent of the conduct
b) Circumstances in which the conduct took place
c) Nature and Extent of the Loss
e) Size and Financial Circumstances of the Business
f) Deliberateness of the Contraventions
g) Involvement of Senior Management
h), i), and j) Contrition, Corrective Action, Co-operation with Authorities
k) Ensuring Compliance with Minimum Standards
l) General Deterrence
m) Specific Deterrence
Totality
Accessorial Liability
Penalty
Penalty in respect of First Respondent
Penalty in respect of Second Respondent
Declarations
Proposed Declarations and Orders
“Schedule 1 to the Reasons in Fair Work Ombudsman v Jaycee Trading Pty Ltd & Anor (No.2) [2013] FCCA 2128”
Background
On 31 October 2013, the Court entered default judgment for the applicant against the respondents in ex tempore reasons given at that time pursuant to r.13.03B(2)(c) of the Federal Circuit Court Rules 2001 (Cth) (see Fair Work Ombudsman v Jaycee Trading Pty Ltd & Anor (No.1) [2013] FCCA 1926).
The applicant now seeks declarations against the respondents in the following terms:
“3. Upon admissions which the Respondents are deemed to have made by reason of their default, the Court declares that:
(a) the first respondent contravened the following civil remedy provisions:
(i) subsection 716(5) of the FW Act, by failing to comply with a compliance notice issued under section 716 of the FW Act by Fair Work Inspector Evan Brownell on 22 May 2013; and
(ii) subsection 712(3) of the FW Act, by:
(A) failing to comply with a notice to produce records or documents issued under section 712 of the FW Act by Fair Work Inspector Benjamin Ziolowski on 6 March 2012; and
(B) failing to comply with a notice to produce records or documents issued under section 712 of the FW Act by Inspector Evan Brownell on 18 September 2012; and
(b) the second respondent was involved in (within the meaning of subsection 550(2) of the FW Act) the first respondent’s contraventions set out in sub-order 3(a) above.”
Further, the applicant seeks a total penalty of $29,250 against the first respondent for its failure to comply with a Compliance Notice, issued on 22 May 2013, a Notice to Produce, issued on 6 March 2012, and a second Notice to Produce, issued on 18 September 2012.
The applicant also seeks a total penalty of $5,850 against the second respondent for her involvement in the failures of the first respondent to comply with the notices referred to above.
In short, the applicant submitted that the penalties sought are appropriate because of the following factors:
“(a) the large number of underlying contraventions of the Restaurant Industry Award 2010 and National Employment Standards under the Fair Work Act 2009 (Cth) (FW Act);
(b) Jaycee Trading and Ms Martin’s systematic non-compliance with notices provided by the FWO over a period of fifteen months, which occurred in a context where significant efforts were made by the FWO to assist the respondents to comply in a manner that would avoid litigation;
(c) the need for general deterrence, given the nature of the industry and the desire to send a message that notices issued by the FWO need to be complied with;
(d) the need for specific deterrence, given that Jaycee Trading is still operating and Ms Martin is still its director, but the respondents have made no attempt to rectify the underpayment or take steps to prevent further contraventions; and
(e) if the respondents had complied with the compliance notice and rectified the underpayments, the FWO would not be able to commence proceedings against Jaycee Trading and Ms Martin. Accordingly, the failure to comply has incurred the time and expense of these proceedings in respect of both the FWO and the Court.”
In support, the applicant read the affidavit of Evan Richard Brownell, affirmed 28 October 2013, including exhibit ERB-1 to Mr Brownell’s affidavit.
The background of the matter is summarised in the applicant’s written submissions as follows:
“6. Jaycee Trading carried on (and continues to carry on) a business which trades as an Italian restaurant named “My Favourite Italian” located in Terrigal, New South Wales. Ms Martin (also known as Jackie Elcham) is the sole director, shareholder and company secretary of Jaycee Trading, and is responsible for ensuring that Jaycee Trading complied with its obligations under the FW Act.
7. Between December 2011 and October 2012, the FWO received eleven complaints from former employees of Jaycee Trading. The Complainants alleged that Jaycee Trading had failed to pay, or had underpaid, wages owing to the complainants.
8. The FWO then conducted an investigation throughout 2012 and early 2013 into those complaints. The FWO’s investigation involved multiple phonecalls, letter and email correspondence and eight separate site visits to the first respondent’s premises.
9. In the course of the investigation, the FWO issued:
(a) a notice to produce on 6 March 2012 seeking records and documents relating to employees of Jaycee Trading employed between November 2011 and March 2012 (First NTP); and
(b) a notice to produce on 18 September 2012 seeking records and documents in relation to two further employees, Nicole Louise Martin and Melissa Kate Poolman (Second NTP).
10. As a result of the FWO’s investigation, Fair Work Inspector Evan Brownell (Inspector Brownell) formed a belief that Jaycee Trading had contravened the Restaurant Industry Award 2010 (Award) and the National Employment Standards under the FW Act in respect of nine of the complaints (Employees), by failing to pay them:
(a) minimum wages;
(b) casual loading;
(c) overtime;
(d) evening, Saturday, Sunday and public holiday penalty rates;
(e) split shift allowances;
(f) annual leave and annual leave loading; and
(g) personal/carer’s leave.
11. As a result, on 22 May 2013, Inspector Brownell issued a compliance notice on Jaycee Trading, seeking for it to rectify the unpaid wages in the amount of $12,178.81 (Compliance Notice).
12. Jaycee Trading did not comply with any of the notices within the times requested. It did not comply with the First NTP by the time specified and produced only limited documents in June and November 2012, three and nine months later. Jaycee Trading did not comply with the Second NTP by the time specified in the notice or at all.
13. Jaycee Trading did not comply with the Compliance Notice by the times specified in those notices, or at all (and has still not done so). The Employees are still owed money.”
The Contraventions
The applicant alleges that the following sections of the Fair Work Act 2009 (Cth) (“FW Act”) were contravened by the respondents:
No.
Provision Contravened
Description of Contravention
Contraventions
1.
Subsection 716(5) FW Act
Failing to comply with a compliance notice
1 contravention (on 6 June 2013)
2.
Subsection 712(3) FW Act
Failing to comply with a notice to produce
2 contraventions (on 21 March 2012 and 5 October 2012)
I accept the written submissions of the applicant in relation to the Compliance Notice issued to the first respondent on 22 May 2013:
“16. This is the first time a contravention of subsection 716(5) of the FW Act (a failure to comply with a compliance notice) has come before a Court for a determination of penalty.
17. The issuing of compliances notices was a new power given to Fair Work Inspectors under the FW Act. It is a power that is available only to Fair Work Inspectors and not any other person.[1] The Explanatory Memorandum to the FW Act provides that compliance notices were designed to be another option to deal with non-compliance instead of pursing court proceedings.[2]
18. Section 716 of the FW Act allows a person to whom a compliance notice is used to have an opportunity to rectify an underpayment without being subject to civil remedy proceedings. The effect of a compliance notice is that:
[1] Item 33 of s.539(2) of the FW Act
[2] Fair Work Bill 2008, Explanatory Memorandum at [2673].
(a) if a person complies with the compliance notice (that is, rectifies the underpayment):
(i) no civil remedy proceedings can be brought against the person in respect of the underpayment (subsection 716(4A)); and
(ii) the person is not taken to have admitted or been found to have contravened the civil remedy provision in respect of the underpayment (subsection 716(4B)); but
(b) if a person fails to comply with a compliance notice, subsection 716(5) allows an inspector to bring civil remedy proceedings against that person, and appropriate consequential orders that the Court has power to make under the FW Act, such as pecuniary penalties.
19. It is likely that the legislature has set penalties for non-compliance because a failure to comply will cause (as it has done in these proceedings) an inspector such as the FWO to spend time and public funds, and will cause the Court to spend time and public funds, in dealing with civil remedy proceedings where the Inspector and the Court would otherwise not need to have been involved, had compliance occurred.”
I accept that the applicant is a Fair Work Inspector duly appointed under s.701 of the FW Act.
The maximum penalties for the contraventions found are as follows:
| Contra-vention | Reference for the Court’s power to impose penalty | Reference for maximum penalty | Maximum penalty for corporation (e.g. Jaycee Trading) | Dollar Amount of maximum penalty for corporation | Maximum penalty for individual (e.g. Ms Martin) | Dollar amount of maximum penalty for individual |
| s.716(5) FW Act | s.546 FW Act | Item 33, s.539(2) FW Act | 150 penalty units | $25,500 | 30 penalty units | $5,100 |
| s.712(3) FW Act | s.546 | Item 32, s.539(2) FW Act | 300 penalty units | $33,000 | 60 penalty units | $6,600 |
I further accept the applicant’s submission that the respondents do not have the benefit of s.557 of the FW Act, which allows for contraventions to be grouped as part of a course of conduct in relation to the two contraventions of s.712(3) of the FW Act and the contravention of s.716(5) of the FW Act, because they do not appear in the specific penalty provisions listed in s.557 of the FW Act.
I accept that the two Notices to Produce were issued some six months apart and were related to different employees.
I accept that in the circumstances, the maximum total penalty that could be imposed upon the first respondent for the contraventions found to have been committed is $91,500. I accept that the maximum total penalty in respect of the second respondent’s involvement in those contraventions is $18,300.
Principles Relevant to Determining Penalty
I accept that the relevant principles are identified by the applicant in the applicant’s written submissions as follows:
“22. The applicant submits that the following principles should be taken into account in determining the question of appropriate penalty.
23. The first step for the Court is to identify the separate contraventions involved. Each contravention of each separate obligation found in the FW Act in relation to each employee is a separate contravention.[3]
24. Secondly, the Court should consider whether the contraventions arising in the first step constitute a single course of conduct.[4]
25. Thirdly, to the extent that two or more contraventions have common elements, this should be taken into account in considering what is an appropriate penalty in all the circumstances for each contravention. Jaycee Trading and Ms Martin should not be penalised more than once for the same conduct. The penalties imposed by the Court should be an appropriate response to what Jaycee Trading and Ms Martin did.[5] This task is distinct from and in addition to the final application of the “totality principle”.[6]
26. Fourthly, consider the appropriate penalty for the single contraventions and, if relevant, each group of contraventions, taking into account all of the relevant circumstances.
27. Finally, consider whether it is an appropriate response to the conduct which led to the contraventions.[7]The Court should apply an “instinctive synthesis” in making this assessment.[8]This is known as an application of the “totality principle”.”
[3] Gibbs v Mayor, Councillors and Citizens of City of Altona (1992) 37 FCR 223; McIver v Healy [2008] FCA 425 at [16].
[4] Subsection 557(1) of the FW Act.
[5] Australian Opthalmic Supplies Pty Ltd v McAlary-Smith [2008] FCAFC 8 at [46] per Graham J (“Merringtons”)
[6] Mornington Inn Pty Ltd v Jordan [2008] FCAFC 80 at [41]-[46] per Stone and Buchanan JJ (“Mornington Inn”)
[7] See Kelly v Fitzpatrick (2007) 166 IR 14 at [30] per Tracey J (“Kelly”), Merringtons at [23] per Gray J, [71] per Graham J and [102] per Buchanan J.
[8] Merringtons at [27] per Gray J, and [55] and [78] per Graham J.
I further accept that the factors relevant to determining penalties include those summarised in Mason v Harrington Corporation Pty Ltd T/As Pangaea Restaurant and Bar [2007] FMCA 7 at [26]-[59] per Mowbray FM (“Pangaea”):
a)The nature and extent of the conduct that led to the contraventions;
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 contraventions;
d)Whether there had been similar previous conduct by the respondents;
e)The size of the business enterprise involved;
f)Whether or not the contraventions were deliberate;
g)Whether senior management was involved in the contraventions;
h)Whether the party committing the contravention had exhibited contrition;
i)Whether the party committing the contravention had taken corrective action;
j)Whether the party committing the contravention had cooperated with the enforcement authorities;
k)The need to ensure compliance with minimum standards by provisions of an effective means for investigation and enforcement of entitlements; and
l)The need for specific and general deterrence.
The summary in Pangaea was adopted by Tracey J in Kelly v Fitzpatrick (2007) 166 IR 14; [2007] FCA 1080 (“Kelly”). However, the summary is only a convenient checklist and does not proscribe or restrict the matters which may be taken into account in the exercise of the Court’s discretion (see Sharpe v Dogma Enterprises Pty Ltd [2007] FCA 1550 at [11]; Australian Opthalmic Supplies Pty Ltd v McAlary-Smith [2008] FCAFC 8 at [91] per Buchanan J (“Merringtons”)).
a) Nature and extent of the conduct
I accept the nature and extent of the respondents’ conduct are accurately summarised by the applicant in its submissions as follows:
“37. On 6 March 2012, Fair Work Inspector Benjamin Ziolkowski (Inspector Ziolkowski) personally served the First NTP on Ms Martin at Jaycee Trading’s premises. The First NTP required the production of records relating to the employment of employees engaged between 1 November 2011 and 5 March 2012, including the four complaints received up until that time from Rhiannon Beckers, Zoe Lily Ketteringham, Jason McFarlane and Adam James Walker.
38. On September 18 2012, Inspector Brownell personally served the Second NTP on Ms Martin at Jaycee Trading’s premises. The Second NTP required the production of records relating to Nicole Louise Martin and Melissa Kate Poolman.
39. On 22 May 2013, Inspector Brownell personally served the Compliance Notice on Ms Martin at Jaycee Trading’s premises. The Compliance Notice required payment of a total of $12, 178.81 to the Employees and the production of evidence to the FWO that the amounts had been paid.
40. Jaycee Trading failed to comply with the First NTP by the specified timeframe of 22 March 2012. Jaycee Trading only produced some documents relating to Piotr Antkowiak, Zoe Lily Ketteringham, Adam James Walker and Nicole Lynn Wilson on 18 June 2012, some three months later, and some further documents relating to Mr Walker and Ms Wilson on 27 November 2012 and 4 December 2012 respectively, almost nine months later. Inspector Brownell made follow-up enquiries on 4 and 5 December 2012 about the information provided by Jaycee Trading in November and December 2012 but those enquires were not responded to.
41. Jaycee Trading failed to comply with the Second NTP either by the specified timeframe of 5 October 2012, or at all. No documents have been produced by Jaycee Trading in respect of Ms Martin and Ms Poolman.
42. Jaycee Trading failed to comply with the Compliance Notice either by the specified timeframe of 5 June 2013 or at all.
43. The contraventions in this matter represent a systematic unwillingness and failure by Jaycee Trading and Ms Martin to comply with notices and correspondence issued by the FWO over a period of 15 months.”
b) Circumstances in which the conduct took place
I accept the applicant’s submission that the failures by the respondents to comply with, or respond to, correspondence with the applicant and notices issued by the applicant should be seen in the context of efforts by the applicant to assist the respondents with the investigation into the eleven complaints received by the applicant. On the evidence before me, I accept that between March 2012 and June 2013, inspectors of the applicant made eight site visits, eleven phone calls, sent eight letters and six emails to the respondents.
I further accept the applicant’s submission that the respondents had ample opportunity to work with the applicant prior to these proceedings being issued and that, had the first respondent complied with the Compliance Notice, issued on 22 May 2013, pursuant to s.716 of the FW Act, the applicant could not have pursued litigation in respect of the underpayments.
A copy of the Compliance Notice is attached to these reasons, and marked “Schedule 1 to the Reasons in Fair Work Ombudsman v Jaycee Trading Pty Ltd & Anor (No 2) [2013] FCCA 2128”. I make findings in accordance with the facts asserted in the Compliance Notice.
I also accept the applicant’s submission that the second respondent was responsible for the day-to-day management, direction and control of the first respondent’s operations, and responsible for determining the terms and conditions upon which the employees were engaged by the first respondent. The second respondent was also personally served with the two Notices to Produce and the Compliance Notice, and was informed of the consequences of failing to comply with those notices.
I also accept the applicant’s statement as to the purpose of Australian workplace laws as follows:
“46. One purpose of Australian workplace laws is to provide a safety net which ensures that employees are paid adequate minimum entitlements, particularly those who are vulnerable or in low income roles. The laws also ensure that there is an even playing field in the industry for all employers regarding employment costs. Contraventions of these important entitlements undermine the workplace relations regime as a whole and demonstrate a disregard for Jaycee Trading’s legal obligations.”
However, it should be noted that the respondents did appear at the first two directions hearings and told the Court that their dispute was over the appropriate awards that were relevant in respect of the employees. Nevertheless, the respondents never filed a defence and hence default judgment was ultimately entered against them on 31 October 2013.
The applicant submits that at least two of the employees were vulnerable because of their age, 16 and 19 years old, and referred to Workplace Ombudsman v Saya Cleaning Pty Ltd [2009] FMCA 38 at [20] where the Court found that employees had been exploited. I do not make any such finding in this case.
c) Nature and Extent of the Loss
The applicant submits that the total underpayment of $12,178.81 is a significant underpayment given that the employees were all employed for short periods of time, in most instances only a number of weeks. The longest period of employment was for less than five months.
However, while the total underpayment for the nine employees is $12,178.81, over half that amount was borne by a single employee, being the $6,138.70 underpaid to Poitr Antkowiak. Adam James Walker was underpaid by $1,314.07, and the remaining seven employees underpayments were in the hundreds of dollars only.
Nevertheless, the underpayments remain outstanding and the employees have been without the benefit of those amounts for between and one-and-a-half to two-and-a-half years.
While the applicant submits that it has been unable to calculate the full extent of underpayments and contraventions, given the failure of the respondent to answer in full the Notices to Produce, it should be noted that the respondent did attempt to answer both Notices to Produce. However, the answers were not complete. In the circumstances, I am not prepared to accept that there may be underpayments and contraventions beyond those identified by the applicant in the Compliance Notice.
Otherwise, the nature and extent of the losses are as identified in the Compliance Notice attached to these reasons.
d) Similar Previous Conduct
There is no evidence before this Court of engagement by either respondent in similar previous conduct.
e) Size and Financial Circumstances of the Business
There is no evidence before the Court that the first respondent carries on business as anything other than a local restaurant in Terrigal. It is a company with one director, shareholder and company secretary, with a small number of employees who, for the most part, were employed on a casual basis.
However, I do accept the authorities referred to by the applicant in submissions as to the extent that the respondents may rely upon their size and/or financial circumstances to excuse their non-compliance. In Lynch v Buckley Sawmills Pty Ltd (1984) 3 FCR 503 at 508, Keely J said as follows:
“In this connection it is important that the respondent – and other employers bound by the award or by other awards under the Act – understand the importance of complying with an award and it follows that any decision taken by them which is regarded as affecting their obligation to comply with particular provisions of the award or the award generally should only be taken after careful consideration. They must not be left under the impression that in times of financial difficulty they can breach an award made under the Act either with impunity or in the belief that no substantial penalty will be imposed in respect of a breach found by a court to have been committed.”
f) Deliberateness of the Contraventions
As stated above, the two Notices to Produce and the Compliance Notice were served personally upon the second respondent as the director of the first respondent. I am satisfied that the respondents had ample opportunities to provide the records sought by the applicant in the Notices to Produce and to rectify the underpayments to the employees prior to the Compliance Notice being issued. I also accept on the evidence before me that the respondents were warned of the consequences of non-compliance.
However, as stated above, there was an attempt by the respondents to answer the Notices to Produce. There is nothing before me to explain why the respondents did not comply with the Compliance Notice, beyond the submissions made at the directions hearing that they were unsure as to the relevant award. In the circumstances, I do not accept the applicant’s submission that the respondents’ failure to comply with the Notices to Produce and the Compliance Notice were done with reckless disregard for their obligations.
g) Involvement of Senior Management
I accept the applicant’s submissions in relation to the involvement of senior management as follows:
“65. A corporate entity can only act through its authorised officers and agents. Ms Martin was and is the sole director, company secretary and shareholder of Jaycee Trading. She was responsible for ensuring that Jaycee Trading complied with its legal obligations under the FW Act. She was also the person who was served with the First NTP, Second NTP and Compliance Notice, had knowledge of them and their consequences, yet failed to ensure that Jaycee Trading complied with them. Ms Martin was intimately involved in each of the contraventions of Jaycee Trading.”
h), i), and j) Contrition, Corrective Action, Co-operation with Authorities
As stated above, the respondents did appear at the first two directions hearings through their legal representative. However, since those Court events, the respondents have taken no further part in the proceeding.
I accept that there is no expression of contrition in respect of the contraventions, by either word or deed.
I also accept that the respondents have not taken any corrective action to comply with the Compliance Notice issued to the first respondent as at the date of these reasons, despite the Orders to do so made by the Court on 31 October 2013 that they do so. The employees remain out of pocket and there is no guarantee that they will receive their outstanding entitlements.
I do not accept the applicant’s submission that the respondents have been almost completely unco-operative in respect of these proceedings. I do, however, accept that they do not appear to have made themselves readily available on each occasion they were contacted by the applicant or by the applicant’s inspectors. However, as stated above, the second respondent accepted service on each occasion of the relevant Notices to Produce and Compliance Notice and stated at the time that attempts would be made to comply with those notices.
k) Ensuring Compliance with Minimum Standards
The respondents had an opportunity in this case to comply with the Compliance Notice, and address the underpayments or provide explanations as to why they might not have been addressed. Further, the respondents had an opportunity to participate in Court proceedings and to file a defence. The respondents took no such steps, resulting in default judgment being entered against them.
Further, the Orders made by the Court on 31 October 2013 directing that the first respondent pay the employees identified underpayments, remains unfulfilled.
I accept that compliance with minimum standards is an important consideration in considering whether a penalty should be imposed and the size of that penalty. I also accept that the effect of no or an insubstantial penalty being awarded provides no or little incentive for an employer, or other employers, to change their practices.
l) General Deterrence
I accept the applicant’s submissions in relation to the principles relating to general deterrence as follows:
“74. It is well established that “the need for specific and general deterrence” is a factor that is relevant to the imposition of a penalty under the WR Act and the FW Act. See for example, Mowbray FM in Pangaea, [26]-[59].
The role of general deterrence in determining the appropriate penalty is illustrated by the comments of Lander J in Ponzio v B & P Caelli Constructions Pty Ltd (2007) 158 FCR 543, [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: Yardley v Betts (1979) 22 SASR 108. The penalty therefore should be of a kind that I 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: R v Thompson(1975) 11 SASR 217.”
I accept that employers must provide their employees with the correct entitlement and take steps to respond to correspondence and notices issued by government regulators such as the applicant.
There was no evidence provided to this Court by the respondents.
As stated above, the respondents were represented at the first two directions hearings and their legal representative informed the Court that any underpayments arose from a misunderstanding on the respondent’s part of the relevant awards. However, whilst I am prepared to accept that the respondents had a misunderstanding, there is no evidence of the extent of any misunderstanding or attempted justification for the respondents’ conduct. It was the respondents’ responsibility to ensure that they properly informed themselves.
m) Specific Deterrence
I accept the submissions of the applicant in relation to specific deterrence as follows:
“(c) two of the nine Employees were vulnerable by way of their age;
(d) no back payments have been made to date by Jaycee Trading and the Employees are still owed all of their outstanding entitlements;
(e) the FWO is not aware of any steps taken by either Jaycee Trading and Ms Martin to prevent further contraventions;
(f) the non-compliance by the respondents has continued even after these proceedings were commenced, as demonstrated by their attitude to participating in these proceedings; and
(g) Jaycee Trading continues to operate and Ms Martin continues to be the sole director of Jaycee Trading.”
I also accept that there were a number of contraventions of the Award and the FW Act, that some of the employees were paid lower rates than the required minimum rate under the Modern Award, and that two employees were not paid at all. However, again, the employment periods of these employees ranged from nine days to five months.
As stated above, there is no evidence before this Court of any past contraventions by either of the respondents.
Totality
I accept that, having fixed an appropriate penalty for each course of conduct, the Court should take a final look at the aggregate penalty and determine whether it is an appropriate response to the conduct which led to the contraventions and is not oppressive or crushing (see Kelly at [30]). This I have done.
Accessorial Liability
I accept the submissions of the applicant in relation to the accessorial liability of the second respondent as follows:
“81. The same considerations apply in determining penalty in respect of the conduct of Jaycee Trading as Ms Martin.
82. The FWO submits that the connection between Jaycee Trading and Ms Martin (she being its sole director, company secretary and shareholder) should not reduce the amount of the penalty. To make this submission, the FWO relies upon the decision of Ramsey J in Fair Work Ombudsman v Ramsey Food Processing Pty Ltd (No 2) [2012] FCA 408 at [8]:
“A submission was made by the respondents that some consideration should be given to reducing the amount of the penalty imposed on one or other of the respondents to account for the intimate connection between the actions of the first respondent and the conduct of the second respondent. The submission appeared to rely on the judgment of Mansfield J in Australian Prudential Regulation Authority v Holloway (2000) 45 ATR 278; [2000] FCA 1245, although I do not understand how it could do so… in the legislative scheme which his Honour was applying no distinction was made between the maximum penalty that could be applied to corporations and the maximum penalty that could be applied to individuals. That is not the case here. The present legislative scheme fixes quite different (and much lower) penalties for individuals than for corporations. The culpability of each respondent must be assessed individually and in the context set by the maximum penalty prescribed in each case. I reject the suggestion that, if this was what was intended, that either or both respondents might have the benefit of any reduction in penalty because they were jointly, as well as individually, culpable.”
Penalty
The applicant seeks a total penalty against the first respondent of
$29,250 made up as follows:
| Provision Contravened | Description of Contravention | Maximum Penalty | Percentage of Penalty Sought | Range of Penalty Sought |
| s.712(3) FW Act | Failure to comply with the First NTP | $33,000 | 25% | $8,250 |
| s.712(3) FW Act | Failure to comply with the Second NTP | $33,000 | 25% | $8,250 |
| s.716(5) FW Act | Failure to comply with the Compliance Notice | $25,500 | 50% | $12,750 |
| Total | $29,250 | |||
The applicant seeks a total penalty against the second respondent of $5,850 made up as follows:
| Provision Contravened | Description of Contravention | Maximum Penalty | Percentage of Penalty Sought | Range of Penalty Sought |
| s.712(3) FW Act | Failure to comply with the First NTP | $6,600 | 25% | $1,650 |
| s.712(3) FW Act | Failure to comply with the Second NTP | $6,600 | 25% | $1,650 |
| s.716(5) FW Act | Failure to comply with the Compliance Notice | $5,100 | 50% | $2,550 |
| Total | $5,850 | |||
Penalty in respect of First Respondent
Having regard to all the evidence and relevant factors referred to above, and, in particular, that there is no evidence before me to suggest that either of the respondents have been involved in any other contraventions, the first respondent should be required to pay the following penalties in respect of the following identified contraventions:
i)Penalty for failure to comply with of the Notice to Produce, issued on 8 March 2012, should be $6,600.
ii)Penalty for failure to comply with of the Notice to Produce, issued on 18 September 2012, should be $6,600.
iii)Penalty for failure to comply with the Compliance Notice, issued on 22 May 2013, should be $6,375.
The total penalty in respect of the contraventions of the first respondent should be $19,575.
Penalty in respect of Second Respondent
Having regard to all the evidence and relevant factors referred to above, and, in particular, that there is no evidence before me to suggest that either of the respondents have been involved in any other contraventions, the second respondent should be required to pay the following penalties in respect of her involvement in the following identified contraventions of the first respondent:
i)Penalty for failure to comply with of the Notice to Produce, issued on 8 March 2012, should be $1,320.
ii)Penalty for failure to comply with of the Notice to Produce, issued on 18 September 2012, should be $1,320.
iii)Penalty for failure to comply with the Compliance Notice, issued on 22 May 2013, should be $1,775.
The total penalty in respect of the second respondent’s involvement in the contraventions of the first respondent should be $4,415.
Declarations
The applicant sought the following declarations:
“3. Upon admissions which the Respondents are deemed to have made by reason of their default, the Court declares that:
(a) the first respondent contravened the following civil remedy provisions:
(i) subsection 716(5) of the FW Act, by failing to comply with a compliance notice issued under section 716 of the FW Act by Fair Work Inspector Evan Brownell on 22 May 2013; and
(ii) subsection 712(3) of the FW Act, by:
(A)failing to comply with a notice to produce records or documents issued under section 712 of the FW Act by Fair Work Inspector Benjamin Ziolkowski on 6 March 2012; and
(B)failing to comply with a notice to produce records or documents issued under section 712 of the FW Act by Fair Work Inspector Evan Brownell on 18 September 2012; and
(b) the second respondent was involved in (within the meaning of subsection 550(2) of the FW Act) the first respondent’s contraventions set out in sub-order 3(a) above.”
In Australian Competition and Consumer Commission v Dataline.Net.Au Pty Ltd (2006) 236 ALR 665, in relation to the public interest in the making of declarations involving the protection of consumers, Kiefel J at [56]-[59] stated as follows:
“56 In Sung Li Holdings Ltd v Medicom Finance Pty Ltd (1995) 13 ACLC 955 Young J observed that the courts are always particularly careful, when making declaratory orders, not to make the order merely on admissions because otherwise the agreement between the parties will assume the dignity of the solemn adjudication by the Court. His Honour said:
‘The reason for this is that even if the declaration only binds the parties as a matter of res judicata, other members of the community may consider that it is the view of the court and the declaration “will have effects on the community that extend far beyond the interests of the original plaintiff and defendant”.’
57 In the present case the first mentioned difficulty is not present. Submissions have been made as to the declarations sought. The question is whether declarations should be made on deemed admissions, given that there has been no adjudication by the Court on the facts and the declarations may give the impression that there has.
58 The power to grant declarations (s.21 Federal Court of Australia Act 1976 (Cth)) is unconfined. Order 35A itself imposes no constraints upon the relief sought. Refusals to make declarations in cases of default are based upon a practice, not a rule of law. The practice is one of long standing and might be seen as derived from views about litigation which pre-date more recent concerns expressed by the courts as to the costs of unnecessary litigation, the management of cases and efficiency overall. Views expressed in older cases may not take account of the increase in the use made of declaratory orders in developing areas of law which may involve matters of public interest. A caution with respect to the use of older authority is made in the White Book Service 2003 to the English Civil Procedure Rules 1998 (40.20.2).
59 It may no longer be correct to have a practice which operates as a prohibition in every case of default and preferable to consider the circumstances pertaining to the particular case and the purpose and effect of the declaration. Millett J made declaratory orders in Patten v Burke Publishing Co Ltd [1991] 1 WLR 541 where justice to the plaintiff required it. The order however operated principally inter partes and it might be doubted whether it would be of interest to other persons. Cases such as this, involving the protection of consumers, are of public interest. Declarations are often utilised in such cases to identify for the public what conduct contributes a contravention and to make apparent that it is considered to warrant an order recognising its seriousness. It is however important that there be no misunderstanding as to the basis upon which they are made. This could be overcome by a statement, preceding the declarations, that orders are made ‘upon admissions which [the respondent in question] is taken to have made, consequent upon non-compliance with orders of the Court’.” (emphasis added)
In relation to the public interest in granting the declaratory relief sought, I accept that the proceeding is brought by a regulator in order to record the seriousness of a contravention and to explain the basis for the imposition of pecuniary penalty and other relief. In Fair Work Ombudsman v Kentwood Industries Pty Ltd (No 2) [2010] FCA 1156 at [210], McKerracher J stated as follows:
“210. There may be a public interest in the granting of declaratory relief in regulatory proceedings to record the contraventions’ seriousness and to explain the basis for the imposition of pecuniary penalties and other relief. A declaration in this case may indicate the importance of compliance with statutory standards, particularly in the employment of low paid and/or vulnerable employees.”
I accept that compliance with statutory standards is important. Compliance with duly issued Notices to Produce is of significant importance in identifying the full extent of contraventions. A failure to properly comply with such notices is a serious matter.
I also accept that there is some public interest in this matter, because it is the first time that a contravention of s.716(5) of the FW Act has been found to arise from a failure to comply with a duly issued Compliance Notice.
In the circumstances, I accept that it is appropriate to make a declaration in respect of the conduct of the first respondent in the terms sought by the applicant.
In particular, I have regard to the fact that the respondents have had an opportunity to file evidence and submissions in relation to the issue of declarations and penalties pursuant to Orders made by me on 31 October 2013. As stated above, other than appearing at two directions hearings, the respondents have not filed a defence, any evidence, or, for that matter, any document in relation to this proceeding.
Proposed Declarations and Orders
Accordingly, the following declarations and orders should be made:
1. Upon admissions which the Respondents are deemed to have made by reason of their default, the Court declares that the first respondent contravened the following civil remedy provisions:
(i) Subsection 716(5) of the Fair Work Act 2009 (Cth), by failing to comply with a Compliance Notice duly issued on 22 May 2013 pursuant to s.716 of the Fair Work Act 2009 (Cth).
(ii) Subsection 712(3) of the Fair Work Act 2009 (Cth), by:
a.Failing to comply with a Notice to Produce records or documents issued on 6 March 2012 pursuant to s.712 of the Fair Work Act 2009 (Cth).
b.Failing to comply with a Notice to Produce records or documents issued on 18 September 2012 pursuant to s.712 of the Fair Work Act 2009 (Cth).
2.Pursuant to s.546(1) of the Fair Work Act 2009 (Cth), the first respondent is to pay a penalty of $19,575 for two contraventions of 712 of the Fair Work Act 2009 (Cth) and one contravention of s.716 of the Fair Work Act 2009 (Cth).
3.Pursuant to s.546(1) of the Fair Work Act 2009 (Cth), the second respondent is to pay a penalty of $4,415 for her involvement in the contraventions of the first respondent referred to in Order 2 above.
4.All pecuniary penalties imposed are to be paid into the Consolidated Revenue Fund of the Commonwealth within twenty-eight days of order for payment.
5.The proceeding before this Court, commenced by way of application on 24 June 2013, is otherwise dismissed.
I certify that the preceding sixty-six (66) paragraphs are a true copy of the reasons for judgment of Judge Emmett
Associate:
Date: 12 December 2013
“Schedule 1 to the Reasons in Fair Work Ombudsman v Jaycee Trading Pty Ltd & Anor (No 2) [2013] FCCA 2128”
COMPLIANCE NOTICE
(issued under section 716 of the Fair Work Act 2009 (Cth))
Date of Issue: 22 May 2013
| Name of Employer: | Jaycee Trading Pty Limited (ACN 150 676 396) |
| Employer Contact: | Renee Martin, Director |
I, Evan Brownell, being a duly appointed Fair Work Inspector and having conducted an investigation into alleged contraventions of Commonwealth workplace laws, have determined that:
Jaycee Trading Pty Limited is an employer within the jurisdiction of the Fair Work Act 2009 (Cth) (FW Act).
During the periods set out in column 2 of the table below (Audit Periods), Jaycee Trading Pty Limited employed the following employees set out in column 1 of the table below (the Employees):
| Employee | Audit Periods |
| Jason McFarlane | 5 August 2011 to 31 August 2011 |
| Piotr Antkowiak | 26 October 2011 to 16 March 2012 |
| Zoe Lily Ketteringham | 25 November 2011 to 18 December 2011 |
| Adam James Walker | 28 November 2011 to 6 February 2012 |
| Nicole Lynn Wilson | 4 November 2011 to 18 January 2012 |
| Amanda Kerslake | 5 May 2012 to 23 June 2012 |
| Matthew William Love | 16 May 2012 to 25 May 2012 |
| Melissa Kate Poolman | 19 May 2012 to 16 June 2012 |
| Nicole Louise Martin | 1 June 2012 to 16 June 2012 |
During the Audit Periods, the Employees were covered by the Restaurant Industry Award 2010 [MA000119] (Modern Award). For the purposes of the transitional provisions of Schedule A to the Modern Award, the applicable transitional instrument is the notional agreement preserving a state award derived from the Restaurants, &c., Employees (State) Award [AN120468].
On the basis of:
a) the evidence listed at Annexure A; and
b) calculations prepared by the Fair Work Ombudsman (FWO) in relation to the Audit Periods,
I have formed the belief that Jaycee Trading Pty Limited has failed to comply with its obligations to pay the Employees their respective minimum employee entitlements under the Modern Award and the National Employment Standards under the FW Act.
The details of the contraventions for the Audit Periods are as follows:
Minimum wage rates – clauses 20.1, A.2 and A.3 of Schedule A of the Modern Award
a)Pursuant to clause 20.1, and clauses A.2 and A.3 of Schedule A of the Modern Award, the Employees were entitled to receive minimum weekly wages according to their classification under the Modern Award.
b)The Employees did not receive the minimum weekly wage rate for work performed.
Casual loadings – clauses 13.1 and A.5 of Schedule A of the Modern Award
c)Pursuant to clause 13.1 and clause A.5 of Schedule A of the Modern Award, those Employees who were casual employees were entitled to receive a casual loading.
d)The Employees who were casual employees did not receive the correct casual loading.
Penalty rates – clauses 34.1, 34.2, and A.5 and A.7 of Schedule A of the Modern Award
e)Pursuant to clauses 34.1 and 34.2 and clauses A.5 and A.7 of Schedule A of the Modern Award, the Employees were entitled to receive:
i.a transitional penalty rate of 4% of the standard hourly rate for ordinary time hours worked between 10pm and midnight inclusive, Monday to Friday; and
ii.transitional penalty rates of 110% for ordinary time hours worked on a Saturday, 120% for ordinary time hours worked on a Sunday and 160% for ordinary time hours worked on a public holiday (for full-time employees); or
iii.transitional penalty rates of 132% for ordinary time hours worked on a Saturday, 142% for ordinary time hours worked on a Sunday and 172% for ordinary time hours worked on a public holiday, all inclusive of the transitional casual loading (for casual employees).
f)The Employees did not receive the appropriate minimum penalty rates for work performed on a Saturday, Sunday or public holiday, or for work performed between 10pm and midnight, Monday to Friday.
Overtime – clause 33 of the Modern Award
g)Pursuant to clause 33 of the Modern Award, those Employees who were full-time employees were entitled to receive overtime payments for work performed outside the spread of hours or rostered hours of an average of 38 per week, payable:
i.on Monday-Friday at 150% for the first two hours of overtime and 200% thereafter,
ii.on Saturday at 175% for the first two hours of overtime and 200% thereafter, and
iii.on Sunday at 200% for all hours of overtime.
h)The Employees who were full-time employees did not receive the appropriate overtime rates for work performed outside the spread of hours or rostered hours of an average of 38 per week.
Split shift allowance – clause 24.2 of the Modern Award
Pursuant to clause 24.2 of the Modern Award, those Employees who were full-time employees and who had a broken work day were entitled to receive an allowance of 0.5% of the weekly standard rate (defined as the minimum weekly wage for a Level 4 classification (Cook grade 3 (tradesperson)) in clause 20.1) for each separate work period of two hours or more.
j)Piotr Antkowiak, Matthew William Love and Adam James Walker each did not receive the appropriate split shift allowance for each separate work period of two hours or more where they had a broken work day.
Payment for annual leave - sections 87 and 90 of the FW Act (part of the National Employment Standards).
k)Pursuant to section 87 of the FW Act, those Employees who were full-time employees were entitled to receive 4 weeks of paid annual leave for each year of service with Jaycee Trading Pty Limited.
l)Pursuant to subsection 90(1) of the FW Act, those Employees who were full-time employees were entitled to receive pay at their base rate of pay for their ordinary hours of work during each period when they took annual leave.
m)Pursuant to subsection 90(2) of the FW Act, those Employees who were full-time employees were entitled to receive payment for untaken annual leave upon the termination of employment.
n)The Employees who were full-time employees did not receive payment for annual leave and payment for untaken leave upon termination of employment.
Payment for annual leave loading – clause 35.2(b) of the Modern Award
o)Pursuant to clause 35.2(b) of the Modern Award, those Employees who were full-time employees were entitled to receive, in addition to the annual leave payment provided for in the National Employment Standards, payment of an additional leave loading of 17.5% of that payment.
p)The Employees who were full-time employees did not receive in addition to the annual leave payment provided for in the National Employment Standards, payment of an additional leave loading of 17.5%.
Payment for personal/carer’s leave - sections 96, 97 and 99 of the FW Act (part of the National Employment Standards).
q)Pursuant to section 96 of the FW Act, those Employees who were full-time employees were entitled to receive 10 days of paid personal/carer’s leave for each year of service with Jaycee Trading Pty Limited.
r)Pursuant to subsection 97 of the FW Act, those Employees who were full-time employees were entitled to take personal/carer’s leave if the leave was taken because the employee was not fit for work because of a personal illness or personal injury affecting the employee, or to provide care or support to a member of the employee’s immediate family or a member of the employee’s household who required care or support because of a personal illness or personal injury affecting the member, or because of an unexpected emergency affecting the member.
s)Pursuant to subsection 99 of the FW Act, those Employees who were full-time employees were entitled to receive pay at their base rate of pay for their ordinary hours of work during each period when they took personal/carer’s leave.
t)Piotr Antkowiak did not receive payment for all personal/carer’s leave taken.
Further details regarding the amounts owed to each of the Employees are provided below.
Jason McFarlane
Jason McFarlane was employed by Jaycee Trading Pty Limited on a casual basis in the position of “cook”, and properly classified under the ‘Cook grade 2 (Level 3)’ classification in clause 20.1 of the Modern Award.
During the Audit Period, Jason McFarlane worked a total of 143.87 ordinary hours and was entitled to the rates set out in the table below for those hours. He was paid a total of $2,598.30 and is owed an amount of $410.04.
| Entitlement | Rate of pay owed | No of hours | Amount owed |
| Ordinary hours | $20.910158 | 143.87 | $3,008.34 |
| Total owed | $3,008.34 | ||
| Total paid | $2,598.30 | ||
| Total underpayment | $410.04 | ||
Piotr Antkowiak
Piotr Antkowiak was employed by Jaycee Trading Pty Limited on a full-time basis in the position of “head chef”, and properly classified under the ‘Cook grade 2 (Level 3)’ classification in clause 20.1 of the Modern Award.
10. During the period from 27 December 2011 to 16 March 2012, Piotr Antkowiak worked a total of 668.49 hours and was entitled to the rates set out in the table below. He was paid a total of $9,807.70 in wages and is owed an amount of $5,046.73 in respect of unpaid wages.
| Entitlement | Rate of pay owed | No of hours | Amount owed |
| Ordinary hours | $17.139474 | 289.39 | $4,959.99 |
| Ordinary hours between 10pm and midnight | $17.861790 | 7.05 | $125.93 |
| Ordinary hours on a Saturday | $18.853421 | 75.9 | $1,430.97 |
| Ordinary hours on a Sunday | $20.567369 | 74.53 | $1,532.89 |
| Ordinary hours on a public holiday | $27.423158 | 31 | $850.12 |
| Overtime (150%) – first two hours Monday-Friday | $25.709211 | 53.77 | $1,382.38 |
| Overtime (175%) – first two hours Saturday | $29.994080 | 13.6 | $407.92 |
| Overtime (200%) – after two hours Monday-Saturday and all hours Sunday | $34.274948 | 120.58 | $4,133.36 |
| Split Shift Allowances | $3.43 | 9 | $30.87 |
| Total owed | $14,854.43 | ||
| Total paid | $9,807.70 | ||
| Total underpayment | $5,046.73 | ||
11. During the Audit Period, Piotr Antkowiak worked 706.8 ordinary hours and therefore was entitled to accrue 54.220275 hours of annual leave. He was entitled to be paid for that annual leave as well as the 17.5% annual leave loading, as set out in the table below. He was not paid for any annual leave taken and is owed a total of $1,091.97 in respect of unpaid annual leave and annual leave loading as set out in the table below.
| Entitlement | Rate of pay owed | No of hours | Amount owed |
| Annual leave | $17.139474 | 54.220275 | $929.34 |
| Annual leave loading | $2.999407 | 54.220275 | $162.63 |
| Total owed | $1091.97 | ||
| Total paid | $0 | ||
| Total underpayment | $1091.97 | ||
12. Accordingly, Piotr Antkowiak is owed a total amount of $6,138.70.
Zoe Lily Ketteringham
13. Zoe Lily Ketteringham was employed by Jaycee Trading Pty Limited on a casual basis in the position of “waitress”, and properly classified under the ‘Food and beverage attendant grade 2 (Level 2)’ classification as a “junior – 19 years of age” in clauses 20.1 and 20.3 of the Modern Award.
14. During the Audit Period, Zoe Lily Ketteringham worked a total of 56.91 hours and was entitled to the rates set out in the table below. She was paid a total of $327.60 and is owed an amount of $671.69.
| Entitlement | Rate of pay owed | No of hours | Amount owed |
| Ordinary hours | $16.385724 | 18 | $294.94 |
| Ordinary hours between 10pm and midnight | $17.108040 | 3.83 | $65.52 |
| Ordinary hours on a Saturday | $17.728817 | 22.5 | $398.91 |
| Ordinary hours on a Sunday | $19.071909 | 12.58 | $239.92 |
| Total owed | $999.29 | ||
| Total paid | $327.60 | ||
| Total underpayment | $671.69 | ||
Adam James Walker
15. Adam James Walker was employed by Jaycee Trading Pty Limited on a full-time basis in the position of “kitchen hand”, and properly classified under the ‘Food and beverage attendant grade 1(Level 1)’ classification as a “junior – age 16 years and under” in clauses 20.1 and 20.3 of the Modern Award.
16. During the Audit Period, Adam James Walker worked a total of 241.68 hours and was entitled to the rates set out in the table below. He was paid a total of $1509.36 in wages and is owed an amount of $1,027.36 in respect of unpaid wages.
| Entitlement | Rate of pay owed | No of hours | Amount owed |
| Ordinary hours | $8.938948 | 148.35 | $1,326.09 |
| Ordinary hours between 10pm and midnight | $9.661264 | 10.5 | $101.44 |
| Ordinary hours on a Saturday | $9.832843 | 23.22 | $228.32 |
| Ordinary hours on a Sunday | $10.726738 | 13.08 | $140.31 |
| Ordinary hours on a public holiday | $14.302317 | 16.25 | $232.41 |
| Overtime (150%) – first two hours, Monday-Friday | $13.408422 | 10.8 | $144.81 |
| Overtime (175%) – first two hours Saturday | $15.643159 | 4 | $62.57 |
| Overtime (200%) – after two hours Monday-Saturday and all hours Sunday | $17.877896 | 15.48 | $276.76 |
| Split Shift Allowances | $3.43 | 7 | $24.01 |
| Total owed | $2,536.72 | ||
| Total paid | $1,509.36 | ||
| Total underpayment | $1,027.36 | ||
17. During the Audit Period, Adam James Walker worked 355.8 ordinary hours and therefore was entitled to accrue 27.294247 hours of annual leave. He was entitled to be paid for that annual leave as well as the 17.5% annual leave loading, as set out in the table below. He was not paid for any annual leave taken and is owed a total of $286.71 in respect of unpaid annual leave and annual leave loading as set out in the table below.
| Entitlement | Rate of pay owed | No of hours | Amount owed |
| Annual leave | $8.938948 | 27.294247 | $244.01 |
| Annual leave loading | $1.564316 | 27.294247 | $42.70 |
| Total owed | $286.71 | ||
| Total paid | $0 | ||
| Total underpayment | $286.71 | ||
18. Accordingly, Adam James Walker is owed a total amount of $1,314.07.
Nicole Lynn Wilson
19. Nicole Lynn Wilson was employed by Jaycee Trading Pty Limited on a casual basis in the position of “waitress”, and properly classified under the ‘Food and beverage attendant grade 2 (Level 2)’ classification in clause 20.1 of the Modern Award.
20. During the Audit Period, Nicole Lynn Wilson worked a total of 248.56 hours and was entitled to the rates set out in the table below. She was paid a total of $4354.51 and is owed an amount of $900.70.
| Entitlement | Rate of pay owed | No of hours | Amount owed |
| Ordinary hours | $19.922344 | 147.95 | $2,947.51 |
| Ordinary hours between 10pm and midnight | $20.644660 | 13.02 | $268.79 |
| Ordinary hours on a Saturday | $21.555323 | 36.27 | $781.81 |
| Ordinary hours on a Sunday | $23.188302 | 37.63 | $872.58 |
| Ordinary hours on a public holiday | $28.087239 | 13.69 | $384.52 |
| Total owed | $5,255.21 | ||
| Total paid | $4,354.51 | ||
| Total underpayment | $900.70 | ||
Amanda Kerslake
21. Amanda Kerslake was employed by Jaycee Trading Pty Limited on a casual basis in the position of “waitress”, and properly classified under the ‘Food and beverage attendant grade 2 (Level 2)’ classification in clause 20.1 of the Modern Award.
22. During the Audit Period, Amanda Kerslake worked a total of 101.42 hours and was entitled to the rates set out in the table below. She was paid a total of $1356.64 and is owed an amount of $806.13.
| Entitlement | Rate of pay owed | No of hours | Amount owed |
| Ordinary hours | $19.922344 | 32.5 | $647.48 |
| Ordinary hours between 10pm and midnight | $20.644660 | 3.25 | $67.09 |
| Ordinary hours on a Saturday | $21.555323 | 45.67 | $984.43 |
| Ordinary hours on a Sunday | $23.188302 | 20 | $463.77 |
| Total owed | $2,162.77 | ||
| Total paid | $1,356.64 | ||
| Total underpayment | $806.13 | ||
Matthew William Love
23. Matthew William Love was employed by Jaycee Trading Pty Limited on a full-time basis in the position of “Cook”, and properly classified under the ‘Cook grade 1 (Level 2)’ classification in clause 20.1 of the Modern Award.
24. During the Audit Period, Matthew William Love worked a total of 51.25 hours and was entitled to the rates set out in the table below. He was not paid for any hours worked and is owed an amount of $341.28 in unpaid wages.
| Entitlement | Rate of pay owed | No of hours | Amount owed |
| Ordinary hours | $16.571053 | 40.1 | $664.50 |
| Ordinary hours between 10pm and midnight | $17.293369 | 0.35 | $6.05 |
| Ordinary hours on a Saturday | $18.228158 | 7.6 | $138.53 |
| Overtime (150%) – first two hours, Monday-Friday | $24.856580 | 2.3 | $57.17 |
| Overtime (175%) – first two hours Saturday | $28.999343 | 0.9 | $26.10 |
| Split shift allowance | $3.43 | 2 shifts | $6.86 |
| Total owed | $899.21 | ||
| Total paid | $0.00 | ||
| Less one week’s pay for failure to provide notice | -$629.70 | ||
| Total underpayment | $269.51 | ||
25. During the Audit Period, Matthew William Love worked 48.05 ordinary hours and therefore was entitled to accrue 3.686 hours of annual leave. He was entitled to be paid for that annual leave as well as the 17.5% annual leave loading, as set out in the table below. He was not paid for any annual leave taken and is owed a total of $71.77 in respect of unpaid annual leave and annual leave loading as set out in the table below.
| Entitlement | Rate of pay owed | No of hours | Amount owed |
| Annual leave | $16.571053 | 3.686 | $61.08 |
| Annual leave loading | $2.89993427 | 3.686 | $10.69 |
| Total owed | $71.77 | ||
| Total paid | $0 | ||
| Total underpayment | $71.77 | ||
26. Accordingly, Matthew William Love is owed a total amount of $341.28.
Melissa Kate Poolman
27. Melissa Kate Poolman was employed by Jaycee Trading Pty Limited on a casual basis in the position of “waitress”, and properly classified under the ‘Food and beverage attendant introductory level’ classification in clause 20.1 of the Modern Award.
28. During the Audit Period, Melissa Kate Poolman worked a total of 47.5 hours and was entitled to the rates set out in the table below. She was not paid for any hours worked and is owed an amount of $940.45.
| Entitlement | Rate of pay owed | No of hours | Amount owed |
| Ordinary hours | $18.919632 | 22 | $416.24 |
| Ordinary hours between 10pm and midnight | $19.641948 | 2 | $39.28 |
| Ordinary hours on a Saturday | $20.470421 | 21 | $429.88 |
| Ordinary hours on a Sunday | $22.021211 | 2.5 | $55.05 |
| Total owed | $940.45 | ||
| Total paid | $0.00 | ||
| Total underpayment | $940.45 | ||
Nicole Louise Martin
29. Nicole Louise Martin was employed by Jaycee Trading Pty Limited on a casual basis in the position of “waitress and bar person”, and properly classified under the ‘Food and beverage attendant grade 2 (Level 2)’ classification in clause 20.1 of the Modern Award.
30. During the Audit Period, Nicole Louise Martin worked a total of 39.75 hours and was entitled to the rates set out in the table below. She was paid a total of $170.00 and is owed an amount of $655.75.
| Entitlement | Rate of pay owed | No of hours | Amount owed |
| Ordinary hours | $19.922344 | 22.5 | $448.25 |
| Ordinary hours between 10pm and midnight | $20.644660 | 0.5 | $10.32 |
| Ordinary hours on a Saturday | $21.555323 | 13 | $280.22 |
| Ordinary hours on a Sunday | $23.188302 | 3.75 | $86.96 |
| Total owed | $825.75 | ||
| Total paid | $170.00 | ||
| Total underpayment | $655.75 | ||
9
14
0