Fair Work Ombudsman v Jetta Express Pty Ltd
[2023] FedCFamC2G 841
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Fair Work Ombudsman v Jetta Express Pty Ltd [2023] FedCFamC2G 841
File number(s): MLG 554 of 2022 Judgment of: JUDGE SYMONS Date of judgment: 2 October 2023 Catchwords: INDUSTRIAL LAW – Fair Work – parties by consent seek declaration of contravention of the Fair Work Act 2009 (Cth) – failure of the respondent to comply with a compliance notice— whether penalty should be imposed and amount of penalty to be imposed – where respondent cooperated by signing statement of agreed facts – where respondent no longer trading – penalty to promote object of general deterrence Legislation: Fair Work Act 2009 (Cth) ss 90, 545, 546, 716
Federal Circuit and Family Court of Australia (General Federal Law) Rules 2021 (Cth) r 9.04.
Road Transport and Distribution Award 2020 cl 24.4
Cases cited: Australian Building and Construction Commission v Pattinson (2022) 399 ALR 599; [2022] HCA 13
Fair Work Ombudsman v ANSA Finance Pty Ltd [2022] FedCFamC2G 833
Trade Practices Commission v CSR Ltd [1990] FCA 521
Division: Division 2 General Federal Law Number of paragraphs: 46 Date of last submission/s: 23 August 2023 Date of hearing: 23 August 2023 Place: Melbourne Solicitor for the Applicant: HWL Ebsworth Lawyers Respondent: Mr Honess, appearing with leave pursuant to rule 9.04 of the Federal Circuit and Family Court of Australia (General Federal Law) Rules 2021 (Cth) ORDERS
MLG 554 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: FAIR WORK OMBUDSMAN
Applicant
AND: JETTA EXPRESS PTY LTD (ACN 064 634 493)
Respondent
ORDER MADE BY:
JUDGE SYMONS
DATE OF ORDER:
2 OCTOBER 2023
THE COURT DECLARES BY CONSENT THAT:
1.The respondent contravened s 716(5) of the Fair Work Act 2009 (Cth) (FW Act) by failing to comply with the compliance notice issued on 18 June 2021 (Compliance Notice).
THE COURT ORDERS THAT:
2.Pursuant to s 546(1) of the FW Act, the respondent pay a pecuniary penalty of $3,125 in respect of the contravention of s 716(5) of the FW Act.
3.Pursuant to s 546(3)(a) of the FW Act, the pecuniary penalty ordered to be paid by the respondent be paid to the Commonwealth within 28 days of this order.
4.The applicant has liberty to apply on seven days’ notice in the event that any of the preceding orders are not complied with.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE SYMONS:
INTRODUCTION
This is an application for the imposition of a penalty in respect of the respondent’s failure to comply with a compliance notice issued pursuant to s 716(2) of the Fair Work Act 2009 (Cth) (FW Act).
The application proceeds, in part, by reference to a statement of agreed facts (SOAF) that was filed on 2 September 2022 and in which the respondent admits a single contravention of s 716(5) of the FW Act by failing to comply with a compliance notice given to the respondent on 2 August 2021 under s 716(2) of the FW Act (Compliance Notice). The SOAF is reproduced as Annexure 1.
The SOAF also documents the parties’ agreement that the following declaration and orders should be made:
(a)a declaration that the respondent contravened s 716(5) of the FW Act by failing to comply with the Compliance Notice;
(b)an order pursuant to s 546(1) of the FW Act that the respondent pay a pecuniary penalty to the Commonwealth for the contravention of s 716(5) of the FW Act;
(c)an order that the applicant have liberty to apply on seven days’ notice in the event that there is non-compliance with order 3(b).
The outstanding issue is the size of any penalty to be imposed.
The applicant seeks a penalty in the range of $13,320-$15,984. The respondent did not explicitly identify a penalty range but can be understood to submit that a penalty of only a modest amount is justified in the circumstances of this case.
BACKGROUND
The respondent is a company that, at relevant times, operated a business providing express baggage pickup and delivery services to Melbourne airport for customers.
The applicant commenced an investigation into the first respondent’s compliance with workplace laws in around May 2021.
Following this investigation, Fair Work Inspector Shacklock (FWI Shacklock) formed a reasonable belief that the respondent had contravened clause 24.4 of the Road Transport and Distribution Award 2020 (Award) and s 90(2) of the FW Act by failing to pay its former employee, Mr Peisley, his annual leave and annual leave loading entitlement on termination of his employment in May 2021.
On the basis of this belief, FWI Shacklock gave the Compliance Notice to the respondent. The Compliance Notice required the respondent to take certain steps to remedy the contraventions, including that the respondent calculate the amounts referable to accrued annual leave owing to Mr Peisley, make those payments to Mr Peisley by 24 August 2021, and produce evidence of having done so to the applicant by 31 August 2021.
Although the respondent did not take the steps required of it by the dates stipulated in the Compliance Notice it is agreed that:
(a)on 10 June 2022 the respondent made three payments to Mr Peisley in the gross amount $3,756.54; and
(b)on 22 June 2022, the respondent made a payment of $300.96 (gross) in respect of annual leave to Mr Peisley on termination.
It is agreed that by making the payments referred to above (and producing evidence of same), the respondent complied (albeit belatedly) with its obligations under the Compliance Notice.
SUBMISSIONS AND EVIDENCE ON PENALTY
Orders were made by the Court on 13 October 2022 which listed the matter for a penalty hearing and established a timetable for the parties to file and serve submissions and any evidence on this question.
The penalty hearing was first listed to 11 May 2023.
The applicant filed submissions and an affidavit of FWI Schacklock on 13 April 2023.
On 10 May 2023 the applicant’s legal representative sent an email to chambers (copying in all parties) which in part stated:
We refer to the abovementioned Fair Work Division matter listed for a Penalty Hearing at 2:15pm tomorrow before her Honour Judge Symons.
We have been in contact with the Respondent via telephone this afternoon and he has indicated the following:
•he currently only has the use of one eye and is not "medically fit to go anywhere". He will therefore not be able to attend the Penalty Hearing tomorrow;
•he has undergone three operations over the last three months and has been in and out of hospital. As a result, he has not looked at the documents that have been served on him via email, or listened to the voicemails that HWL Ebsworth have left him regarding this matter; and
•he is "confused" as to where things currently stand on this matter.
Mr Honess indicated that he could obtain a medical certificate if required by the Court but that he would not be able to procure this prior to the penalty hearing.
…
The matter remained listed on 11 May 2023. However, in recognition of Mr Honess’s health challenges referred to in the email above, orders were made adjourning the penalty hearing to 23 August 2023. Orders were also made that required the respondent to file and serve written submissions and affidavit evidence on or before 26 July 2023 and for the applicant to file and serve any reply material on or before 9 August 2023.
The respondent did not file any material responsive to these orders. Accordingly, the material before the Court was limited to the SOAF, the affidavit of FWI Shacklock and the written submissions filed by the applicant on 13 April 2023.
Mr Honess did however appear at the penalty hearing and was granted leave on the day pursuant to r 9.04 of the Federal Circuit and Family Court of Australia (General Federal Law) Rules 2021 (Cth) to represent the respondent. Mr Honess made brief submissions directed at penalty which I have taken into account in this decision. I accept that some of these submissions trespassed into evidence. However, I have no reason to doubt that the information given by Mr Honess from the “bar table” was given other than honestly. Although the applicant invited circumspection in dealing with this information, no submission was made that it was false in any material respect.
Penalty range sought by the applicant
The applicant seeks that a penalty be imposed in the range of $13,320 to $15,984. The penalty takes into account a 20 percent discount for the respondent's cooperation in the proceedings, which discount the applicant submits is appropriate in all the circumstances. Viewed in context, the penalty range sought by the applicant represents 40 to 48 per cent of the maximum penalty of $33,300 available (at the relevant time) for the contravention by a corporation of s 716(5) of the FW Act.
Factors relevant to penalty
The primary purpose of deterrence was re-emphasised by the High Court in the decision of Australian Building and Construction Commission v Pattinson [2022] HCA 13 (Pattinson). In that decision, the majority upheld the Commissioner’s appeal and confirmed that the purpose of a civil penalty is primarily, if not solely, the promotion of the public interest in compliance with provisions of the FW Act by those responsible and by (like) others. The Court rejected the approach implicit in the decision of the Full Court (the subject of the appeal) that a penalty must be proportionate to the seriousness of the conduct that constituted the contravention. The majority held instead that “[t]he power conferred by s 546 of the Act is not subject to constraints drawn from the criminal law and there is no place for a ‘notion of proportionality’ in a civil penalty regime”.[1] However, the High Court did accept that s 546 requires the Court to ensure that any penalty “strikes a reasonable balance between deterrence and oppressive severity”.[2] It was only in this more qualified sense that the concept of “proportionality” had any role to play.
[1] Pattinson at [10].
[2] Ibid at [41].
The High Court in Pattinson also referred to the several factors identified by French J in Trade Practices Commission v CSR Ltd [1990] FCA 521 which informed the assessment of a penalty of an appropriate deterrent value. The list revealed that both the circumstances of the contravener and the circumstances of the contravention may be relevant to the assessment of whether the maximum level of deterrence is called for.[3] However, the Court repeated the caution that the list of possible relevant considerations should not be approached as a “rigid catalogue of matters for attention” and instead the task of the court remains to determine what is an “appropriate” penalty in the circumstances of the particular case.[4]
[3] Ibid at [57].
[4] Ibid at [18] and [19].
In its written submissions – which were adopted at the penalty hearing – the applicant placed particular emphasis upon the following considerations.
General deterrence
The applicant submits that the efficacy of statutory notices, such as compliance notices, would be hindered if recipients were to perceive that a failure to comply carried no meaningful consequences. The applicant submits that penalties for non-compliance should therefore be set at a level which demonstrates that there are serious consequences for failing to comply with a compliance notice.
Mr Honess did not make any submissions directed at this consideration.
Specific deterrence
The applicant made the submission that there was a particular need to specifically deter the respondent from engaging in the same contravening conduct in the future, given that:[5]
(a)The respondent is still registered;
(b)The respondent has shown disregard for its obligations under the FW Act by failing to comply with the Compliance Notice within the specified timeframe;
(c)In light of the respondent still being registered, the respondent may currently employ employees and, therefore may currently have responsibility for overseeing employees’ entitlements and complying with minimum obligations; and
(d)The respondent’s “wilful recidivism and intentional disobedience of the law” should weigh strongly in favour of a higher penalty (citing Pattinson at [35]).
[5] applicant’s written submissions at [27].
The applicant submitted that the penalty imposed on the respondent should contain sufficient “sting or burden” so as to operate as a disincentive to the respondent to engage in repetition of the same or similar conduct.
When the matter came before the Court I queried with the applicant’s representative, Ms Karakinos, whether the submission that the respondent by its failure to comply with the Compliance Notice had engaged in conduct that was capable of being characterised as “wilful recidivism” could be maintained in circumstances where (unlike in Pattison) there was no evidence that the respondent had any history of contraventions of the FW Act. Ms Karakinos accepted that it could not. However, the fact that the submission was made in the first place does highlight the need for care in the preparation of submissions so that they adequately reflect the circumstances of the particular case. This is especially so in a jurisdiction where the applicant has model litigant obligations and will often be prosecuting a case against a respondent that has either not actively participated in proceedings or is doing so without the benefit of legal assistance.
Mr Honess told the Court on the question of deterrence that although prior to February 2020 the respondent business had performed well, since that time and as a result of the COVID-19 pandemic, the business had deteriorated and was now closed. Although it remained registered, it existed “in name only”. Mr Honess also told the Court that he was in poor health and was not working and that he had spent $15,000 on legal fees to get to the stage of the penalty hearing. Given that the respondent’s lawyer came off the record in late August 2022, I infer that the bulk of this work was directed at negotiating and agreeing to the SOAF. Mr Honess explained that all employees had been paid correctly and that in the event a penalty was imposed on the respondent it would be funded through the release of money from Mr Honess’s superannuation account. As I noted earlier, there is no reason why I should not accept the veracity of the information conveyed by Mr Honess.
Nature, circumstances and deliberateness of the contravening conduct
Under this heading, the applicant noted that the power of a Fair Work Inspector to issue a compliance notice was introduced into the FW Act to provide a mechanism to address non-compliance with certain employment obligations arising under the FW Act, as an alternative to commencing litigation for each underlying contravention. So much can be accepted.
The applicant also sought to place emphasis upon what might be understood as the particular circumstances of the respondent’s contravening conduct which were said to include (apart from the fact of contravention itself) that the respondent had been provided with a “reasonable period and multiple opportunities to comply by the required dates stipulated in the Compliance Notice”.[6] In support of this submission, the applicant referred to paragraph [12] of the SOAF. However, that paragraph recognises only that the respondent failed to take the specified action set out in the Compliance Notice or to produce evidence of compliance with the Compliance Notice prior to the commencement of these proceedings.
[6] applicant’s written submissions at [31]
I inquired of the applicant’s representative what the Court was to make of the reference to “multiple opportunities” for compliance and whether evidence of these opportunities could be found in the affidavit of FWI Shacklock. The response provided was to the effect that the communications referred to in paragraph [11] of the affidavit represented the extent of communications passing between the applicant and the respondent from the time of issue of the Compliance Notice and although the applicant had tried to enter a payment plan with the respondent, there was no evidence concerning this before the Court.
As far as [11] of the FWI Shacklock affidavit is concerned it states in relation to the Compliance Notice that:
a.On 1 September 2021, FWI Latz sent an email to the Jetta Email with attention to Mr Thomas and Mr Honess attaching a Failure to Comply with Compliance Notice letter (Failure to Comply Letter);
b.On 1 September 2021, FWI Latz called Mr Thomas to discuss the Failure to Comply Letter;
c.On 6 September 2021, FWI Latz sent a further email to the Jetta Email with attention to Mr Honess attaching the Failure to Comply Letter;
d.On 22 December 2021, FWI Latz sent an email to the Jetta Email with attention to Mr Honess arranging a time to speak on 23 December 2021 regarding the Failure to Comply Letter;
e.On 21 January 2022, FWI Latz called Mr Honess and during the conversation with Mr Honess, he indicated that “someone in Sydney would send a final cheque to the Employee”, and that he would “review the documentation”.
The documents annexed to the FWI Shacklock affidavit[7] included the Failure to Comply Notice dated 1 September 2021 which recorded that the applicant may commence legal action against the respondent if it failed to provide, within 7 days, a reasonable excuse for not complying with the Compliance Notice and an email sent by FWI Latz to Mr Honess on 22 December 2021 which referred to a voice message left by Mr Honess that day, itself a response to a voice message left by FWI Latz on 20 December 2021.
[7] annexure “KS-5” to the affidavit of FWI Shacklock.
In these circumstances, it is a stretch for the applicant to submit and to present as a factor that informs the question of penalty, that there were multiple opportunities for the respondent to comply with the Compliance Notice. The Compliance Notice itself required the respondent to take the identified steps within 28 days of the date of its issue, this being an amount of time that the applicant (in different proceedings) has informed this Court “is the standard timeframe” provided by the applicant for compliance with statutory notices.[8] Once the date for compliance had passed (on 31 August 2021), the evidence before the Court suggests that communication between the applicant and the respondent was sparse and included a period of approximately three and a half months when there was apparently no follow up of the respondent by the applicant. While this does not excuse the respondent’s lack of compliance it does rather paint a different picture of what was occurring (or more accurately, not occurring) over the period prior to the commencement of this litigation on 18 March 2022.
[8] Fair Work Ombudsman v ANSA Finance Pty Ltd [2022] FedCFamC2G 833 at [137]
The applicant also submitted that the respondent’s failure to comply with the Compliance Notice demonstrated a deliberate disregard for its obligations under the FW Act and the authority of the applicant as a regulator of Commonwealth laws.
In response to this submission, Mr Honess told the Court that while he was not seeking to blame the COVID-19 pandemic, it did create a situation where the respondent was not “on top of things” as a result. While the Court can take judicial notice of the fact that the COVID-19 pandemic significantly impacted the airline and allied industries across (at least) 2020 and 2021, the respondent has not placed any evidence before the Court to explain how this affected the ability of the respondent to comply with the steps identified in the Compliance Notice, only some of which contemplated the payment of money to Mr Peisley.
Nature and extent of loss
The applicant acknowledged that the focus of the Court should be directed to the respondent’s failure to comply with the Compliance Notice but submitted that the delay in Mr Peisley receiving payment of his lawful entitlements (June 2022 instead of May 2021) was still a relevant loss flowing from the failure of the respondent to comply.
The applicant made the further submission that the failure of the respondent to comply with the Compliance Notice also operated to undermine the utility of the statutory notice as an effective mechanism for the efficient and cost-effective rectification of identified contraventions of the FW Act.
I accept both of these submissions.
Size and financial circumstances of the respondent
Although the applicant accepts that the respondent’s business was impacted by COVID-19 restrictions, it notes that any recognition of this circumstance is hindered by the failure of the respondent to place any evidence before the Court regarding its financial circumstances.
Undoubtedly this must be correct. While I have no reason to doubt the evidence of Mr Honess that the respondent is no longer trading, the reasons for this have not been explained beyond a general reference to COVID-19. It is impossible to extrapolate from this information any meaningful appraisal of the financial situation of the respondent, either at the time that the contravention occurred or more recently.
Contrition, corrective action and cooperation
The applicant’s proposed penalty range makes an allowance for a 20 per cent discount on account primarily of the respondent’s corrective action in rectifying the underpayments and for its cooperation in signing the SOAF, which amongst other things, contains an admission that the respondent contravened s 716(5) of the FW Act.
It is appropriate that both of these matters reflect in the penalty applied in this case. The making of an admission at a relatively early stage of the proceeding meant that the matter could proceed directly to a penalty hearing rather than there being a bifurcation directed at liability and then penalty. There is an obvious cost and time saving in the former approach.
CONCLUSION
I consider that a penalty in the amount of $3,125 should be applied in this case.
In fixing this amount I accept, as a general proposition, that a failure by an employer to comply with a compliance notice given under ss 716(2) and (3) of the FW Act, undermines the efficacy of the statutory notice regime and increases the administrative and cost burden of the workplace regulator and where proceedings are then issued, diverts judicial resources. This is a mischief to which general deterrence can and should appropriately be directed.
There is a reduced scope in this case for specific deterrence to operate. The respondent has taken corrective action and has cooperated in this proceeding. The respondent’s director, Mr Honess, who represents the corporate mind and who is best able to demonstrate contrition, has told the Court that the respondent is no longer trading and therefore employing staff and has satisfied any extant obligations to former employees. I am satisfied that the events associated with the respondent’s failure to comply with the Compliance Notice have left an abiding impression on him. It is unlikely in my view that the opportunity for further breaches will present themselves or, more importantly, that they will be acted upon.
I certify that the preceding forty-six (46) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Symons. Associate:
Dated: 2 October 2023
ANNEXURE 1
1This Statement of Agreed Facts (SOAF) is made by the Applicant, the Fair Work Ombudsman, and the Respondent, Jetta Express Ply Ltd (ACN 064 634 493), for the purposes of section 191 of the Evidence Act 1995 (Cth).
A. OVERVIEW OF ADMISSION
2.The Respondent admits that it contravened section 716(5) of the Fair Work Act 2009 (Cth) (FW Act) by failing to comply with a compliance notice dated 2 August 2021 issued by Fair Work Inspector (FWI) Kerryn Shacklock (FWI Shacklock) pursuant to section 716(2) of the FW Act.
B. THE PARTIES
The Applicant
3.The Applicant has standing and authority to bring these proceedings and seek orders under Part 4-1, Division 2 of the FW Act.
4FWI Shacklock is and was at all relevant times a FWI appointed by the Applicant under section 700 of the FW Act.
The Respondent
5. The Respondent is and was, at all relevant times:
(a)a company Incorporated under the Corporations Act 2001 (Cth) and registered since 11 July 1994;
(b)a "constitutional corporation" within the meaning of section 12 of the FW Act;
(c)a “national system employer” within the meaning of section 14 of the FW Act;
(d)a company that operates a business providing express baggage pickup and delivery services lo the airport for customers (Business), with a registered office located at 11 Lockheed Street, Strathmore 3041, in the State of Victoria (Registered Office); and
(e)by reason of the matters in paragraphs 5(b) and (c) above, covered by the FW Act in respect of its employees.
C.ADMITTED CONTRAVENTION OF SECTION 716(5) OF THE FW ACT
Background
6. In or around September 2020 [amended to May 2020], the Applicant conducted an investigation into the Respondent in respect of the employment of Alan Peisley (Employee).
7.Based on the information obtained in the course of the Investigation, FWI Shacklock formed a belief that:
(a)the Respondent employed the Employee on a full-time basis from 23 September 2019 to 14 May 2021 ;
(b)the Road Transport and Distribution Award 2020 (Award), a modern award made under the FW Act, covered and applied to the Respondent in respect of the Employee pursuant to clause 4.1 of the Award;
(c) the Employee's employment was terminated on 14 May 2021; and
(d) the Respondent did not pay the Employee his accrued annual leave entitlements, including annual leave loading, on termination of the Employee's full-time employment on 14 May 2021 or at all.
8.By reason of the matters admitted in paragraph 7 above, FWI Shacklock formed a reasonable belief pursuant to section 716(1) of the FW Act, that the Respondent contravened the following section of the FW Act, being a provision of the National Employment Standards, and clause of the Award:
(a)section 90(2) of the FW Act by failing to pay the Employee all accrued but untaken annual leave entitlements on termination of the Employee's employment; and
(b)clause 24.4 of the Award by failing to pay the Employee an additional leave loading of 17.5% of the payment referred to in paragraph 8(a) above,
(together, the Contraventions).
Compliance Notice
9. On 2 August 2021 , FWI Shackock gave the Respondent a compliance notice In respect of the Contraventions pursuant to section 716(2) of the FW Act (Compliance Notice) by:
(a)posting a copy of the Compliance Notice to the Respondent at the Registered Office; and
(b)sending a copy of the Compliance Notice to the email address "admm@1etta com au", being an email address used and accessed by the director of the Respondent, Mr Lyle Thomas Honess.
10.Pursuant to section 716(2) of the FW Act, the Compliance Notice required the Respondent to:
(a)take action to remedy the direct effects of the Contraventions by calculating and paying to the Employee his accrued and untaken annual leave and annual leave loading that should have been paid on termination of employment, by 24 August 2021; and
(b) produce reasonable evidence of the Respondent's compliance with the step set out in paragraph 10(a) above by 31 August 2021.
11. The Compliance Notice met the requirements of section 716(3) of the FW Act.
Failure to Comply with the Compliance Notice
12. The Respondent failed to:
(a)take the specified action set out in the Compliance Notice by 24 August 2021, or at all prior to the commencement of proceedings MLG554/2022; and
(b)produce to the Applicant reasonable evidence of compliance with the Compliance Notice by 31 August 2021 , or at all prior to the commencement of proceedings MLG554/2022.
13.By reason of the matters agreed in paragraphs 6 to 12 above, the Respondent failed to comply with the Compliance Notice.
14.The Respondent did not apply for a review of the Compliance Notice pursuant to section 717 of the FW Act.
15.The Respondent did not have a reasonable excuse for failing to comply with the Compliance Notice pursuant to section 716(6) of the FW Act.
16.By reason of the matters admitted in paragraphs 6 to 13 above, the Respondent contravened section 716(5) of the FW Act.
D. PROCEEDINGS
17. On 18 March 2022, the Applicant commenced proceedings against the Respondent for failing to comply with the Compliance Notice, in contravention of section 716(5) of the FW Act.
18.On 21 March 2022, the Respondent was served with the Application and Statement of Claim.
E. RECTIFICATION
19. On 10 June 2022, the Respondent made three gross payments lo the Employee totalling $3,756.54 (Payments).
20. On 22 June 2022, the Respondent's previous legal representative informed the Applicant's legal representative that it had made the Payments and produced reasonable evidence to the Applicant's legal representative of the Payments.
21. On 22 June 2022, the Respondent's previous legal representative informed the Applicant's legal representative that it had made a payment of 5300.96 (gross) in respect of annual leave to the Employee on termination. On 1 September 2022, the Respondent produced reasonable evidence of this payment representing annual leave to the Applicant's legal representative.
F. AGREED RELIEF
22. By consent, the Parties seek the declaration and orders set out below.
23.A declaration that the Respondent contravened section 716(5) of the FW Act, by failing to comply with the Compliance Notice issued on 2 August 2021.
24. Orders that:
(a)pursuant to section 546(1) of the FW Act, the Respondent pay a pecuniary penalty to the Commonwealth with respect to the contravention by the Respondent admitted in paragraph 23 above;
(b)the Applicant have liberty to apply on seven days' notice in the event that any of the preceding orders are not complied with; and
(c)such further orders as the Court considers appropriate.
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