Fair Work Ombudsman v JMSL Pty Ltd

[2023] FedCFamC2G 195

Federal Circuit and family Court of Australia

(division 2)

Fair Work Ombudsman v JMSL Pty Ltd [2023] FedCFamC2G 195

File number:

MLG 2951 of 2019

Judgment of:

HER HONOUR JUDGE C. E. KIRTON KC

Date of judgment:

16 March 2023 

Catchwords:

INDUSTRIAL LAW – pecuniary penalties – appropriate penalties – admitted contraventions of Fair Work Act 2009 (Cth) – declarations made by consent in respect of the Respondents – quantum of penalty in dispute

Legislation:

Crimes Act 1914 (Cth) s 4AA

Fair Work Act 2009 (Cth) ss 45, 535, 536, 539, 546, 550, 682, 683, 700, 712, 718A

Fair Work Regulations 2009 (Cth)

Cases cited:

Australian Building & Construction Commissioner v Construction, Forestry, Mining and Energy Union (No.2) [2010] FCA 977

Australian Building and Construction Commissioner v Construction, Forestry, Mining and Engineering Union [2017] FCAFC 113

Australian Competition & Consumer Commission v ACN 135 183 372 (in liquidation) (formerly known as Energy Watch Pty Ltd) [2012] FCA 749

Australian Opthalmic Supplies Pty Ltd (2008) 165 FCR 560; [2008] FCAFC 8

Commonwealth of Australia v Director, Fair Work Building Industry Inspectorate [2015] HCA 46

Construction, Forestry, Mining and Energy Union v Cahill [2010] FCAFC 39

Fair Work Ombudsman v AJR Nominees Pty Ltd (No 2) [2014] FCA 128

Fair Work Ombudsman v Bound for Glory Enterprises & Anor [2014] FCCA 432

Fair Work Ombudsman v Desire Food Pty Ltd & Anor [2019] FCCA 2979

Fair Work Ombudsman v Grouped Property Services Pty Ltd (No 2) [2017] FCA 557

Fair Work Ombudsman v JS Top Pty Ltd & Anor [2017] FCCA 1689

Fair Work Ombudsman v Lohr [2018] FCA 5

Fair Work Ombudsman v Mai Pty Ltd & Anor [2016] FCCA 1481

Fair Work Ombudsman v NHS North Pty Ltd [2017] FCA 131

Fair Work Ombudsman v Priority Matters Pty Ltd & Anor (No 5) [2020] FCCA 901

Fair Work Ombudsman v Pulis Plumbing Pty Ltd & Anor [2019] FCCA 3192

Fair Work Ombudsman v Wynn Sichuan Pty Ltd & Ors and FWO v Nine Dragons Pty Ltd & Ors [2020] FCCA 1358

Ghimire v Karriview Management Pty Ltd (No 2) [2019] FCA 1627

Glenn Jordan v Mornington Inn Pty Ltd [2007] FCA 1384

Kelly v Fitzpatrick (2007) 166 IR 14; [2007] FCA 1080

Mornington Inn Pty Ltd v Jordan (2008) 168 FCR 383; [2008] FCAFC 70

R v White (BC9101745, NSWCCA, 25 July 1991, unreported)

Rocky Holdings Pty Limited v Fair Work Ombudsman [2014] FCAFC 62

Stuart-Mahoney v Construction, Forestry, Mining and Energy Union [2008] FCA 1426

Wong v R (2001) 207 CLR 584; [2001] HCA 64

Number of paragraphs:

128

Division:

Division 2 General Federal Law

Date of last submission/s:

13 November 2020

Date of hearing:

13 November 2020

Place:

Melbourne (via video conference)

Solicitor for the Applicant: 

Ms P Cookesley of the Office of the Fair Work Ombudsman

Counsel for the Respondents: 

Mr A Berger

ORDERS

MLG 2951 of 2019

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

FAIR WORK OMBUDSMAN

Applicant

AND:

JMSL PTY LTD (ACN 141 637 505)

First Respondent

EDISON PENG

Second Respondent

order made by:	HER HONOUR JUDGE C. E. KIRTON KC
DATE OF ORDER:	16 March 2023

THE COURT DECLARES, BY CONSENT, THAT:

1.During the period from 2 May 2016 to 30 January 2019, the First Respondent JMSL Pty Ltd (ACN 141 637 505) (First Respondent) contravened the following civil remedy provisions in respect of the employment of Benjamin Hodgson and Sachini Bamunuwitage (Employees):

(a)Section 45 of the Fair Work Act 2009 (Cth) (FWAct), by failing to pay the Employees the minimum junior rate of pay prescribed by clause 20.3 of the Restaurant Industry Award 2010 (Restaurant Award);

(b)Section 45 of the FW Act, by failing to pay the Employees the minimum casual loading prescribed by clause 13.1 of the Restaurant Award;

(c)Section 45 of the FW Act, by failing to pay the Employees the minimum Saturday penalty rates prescribed by clause 34.1 of the Restaurant Award;

(d)Section 45 of the FW Act, by failing to pay the Employees the minimum Sunday penalty rates prescribed by clause 34.1 of the Restaurant Award;

(e)Section 45 of the FW Act, by failing to pay Benjamin Hodgson the minimum public holiday penalty rates prescribed by clause 34.1 of the Restaurant Award;

(f)Section 535(1) of the FW Act, by failing to make or keep records as required by s 535(1) of the FW Act and regulation 3.33 of the Fair Work Regulations 2009 (Cth) (FW Regulations);

(g)Section 536(1) of the FW Act, by failing to give the Employees pay slips within one (1) working day of paying amounts to them in relation to the performance of work;

(h)Section 535(4) of the FW Act, by failing to ensure that records kept under the FW Act or FW Regulations were not false or misleading; and

(i)Section 718A(1) of the FW Act, by producing documents to Fair Work Inspectors appointed pursuant to s 700 of the FW Act knowing or being reckless as to whether the documents were false or misleading.

2.The Second Respondent, Edison Peng, also known as Conyu Peng (Second Respondent), was involved within the meaning of s 550(2) of the FW Act, in each of the contraventions by the First Respondent as set out in Order 1 herein.

THE COURT ORDERS THAT:

3.Pursuant to s 546(1) of the FW Act, the First Respondent pay pecuniary penalties of $96,336.00 for the contraventions as set out in Order 1 herein to the Commonwealth of Australia within 28 days of the date of this Order.

4.Pursuant to s 546(1) of the FW Act, the Second Respondent pay pecuniary penalties of $19,267.20 for the contraventions as set out in Order 2 herein to the Commonwealth of Australia within 28 days of the date of this Order.

5.The Applicant Fair Work Ombudsman have liberty to apply on seven (7) 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:This copy of the court’s reasons for judgment may be subject to review 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

HER HONOUR JUDGE C. E. KIRTON KC:

INTRODUCTION

1. In this proceeding the Applicant, the Fair Work Ombudsman (Applicant), alleges that the First Respondent, JMSL Pty Ltd (ACN 141 637 505) (First Respondent), contravened the Fair Work Act 2009 (Cth) (FWAct) and the Restaurant Industry Award 2010 (Restaurant Award) by underpaying two employees, Mr Benjamin Hodgson and Ms Sachin Bamunuwitage (together, the Employees) a total amount of $15,412.15 when they were paid a flat rate of $15.00 per hour. It is also alleged that the First Respondent: failed to comply with various record-keeping and payslip obligations imposed under the FW Act; and knowingly provided false or misleading records to the Applicant. The Employees worked at a café operated by the First Respondent known as “The Coffee Club Bay City”, located at the Westfield Shopping Centre, Geelong, Victoria (Business).

2. The Applicant also alleges that the Second Respondent, Edison Peng also known as Congyou Peng (Second Respondent), was the sole director and controlling mind of the First Respondent pursuant to s 793 of the FW Act. The Applicant alleges that the Second Respondent is accessorily liable for the First Respondent’s conduct pursuant to s 550(1) of the FW Act.

3. The Applicant seeks that the Court make declarations against the First Respondent and the Second Respondent (together Respondents). The Applicant also submits that the Court should impose a pecuniary penalty of $96,336.00 on the First Respondent, and a pecuniary penalty of $19,267.20 on the Second Respondent, pursuant to s 546(1) of the FW Act.[1] The Respondents have admitted that the relevant contraventions took place, and submit that penalties in the sum of $53,500.00 should be imposed on the First Respondent, and penalties in the sum of $10,700.00 should be imposed on the Second Respondent.[2]

   [1] Applicant’s Reply Submissions on Penalty (Applicant’s Reply Submissions), filed 30 October 2020, [3].

   [2] Respondents’ Submissions as to Penalty (Respondents’ Penalty Submissions), filed 12 October 2020, [58].

   contraventions

4. The First Respondent has admitted to contravening the following civil remedy provisions of the FW Act during the period from 2 May 2016 to 30 January 2019 (Contravention Period):[3]

   [3] Statement of Agreed Facts, filed 13 November 2019 (Statement of Agreed Facts), [4] and [11(a)–(h)].

   (a)Section 45 of the FW Act, by failing to pay the Employees the minimum junior rate of pay prescribed by cl 20.3 of the Restaurant Award;

   (b)Section 45 of the FW Act, by failing to pay the Employees the minimum casual loading prescribed by cl 13.1 of the Restaurant Award;

   (c)Section 45 of the FW Act, by failing to pay the Employees the minimum Saturday penalty rates prescribed by cl 34.1 of the Restaurant Award;

   (d)Section 45 of the FW Act, by failing to pay the Employees the minimum Sunday penalty rates prescribed by cl 34.1 of the Restaurant Award;

   (e)Section 45 of the FW Act, by failing to pay Mr Hodgson the minimum public holiday penalty rates prescribed by cl 34.1 of the Restaurant Award;

   (f)Section 535(1) of the FW Act, by failing to make or keep records as required by s 535(1) of the FW Act and reg 3.33 of the Fair Work Regulations 2009 (Cth) (FW Regulations);

   (g)Section 536(1) of the FW Act, by failing to give the Employees pay slips within one (1) working day of paying amounts to them in relation to the performance of work;

   (h)Section 535(4) of the FW Act, by failing to ensure that records kept under the FW Act or FW Regulations were not false or misleading; and

   (i)Section 718A(1) of the FW Act, by producing documents to the Applicant knowing or being reckless as to whether the documents were false or misleading;

   (collectively the Contraventions).

5. Further, the Second Respondent has likewise admitted to being involved, within the meaning of s 550(2) of the FW Act, in each of the Contraventions by the First Respondent as set out in the preceding paragraph.[4]

   [4] Statement of Agreed Facts, [47]-[54].

   pleadings AND SUBMISSIONS

6. The hearing of this matter took place on 13 November 2020 via Microsoft Teams due to the restrictions in force in the State of Victoria as a result of the global pandemic of COVID-19 at that time (Penalty Hearing).

7. At the Penalty Hearing, the Applicant relied on: the Application – Fair Work Division and Form 2, filed 6 September 2019 (Application); the Statement of Claim, filed 6 September 2019 (Statement of Claim); the Submissions on Penalty, filed 19 June 2020 (Applicant’s Penalty Submissions); and the Reply Submissions on Penalty, filed 30 October 2020 (Applicant’s Reply Submissions). The Respondents relied on the Submissions as to Penalty, filed 12 October 2020 (Respondents’ Penalty Submissions).

   EVIDENCE

8. At the Penalty Hearing, the Applicant relied on the following documents:

   (a)Statement of Agreed Facts, filed on 13 November 2019 (Statement of Agreed Facts); and

   (b)Affidavit of Duncan Colin Alfred Campbell, affirmed and filed on 19 December 2019 (Campbell Affidavit).

9. At the Penalty Hearing, the Respondents relied on the Affidavit of the Second Respondent, affirmed and filed on 23 June 2020 (Peng Affidavit).

10. The following documents were read into evidence at the Penalty Hearing:

    (a)Applicant’s Exhibit 1 – Campbell Affidavit; and

    (b)Respondents’ Exhibit 1 – Peng Affidavit.

    issues before the court

11. The First Respondent has admitted that during the Contravention Period it was bound by the FW Act, the FW Regulations and the Restaurant Award in respect of the Employees.[5]

    [5] Statement of Agreed Facts, [7].

12. The Respondents have acknowledged that the Contraventions involve breaches of the “civil remedy provisions” of the FW Act and that, as such, the Court has power to make orders for the payment of pecuniary penalties: s 546(1) of the FW Act.

13. At the time of the Penalty Hearing the Respondents had paid all outstanding underpayments  that were owing to the Employees.[6]

    [6] Transcript P11:L8-26.

14. The issues that the Court must therefore determine are:

    (a)The penalty that is appropriate in the circumstances of this case with respect to each of the First Respondent and the Second Respondent; and

    (b)The timeframe within which the Respondents would be required to pay such penalty to the Commonwealth of Australia.

    BACKGROUND

15. The First Respondent is a company which at all relevant times operated the Business.[7] The Second Respondent is the sole director of the First Respondent.[8] The Employees were employed at the Business by the First Respondent during the following times within the Contravention Period:

    (a)Mr Benjamin Hodgson (Mr Hodgson) from 2 May 2016 until 6 August 2017; and

    (b)Ms Sachini Bamunuwitage (Ms Bamunuwitage) from 3 September 2018 until 4 November 2018.[9]

    [7] Statement of Agreed Facts, [2].

    [8] Statement of Agreed Facts, [3].

    [9] Statement of Agreed Facts, [4].

16. During the Contravention Period the Employees were each junior employees for the purposes of cl 15.1 of the Restaurant Award because:

    (a)Mr Hodgson was:

    (i)From 2 May 2016 to 12 November 2016, 19 years of age; and

    (ii)From 13 November 2016 to 6 August 2017, 20 years of age; and

    (b)Ms Bamunuwitage was from 3 September 2018 to 4 November 2018, 20 years of age.[10]

    [10] Statement of Agreed Facts, [10].

17. During the Contravention Period the Employees:

    (a)Were employed by the First Respondent as casual employees within the meaning of cl 13 of the Restaurant Award;

    (b)Worked irregular hours ranging between 6 to 42 hours per week;

    (c)Were paid a flat rate of $15.00 per hour for all hours of work, except on public holidays for which Mr Hodgson received an additional $50.00 per day; and

    (d)Were paid in cash or by electronic transfer.[11]

    [11] Statement of Agreed Facts, [5] and [9].

18. During the Contravention Period:

    (a)The First Respondent was required to pay the Employees the junior minimum hourly rates of pay for ordinary hours of work, pursuant to cls 15.1, 20.1 and 20.3 of the Restaurant Award (Junior Minimum Hourly Rates);

    (b)The Employees worked a total of 1,528.99 ordinary hours and the First Respondent:

    (i)Was required to pay the Employees a total of $27,493.33 to satisfy their Junior Minimum Hourly Rates entitlement; and

    (ii)Paid the Employees a total of $22,863.54, resulting in a total underpayment of their Junior Minimum Hourly Rates entitlement of $4,629.79;

    (c)By reason of the matters set out in sub-paragraphs (a) and (b) the First Respondent contravened cl 20.3 of the Restaurant Award and thereby s 45 of the FW Act;[12]

    [12] Statement of Agreed Facts, [15]-[17].

    (d)The First Respondent was required to pay the Employees a casual loading of 25% for all hours of work performed between Monday to Friday, pursuant to cl 13.1 of the Restaurant Award (Casual Loading);

    (e)The Employees worked a total of 1,528.99 ordinary hours between Monday to Friday and the First Respondent:

    (i)Was required to pay the Employees a total of $6,875.79 to satisfy their Casual Loading entitlement; and

    (ii)Paid the Employees a total of $68.15, resulting in a total underpayment of their Casual Loading entitlement of $6,807.64;

    (f)By reason of the matters set out in sub-paragraphs (d) and (e) the First Respondent contravened cl 13.1 of the Restaurant Award and thereby s 45 of the FW Act;[13]

    [13] Statement of Agreed Facts, [15]-[17].

    (g)The First Respondent was required to pay the Employees Saturday penalty rates for ordinary hours of work performed on a Saturday, pursuant to cl 34.1 of the Restaurant Award (Saturday Penalties);

    (h)The Employees worked a total of 160.75 ordinary hours on a Saturday and the First Respondent:

    (i)Was required to pay the Employees a total of $4,418.41 to satisfy their Saturday Penalties entitlement; and

    (ii)Paid the Employees a total of $2,411.25, resulting in a total underpayment of their Saturday Penalties entitlement of $2,007.16;

    (i)By reason of the matters set out in sub-paragraphs (g) and (h) the First Respondent contravened cl 34.1 of the Restaurant Award and thereby s 45 of the FW Act;[14]

    [14] Statement of Agreed Facts, [18]-[20].

    (j)The First Respondent was required to pay the Employees Sunday penalty rates for ordinary hours of work performed on a Sunday, pursuant to cl 34.1 of the Restaurant Award (Sunday Penalties);

    (k)The Employees worked a total of 106 ordinary hours on a Sunday and the First Respondent:

    (i)Was required to pay the Employees a total of $2,853.72 to satisfy their Sunday Penalties entitlement; and

    (ii)Paid the Employees a total of $1,590.00, resulting in a total underpayment of their Sunday Penalties entitlement of $1,263.72;

    (l)By reason of the matters set out in sub-paragraphs (j) and (k) the First Respondent contravened cl 34.1 of the Restaurant Award and thereby s 45 of the FW Act;[15]

    (m)The First Respondent was required to pay Mr Hodgson public holiday penalty rates for ordinary hours of work performed on a public holiday, pursuant to cl 34.1 of the Restaurant Award (Public Holiday Penalties);

    (n)Mr Hodgson worked a total of 28 ordinary hours on a public holiday and the First Respondent:

    (i)Was required to pay Mr Hodgson a total of $1,323.84 to satisfy his Public Holiday Penalties entitlement; and

    (ii)Paid Mr Hodgson a total of $620.00, resulting in a total underpayment of his Public Holiday Penalties entitlement of $703.84; and

    (o)By reason of the matters set out in sub-paragraphs (m) and (n) the First Respondent contravened cl 34.1 of the Restaurant Award and thereby s 45 of the FW Act;[16]

    [15] Statement of Agreed Facts, [21]-[23].

    [16] Statement of Agreed Facts, [24]-[26].

19. By reason of the matters set out in the preceding paragraph, during the Contravention Period the First Respondent underpaid the Employees a total of $15,412.15. The total underpayment to Mr Hodgson was $12,909.78. The total underpayment to Ms Bamunuwitage was $2,502.37.[17]

    [17] Statement of Agreed Facts, [27], [28] and Annexure A.

20. It has been admitted by the Respondents that during the Contravention Period, the Contraventions took place and that Mr Hodgson was underpaid the total sum of $12,909.78 and Ms Bamunuwitage was underpaid the total sum of $2,502.37.[18]

    [18] Campbell Affidavit, [12]-[28] and Annexure A; Statement of Agreed Facts, [27] and [28].

21. During the Contravention Period the First Respondent was required, pursuant to s 535(1) of the FW Act and reg 3.33 of the FW Regulations, to make and keep records for seven (7) years specifying:

    (a)The hours worked by the Employees, pursuant to reg 3.33(2);

    (b)The Casual Loading that the Employees were entitled to be paid, pursuant to reg 3.33(3)(c); and

    (c)The penalty rates that the Employees were entitled to be paid, pursuant to reg 3.33(3)(d).

22. The First Respondent failed to make or keep records as required by s 535(1) of the FW Act and regs 3.33(2), 3.33(3)(c) and 3.33(3)(d) of the FW Regulations, during the Contravention Period. As a result the First Respondent contravened s 535(1) of the FW Act.[19] 

    [19] Statement of Agreed Facts, [29] and [30].

23. During the Contravention Period the First Respondent was required, pursuant to s 536(1) of the FW Act, to give a pay slip to each of the Employees within one (1) working day of paying an amount to them in relation to the performance of work.

1. In the Statement of Agreed Facts it was agreed at [32] that during the Contravention Period the First Respondent gave only one (1) pay slip to Mr Hodgson on 9 March 2017.  However, in the Campbell Affidavit at [8] Fair Work Inspector (FWI) Campbell deposed that Mr Hodgson provided to the Applicant four (4) pay slips from the First Respondent for the period 6 February 2017 to 5 March 2017.  These payslips were produced as annexure “DCAC-2” to the Campbell Affidavit.  Further, during the Penalty Hearing the Solicitor for the Applicant referred to Mr Hodgson as being provided with four (4) payslips during his employment with the First Respondent.[20] Counsel for the Respondents did not disagree with the submission that four (4) payslips had been provided to Mr Hodgson by the First Respondent. The Court notes that whether the First Respondent gave Mr Hodgson one (1) payslip or four (4) payslips during his employment over a period of 15 months, the First Respondent otherwise failed to give to each of the Employees a pay slip in relation to the performance of their work during the Contravention Period. As a result the First Respondent contravened s 536(1) of the FW Act.[21]

   [20] Transcript P6:L40-P8:L7; P24:L29.

   [21] Statement of Agreed Facts, [31] and [32].

2. During the Contravention Period the First Respondent was required, pursuant to s 535(1) of the FW Act and reg 3.33 of the FW Regulations to make and keep records specifying:

   (a)The rate of remuneration paid to the Employees, pursuant to reg 3.33(1)(a); and

   (b)The hours worked by the Employees, pursuant to reg 3.33(2).

3. During the period from 15 September 2017 to 30 January 2019 (False or Misleading Records Contravention Period) the First Respondent was required, pursuant to s 535(4) of the FW Act to ensure that records kept pursuant to the FW Act or the FW Regulations were not false or misleading in a material particular.

4. During the False and Misleading Records Contravention Period, the First Respondent kept:

   (a)Records which purported to record the hours worked by, and the rate of remuneration paid to Mr Hodgson (Hodgson Time and Pay Records); and

   (b)Records which purported to record the hours worked by, and the rate of remuneration paid to Ms Bamunuwitage (Bamunuwitage Time and Pay Records).

5. The Hodgson Time and Pay Records and the Bamunuwitage Time and Pay Records were false and misleading because they incorrectly recorded:

   (a)The Employees working fewer hours than they actually worked, as set out in Annexure B to the Statement of Agreed Facts; and

   (b)The Employees being paid higher hourly rates than they were actually paid, as set out in Annexure C to the Statement of Agreed Facts.

6. The Second Respondent, and through him the First Respondent, knew that the Hodgson Time and Pay Records and the Bamunuwitage Time and Pay Records were false or misleading because the Second Respondent:

   (a)Knew the actual hourly rates paid to the Employees;

   (b)Knew the actual hours worked by the Employees; and

   (c)Was the person who created the Hodgson Time and Pay Records and the Bamunuwitage Time and Pay Records.

7. By reason of the matters set out in [25] to [29] above, during the False or Misleading Records Contravention Period, the First Respondent contravened s 535(4) of the FW Act.[22]

   [22] Statement of Agreed Facts, [33]-[38], Annexure A and Annexure B; Affidavit of Duncan Colin Alfred Campbell, affirmed and filed 19 December 2019 (Campbell Affidavit, [6]-[13] and [17]-[20].

8. During the False or Misleading Records Contravention Period, the First Respondent was prohibited pursuant to s 718A(1) of the FW Act, from producing documents to a FWI, exercising powers or performing functions under or in connection with a law of the Commonwealth, if it knew, or was reckless as to whether the documents were false or misleading. At all relevant times each of FWI John O’Leary (FWI O’Leary) and FWI David Campbell (FWI Campbell), were appointed a FWI by the Applicant under s 700 of the FW Act.

9. Pursuant to ss 682(1)(c) and 683(1) of the FW Act:

   (a)In about November 2017, FWI O’Leary and FWI Campbell commenced an investigation into the First Respondent in respect to its employment of Mr Hodgson, after receiving a complaint from Mr Hodgson (Hodgson Investigation); and

   (b)In November 2018, FWI Campbell commenced an investigation into the First Respondent in respect of its employment of Ms Bamunuwitage, after receiving a complaint from Ms Bamunuwitage (Bamunuwitage Investigation).

10. On 24 January 2018, during the Hodgson Investigation, FWI O’Leary issued the First Respondent with a notice to produce documents, pursuant to s 712 of the FW Act (Hodgson Notice to Produce).

11. During the Hodgson Investigation and in response to the Hodgson Notice to Produce, the Second Respondent produced the Hodgson Time and Pay Records and a spreadsheet purporting to record Mr Hodgson’s hours of work (Hodgson Spreadsheet) to FWI O’Leary on 9 February 2018 and 19 February 2018.[23] On 9 August 2018, the Applicant issued a Findings of Contravention Letter to the First Respondent, and on 31 August 2018 the Applicant issued a Final Findings of Contravention Letter to the First Respondent.

    [23] Campbell Affidavit, [10(b)] and Annexure “DCAC-4”.

12. On 19 December 2018, during the Bamunuwitage Investigation, FWI Campbell issued the First Respondent with a notice to produce documents, pursuant to s 712 of the FW Act (Bamunuwitage Notice to Produce).

13. During the Bamunuwitage Investigation and in response to the Bamunuwitage Notice to Produce, the Second Respondent produced the Bamunuwitage Time and Pay Records to FWI Campbell on 30 January 2019. On 27 June 2019, the Applicant issued a Findings of Contravention Letter to the First Respondent.

14. By reason of the matters in [27] and [28] above, the Hodgson Time and Pay Records and the Bamunuwitage Time and Pay Records were false and misleading. By reason of the matters in [29] above, the Second Respondent, and through him the First Respondent, knew that the Hodgson Time and Pay Records and the Bamunuwitage Time and Pay Records were false and misleading.

15. By reason of the matters in [31] to [37] above, the First Respondent contravened s 718A(1) of the FW Act.[24]

    [24] Agreed Statement of Facts, [39]-[46]; Campbell Affidavit, [6]-[13] and [17]-[20].

16. The Second Respondent admits to being involved, within the meaning of s 550 of the FW Act, in each of the First Respondent’s admitted Contraventions set out at [4] above.[25]

    [25] Agreed Statement of Facts, [47]-[54].

17. In the Applicant’s Reply Submissions at [3] and Annexures A and B, the Applicant sought that the Respondents be ordered to pay the following pecuniary penalties:

    (a)Pursuant to s 546(1) of the Act, the First Respondent pay pecuniary penalties of $96,336.00 within 28 days; and

    (b)Pursuant to s 546(1) of the Act, the Second Respondent pay pecuniary penalties of $19,267.20 within 28 days.

18. On 13 November 2020 after the conclusion of the Penalty Hearing, the Applicant sent to my Associates’ Chambers a proposed Minute of Orders (Applicant’s Minute). The Applicant’s Minute sought, by consent, declarations of the Contraventions stated at [4] and [5] of these Reasons for Judgment, and sought that the Respondents be ordered to pay pecuniary penalties as set out in the Applicant’s Reply Submissions.

19. In the Respondents’ Penalty Submissions at [58] the Respondents propose that:

    (a)Pursuant to s 546(1) of the Act, the First Respondent pay pecuniary penalties of $53,500.00; and

    (b)Pursuant to s 546(1) of the Act, the Second Respondent pay pecuniary penalties of $10,700.00.

20. During the Penalty Hearing Counsel for the Respondents submitted that the Respondents should have 360 days within which to pay the pecuniary penalties.[26]

    [26] Transcript P27:L17-38.

    principles of penalty

21. The Court may impose penalties pursuant to s 546 of the FW Act if it is satisfied that a person has contravened a civil remedy provision. Sections 45, 535(1), 535(4), 536(1) and 718A(1) of the FW Act are each civil remedy provisions.

22. The approach of the Court in determining the quantum of penalties is well established. The Court has a broad discretion to assess the appropriate penalty, ultimately adopting an approach of an “instinctive synthesis”: Wong v R (2001) 207 CLR 584; [2001] HCA 64 at [75]; Australian Opthalmic Supplies Pty Ltd v McAlary-Smith (2008) 165 FCR 560; [2008] FCAFC 8 (Merringtons) at [27]-[28], [55] and [78].

23. In Fair Work Ombudsman v NHS North Pty Ltd trading as New Shanghai Charlestown [2017] FCA 1301 at [36], Bromwich J summarised the approach to determining an appropriate penalty as follows:

    36       […]

    (1)Identify the separate contraventions, with each breach of each obligation being a separate contravention, and each breach of a term of the Award being a separate contravention.

    (2)Consider whether each separate contravention should be dealt with independently or with some degree of aggregation for those contraventions arising out of a course of conduct, noting that s 557 of the FW Act provides that two or more contraventions of a given civil remedy provision are to be taken to be a single contravention if committed by the same person and arising out of a course of conduct by that person. 

    (3)Consider whether there should be further adjustment to ensure that, to the extent of any overlap between groups of separate aggregated contraventions, there is no double penalty imposed, and that the penalty is an appropriate response to what each respondent did.

    (4)Consider the appropriate penalty in respect of each final individual group of contraventions, taken in isolation.

    (5)Consider the overall penalties arrived at, including by reference to those which may be proposed by the FWO (as permitted by Commonwealth v Director, Fair Work Building Industry Inspectorate [2015] HCA 46; 258 CLR 482 (CFMEU Civil Penalties Case) at [64]) and what is proposed by the respondents, and apply the totality principle, to ensure that the penalties for each respondent are appropriate and proportionate to the conduct viewed as a whole, making such adjustments as are necessary: see Kelly v Fitzpatrick [2007] FCA 1080; 166 IR 14 at [30]; Australian Ophthalmic Supplies Pty Ltd v McAlary-Smith [2008] FCAFC 8; 165 FCR 560 at [23]. [71] and [102].

    Maximum penalties

24. Section 539(2) of the FW Act provides a table which indicates the maximum “penalty units” for contraventions of the sort admitted to in this matter. Section 546(2) of the FW Act prescribes that a pecuniary penalty imposed by the Court must not be more than the maximum number of penalty units referred to in the table in s 539(2) of the FW Act. As the First Respondent is a body corporate, pursuant to s 546(2)(b) of the FW Act it is liable to five (5) times the maximum number of penalty units provided in the table in s 539(2) of the FW Act.

25. A penalty unit is defined s 12 of the FW Act to have the same meaning as given by s 4AA of the Crimes Act 1914 (Cth). The Contraventions in this matter occurred from 2 May 2016 to 30 January 2019 and the value of a penalty unit differed during this period as follows:

    (a)       Between 31 July 2015 to 30 June 217, the value of a penalty unit was $180.00; and
    (b)       From 1 July 2017, the value of a penalty unit was $210.00.

26. In this matter the Contraventions all span periods where different maximum penalties applied except for:

    (a)The contraventions of s 45 of the FW Act by failing to pay Mr Hodgson the Public Holiday Penalties prescribed by cl 34.1 of the Restaurant Award, which occurred entirely during the period when the value of the penalty unit was $180.00; and

    (b)The contraventions of s 718A(1) of the FW Act of knowingly producing false or misleading records to the Applicant, which occurred entirely during the period when the value of the penalty unit was $210.00.

27. The Applicant accepts that the lower penalty unit of $180.00 should apply to the contraventions of s 45 of the FW Act by the First Respondent for failing to pay Mr Hodgson the Public Holiday Penalties prescribed by cl 34.1 of the Restaurant Award, as they occurred entirely during the period when the value of the penalty unit was $180.00.[27]

    [27] Applicant’s Submissions on Penalty, filed 19 June 2020 (Applicant’s Penalty Submissions), [17(a)]; Applicant’s Reply Submissions, [6] and footnote 1.

28. In relation to the Contraventions which span the period where different maximum penalties applied, the Applicant contended that it is appropriate to apply the higher penalty rate to the entirety of the Contraventions. The Applicant relied on Fair Work Ombudsman v Grouped Property Services Pty Ltd (No 2) [2017] FCA 557 (FWO v Grouped Property Services (No 2)), where Katzmann J considered this issue. Her Honour noted at [396] and [397] the observations of the Court of Criminal Appeal in R v White (BC9101745, NSWCCA, 25 July 1991, unreported), that in a criminal context, there was no reason why a higher penalty could not be applied to cases where the relevant conduct took place prior to and after an increase in the value of the maximum penalty. In FWO v Grouped Property Services (No 2) Her Honour said at [398]:

    398[…] by parity of reasoning the same principle applies to contraventions of the FW Act involving a course of conduct which began before the amendment and continued after it came into effect.

29. In FWO v Grouped Property Services (No 2) at [399] Katzmann J applied the increased penalty amount to each of the Contraventions that occurred both before and after the date when the penalty amount increased. Her Honour then said at [401]:

    401Nonetheless, in relation to the contraventions involving courses of conduct spanning the two periods, I will take into account in the determination of the penalty the fact that the lower amount applied for part of the period.

30. The Applicant submitted that the approach adopted by Katzmann J in FWO v Grouped Property Services (No 2) should be adopted by the Court. It was also submitted in the Applicant’s Penalty Submissions at [21] that to apply the lower maximum penalty to a course of conduct which continued after the increase in the value of a penalty unit, may result in anomalous outcomes, such as:

    (a)Contraventions occurring over a longer period being subject to a lower maximum penalty than shorter courses of conduct commenced after the increase in value of the penalty unit, thereby rewarding persistent contraventions; or

    (b)Significantly different maximum penalties being available for similar courses of conduct, where one is shown to have commenced shortly before the increase in the value of the penalty unit, and the other after the date of the increase taking effect.  

31. In the Applicant’s Penalty Submissions at [22] the Applicant noted that the maximum penalties for the admitted Contraventions of ss 535(1) and 536(1) of the FW Act increased from 30 penalty units to 60 penalty units on 13 October 2016. The Applicant submitted that in these circumstances it is appropriate to treat the Respondents’ Contraventions of these provisions as part of a single course of conduct and attracting the higher maximum penalties.[28]

    [28] Applicant’s Penalty Submissions, [22] and footnote 10.

32. In the Respondents’ Penalty Submissions at [3] to [15], Counsel for the Respondents advanced an argument that a notional penalty unit of $187.18 should be applied to all but three (3) of the Contraventions. This amount was calculated on the basis that: 76.1% of the underpayments occurred while the value of the penalty unit was $180.00; and the balance of 23.9% of the under payments occurred while the value of the penalty unit was $210.00.

33. In response the Applicant contended that applying a notional penalty to all but three (3) of the Contraventions risks resulting in an anomalous outcome in circumstances where:

    (a)The Respondents’ proposed notional penalty unit of $187.18 is only marginally higher than the $180.00 penalty unit that applied prior to 1 July 2017, and is much lower than the $210.00 penalty unit that applied after 1 July 2017;

    (b)The Applicant’s recommended approach to grouping already provided the Respondents with the benefit of multiple instances of contraventions of the same term of the Restaurant Award, or applicable provisions of the FW Act being “grouped” where those breaches related to both of the Employees and/or occurred on multiple occasions; and

    (c)Each of the Contraventions to which the Respondents proposed to apply the notional penalty unit relate to Contraventions in respect of not only Mr Hodgson but also Ms Bamunuwitage, whose employment and Contraventions occurred entirely after 1 July2017.[29]     

    [29] Applicant’s Reply Submissions, [5].

34. The Applicant therefore maintained that the Court should follow the approach adopted by the Federal Court in FWO v Grouped Property Services (No 2), with the effect that the maximum penalties available for each Contravention should be those set out in the tables contained in Annexure A to the Applicant’s Reply Submission (Annexure A). The tables in Annexure A apply the penalty unit rate of $210.00 to all Contraventions apart from the Contravention which occurred entirely before the penalty unit increase. This Contravention relates to the First Respondent’s breach of s 45 of the FW Act by failing to pay Mr Hodgson the minimum public holiday penalty rates prescribed by cl 34.1 of the Restaurant Award.

35. For the reasons advanced by the Applicant I, propose to follow the approach taken by Katzmann J in FWO v Grouped Property Services (No 2) and adopt the penalty unit rate of $210.00 to all Contraventions, apart from the Contravention which occurred entirely before the penalty rate increase on 1 July 2017.

36. Taking into account that much of the Court’s assessment will be made when addressing the totality principle, the maximum penalties which can be imposed on the Respondent for each Contravention are as follows:

Contravention	Description of Contravention	Maximum Penalty
1.	s 45 FW Act	Failing to pay the Employees Junior Minimum Hourly Rates	First Respondent: $63,000 Second Respondent: $12,600
2.	s 45 FW Act	Failing to pay the Employees the Casual Loading	First Respondent: $63,000 Second Respondent: $12,600
3.	s 45 FW Act	Failing to pay the Employees Saturday Penalties	First Respondent: $63,000 Second Respondent: $12,600
4.	s 45 FW Act	Failing to pay the Employees Sunday Penalties	First Respondent: $63,000 Second Respondent: $12,600
5.	s 45 FW Act	Failing to pay Mr Hodgson Public Holiday Penalties	First Respondent: $54,000 Second Respondent: $10,800
6.	s 535(1) FW Act	Failing to make or keep records as required by s 535(1) of the FW Act and reg 3.33 of the FW Regulations	First Respondent: $63,000 Second Respondent: $12,600
7.	s 536(1) FW Act	Failing to give the Employees pay slips within one (1) working day of paying amounts to them in relation to the performance of work	First Respondent: $63,000 Second Respondent: $12,600
8.	s 535(4) FW Act	Failing to ensure that records kept under the FW Act or FW Regulations were not false or misleading	First Respondent: $63,000 Second Respondent: $12,600
9.	s 718A(1) FW Act	Producing documents to FWIs in respect of Mr Hodgson during the period from 9 February 2018 to 19 February 2018, knowing or being reckless as to whether the documents were false or misleading	First Respondent: $63,000 Second Respondent: $12,600
10.	s 718A(1) FW Act	Producing documents to a FWI in respect of Ms Bamunuwitage on 30 January 2019, knowing or being reckless as to whether the documents were false or misleading	First Respondent: $63,000 Second Respondent: $12,600
Total	First Respondent: $621,000 Second Respondent: $124,200

Principles relevant to the determination of penalty

1. The factors to be considered in regard to penalty are often those referred to in Kelly v Fitzpatrick (2007) 166 IR 14; [2007] FCA 1080 at [14] (Kelly) and Stuart-Mahoney v Construction, Forestry, Mining and Energy Union [2008] FCA 1426 at [40], as follows:

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

   •The circumstances in which that relevant conduct took place.

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

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

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

   •The size of the business enterprise involved.

   •Whether or not the breaches were deliberate.

   •Whether senior management was involved in the breaches.

   •Whether the party committing the breach had exhibited contrition.

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

   •Whether the party committing the breach cooperated with the enforcement authorities.

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

   •The need for specific and general deterrence.

2. There are, however, no fixed factors and the Court should not adopt a checklist approach: Australian Building & Construction Commissioner v Construction, Forestry, Mining and Energy Union (No.2) [2010] FCA 977 at [10]. Each case must be determined on its own facts and circumstances and the Court must bear in mind the objects and purpose of the FW Act: s 3 FW Act.

3. It is also important to bear in mind that civil penalties are not intended to serve a retributive function: Commonwealth of Australia v Director, Fair Work Building Industry Inspectorate [2015] HCA 46 at [59]. It is against this background that the Court has approached its consideration of the appropriate penalty in this matter.

4. In in the Respondents’ Penalty Submissions the Respondents seek to rely on the factual comparisons between the present case and the penalties imposed by the Court in Fair Work Ombudsman v Desire Food Pty Ltd & Anor [2019] FCCA 2979, Fair Work Ombudsman v Pulis Plumbing Pty Ltd & Anor [2019] FCCA 3192 and Fair Work Ombudsman v Wynn Sichuan Pty Ltd & Ors and FWO v Nine Dragons Pty Ltd & Ors [2020] FCCA 1358.

5. This approach is contrary to the approach of the Full Federal Court in Merringtons at [12], [56] and [87]. In Merringtons Gray J said at [12]:

   12 Much of the argument put by counsel for the appellant involved a detailed comparison between the facts of this case and the facts of two other cases in which lower penalties had been imposed in respect of award breaches. The two cases, both judgments of the same Federal Magistrate, are Mason v Harrington Corporation Pty Ltd[2007] FMCA 7 and Flattery v The Italian Eatery T/as Zeffirelli’s Pizza Restaurant [2007] FMCA 9. This was a fundamentally wrong approach. Penalties are not a matter of precedent. The choice of penalty must be dictated by the individual circumstances of a case, not by a line by line         comparison with another case. See the passage from the judgment of Burchett and Kiefel JJ in NW Frozen Foods Pty Ltd v Australian Competition and Consumer Commission(1996) 71 FCR      285 at 295, set out in the reasons for judgment of Buchanan J at [87].

6. Accordingly I am not persuaded by Respondents’ Penalty Submissions insofar as the submissions seek to compare the penalties imposed in other cases to reduce the penalties the Court imposes in this case.

   Grouping of contraventions

7. Section 557 of the FW Act allows for the grouping of multiple contraventions into a single contravention where they arise from the same “course of conduct” such that there is an overlap of the factual and legal elements of the contraventions: Construction, Forestry, Mining and Energy Union v Cahill [2010] FCAFC 39 at [39]. However, where the contraventions concern differing obligations under the FW Act, these contraventions cannot be grouped: Rocky Holdings Pty Limited v Fair Work Ombudsman [2014] FCAFC 62 at [17]-[18].

8. Consistent with Fair Work Ombudsman v Lohr [2018] FCA 5, each of the casual loading contraventions are also to be treated distinctly. That is, while they are of similar character (i.e., a failure to pay casual loading), they each arose under different circumstances and attracted additional obligations. The Court, however, is not precluded from adjusting the penalty when considering the totality principle if necessary.

9. Contraventions of ss 535 and 536 of the FW Act are discrete obligations that are regularly treated by the courts as independent and are not grouped. There is no reason to do otherwise here.

10. During the Penalty Hearing the Applicant’s Solicitor submitted that the parties were in agreement as to the grouping of the Contraventions.[30] No issue was raised concerning the Applicant’s grouping of the Contraventions in the Respondents’ Penalty Submissions or in the submissions made by Counsel for the Respondents at the Penalty Hearing.

    [30] Transcript P5:L9-11.

    Relevant Factors

11. As I have indicated above in these Reasons for Judgment, there is no exhaustive list of factors to consider in determining the appropriate penalty. I will consider therefore the submissions which each of the parties have referred to and addressed in their submissions.

    The nature, extent and circumstances in which the Contraventions occurred and loss

12. The admitted Contraventions resulted in a total underpayment of $15,412.15 to the Employees over a period of approximately two (2) and a half years. The Contraventions include the failure to pay: the Junior Minimum Hourly Rates; the Casual Loading; Saturday Penalties; Sunday Penalties and Public Holiday Penalties. The total loss incurred by the Employees was significant in the context of the casual nature of their employment, and that the combined total period of employment of the Employees was less than 18 months. The underpayments represented approximately 35% of the Employees’ minimum entitlements during their periods of employment.[31]   

    [31] Applicant’s Penalty Submissions, [28].

13. The admitted Contraventions also include a failure to make or keep records specifying details prescribed by the FW Regulations, and a failure to provide pay slips to the Employees over a period of approximately two (2) and a half years, save for one (1) or four (4) pay slips provided to Mr Hodgson as previously discussed.

14. Of significant concern are the admitted Contraventions of s 718A(1) of the FW Act through the manufacture and production of false records to the Applicant on two separate occasions, which resulted in a total of 66 false records being produced to the Applicant.[32] The false records were produced by the Respondents to the Applicant in response to the Hodgson Notice to Produce and the Bamunuwitage Notice to Produce, each of which sought records relating to the Employees’ hours of work and pay.

    [32] Statement of Agreed Facts, [33]-[46]; Campbell Affidavit, [10]-[13].

15. During the Penalty Hearing Counsel for the Respondents submitted that there were no real aggravating factors in this case and that the offending was at the lower end of the spectrum.  This was because the underpayments involved only two (2) employees and only one (1) at a given time.  It was submitted that the Applicant had had the benefit of undertaking an investigation into the First Respondent and had not discovered any other contraventions.[33] In response to this submission, the Solicitor for the Applicant submitted that the Applicant had conducted two (2) investigations as a result of two (2) confined complaints from two (2) specific employees.  The Applicant did not conduct an audit of the whole of the Business and it was therefore not possible to speculate as to the extent of the Respondents’ compliance with Commonwealth workplace laws in relation to other employees.[34] I accept this submission.  The Applicant conducted the Hodgson Investigation and the Bamunuwitage Investigation and did not conduct an investigation into the whole of the Business conducted by the First Respondent.

    [33] Transcript P16:L39-44; P17:L36-41; P18:L17-22.

    [34] Transcript P24:L5-8.

    Deliberateness

16. The Applicant provided evidence that on 11 December 2017 the Applicant issued a Letter of Caution to the Second Respondent in his capacity as the sole director of a company operating another business in the restaurant industry (Letter of Caution).[35] The Letter of Caution identified that the company had allegedly underpaid a former employee and engaged in contraventions of the FW Act, including the failure to pay: the minimum hourly wage; the Casual Loading; and Saturday Penalties. The Letter of Caution cautioned the Second Respondent that if the Applicant became aware of any future non-compliance it may commence civil proceedings with respect to breaches of the FW Act and seek the imposition of penalties. Significantly the Letter of Caution also directed the Second Respondent’s attention to the Applicant’s website and tools on that website that he could use to assist him in complying with the First Respondent’s obligations under the FW Act. These obligations included ensuring that employees receive their correct entitlements under relevant industrial instruments and pay and recordkeeping obligations.

    [35] Campbell Affidavit, [15] and [16] and Annexures “DCAC-7” and “DCAC-8”.

17. Clearly, this previous experience in relation to the Letter of Caution ought to have put the Second Respondent on notice in relation to the Respondents’ obligations under the FW Act and this is given some weight. In this proceeding there were 10 contraventions in total. These contraventions were wide ranging and ongoing.

18. Further, in August 2018 the Applicant informed the Respondents in Findings of Contraventions Letters, dated 9 August 2018 and 31 August 2018 (Findings of Contraventions Letters), that it had determined that the First Respondent had contravened the FW Act by failing to pay Mr Hodgson: the Junior Minimum Hourly Rates; the Casual Loading; and penalty rate entitlements under the Restaurant Award. The Applicant also informed the Respondents that it had determined that the First Respondent had failed to comply with its record keeping obligations and had produced false records to the Applicant, in contravention of the FW Act.[36]

    [36] Campbell Affidavit, [17]-[19] and Annexures “DCAC-9”.

19. Despite receiving the Findings of Contraventions Letters, the Respondents made subsequent decisions to: pay Ms Bamunuwitage the same $15.00 hourly rate of pay that they knew was insufficient to meet her minimum entitlements under the Restaurant Award; to persist with the First Respondent’s previous record keeping practices; and to manufacture and produce to the Applicant the same type of false records that were produced to the Applicant during the Hodgson Investigation. The Respondents persisted with this conduct despite previously having been warned in the Findings of Contravention Letters that this conduct contravened the FW Act and the Restaurant Award.[37]

    [37] Campbell Affidavit, [20] and Annexure “DCAC-10”.

20. At the Penalty Hearing Counsel for the Respondents submitted that the Hodgson Time and Pay Records, the Hodgson Spreadsheet and the Bamunuwitage Time and Pay Records were “not so critically misleading that they had no use”. It was submitted that this was because these documents did not deny the existence of the Employees and did not misstate the amounts paid to the Employees. It was further submitted that as these documents were volunteered by the Respondents it was evidence of their cooperation in the Hodgson Investigation and the Bamunuwitage Investigation.[38] I am unable to accept these submissions for the following reasons.

    [38] Transcript P18:L7-17.

21. In the Campbell Affidavit at [10(a)] FWI Campbell deposed that in response to the Hodgson Notice to Produce 57 individual Hodgson Time and Pay Records were produced for the period from 2 May 2016 to 6 August 2017.  These 57 documents were produced as Annexure “DCAC-3” to the Campbell Affidavit.  FWI Campbell concluded at [12(a)] of the Campbell Affidavit that each of the 57 Hodgson Time and Pay Records recorded that Mr Hodgson worked fewer hours than those recorded in text messages provided by Mr Hodgson to the Applicant.  This discrepancy ranged between approximately one (1) hour and 56 minutes and 17 hours and 44 minutes fewer hours of work being recorded for each pay period. FWI Campbell also concluded at [12(c)] of the Campbell Affidavit that each of the 57 Hodgson Time and Pay Records recorded that Mr Hodgson was paid at substantially higher hourly rates than the $15.00 hourly rate which Mr Hodgson had informed the Applicant that he was paid. Further, FWI Campbell concluded at [12(d)] that each of the Hodgson Time and Pay Records recorded hourly rates of pay that matched either exactly or within one (1) cent, the applicable minimum hourly rates of pay under the Restaurant Award for the 2017 to 2018 financial year.  These pay rates were not published until 1 July 2017, which was after the period that approximately 52 of the 57 Hodgson Time and Pay Records related to. FWI Campbell also concluded at [13] of the Hodgson Affidavit that the Hodgson Spreadsheet matched the lesser number of hours recorded in the Hodgson Time and Pay Sheets.

22. In the Campbell Affidavit at [11] FWI Campbell deposed that in response to the Bamunuwitage Notice to Produce, eight (8) individual Bamunuwitage Time and Pay Records were produced for the period from 10 September 2018 to 4 November 2018. These 8 documents were produced as Annexure “DCAC-5” to the Campbell Affidavit. FWI Campbell concluded at [12(b)] of the Campbell Affidavit that each of the eight (8) Bamunuwitage Time and Pay Records recorded that Ms Bamunuwitage worked fewer hours than those recorded in text messages provided by Ms Bamunuwitage to the Applicant. This discrepancy ranged between approximately two (2) hours and 12 minutes and 15 hours and 31 minutes fewer hours of work being recorded for each pay period. FWI Campbell also concluded at [12(c)] of the Campbell Affidavit that each of the eight (8) Bamunuwitage Time and Pay Records recorded that Ms Bamunuwitage was paid at substantially higher hourly rates than the $15.00 hourly rate which Ms Bamunuwitage had informed the Applicant that she was paid.

23. I therefore determine that the Contraventions in this matter were deliberate. In particular I conclude that the manufacturing and production of the false records to the Applicant during the Hodgson Investigation and the Bamunuwitage Investigation were deliberate steps taken by the Respondents to conceal the fact that the Employees were being paid rates which were inadequate to meet the Employees’ minimum entitlements. I determine that the Respondents deliberately engaged in this conduct so that the Applicant would not detect the underpayment of the Employees.

    Size and financial circumstances of the business

24. The Respondents provided some limited evidence concerning the financial circumstances of the First Respondent in the Peng Affidavit at [1] to [7] and [20] to [27]. The Second Respondent deposed that the Business was a small business that employed about 10 people at any given time. It had an annual revenue of between $1 million and $1.2 million, and in a good year the First Respondent’s annual profit was 5% of revenue, being $50,000.00 to $60,000.00. The Second Respondent further deposed that the First Respondent had ceased trading on 10 November 2019, as The Coffee Club terminated the franchise agreement.  The Second Respondent also said that at all times the Business suffered from significant cash flow issues and was behind on its Goods and Services Tax (GST) payments. The Second Respondent deposed that the First Respondent had entered into an instalment arrangement with the Australian Tax Office (ATO), and that as at 1 June 2020 the First Respondent’s liability for GST was $55,705.89. Annexed to the Peng Affidavit was a copy of a letter dated 9 November 2019 from the ATO confirming an instalment arrangement with “The JMSL Partnership” and an ATO Activity Statement dated 15 June 2020, also referring the “The JMSL Partnership”.[39] These were the only documents produced to support the Second Respondent’s account of the financial circumstances of the First Respondent and the Business, apart from a National Australia Bank (NAB) Commercial Hire Purchase loan account statement, dated 19 June 2020 and an email from the NAB dated 21 April 2020 confirming a deferral of payments.[40]

    [39] Affidavit of Edison Peng, affirmed 22.6.20 and filed 23.6.20 (Peng Affidavit), [20] and [21] and Annexures “EP-5” and “EP-6”.

    [40] Peng Affidavit, [33] and Annexures “EP-7” and “EP-8”.

25. In the Peng Affidavit the Second Respondent also deposed to his own personal financial circumstances. The Second Respondent seeks that the Court take into account his financial circumstances when ordering a penalty as he is concerned the penalty may cause the First Respondent to enter into liquidation and the Second Respondent to become bankrupt.[41]  

    [41] Peng Affidavit, [28], [31]-[33], [37] and [38] and Annexures “EP-7” and “EP-8”.

26. In the Respondents’ Penalty Submissions it was also submitted that there was a very real chance that any significant penalty would cause the First Respondent to be wound up.  It was  submitted that in the context of the COVID-19 pandemic and its effect on the restaurant industry, it would be in line with community expectations and principles of general deterrence to impose a lighter penalty than would otherwise be given.[42]   

    [42] Respondents’ Penalty Submissions, [50]-[53].

27. In circumstances where the First Respondent had both ceased trading as a Coffee Club franchise and ceased employing workers prior to the onset of the COVID-19 pandemic, these submissions are without any evidentiary basis.

28. The mere difficulty in paying a pecuniary penalty should not deter the Court from imposing a penalty: Australian Competition & Consumer Commission v ACN 135 183 372 (in liquidation) (formerly known as Energy Watch Pty Ltd) [2012] FCA 749. In Glenn Jordan v Mornington Inn Pty Ltd [2007] FCA 1384 at [99] Heery J stated:

    99.[…] As to the respondent's own financial position, however, in considering the size of a penalty, capacity to pay is of less relevance than the objective of general deterrence: Leahy (No 2) at [9]. In any event, to the extent that financial hardship might mitigate what would otherwise be an appropriate penalty, such an argument would need to be based on evidence. Apart from the income figures mentioned above, which were advanced from the Bar table, no such evidence was forthcoming.

29. The Court does not have before it any profit and loss statements in relation to the Business or the First Respondent. The Court has before it little more that the Second Respondent’s account of the financial status of the First Respondent in the Peng Affidavit and the Respondents’ Penalty Submissions.

30. The Courts have held that it is appropriate for penalties to be set by reference to the statutory maximum penalty, rather than by reference to a respondent’s capacity to pay. Such an approach “avoids giving issues of size and financial position a focus not intended by Parliament...”: Fair Work Ombudsman v Priority Matters Pty Ltd (No 5) & Anor [2020] FCCA 901 at [116] to [118].

31. The circumstances of this case, particularly where the contravening conduct occurred in the restaurant industry in respect of two (2) young workers and also relates to the provision of false information to a regulator, requires penalties to be imposed at a level which deters others from similar conduct.

    Statutory objectives and compliance with minimum standards

32. The Employees were each underpaid and deprived of their minimum entitlements throughout their respective periods of employment with the First Respondent.

1. It is significant that the failure of the Respondents to make and keep records in the prescribed form and to provide payslips to the Employees throughout their employment limited their ability to ascertain their lawful entitlements.  It also limited the Applicant’s ability to conduct the Hodgson Investigation and the Bamunuwitage Investigation.  

2. In Ghimire v Karriview Management Pty Ltd (No 2) [2019] FCA 1627 Colvin J said at [11] and [12]:

   11.Record keeping obligations are an important part of the protections afforded by the Fair Work Act.  As stated by Reithmuller FM in Fair Work Ombudsman v Taj Palace Tandoori Indian Restaurant Pty Ltd [2012] FMCA 258 at [66]‑[67] in dealing, prior to the enactment of s 557C, with the importance of compliance with the obligation under the Regulations to issue pay slips to employees:

   The need to ensure compliance, particularly with respect to vulnerable workers, such as those on work visas, those who come to Australia without strong language skills, and those with little education is crucial to a just society, and the avoidance of exploitation.

   Whilst the record keeping obligation with respect to pay slips only appears in the Regulations, its central importance in industrial matters cannot be underestimated.  Proper pay slips allow employees to understand how their pay is calculated and therefore easily obtain advice.  Pay slips provide the most practical check on false record keeping and underpayments, and allow for genuine mistakes or misunderstandings to quickly be identified.  Without proper pay slips employees are significantly disempowered, creating a structure within which breaches of the industrial laws can easily be perpetrated.

   12.These statements have been cited with approval in this Court: Fair Work Ombudsman v Grouped Property Services Pty Ltd (No 2) [2017] FCA 557 at [548] (Katzmann J) and Fair Work Ombudsman v South Jin Pty Ltd (No 2) [2016] FCA 832 at [55] (White J).

3. Further, one of the objects of the FW Act is ensuring an effective safety net for employee entitlements and effective enforcement mechanisms: s 3 FW Act. The Respondents’ Contraventions deprived the Employees of the protection of the minimum safety net and thereby undermined minimum standards which are also designed to provide an even playing field for all employers with regard to employment costs: Fair Work Ombudsman v Mai Pty Ltd & Anor [2016] FCCA 1481 at [134]; Fair Work Ombudsman v JS Top Pty Ltd & Anor [2017] FCCA 1689 at [61].

4. The record keeping contraventions by the Respondents have the capacity to undermine minimum standards. Proper record keeping and payslips play a central role in the capacity of the Applicant as a regulator to monitor and enforce compliance with minimum standards: Fair Work Ombudsman v Bound for Glory Enterprises & Anor [2014] FCCA 432 at [76]. In this proceeding the admitted record keeping contraventions by the Respondents, especially those relating to the manufacture and production of false records, caused delay and complication in the Applicant’s ability to assess the Employees’ entitlements and to determine whether the Employees had been paid in accordance with the FW Act and the Restaurant Award. In the Campbell Affidavit at [14] FWI Campbell deposed that the Respondents’ record keeping contraventions caused the Hodgson Investigation and the Bamunuwitage Investigation to be longer and more complicated than it would have been if the records were correct. The Respondents’ conduct therefore had a real and practical impact on the Applicant’s capacity to carry out its statutory role.

5. In this proceeding ordering penalties at a meaningful level are warranted to demonstrate that there are consequences for failing to comply with the standards and obligations of Commonwealth workplace laws. Meaningful penalties are also warranted to ensure that there is a considerable financial incentive for the Respondents and other like-minded individuals or organisations to avoid these non-compliant practices, especially where this concerns record keeping obligations. 

   Involvement of senior management in the Contraventions

6. The Second Respondent was at all material times the sole director of the First Respondent and the person principally in control of the overall direction, management and supervision of the First Respondent. The Second Respondent was responsible for the First Respondent’s industrial arrangements, including the creation and keeping of the Employees’ time and pay records. The Second Respondent was thereby responsible for ensuring that the First Respondent complied with its legal obligations under the FW Act and the FW Regulations. The Second Respondent was consequently at the highest level of the First Respondent’s operations and has admitted that he was involved in each of the Contraventions.[43]

   [43] Statement of Agreed Facts, [47] and [48].

   Corrective action, cooperation with enforcement authorities and contrition

7. In the Peng Affidavit at [16] and [17] the Second Respondent deposed that he caused the First Respondent to fully repay: Mr Hodgson between 14 November 2018 and 15 January 2019; and Ms Bamunuwitage between 3 October 2019 and 8 January 2020.

8. The Second Respondent also deposed in the Peng Affidavit at [18] that on or about 12 February 2020 he registered an Account on the Applicant’s website and accessed and completed the Record-Keeping and Payslips Course and the Hiring Employees Course. Copies of the Certificates of Completion of these courses, dated 12 February 2020 were annexed to the Peng Affidavit in Annexure “EP-3”. 

9. The Application and the Statement of Claim were filed on 6 September 2019.  On 31 October 2019 the Applicant emailed to the Respondents’ then lawyers a draft statement of agreed facts.[44] The First Respondent agreed with the draft statement of agreed facts and on 13 November 2019 the Statement of Agreed Facts was filed. The Respondents have therefore cooperated with the Applicant, to the extent that they made early admissions as to liability from shortly after the commencement of the proceeding.

   [44] Peng Affidavit, [14] and Annexure “EP-2”.

10. Where a respondent cooperates and makes admissions early in the course of an investigation or soon after the commencement of proceeding, it may be appropriate to allow a discount on penalty. In Mornington Inn Pty Ltd v Jordan (2008) 168 FCR 383; [2008] FCAFC 70; the Full Federal Court stated at [76] and [77]:

    76[…] a discount should not be available simply because a respondent has spared the community the cost of a contested trial. Rather, the benefit of such a discount should be reserved for cases where it can be fairly said that an admission of liability: (a) has indicated an acceptance of wrongdoing and a suitable and credible expression of regret; and/or (b) has indicated a willingness to facilitate the course of justice.

    77A respondent who admits liability will spare itself the unnecessary cost of a contested hearing. Its motivation, therefore, should not be regarded as unduly altruistic.  […]

11. The Court accepts that the admissions made by the Respondents had the effect of narrowing the issues in dispute and to facilitate the course of justice. This warrants some reduction.

12. The Second Respondent deposed at [19] of the Peng Affidavit that on 11 May 2020 he wrote to the Employees and apologised on behalf of himself and the First Respondent and confirmed that all their owed entitlements had been repaid. A copy of the letter addressed to “staff”, the Applicant and to the Court is Annexure “EP-4” to the Peng Affidavit.

13. The Second Respondent also deposed at [34] to [36] of the Peng Affidavit to: the significant embarrassment that he has suffered as a result of this proceeding; the detrimental impact that it has had upon his relationship with members of his family, being his uncles who invested in the Business; and his remorse for his conduct.

14. The Court accepts that the Second Respondent has indicated an acceptance of wrongdoing and a willingness to accept the course of justice. This warrants some reduction.

15. In the Respondents’ Penalty Submissions it was submitted at [44], that a discount of 30% or greater was open to the Court on the facts, for the Respondents’ cooperation, early admissions, the repayments and the Second Respondent having undertaken the Applicant’s recommended courses. In the Applicant’s Penalty Submissions at [47], the Applicant submits that in the circumstances a discount of 20% for the Contraventions is appropriate.[45] The Court agrees with the Applicant’s submission that 20% is an appropriate discount.

    [45] Applicant’s Penalty Submissions, [47].

    Deterrence

16. General and specific deterrence are important in this case given that the purpose of civil penalties is to attempt to put a price on a contravention that is sufficiently high to deter repetition by the contravener and by others who might be tempted to contravene the FW Act: Commonwealth of Australia v Director, Fair Work Building Industry Inspectorate at [55] and [110].

17. In Australian Building and Construction Commissioner v Construction, Forestry, Mining and Engineering Union [2017] FCAFC 113 at [98] the Full Federal Court stated:

    98.Whereas criminal penalties import notions of retribution and rehabilitation, the    purpose of a civil penalty is primarily, if not wholly, protective in promoting the public interest in compliance: Trade Practices Commission v CSR Ltd [1990] FCA 521; (1991) ATPR 41-076 at 52,152 [42]; Commonwealth v         Director, FWBII at [55] (per French CJ, Kiefel, Bell, Nettle and Gordon JJ).  The principal object of a pecuniary penalty is to attempt to put a price on       contravention that is sufficiently high to deter repetition by the contravenor        and by others who might be tempted to contravene; both specific and general deterrence are important: Chemeq at [90]; Ponzio at [93]. A pecuniary penalty for a contravention of the law must be fixed with a view to ensuring that the penalty is not to be regarded by the offender or others as an acceptable cost of doing business: Australian Competition and Consumer Commission v TPG      Internet Pty Ltd [2013] HCA 54; (2013) 250 CLR 640 at 659 [66]; Singtel Optus Pty Ltd v  Australian Competition and Consumer Commission [2012] FCAFC 20; (2012) 287 ALR 249 at 265 [62]-[63]. In relation to general deterrence, it is important to send a message that contraventions of the sort under consideration are serious and not acceptable: Australian Securities and Investments Commission v Southcorp Ltd (No 2) [2003] FCA 1369; (2003) 130 FCR 406 at 418 [32].

    General deterrence

18. In this case there is a need for a significant deterrent penalty in respect of the record keeping contraventions that have been admitted by the Respondents, given the impact of this conduct in undermining the system of workplace compliance, and to emphasise that the deliberate provision of false information to a regulator is inexcusable and will be met with a strong penalty outcome.

19. There is also a particular need for general deterrence in the fast food, restaurant and café industry (Restaurant Industry).  The Campbell Affidavit at [22] and in Annexures “DCAC-13” and “DCAC”-14” provides data collected by the Applicant in respect of the Restaurant Industry over the period from July 2013 to December 2018.  This data demonstrates that during the period from July 2016 to December 2018, the Restaurant Industry accounted for almost 10% of all disputes dealt with by the Applicant and of those disputes: 40% related to workers between the ages of 15 and 24; and the top allegations or complaints related to the underpayment of hourly rates and penalty rates.[46]  Further, between July 2013 and June 2016, the Restaurant Industry accounted for 11% of all disputes dealt with by the Applicant, the highest of any industry.  These disputes tended to involve vulnerable workers who were on average young, less educated, lower paid, employed part-time and with higher levels of culturally and linguistically diverse backgrounds.[47]

    [46] Campbell Affidavit, [22] Annexure “DCAC-14”, pp 162-163.

    [47] Campbell Affidavit, [22] Annexure “DCAC-13”, p 141.

20. As set out in the preceding paragraph the data collected by the Applicant reveals the need for general deterrence in respect of employers of young workers, particularly those between the ages of 15 to 24, because of the proportion of complaints received by the Applicant in relation to these workers and their tendency to form part of a vulnerable workforce in the Restaurant Industry.

21. The Court is therefore conscious of the need to ensure that other businesses like the Respondent in the Restaurant Industry are deterred from engaging in similar conduct.

    Specific deterrence

22. Specific deterrence is directed at ensuring that a contravener is not prepared to embark upon the risk of engaging in the same contravening conduct again: Fair Work Ombudsman v AJR Nominees Pty Ltd (No 2) [2014] FCA 128 at [50].

23. In the Respondents’ Penalty Submissions it is submitted at [45] that specific deterrence is of limited significance in this case. It is submitted that the Respondents have cooperated through admissions and rectified the underpayments. The First Respondent is no longer trading as The Coffee Club and is no longer a franchisee for The Coffee Club.  It was also submitted that it was unlikely that the First Respondent would ever trade again with its current shareholders, given the strained relationship between the Second Respondent and his uncles.  It is further submitted that there is a very real chance that the penalty would cause the First Respondent into winding up.  The Court does not accept that specific deterrence is of limited significance in these proceedings. 

24. The Respondents engaged in the Contraventions despite being on notice of their employer obligations and the potential consequences of non-compliance, by reason of the Letter of Caution and the Findings of Contraventions Letters.  The First Respondent remains registered[48] and the Second Respondent remains a director and secretary of the First Respondent as well as two (2) other companies.[49] Further the Second Respondent has deposed at [28] to [30] in the Peng Affidavit that he is working as the manager of another café and is responsible for the café’s daily operations, including the setting of wages. The Court therefore concludes that there is a need to impose a penalty that will aim to specifically deter the Respondents from engaging in the same conduct in the future.

    [48] Campbell Affidavit, [21(a)], and Annexure “DCAC-11”.

    [49] Campbell Affidavit, [21(b)], and Annexure “DCAC-12”.

    Determining the quantum of the penalty

25. The Applicant submitted that the appropriate penalties for each of the Contraventions would be as follows.[50]

    [50] Applicant’s Penalty Submissions, [4] and Annexure A; Applicant’s Reply Submissions, [3] and Annexure A.

Contravention	Description of Contravention	Maximum Penalty & Proposed Penalty
1.	s 45 FW Act	Failing to pay the Employees Junior Minimum Hourly Rates	Maximum Penalty First Respondent: $63,000 Second Respondent: $12,600 Proposed Penalty First Respondent: $18,900 (30%) Second Respondent: $3,780 (30%)
2.	s 45 FW Act	Failing to pay the Employees the Casual Loading	Maximum Penalty First Respondent: $63,000 Second Respondent: $12,600 Proposed Penalty First Respondent: $18,900 (30%) Second Respondent: $3,780 (30%)
3.	s 45 FW Act	Failing to pay the Employees Saturday Penalties	Maximum Penalty First Respondent: $63,000 Second Respondent: $12,600 Proposed Penalty First Respondent: $12,600 (20%) Second Respondent: $2,520 (20%)
4.	s 45 FW Act	Failing to pay the Employees Sunday Penalties	Maximum Penalty First Respondent: $63,000 Second Respondent: $12,600 Proposed Penalty First Respondent: $12,600 (20%) Second Respondent: $2,520 (20%)
5.	s 45 FW Act	Failing to pay Mr Hodgson Public Holiday Penalties	Maximum Penalty First Respondent: $54,000 Second Respondent: $10,800 Proposed Penalty First Respondent: $5,400 (10%) Second Respondent: $1,080 (10%)
6.	s 535(1) FW Act	Failing to make or keep records as required by s 535(1) of the FW Act and reg 3.33 of the FW Regulations	Maximum Penalty First Respondent: $63,000 Second Respondent: $12,600 Proposed Penalty First Respondent: $18,900 (30%) Second Respondent: $3,780 (30%)
7.	s 536(1) FW Act	Failing to give the Employees pay slips within one (1) working day of paying amounts to them in relation to the performance of work	Maximum Penalty First Respondent: $63,000 Second Respondent: $12,600 Proposed Penalty First Respondent: $25,200 (40%) Second Respondent: $5,040 (40%)
8.	s 535(4) FW Act	Failing to ensure that records kept under the FW Act or FW Regulations were not false or misleading	Maximum Penalty First Respondent: $63,000 Second Respondent: $12,600 Proposed Penalty First Respondent: $25,200 (40%) Second Respondent: $5,040 (40%)
9.	s 718A(1) FW Act	Producing documents to FWIs in respect of Mr Hodgson during the period from 9 February 2018 to 19 February 2018, knowing or being reckless as to whether the documents were false or misleading	Maximum Penalty First Respondent: $63,000 Second Respondent: $12,600 Proposed Penalty First Respondent: $31,500 (50%) Second Respondent: $6,300 (50%)
10.	s 718A(1) FW Act	Producing documents to a FWI in respect of Ms Bamunuwitage on 30 January 2019, knowing or being reckless as to whether the documents were false or misleading	Maximum Penalty First Respondent: $63,000 Second Respondent: $12,600 Proposed Penalty First Respondent: $31,500 (50%) Second Respondent: $6,300 (50%)
Total	Maximum Penalty First Respondent: $621,000 Second Respondent: $124,200 Proposed Penalty First Respondent: $200,700 Second Respondent: $40,140
Total Proposed Penalty after 20% discount	First Respondent: $160,560 Second Respondent:$32,112

1. It is the Court’s view that the penalties proposed by the Applicant for the Contraventions set out in the table in the preceding paragraph are appropriate. Therefore the penalty to be imposed against the First Respondent amounts to $160,560.00 and against the Second Respondent amounts to $32,112.00. Each of these amounts are approximately 26% of the maximum penalty.

   Totality

2. After undertaking the assessment of a penalty for each Contravention, the final step for the Court is to look at the aggregate penalty to determine whether it is appropriate and proportionate to the Respondents’ conduct viewed as a whole.  While the penalty imposed must not be crushing or oppressive, it must nevertheless bear relativity to the seriousness of the conduct engaged in by the Respondents: Kelly at [30]; Merringtons at [23], [71] and [102].

3. In the Applicant’s Reply Submissions at [2] and [3] and in Annexure A, the Applicant submitted that having had the opportunity to consider the Peng Affidavit, which was belatedly filed, a higher discount on totality than the 30% proposed in the Applicant’s Penalty Submissions, was appropriate. The Applicant submitted that a discount on totality of 40% was appropriate in the circumstances. This would result in a penalty of $96,336.00 being imposed against the First Respondent and a penalty of $19,267.20 being imposed against the Second Respondent. Each of these amounts are approximately 15% of the maximum penalty.  

4. The Court accepts the submissions made by the Applicant and considers that in all the circumstances the final penalties are proportionate to the seriousness of the Respondents’ conduct.

5. No further reduction should be imposed.

6. The Court finds that a penalty of $96,336.00 is to be paid by the First Respondent to the Commonwealth. The Court also finds that a penalty of $19,267.20 is to be paid by the Second Respondent to the Commonwealth.

   Timeframe for Payment

7. The Applicant seeks orders that the penalties be paid by the Respondents within 28 days of the date of the Court’s orders.[51]  At the Penalty Hearing the Solicitor for the Applicant submitted that the Applicant would be open to have separate discussions with the Respondents subsequent to orders being made, to ensure that a balanced enforcement approach was taken.[52]

   [51] Applicant’s Reply Submissions, [4] and Annexure B.

   [52] Transcript P27:L43-P28:L4.

1. At the Penalty Hearing Counsel the Respondents sought a period of 360 days from the date of Court’s orders for the Respondents to pay the penalties.[53]

   [53] Transcript P27:L20-38.

2. I do not intend to accede to the Respondents’ request for 360 days from the date of the Court’s orders for the Respondents to pay the penalties for the following reasons.  Firstly the period of time sought to pay the penalties is excessive. Secondly, the Respondents have provided very little independent evidence of their financial position to the Court, as discussed in these Reasons for Judgment. Thirdly, the Applicant has internal procedures for managing the measured enforcement of penalties, as was submitted by Counsel for the Applicant and the Respondents at the Penalty Hearing. Fourthly, the Respondents have already had more than enough time since the conclusion of the Penalty Hearing to make appropriate financial arrangements for the payment of the penalties.

3. Accordingly, orders will be made that the Respondents pay the penalties to the Commonwealth of Australia within 28 days of the Court’s orders.

   conclusion

4. The Court finds that a penalty of $96,336.00 is to be paid by the First Respondent to the Commonwealth of Australia for the Contraventions within 28 days of the date of the Court’s orders.

5. The Court also finds that a penalty of $19,267.20 is to be paid by the Second Respondent to the Commonwealth of Australia within 28 days of the date of the Court’s orders.

I certify that the preceding one hundred and twenty-eight (128) numbered paragraphs are a true copy of the Reasons for Judgment of Her Honour C.E. Judge Kirton KC

Associate:

Dated:       16 March 2023