Fair Work Ombudsman v Joseph and Anor - [2020] FCCA 2910

FEDERAL CIRCUIT COURT OF AUSTRALIA

FAIR WORK OMBUDSMAN v JOSEPH & ANOR

[2020] FCCA 2910

Catchwords:
INDUSTRIAL LAW – Fair Work Proceedings – Temporary Business Entry (Class UC) Temporary Work (Skilled) (subclass 457) visa – contravention of civil penalty provisions – wage theft – 20% discount for early contrition – the Court imposes a total pecuniary penalty on the first and second respondents – orders made.

Legislation:

Fair Work Act 2009 (Cth), s.718A(5)

Fair Work Regulations 2009 (Cth)

Restaurant Industry Award 2010

Cases cited:

Commonwealth of Australia v Director, Fair Work Building Industry

Inspectorate (2015) 326 ALR 476

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

Fair Work Ombudsman v NoBrace Centre Pty Ltd (in Liquidation) (ACN121

556 447) (No 2) [2019] FCCA 2970

Fair Work Ombudsman v NSH North Pty Ltd t/as New Shanghai Charlestown

[2017] FCA 1301

Hansen v Mt Martha Community Learning Centre Inc (No 2) [2015] FCA 1283

Jordan v Mornington Inn [2007] FCA 1384

Kelly and Fitzpatrick [2007] FCA 1080

Mason v Harrington Corporation Pty Ltd [2007] FMCA 7

Applicant:

FAIR WORK OMBUDSMAN

First Respondent:

REKHA THAKADIYAL JOSEPH

Second Respondent:

JIJO THIRUVANKAVIL ESAHAC

File Number:

SYG 2502 of 2019

Judgment of:

Judge Humphreys

Hearing date:

22 October 2020

Date of Last Submission:

22 October 2020

Delivered at:

Parramatta

Delivered on:

28 October 2020

REPRESENTATION

Counsel for the Applicant:

Ms Brigden

Solicitors for the Applicant:

Legal Group - Fair Work Ombudsman

Counsel for the Respondents:

Mr Lee

Solicitors for the Respondents:

Neil Lawyers

ORDERS

By consent, the parties seek the declarations and orders set out below.

Declarations that:
(a)Each of the Respondents’ contravened the following civil penalty provisions:
(i)Section 45 of the Fair Work Act 2009 (Cth) (“the Act”), by failing to pay Mr Kurian minimum rates of pay in accordance with clause 20 of the Restaurant Industry Award 2010 (“the Award”);
(ii)Section 45 of the Act, by failing to pay Mr Kurian Saturday penalty rates in accordance with clauses 34.1 and A.7.3 of Schedule A of the Award.
(iii)Section 45 of the Act, by failing to pay Mr Kurian Sunday penalty rates in accordance with clauses 34.1 and A.7.3 of Schedule A of the Award;
(iv)Section 45 of the Act, by failing to pay Mr Kurian public holiday penalty rates in accordance with clauses 34.1 and A. 7.3 of Schedule A of the Award;
(v)Section 45 of the Act, by failing to pay Mr Kurian overtime rates for overtime worked on a Monday to Friday, in accordance with clause 33.2(a) of the Award;
(vi)Section 45 of the Act, by failing to pay Mr Kurian overtime rates for overtime worked on a Saturday, in accordance with clause 33.2(b) of the Award;
(vii)Section 45 of the Act, by failing to pay Mr Kurian overtime rates for overtime worked on a Sunday, in accordance with clause 33.2(c) of the Award;
(viii)Section 44 of the Act, by failing to pay Mr Kurian for annual leave taken in accordance with section 90(1) of the Act;
(ix)Section 45 of the Act, by failing to pay Mr Kurian annual leave loading entitlements in accordance with clause 35.2(b) of the Award;
(x)Section 44 of the Act, by failing to pay Mr Kurian annual leave entitlements upon termination of employment in accordance with section 90(2) of the Act;
(xi)Section 44 of the Act, by failing to pay Mr Kurian for personal leave taken in accordance with section 99 of the Act;
(xii)Section 325 of the Act, by unreasonably requiring Mr Kurian to spend amounts payable to him in relation to the performance of work;
(xiii)Section 535(1) of the Act, by failing to make, and keep for seven years, employee records of the kind prescribed by the Fair Work Regulations 2009 (Cth) (“the Regulations”) in relation to Mr Kurian;
(xiv)Sub-regulation 3.44(1) of the Regulations, by failing to ensure records the Respondents were required to keep under the Act and Regulations in respect of Mr Kurian were not false and misleading;
(xv)Sub-regulation 3.44(6) of the Regulations, by making use of entries in an employee record made and kept for Sub division 1 of Chapter 3, Part 3-6, Division 3 of the Regulations, knowing that the entries were false or misleading;
(xvi)Section 536(1) of the Act, by failing to provide Mr Kurian with a pay slip within one working day of paying an amount to him in relation to the performance of work;
(xvii)Section 536(2) of the Act, by failing to provide Mr Kurian with a pay slip including information prescribed by the Regulations;
(b)The First Respondent contravened section 718A(1) of the Act, by giving false or misleading documents and/or false or misleading information to a Fair Work Inspector exercising powers or performing functions under or in connection with the Act.
An order that:
(a)Pursuant to section 545(1) of the Act, the Respondents are jointly and severally liable to pay $153,352.01 to the Applicant, within 28 days of the date of the order;
(b)Pursuant to section 547(2) of the Act, the Respondents are jointly and severally liable to pay interest on the amount of $153,352.01, to be paid to the Applicant, within 28 days of the order;
(c)The applicant distribute the amounts paid, in accordance with order (2)(a) and (2)(b) above to Mr Kurian;
(d)Pursuant to section 546(1) of the Act, the First Respondent pay pecuniary penalties in respect of each of the contraventions set in the amount of $63,600, to be paid to the Consolidated Revenue Fund of the Commonwealth of Australia, within 28 days of the order;
(e)Pursuant to section 546(1) of the Act, the Second Respondent pay pecuniary penalties in respect of each of the contraventions set in the amount of $55,600, to be paid to the Consolidated Revenue Fund of the Commonwealth of Australia, within 28 days of the order;
(f)The applicant has liberty to apply on seven days’ notice in the event the preceding orders are not complied with.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

SYG 2502 of 2019

FAIR WORK OMBUDSMAN

Applicant

And

REKHA THAKADIYAL JOSEPH

First Respondent

JIJO THIRUVANKAVIL ESAHAC

Second Respondent

REASONS FOR JUDGMENT

Introduction.

The respondent’s operated a business known as the “Blue Moon Restaurant” in Wentworthville, New South Wales. Blue Moon Restaurant is an Indian cuisine restaurant that provides both sit down and take away meals. The first and second respondents’ (“the respondents”) operated the business in a partnership.
In October 2013 the respondents entered in to an agreement with a Mr Kurian. Mr Kurian is an Indian national. Mr Kurian was to be employed in the position of Café and Restaurant Manager with a contractual salary of $54,000 per annum. Mr Kurian’s hours of work were a minimum of 38 hours per week with a 40 minute paid lunchbreak each day. The respondents agreed to sponsor Mr Kurian for a Temporary Business Entry (Class UC) Temporary Work (Skilled) (subclass 457) visa to migrate to Australia. Following the grant of his visa, Mr Kurian arrived in Australia in late December 2013. Mr Kurian resided with the respondents from the date of his arrival until March 2016.
During Mr Kurian’s employment with the respondents, he was significantly underpaid by reference to the relevant Restaurant Industry Award 2010 (“the Award”) for the very long hours that he worked.
During the time that Mr Kurian worked for the respondents, a bank account was opened in his name and a bank card was issued to operate the account. The respondents caused regular payments to be made into the bank account which Mr Kurian did not have access to. Amounts were withdrawn from the account by the respondents and instead, Mr Kurian was paid cash, usually in fortnightly instalments between March 2014 to April 2015 $400.00 per week and there after until December 2015, $450.00 per week.
From late December 2015, until Mr Kurian ceased employment with the respondents, he had access to the bank account card, however he was required to make repayments to the respondents totalling $820.00.
Following Mr Kurian ceasing employment with the respondents, he complained to the Fair Work Ombudsman. An investigation commenced. In a Statement of Agreed Facts filed with the Court, the respondents have admitted to underpaying Mr Kurian the amount of $153,352.01. Further admissions have been made in relation to contraventions of payslip and record keeping obligations under the Fair Work Act 2009 (Cth) (“the Act”) and Fair Work Regulations 2009 (Cth) (“the Regulations”) and providing false and misleading documents or information to a Fair Work Inspector.
By consent, the parties seek from the Court a number of declarations and orders in relation to breaches of the Award, the Act and the Regulations. These orders include payment by the respondents jointly and severally of the amount of $153,352.01 to Mr Kurian together with interest. The Court is also asked to set pecuniary penalties in respect of the first and second respondents for their actions which have been outlined above.
There is an agreement between the parties as to the majority of the orders to be made by the Court, together with the amount of compensation to be paid to Mr Kurian. As a result, the only issue for the Court to determine, is the appropriate pecuniary penalties to be ordered by the Court in respect of each of the respondents.

The Applicant’s Submissions

The applicant notes that the contraventions of the relevant Award, Act and Regulations include the following:
·Failing to pay minimum rates of pay in accordance with the Award;
·Failing to pay Saturday penalty rates;
·Failing to pay Sunday penalty rates;
·Failing to pay public holiday penalty rates;
·Failing to pay applicable overtime rates for work on a Monday to Friday;
·Failing to pay relevant overtime rates for work on a Saturday;
·Failing to pay relevant overtime rates for work on a Sunday;
·Failing to pay annual leave;
·Failing to pay annual leave loading entitlements;
·Failing to pay annual leave entitlements upon the termination of employment;
·Failing to pay personal leave entitlements;
·Unreasonably requiring Mr Kurian to spend amounts payable to him in relation to the performance of work;
·Failing to make, and keep, employee records as prescribed;
·Failing to ensure the records the respondents were required to keep were not false or misleading;
·Making entries in an employee record that were false or misleading;
·Failing to provide Mr Kurian with a payslip within one working day of paying him an amount in relation to the performance of work; and
·Failing to provide Mr Kurian with a payslip that included information prescribed by the Regulations.
The applicant notes that Mr Kurian was a foreign national from India who came to Australia on a 457 Visa with the respondents as his sponsor. Mr Kurian was employed initially as a kitchen hand and then as a cook. During Mr Kurian’s time with respondents he worked initially 13 hours per day on Mondays and 14.5 hours on Wednesdays to Sundays during the period December 2013 to April 2014. During the period of May 2014 to December 2015, Mr Kurian worked 12 hours per day, six days per week. During the period December 2015 to the end of his employment, in March 2016 Mr Kurian worked 11 hours per day, six days per week.
The actions of the respondents were made in circumstances where Mr Kurian was vulnerable to exploitation, as his Temporary Business Entry (Class UC) Temporary Work (Skilled) (subclass 457) visa was subject to sponsorship by the respondents and Mr Kurian was residing with the respondents.
The record keeping and pay slips contraventions admitted by the respondents are submitted to be significant, because they limited Mr Kurian’s ability to check his lawful entitlements as well as the Fair Work Ombudsman’s ability to investigate the matter.
The payroll records that were produced to the Fair Work Ombudsman were such that the respondents knew that the entries in the records were false because they did not record the actual payments made to Mr Kurian.
The first respondent also knowingly created and produced a false calendar, purporting to record the hours worked by Mr Kurian, after they were given a warning pursuant to s 718A(5) of the Act that they may be liable to a civil penalty for giving false and misleading information or producing false and misleading documents to a Fair Work Inspector. The applicant submitted that the production of these false and misleading records had a real impact on the capacity of the Fair Work Ombudsman to efficiently carry out its statutory role and resulted in the Fair Work Ombudsman having to rely on information provided by third parties, including other employees of the respondents, in order to determine whether Mr Kurian had been paid in accordance with relevant workplace laws.
The applicant submitted that the extent of the loss suffered by Mr Kurian of $153,352.01 is significant and the underpayment represented approximately 66% of his minimum entitlements during the employment period. The applicant submitted that the negative impacts of the underpayment and long hours that Mr Kurian worked included stress, tiredness and being scared to speak up and ask for higher wages for fear that the respondents would cause his visa to be cancelled.
The applicant notes that the underpayment was rectified on 5 August 2020, more than four years after Mr Kurian’s employment period ended.
The applicant submitted that the respondents’ actions were a deliberate decision to set up a system to pay Mr Kurian below his entitlements. The setting up of the bank account in Mr Kurian’s name, together with the making of payments into it and the withdrawal of those funds by the respondents is particularly concerning. The deliberate nature of actively concealing the underpayments made to Mr Kurian and the provision of false information to the Fair Work Inspector is a significant factor in the assessment of the appropriate penalties.
The respondents operated a partnership in respect of the Blue Moon restaurant, and accordingly, the actions involve the highest level of mismanagement within the employer of Mr Kurian.
In relation to the size of business and the capacity to pay, it is well-established that the size and financial circumstances of an employer do not exculpate contraventions of workplace laws: Kelly and Fitzpatrick [2007] FCA 1080 (“Kelly”) at [28]. Small businesses have the same obligation as larger employers to meet minimum employment standards and therefore penalties are meaningful level should be imposed regardless of the employer size or financial position: (see Kelly) at [28]. The applicant acknowledges that the financial circumstances of a respondent may be a relevant consideration in determining an appropriate penalty and whether the size of the penalty is “meaningful”; see Hansen v Mt Martha Community Learning Centre Inc (No 2) [2015] FCA 1283 at [5].
It is noted that the respondents as at 14 September 2020 own two properties in New South Wales and Queensland with estimated values of $810,000 and $305,000. Further, detailed financial evidence has not been filed with the Court setting out the current financial positions of the respondents. It is submitted that the respondents capacity to pay is ultimately of less relevance than the objective of general deterrence: see Jordan v Mornington Inn [2007] FCA 1384 at [99].
In terms of corrective action and cooperation with authorities and contrition, it is noted that the underpayment was rectified on 5 August 2020. Further, following a mediation before a registrar of the Court, the respondents made admissions to liability at a relatively early stage in the proceedings sparing the community the cost of a contested liability hearing. The applicant submits that in the current circumstances a discount of 20% on the penalty that might otherwise be imposed, is appropriate having regard to the admissions, the rectification and the timing of the admissions.
In relation to the issue of deterrence, it was submitted that the purpose of civil penalties is an attempt to put a price on contraventions that are is sufficiently high, to deter repetition by the contravenor and others who might be tempted to contravene the legislation: see Commonwealth of Australia v Director, Fair Work Building Industry Inspectorate (2015) 326 ALR 476 at [55]. In relation to this particular matter, the applicant submits the general deterrence is of particular importance in respect of conduct involving the provision of false information in the creation of false documents : see Fair Work Ombudsman v Desire Food Pty Ltd and Anor [2019] FCCA 2979 at [72]. Second, there is a particular need for general deterrence in the fast food, restaurant and café industry, where there is an over representation of underpayments, particularly those who are workers holding visas. Thirdly, the seriousness of the admitted contraventions is compounded by Mr Kurian’s vulnerability, considering he was in Australia on a Temporary Work (Skilled) (subclass 457) visa and the fact that he was living with the respondents for the majority of the employment period. The applicant submitted that Mr Kurian’s vulnerability arose from his visa status and was exploited by the respondents.
In terms of specific deterrence, it is noted that both of the respondents remain directors, shareholders and officers of various companies. The second respondent has stated an intention to continue to operate in the restaurant industry. The applicant submitted that there is a need to impose penalties that are sufficient to deter the respondents from engaging in the same conduct, in the future.
Accordingly, in accordance with an annexure that was provided as an attachment to the submissions, the applicant submitted that the total penalty in respect of the first respondent should be in the range of $70,192 - $76,240. In respect of the second respondent, the applicant submitted that the appropriate penalty was in the range of $61,552 - $67,600.

The Respondents’ Submissions

Counsel for the respondents submitted that the penalties proposed by the applicant were excessive. In support of this submission, the respondents rely upon the affidavit of the first respondent sworn on 8 September 2020 and the second respondent on 10 September 2020. The Court has noted this material and in particular the health issues of the first respondent.
Counsel for the respondents submitted firstly, that in relation to the objective seriousness of the contraventions, the conduct relates to one employee only, in that was not a systemic pattern of contravening conduct in relation to a number of employees. Counsel for the respondents further submitted that a finding should be made that the objective seriousness of the contraventions was in the mid-range of offending.
Secondly, it was noted that full reparation had been made to Mr Kurian and the consent declarations, orders, and a statement of agreed facts were evidence of remorse and cooperation with the applicant.
Thirdly, Counsel for the respondents submitted that as the business was conducted as a partnership of both the respondents or owners of the business and this is a relevant matter in respect of the fixing of a pecuniary penalty because the contraventions are identical and economical, the pot of money which the penalties will have to be met from, is the same, being, family finances. With one exception, all contraventions arise from the same or joint conduct, the overall penalty imposed on each of them should be lessened.
Fourth, in relation to specific deterrence, although the second respondent remains involved in the restaurant industry, it is only he and his relatives who work in those restaurants. Therefore specific deterrence assumes less importance than if he remained in the industry employing third parties. Counsel for the respondents submitted that a finding should be made that the second respondent is of low risk of reoffending.

The first respondent, has deposed that she is no longer involved in the restaurant industry at all and has no intention to re-enter the industry. Further, first respondent, and the second respondent are now separated as a couple. Counsel for the respondents submitted that the first respondent has a negligible risk of reoffending.
Sixth, the financial circumstances of both parties are such that any penalties imposed, will have a significant financial consequence on both parties. It is likely that the penalties will result in the application of sale proceeds of other businesses and at least probably, the sale of the Queensland investment property to meet the debt, as well as other liabilities being a debt to the Australian Tax Office (“ATO”) and a sizeable electricity bill. It is further suggested that the respondents capacity to pay, has been lessened as a result of the impact of the current pandemic and that any penalties cannot be met from normal trading income. This has relevance to the principal of totality
Lastly, the first respondent has also provided evidence of multiple health conditions which means that she will be unable to readily obtain and maintain full-time work.
Counsel for the respondents submits that the range of penalties to be imposed, should be in the order of $47,240 -$56,056 in respect of the first respondent and $39,680-$48,496 in respect of the second respondent.

The Law

The Court has a broad discretion as to penalty. Bromwich J in Fair Work Ombudsman v NSH North Pty Ltd t/as New Shanghai Charlestown [2017] FCA 1301 (“NSH”) at [36] , summarised how the discretion is to be approached as follows:
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].
The purpose of a civil penalty is primarily, if not wholly, that of promoting the public interest in compliance with the laws that have been contravened and it does not engage principles of retribution or rehabilitation; See Fair Work Ombudsman v NoBrace Centre Pty Ltd (in Liquidation) (ACN121 556 447) (No 2) [2019] FCCA 2970 (“NoBrace”) per Kelly J at [65]. As these principles of retribution or rehabilitation are not involved in the determination of a civil penalty, this intensifies the focus of a civil penalty determination point issues of specific and general deterrence; See NoBrace at [66].
In Mason v Harrington Corporation Pty Ltd [2007] FMCA 7, Mobray FCM set out what is a now well settled set of factors relevant in assessing a pecuniary penalty. They are as follows:
a)   the nature and extent of the conduct which led to the breaches
b)   the circumstances in which the conduct took place
c)   the nature and extent of any loss sustained as a result of the breaches
d)   whether there has been similar previous conduct by the respondent
e)   whether the breaches were properly distinct or arose out of one course of conduct
f)    the size of the business enterprise involved
g)   whether or not the breaches were deliberate
h)   whether senior management was involved in the breaches
i)    whether the party committing the breach had exhibited contrition
j)    whether the party committing the breach had taken corrective action
k)   whether the party committing the breach had cooperated with enforcement authorities
l)    the need to ensure compliance with minimum standards by provision of an effective means for the investigation and enforcement of fully entitlements
m) the need for specific and general deterrence

Consideration

As set out above, the approach to be adopted is that summarised by Bromwich J in NSH at [36]. Given the agreement between the parties, it is not necessary for the Court to identify the separate contraventions and consider whether or not they should be dealt with independently or with some degree of aggregation. The parties have agreed on what contraventions have taken place and which should be dealt with independently or aggregated together. The Court is satisfied that the tables provided by each of the parties ensure that the first three steps summarised by Bromwich J in NSH have occurred in an appropriate manner, and it is not necessary for this Court to undertake that process.
What remains, is a consideration of the appropriate penalty to be imposed in respect of the final individual group of contraventions taken in isolation together with a consideration of the overall penalty to be arrived at, taking into account the principle of totality, by undertaking an instinctive synthesis approach by reference to the relevant individual factors that apply to the respondents.
The Court considers the content, nature and extent of the conduct to be particularly egregious, given that this was a clearly planned course of conduct which took place over a number of years and involved an extremely vulnerable employee. Further, the actions of the first respondent in providing false documentation and false information to the Fair Work Inspector, are particularly egregious. The Court considers, based on the amount of the underpayment over the period, together with the deceptive actions of the respondents, to be such that their conduct falls at the higher end of the scale in relation to such matters. The Court does not accept the submission that the objective seriousness is mid-range. Accordingly, penalties must reflect this.
No material has been put to the Court that there has been similar previous conduct by the respondents. The Court is satisfied that the contraventions arise out of a single course of conduct, albeit one that involved multiple contraventions. The Court accepts that the business enterprise concerned, consists of a single restaurant operated as a partnership by the first and second respondents. It is a family run enterprise. However, it needs to be considered in the light of the fact that the first and second respondent operate a number of companies of which they are either directors, shareholders or company secretaries.
The Court is satisfied that the conduct was planned, deliberate and sought to take advantage of a section 457 visa holder who resided with the respondents while undertaking work at the restaurant. The Court is further satisfied, that the attempt to conceal the behaviour was both deliberate and planned. The Court is satisfied that both the first and second respondent, as the owners of the business, were relevant senior management and accordingly, the contraventions occurred with the involvement of the highest level of management within the enterprise.
The Court notes that when the matter first came before it, the allegations were denied. It was not until after a mediation before a Registrar of this Court that admissions were made by the respondents and a statement of agreed facts was consented to. The Court is not satisfied that the respondents made admissions at the earliest possible opportunity and accordingly any discount for early contrition must be moderated. However, the Court does place significant weight on the fact that there have been admissions made and a statement of agreed facts arrived at which has alleviated the need for a contested hearing by the Court. The Court also places significant weight on the fact that full reparation of the underpayment has been made, prior to the matter coming before the Court for the imposition of pecuniary penalties.
The Court is accordingly satisfied that corrective action has been taken and there has been, albeit somewhat late, cooperation with enforcement authorities. The Court has taken account of the limited financial information that has been provided by the respondents and the fact that the parties appear to have separated from each other following the commencement of proceedings against them. While the Court appreciates that there is a limited pool of resources available to meet any penalties that is not a matter which should result in the setting of penalties which are otherwise below that which is appropriate.
The Court considers that there is a need for the penalties in this case to be set at a level which clearly indicates to those who might consider such conduct, that the financial penalties imposed will most likely outweigh any financial benefit that might be gained from such conduct. Further, those who seek to exploit vulnerable workers that come to Australia as temporary migrants can expect little in the way of sympathy from the Courts. The Court considers the conduct of the applicants in exploiting, apparently, a member of their own ethnic community to be particularly concerning.
Those in the fast food, café and restaurant sector must understand that wage theft will not be tolerated by this Court. Wage theft is pernicious, in that it not only robs the worker concerned, but also financially disadvantages those decent and honest businesses who pay award rates of remuneration. Accordingly, general deterrence must feature prominently in the fixing of any pecuniary penalty.
The Court has adopted the approach urged by the parties and the individual penalties for each contravention are set out in annexure A to this judgement. The Court has reduced the penalties urged by the applicant, but not to the extent urged by the respondents. The Court has accepted the submission of the applicant that it is appropriate to all allow an overall discount of 20% on what might have otherwise been imposed, given the admissions made by the respondents and the payment of the monies owing to Mr Kurian.

Conclusion

Accordingly, the Court imposes a total pecuniary penalty on the first respondent, of $63,600.00 and in respect of the second respondent, of $55,600.00.

I certify that the preceding forty-seven (47) paragraphs are a true copy of the reasons for judgment of Judge Humphreys

Associate:

Date: 28 October 2020

ANNEXURE A – PENALTIES

No	Contravention	Description of contravention		Underpayment	Penalty unit value	Maximum penalty		Penalty – First Respondent	Penalty –Second Respondent
1.	Section 45 of the Fair Work Act 2009 (Cth).	Failing to pay Mr Kurian minimum rates of pay in accordance with clause 20 of the Restaurant Award.		$38,416.19	$180	$10,800		$7,000	$7,000
2.	Section 45 of the Fair Work Act 2009 (Cth).	Failing to pay Mr Kurian Saturday penalty rates in accordance with clauses 34.1 and A.7.3 of Schedule A of the Restaurant Award.		$237.16	$170	$10,200		$1,020	$1,020
3.	Section 45 of the Fair Work Act 2009 (Cth).	Failing to pay Mr Kurian Sunday penalty rates in accordance with clauses 34.1 and A.7.3 of Schedule A of the Restaurant Award.		$197.34	$170	$10,200		$1,020	$1,020
4.	Section 45 of the Fair Work Act 2009 (Cth).	Failing to pay Mr Kurian public holiday penalty rates in accordance with clauses 34.1 and A.7.3 of Schedule A of the Restaurant Award.		$10,345.88	$180	$10,800		$5,400	$5,400
No	Contravention	Description of contravention		Underpayment	Penalty unit value	Maximum penalty		Penalty – First Respondent	Penalty – Second Respondent
5.	Section 45 of the Fair Work Act 2009 (Cth).	Failing to pay Mr Kurian overtime rates for overtime worked Monday to Friday in accordance with clause 33.2(a) of the Restaurant Award.		$24,552.65	$180	$10,800		$7,000	$7,000
6.	Section 45 of the Fair Work Act 2009 (Cth).	Failing to pay Mr Kurian overtime rates for overtime worked on a Saturday in accordance with clause 33.2(b) of the Restaurant Award.		$35,396.87	$180	$10,800		$7,000	$7,000
7.	Section 45 of the Fair Work Act 2009 (Cth).	Failing to pay Mr Kurian overtime rates for overtime worked on a Sunday in accordance with clause 33.2(c) of the Restaurant Award		$37,059.01	$180	$10,800		$7,000	$7,000
No	Contravention	Description of contravention	Underpayment		Penalty unit value	Maximum penalty		Penalty – First Respondent	Penalty – Second Respondent
8.	Section 44 of the Fair Work Act 2009 (Cth).	Failing to pay Mr Kurian for annual leave taken in accordance with section 90(1) of the Fair Work Act 2009 (Cth).		$1,535.90	$170	$10,200		$5,100	$5,100
9.	Section 45 of the Fair Work Act 2009 (Cth).	Failing to pay Mr Kurian annual leave loading entitlements in accordance with clause 35.2(b) of the Restaurant Award.	$599.49		$170	$10,200
10.	Section 44 of the Fair Work Act 2009 (Cth).	Failing to pay Mr Kurian annual leave entitlements upon termination of employment in accordance with section 90(2) of the Fair Work Act 2009 (Cth).	$3,901.20		$180	$10,800		$4,500	$4,500
11.	Section 44 of the Fair Work Act 2009 (Cth).	Failing to pay Mr Kurian for personal leave taken in accordance with section 99 of the Fair Work Act 2009 (Cth).	$290.32		$180	$10,800		$4,500	$4,500
12.	Section 325 of the Fair Work Act 2009 (Cth).	Unreasonably requiring Mr Kurian to spend amounts payable to him in relation to the performance of work.	$820		$180	$10,800		$5,000	$5,000
No	Contravention	Description of contravention	Underpayment		Penalty unit value	Maximum penalty		Penalty – First Respondent	Penalty – Second Respondent
13.	Section 535(1) of the Fair Work Act 2009 (Cth).	Failing to make, and keep for seven years, employee records of the kind prescribed by the Fair Work Regulations2009 (Cth) in relation to Mr Kurian.	N/A		$180	$5,400		$3,000	$3,000
14.	Subregulation 3.44(1) of the Fair Work Regulations2009 (Cth).	Failing to ensure records the Respondents were required to keep under the Fair Work Act 2009 (Cth) and Fair Work Regulations2009 (Cth) in respect of Mr Kurian were not false and misleading.	N/A		$170	$3,400		$2,000	$2,000
15.	Subregulation 3.44(6) of the Fair Work Regulations2009 (Cth).	Making use of entries in an employee record made and kept for Subdivision1 of Chapter 3, Part 3-6, Division 3 of the Fair Work Regulations2009 (Cth), knowing that the entries were false or misleading.	N/A		$210	$4,200		$3,360	$3,360
16.	Section 536(1) of the Fair Work Act 2009 (Cth).	Failing to provide Mr Kurian with a pay slip within one working day of paying an amount to him in relation to the performance of work.	N/A		$180	$5,400		$3,300	$3,300
No	Contravention	Description of contravention	Underpayment		Penalty unit value	Maximum penalty		Penalty – First Respondent	Penalty – Second Respondent
17.	Section 536(2) of the Fair Work Act 2009 (Cth).	Failing to provide Mr Kurian with a pay slip including information prescribed by the Fair Work Regulations2009 (Cth).	N/A		$180	$5,400		$3,300	$3,300
18.	Section 718A(1) of the Fair Work Act 2009 (Cth).	Giving false or misleading documents and/or false or misleading information to a Fair Work Inspector exercising powers or performing functions under of in connection with the Fair Work Act 2009 (Cth).	N/A		$210	$12,600		$10,000	N/A
Total First Respondent							$163,600	$79500
Total Second Respondent							$151,000	$69,500
Total penalties after 20% discount								$63,600	$55,600