Fair Work Ombudsman v Little Vienna Pty Ltd

[2017] FCCA 916

FEDERAL CIRCUIT COURT OF AUSTRALIA

FAIR WORK OMBUDSMAN v LITTLE VIENNA PTY LTD & ANOR [2017] FCCA 916

Catchwords:
INDUSTRIAL LAW – Pecuniary penalties – relevant considerations.

Legislation:

Fair Work Act 2009, ss.45, 535, 536, 539, 541, 545, 546, 550, 557

Fair Work Regulations 2009, regs.3.31, 3.32, 3.33, 3.44, 4.01A, 4.03A

Workplace Relations Act 1996, s.208
Fair Work (Transitional Provisions and Consequential) Amendments Act 2009, item 5, 11 of sch.9
Crimes Act 1914, s.4AA
Workplace Relations Amendment (Work Choices) Act 2005

Cases cited:
Kelly v Fitzpatrick (2007) 166 IR 14
Mason v Harrington Corporation Pty Ltd [2007] FMCA 7
Australian Building & Construction Commissioner v Construction, Forestry, Mining & Energy Union (No 2) (2010) 199 IR 373
Fair Work Ombudsman v Lifestyle SA Pty Ltd [2014] FCA 1151
Fair Work Ombudsman v Kentwood Industries Pty Ltd (No.3) [2011] FCA 579
ACE Insurance Ltd v Trifunovski (No 2) (2012) 215 IR 206
Mornington Inn v Jordan (2008) 168 FCR 383
Fair Work Ombudsman v Bound for Glory Enterprises Pty Ltd [2014] FCCA 432
CPSU, Community and Public Sector Union v Telstra Corporation Limited (2001) 108 IR 228
Finance Sector Union v Commonwealth Bank of Australia (2005) 147 IR 462

Applicant: FAIR WORK OMBUDSMAN

First Respondent: LITTLE VIENNA PTY LTD ACN 119 999 352

Second Respondent: JAE KWANG KIM

File Number: SYG 767 of 2016

Judgment of: Judge Cameron

Hearing date: 16 March 2017

Date of Last Submission: 16 March 2017

Delivered at: Sydney

Delivered on: 17 March 2017

REPRESENTATION

Solicitors for the Applicant: Mr K. O’Brien of the Office of the Fair Work Ombudsman

Counsel for the Respondents: Ms V. Bulut

Solicitors for the Respondents: Gillard Consulting Lawyers

THE COURT DECLARES THAT:

1. The First Respondent has contravened:

   (a)section 45 of the Fair Work Act 2009 by failing to pay Seoyoon Kim, Geunwon Seo, Jinhee Hong, Hyewon Seo, Sojeong Ahn, Saerom Kim, Seehyung Kim, Sunhee Youn, Misun Kim and Mideum Park the minimum hourly rate of pay during their respective employment periods, in contravention of clause 17 and clause A.2.5 of schedule A to the Fast Food Industry Award 2010;

   (b)section 45 of the Fair Work Act 2009 by failing to pay Yedam So the minimum hourly rate of pay for a junior employee during her employment period, in contravention of clause 18 and clause A.2.5 of schedule A to the Fast Food Industry Award 2010;

   (c)section 45 of the Fair Work Act 2009 by failing to pay Seoyoon Kim, Geunwon Seo, Jinhee Hong, Hyewon Seo, Sojeong Ahn, Saerom Kim, Seehyung Kim, Sunhee Youn, Misun Kim, Mideum Park and Yedam So the applicable casual loading during their respective employment periods, in contravention of clause 13.2 and clause A.5.4 of schedule A to the Fast Food Industry Award 2010;

   (d)section 45 of the Fair Work Act 2009 by failing to pay Hyewon Seo, Sojeong Ahn, Yedam So, Mideum Park and Jinhee Hong for a minimum period of engagement of three (3) hours during their respective employment periods, in contravention of clause 13.4 of the Fast Food Industry Award 2010;

   (e)subsection 535(1) of the Fair Work Act 2009, by failing to make and keep records of the kind prescribed by the Fair Work Regulations 2009 in respect of Saerom Kim, Mideum Park and Misun Kim;

   (f)subsection 536(1) of the Fair Work Act 2009, by failing to provide payslips to employees;

   (g)regulation 3.44(1) of the Fair Work Regulations 2009 by failing to ensure that the employee records it made and kept in relation to Sojeong Anh and Hyewon Seo were not false or misleading in relation to the commencement dates of their employment;

   (h)regulation 3.44(1) of the Fair Work Regulations 2009 by failing to ensure that the employee records it kept in relation to Jinhee Hong, Geunwon  Seo, Yedam So and Seoyoon Kim were not false or misleading to its knowledge; and

   (i)regulation 3.44(6) of the Fair Work Regulations 2009 by making using of an employee record that it knew to be false or misleading in response to a Notice to Produce Records or Documents.

2. The Second Respondent was involved in the contraventions as set out in declarations 1(a), (b), (c), (d), (h) and (i) of this Order, pursuant to section 550 of the Fair Work Act 2009, other than in relation to the employment of Saerom Kim, Mideum Park and Misun Kim.

THE COURT ORDERS THAT:

1. The First Respondent pay pecuniary penalties totalling $76,160 for its contraventions of the Fair Work Act 2009 and the Fair Work Regulations 2009.

2. The Second Respondent pay pecuniary penalties totalling $10,880 for his contraventions of the Fair Work Act 2009 and the Fair Work Regulations 2009.

3. Pursuant to subsection 546(3)(a) of the Fair Work Act 2009, the First Respondent and the Second Respondent pay their respective penalty amounts to the Commonwealth, within 28 days of this Order.

4. Pursuant to subsection 545(1) of the Fair Work Act 2009, the First Respondent undertake, or at its expense engage a third party with qualifications in accounting or workplace relations to undertake, an audit of the First Respondent’s compliance with the Fair Work Act 2009 and the Fast Food Industry Award 2010 on the following terms:

   (a)the audit period will be the period commencing on the date of this Order and ending six months after the date of this Order;

   (b)the audit is to be completed within 30 days of the end of the audit period;

   (c)the audit will apply to all employees and persons otherwise engaged to perform work for the First Respondent at any time during the audit period;

   (d)according to each employee’s classification, category of employment and hours of worked during the audit period, the audit is to assess the First Respondent’s compliance with the following obligations:

   (i)wages and work related entitlements under the Fast Food Industry Award 2010, other industrial instrument or national minimum wage order;

   (ii)method and frequency of payment in accordance with section 323 of Fair Work Act 2009; and

   (iii)record keeping and payslip obligations in division 3 of part 3-6 of the Fair Work Act 2009;

   (e)within 30 days of the audit being completed, the First Respondent provide to the Applicant:

   (i)a copy of the audit report and a statement of the methodology used in the audit; and

   (ii)written details of any contraventions identified in the audit, the steps the First Respondent will take to rectify any identified contravention(s) and by when the rectification will occur.

5. The First Respondent engage, at its own expense, a person or organisation with professional qualifications in workplace relations, to provide training to the Second Respondent and any other person involved in the management of the First Respondent within six months of the date of this Order that covers the following:

   (a)obligations on employers under the Fast Food Industry Award 2010 and the National Employment Standards in the Fair Work Act 2009;

   (b)payment of wages in accordance with division 2 of part 2-9 of the Fair Work Act 2009; and

   (c)record keeping and payslip obligations in division 3 of part 3-6 of the Fair Work Act 2009.

6. Within 30 days of completing the training in order 5 above, the First Respondent provide to the Applicant, in writing:

   (a)the date on which the training was completed;

   (b)the name of the person or organisation that conducted the training; and

   (c)the details of the methods of delivery of the training and the content of the training.

7. The Applicant have liberty to apply on seven days’ notice in the event that any of the preceding orders are not complied with.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 767 of 2016

FAIR WORK OMBUDSMAN

Applicant

And

LITTLE VIENNA PTY LTD ACN 119 999 352

First Respondent

JAE KWANG KIM

Second Respondent

REASONS FOR JUDGMENT

INTRODUCTION

1. The first respondent (“Little Vienna”) operates fast food sandwich outlets at six different locations in the central business district of Sydney and in North Sydney.  The second respondent, Mr Kim, is Little Vienna’s sole director and secretary.

2. On 31 March 2016 the applicant (“Ombudsman”) commenced this proceeding alleging that Little Vienna had contravened the Fair Work Act 2009 (“FW Act”) by failing to pay eleven of its employees minimum rates of pay and casual loading and by failing to roster some of the employees for the required minimum hours of engagement. The Ombudsman alleged that Little Vienna had also contravened the FW Act by failing to provide pay slips, by failing to make and keep employee records in relation to certain employees, by failing to ensure that its employee records were not false or misleading and by making use of employee records which it knew to be false or misleading. The Ombudsman further alleged that Mr Kim had accessorial liability for certain of Little Vienna’s contraventions of the FW Act.

3. On 16 June 2016 the parties filed a statement of agreed facts in which the respondents admitted the contraventions of the FW Act alleged by the Ombudsman. The parties now seek:

   a)declarations that the respondents contravened the FW Act;

   b)orders imposing pecuniary penalties on the respondents;

   c)an order requiring Little Vienna to engage a third party to undertake an audit of its compliance with the FW Act and the Fast Food Industry Award 2010 (“Modern Award”); and

   d)an order requiring Little Vienna to provide training to Mr Kim and any other person involved in the management of the business on employer obligations under the FW Act and the Modern Award.

STATEMENT OF AGREED FACTS

1. Relevant agreed facts are summarised below.

The employees

1. At all times relevant to this proceeding Little Vienna employed the following eleven people (“Employees”):

Name	Period of employment
Sojeong Ahn	6 January 2014 – 21 February 2014
Seoyoon Kim	13 October 2014 – 6 January 2015
Saerom Kim	15 July 2014 – 19 September 2014
Hyewon Seo	2 September 2013 – 22 August 2014
Sunhee Youn	20 May 2013 – 1 July 2014
Seehyung Kim	3 December 2012 – 28 February 2014
Mideum Park	8 December 2014 – 2 April 2015
Misun Kim	25 November 2014 – 2 April 2015
Geunwon Seo	10 February 2015 – 24 March 2015
Jinhee Hong	17 December 2014 – 13 March 2015
Yedam So	8 April 2014 – 12 December 2014

1. The Employees were all employed on a casual basis and performed the following duties:

   a)receiving orders from customers;

   b)preparing coffee, tea, gourmet sandwiches, breakfast items and soup;

   c)serving food and beverage items to customers; and

   d)cleaning kitchen and service areas.

2. The parties agreed that the Employees were classified as Level 1 employees under cl.B.1 of sch.B to the Modern Award.  They agreed that pursuant to cl.18 of the Modern Award, Yedam So was subject to junior rates of pay.

3. Apart from Seehyung Kim, all the other Employees were holders of subclass 417 working holiday visas.  Seehyung Kim was the holder of a student visa. 

Applicable legislation and industrial instruments

1. The parties agreed that at all relevant times Little Vienna was bound by the FW Act, the Fair Work Regulations 2009 (“FW Regulations”) and the Modern Award.

2. The parties also agreed that Little Vienna was required to pay each of the Employees in accordance with the transitional arrangements in sch.A to the Modern Award, being transitional pay rates calculated by reference to the Australian Pay and Conditions Scale (“APCS”) derived from the Shop Employees (State) Award.

Underpayment contraventions

Minimum hourly rates of pay

1. Pursuant to cls.17 and 18 and cl.A.2.5 of sch.A to the Modern Award, Little Vienna was required to pay each of the Employees no less that the following minimum hourly rates of pay for ordinary hours worked:

Other Employees		Yedam So
Period	Rate	Period	Rate
1 July 2012 to 30 June 2013	$17.53	8 April 2014 to 18 June 2014	$14.38
1 July 2013 to 30 June 2014	$17.98	18 June 2014 to 30 June 2014	$16.19
1 July 2014 to 30 June 2015	$18.52	1 July 2014 to 12 Dec 2014	$16.67

1. The parties agreed that Little Vienna had paid the Employees a flat hourly rate of between $10 and $13.  They agreed that it had underpaid the Employees as follows:

Employee	Ordinary rate	Ordinary hours worked	Entitlement	Ordinary hours paid	Underpayment
Sojeong Ahn	$17.98	235.25	$4,229.80	$2,539.50	$1,690.30
Seoyoon Kim	$18.52	330	$6,111.60	$3,960.00	$2,151.60
Saerom Kim	$18.52	402	$7,445.04	$4,787.00	$2,658.04
Hyewon Seo	$17.98 $18.52	1622 297.50	$29,163.56 $5,509.70	$18,895.25 $3,570.00	$10,268.31 $1,939.70
Sunhee Youn	$17.53 $17.98	237 1672	$4,154.61 $30,062.56	$2,607.00 $19,584.00	$1,547.61 $10,478.56
Seehyung Kim	$17.53 $17.98	1301.50 1586.50	$22,815.30 $28,525.27	$14,454.25 $18,729.25	$8,361.05 $9,796.02
Mideum Park	$18.52	527.50	$9,769.30	$6,254.00	$3,515.30
Misun Kim	$18.52	525	$9,723.00	$6,689.00	$3,034.00
Geunwon Seo	$18.52	280	$5,185.60	$3,360.00	$1,825.60
Jinhee Hong	$18.52	532	$9,852.64	$6,306.60	$3546.04
Yedam So	$14.39 $16.19 $16.67	301.50 88.75 928.75	$4,338.59 $1,436.86 $15,482.26	$3,620.00 $1,073.00 $11,197.00	$718.59 $363.86 $4,285.26

1. Little Vienna admitted that it had underpaid the Employees a total of $66,179.84 in this regard. It admitted that by underpaying the Employees their minimum rates of pay it had contravened cls.17 and 18 and cl.A.2.5 of sch.A to the Modern Award, and had thereby contravened s.45 of the FW Act.

Casual loading

1. Pursuant to cl.13.2 and cl.A.5.4 of sch.A to the Modern Award, Little Vienna was required to pay each of the Employees transitional casual loading as follows:

Other Employees		Yedam So
Period	Rate	Period	Rate
1 July 2012 to 30 June 2013	$3.68	8 April 2014 to 18 June 2014	$3.31
1 July 2013 to 30 June 2014	$4.14	18 June 2014 to 30 June 2014	$3.71
1 July 2014 to 30 June 2015	$4.63	1 July 2014 to 12 Dec 2014	$4.17

1. The parties agreed that Little Vienna had underpaid the Employees their casual loading entitlements as follows:

Employee	Casual loading	Ordinary hours worked	Underpayment
Sojeong Ahn	$4.14	235.25	$973.94
Seoyoon Kim	$4.63	330	$1,527.90
Saerom Kim	$4.63	402	$1,861.26
Hyewon Seo	$4.14 $4.63	1622 297.50	$6,715.08 $1,377.43
Sunhee Youn	$3.68 $4.14	237 1672	$872.16 $6,922.08
Seehyung Kim	$3.68 $4.14	1301.50 1586.50	$4,789.52 $6,568.11
Mideum Park	$4.63	527.50	$2,442.33
Misun Kim	$4.63	525	$2,430.75
Geunwon Seo	$4.63	280	$1,296.40
Jinhee Hong	$4.63	532	$2,463.16
Yedam So	$3.31 $3.72 $4.17	301.50 88.75 928.75	$997.97 $330.15 $3,872.89

1. Little Vienna admitted that it had failed to pay the Employees a total of $45,441.13 in casual loading. It admitted that it had contravened cl.13.2 and cl.A.5.4 of sch.A to the Modern Award and, as a result, had also contravened s.45 of the FW Act.

Minimum engagement period

1. By virtue of cl.13.4 of the Modern Award, Little Vienna was required to engage the Employees for a minimum of three hours per daily engagement.  The parties agreed that the following Employees had worked shifts of less than three hours:

Employee	Date	Shift	Underpayment
Hyewon Seo	1 October 2013	12pm to 2pm	$22.12
Sojeong Ahn	7 January 2014	12pm to 2pm	$22.12
Yedam So	14 April 2014	9:30am to 11am	$35.40
Mideum Park	8 December 2014	10:30am to 11:30am	$46.30
Jinhee Hong	17 December 2014	11am to 12:30pm	$34.73

1. Little Vienna admitted that by failing engage those employees for a minimum of three hours, it had underpaid them a total of $160.67. It admitted that it had contravened cl.13.4 of the Modern Award and, as a result, had also contravened s.45 of the FW Act.

Total underpayment

1. The parties agreed that Little Vienna had underpaid the Employees a total of $111,781.64.  They agreed that the total underpayment was rectified on 14 December 2015.

Record keeping contraventions

Pay slips

1. Little Vienna was required to provide the Employees with pay slips in accordance with s.536 of the FW Act. It admitted that it had contravened that provision by failing to provide the Employees with any pay slips during all times material to this proceeding.

Employee records - content

1. Pursuant to s.535 of the FW Act, Little Vienna was required to make and keep records in the form and with the content prescribed by the FW Regulations. Little Vienna admitted that it did not make or keep any records in relation to Saerom Kim, Mideum Park and Misun Kim. It admitted that by failing to make and keep records for those employees, it had contravened regs.3.31, 3.32 and 3.33 of the FW Regulations, and had thereby contravened s.535 of the FW Act.

Employee records – false or misleading

1. Pursuant to reg.3.44(1) of the FW Regulations, Little Vienna was required to keep records which, to its knowledge, were not false or misleading.

Commencement date

1. The parties agreed that Hyewon Seo commenced work with Little Vienna on 2 September 2013 and Sojeong Anh commenced work on 6 January 2014. They agreed that Little Vienna’s records in relation to those employees were false and/or misleading in that they recorded their commencement date as being 24 January 2014. Little Vienna admitted that it had contravened reg.3.44(1) by failing to ensure that those records were not false or misleading and, as a result, had also contravened reg.4.01A(2).

Pay records

1. During the course of her investigation, on 28 May 2015 the Ombudsman issued and served Little Vienna with a notice to produce which required the production of employee records relating to Jinhee Hong, Geunwon Seo, Yedam So and Seoyoon Kim.  On 12 June 2015 Mr Kim provided records in answer to the notice of produce, including pay records.  The parties agreed that the pay records were created after the notice to produce was served and were based on information provided to Little Vienna by the Ombudsman in relation to the Employees’ actual hours of work.  They set out:

   a)the hours of work of the Employees;

   b)an hourly rate of pay of $17.00;

   c)taxation deductions; and

   d)superannuation contributions.

2. Little Vienna admitted that at all material times it had not deducted tax or made compulsory superannuation contributions in respect of amounts paid to the Employees.  It admitted that the pay records it had provided in answer to the notice to produce were therefore false and misleading.

3. Little Vienna admitted that it had contravened reg.3.44(1) by failing to ensure that its pay records were not false or misleading and, as a result, had also contravened reg.4.01A(2). It also admitted that in providing the Ombudsman with the pay records, it had made use of records which it knew to be false and misleading and had thereby contravened regs.3.44(6) and 4.01A(2).

Accessorial liability

1. The parties agreed that, in collaboration with Little Vienna’s manager, Mr Kim was responsible for the overall direction, management and supervision of the business in relation to industrial instruments and arrangements, setting and adjusting pay rates, determining wages and conditions of employment.

2. The parties agreed that Mr Kim was aware of the nature of the work and duties performed by:

   a)Sojeong Ahn;

   b)Seoyoon Kim;

   c)Hyewon Seo;

   d)Sunhee Youn

   e)Seehyung Kim;

   f)Geunwon Seo;

   g)Jinhee Hong; and

   h)Yedam So.

3. Mr Kim admitted in relation to those employees that he had actual knowledge and was an intentional participant in the factual matters which comprised each of Little Vienna’s contraventions in relation to minimum rates of pay, casual loading, minimum hours of engagement, the making of false or misleading pay records and the use of those false or misleading pay records.  He admitted that by reason of that knowledge and participation he had:

   a)aided, abetted, counselled or procured; and/or

   b)was, by his actions or omissions, directly or indirectly knowingly concerned in or a party to; and

   c)was “involved in”, within the meaning of s.550 of the FW Act,

   each of Little Vienna’s contraventions in relation to minimum rates of pay, casual loading, minimum hours of engagement, the making of false or misleading pay records and the use of those false or misleading pay records.

Ombudsman’s investigation

1. The parties agreed that the Ombudsman’s investigation into the respondents proceeded in the following manner.

2. On 28 April 2015 Seoyoon Kim, Geunwon Seo, Jinhee Hong and Yedam Seo sought assistance from the Ombudsman.  On 28 May 2015 Kristopher Pronk, a Fair Work Inspector, issued and served Little Vienna with a notice to produce seeking employee records and documents in relation to those employees.  In response, on 12 June 2016 Mr Kim sent an email to Mr Pronk attaching time records and pay slips.  After a request for further records in relation to Yedam So, on 19 June 2015 Mr Kim sent an email to Mr Pronk attaching those further records.

3. Mr Kim attended an electronically recorded interview with Mr Pronk on 29 July 2015.

4. On 12 August 2015 the Ombudsman received requests for assistance from Sojeong Ahn, Saerom Kim, Hyewon Seo, Sunhee Youn and Seehyung Kim.  The next day Mr Pronk issued Little Vienna with a notice to produce seeking records and documents in relation to those employees (see annexure KP 7 to Mr Pronk’s affidavit).  The Ombudsman received the last two requests for assistance from Mideum Park and Misun Kim on 24 August 2015 and Mr Pronk informed Mr Kim of those additional requests on 25 August 2015.

5. On 4 September 2015 Mr Kim sent Mr Pronk a number of emails enclosing documents in response to the second notice to produce.  Mr Kim also attended a second electronically recorded interview on 23 September 2015.

6. On 30 November 2015 the Mr Pronk sent a letter to the respondents setting out the findings of his investigation.  On 15 December Mr Kim responded to that letter and, apart from disputing the calculations in relation to Seehyung Kim, accepted the Ombudsman’s findings.

7. The parties agreed that the respondents had co-operated with the Ombudsman’s investigation and had fully co-operated in resolving this dispute early.  They agreed that the respondents had formally admitted the allegations made against them at the earliest opportunity and had co-operated in preparing the statement of agreed facts.

LEGISLATION

Transitional provisions

1. From its commencement on 27 March 2006 as a consequence of the Workplace Relations Amendment (Work Choices) Act 2005, pt.3 of sch.8 to the Workplace Relations Act 1996 (“WR Act”) preserved former state awards as notional agreements preserving state awards (“NAPSAs”). By virtue of s.208 of the WR Act (which was found in div.2 of pt.7 of that Act), the pay rates prescribed by each NAPSA were also a “preserved APCS”, i.e. Australian Pay and Classification Scale. Upon the repeal of the WR Act on 1 July 2009 and by virtue of item 5 of sch.9 to the Fair Work (Transitional Provisions and Consequential) Amendments Act 2009 (“FW(TPCA Act”) preserved APCSs continued in force as transitional minimum wage instruments until repealed by a modern award: item 11 of sch.9 to the FW(TPCA) Act.  The transitional minimum wage instrument applicable to the Employees was derived from the Shop Employees (State) Award (“NSW Shop NAPSA”).

2. On and from 1 January 2010 those provisions were replaced by the Modern Award but cls.A.2 and A.3 of sch.A to the Modern Award preserved their effect until the end of the last pay period commencing in June 2010.  After that date the pay scales provided by the Modern Award applied, subject to modifications which adjusted the new pay scales by reference to the old ones until, by a series of steps, a transition from one system to the other was effected. 

Fair Work Act

Modern Awards

1. Section 45 of the FW Act provides that a person must not contravene a term of a modern award. As already noted, the parties agreed that Little Vienna was bound by the Fast Food Industry Award, which is a modern award, in respect of its employees.

Pay slips

1. Section 536 of the FW Act provides:

   536   Employer obligations in relation to pay slips

   (1)An employer must give a pay slip to each of its employees within one working day of paying an amount to the employee in relation to the performance of work.

   (2)     The pay slip must:

   (a)if a form is prescribed by the regulations—be in that form; and

   (b)     include any information prescribed by the regulations.

Records

1. Section 535 of the FW Act relevantly provides:

   535   Employer obligations in relation to employee records

   (1)An employer must make, and keep for 7 years, employee records of the kind prescribed by the regulations in relation to each of its employees.

   (2)     The records must:

   (a)if a form is prescribed by the regulations—be in that form; and

   (b)include any information prescribed by the regulations.

   …

2. The FW Regulations prescribe the form and content of the employee records required to be kept under s.535. The relevant regulations provide:

   3.31  Records—form

   (1)For subsection 535(1) of the Act, an employee record made and kept by an employer for this Subdivision must be of the following kind:

   (a)     a record in a legible form and in the English language;

   (b)a record in a form that is readily accessible to an inspector.

   …

   3.32  Records—content

   For subsection 535(1) of the Act, a kind of employee record that an employer must make and keep is a record that specifies:

   (a)the employer’s name; and

   (b)the employee’s name; and

   (c)whether the employee’s employment is full‑time or part‑time; and

   (d)whether the employee’s employment is permanent, temporary or casual; and

   (e)the date on which the employee’s employment began; and

   (f)on and after 1 January 2010—the Australian Business Number (if any) of the employer.

   3.33  Records—pay

   (1)For subsection 535(1) of the Act, a kind of employee record that an employer must make and keep is a record that specifies:

   (a)     the rate of remuneration paid to the employee; and

   (b)     the gross and net amounts paid to the employee; and

   (c)any deductions made from the gross amount paid to the employee.

   (2)If the employee is a casual or irregular part‑time employee who is guaranteed a rate of pay set by reference to a period of time worked, the record must set out the hours worked by the employee.

   (3)     If the employee is entitled to be paid:

   (a)     an incentive‑based payment; or

   (b)     a bonus; or

   (c) a loading; or

   (d)     a penalty rate; or

   (e)another monetary allowance or separately identifiable entitlement;

   the record must set out details of the payment, bonus, loading, rate, allowance or entitlement.

3. Regulation 3.44 relevantly provides:

   3.44  Records—accuracy

   (1)An employer must ensure that a record that the employer is required to keep under the Act or these Regulations is not false or misleading to the employer’s knowledge.

   ..

   (6)A person must not make use of an entry in an employee record made and kept by an employer for this Subdivision if the person does so knowing that the entry is false or misleading.

Course of conduct

1. Section 557 of the FW Act provides:

   557   Course of conduct

   (1)For the purposes of this Part, 2 or more contraventions of a civil remedy provision referred to in subsection (2) are, subject to subsection (3), taken to constitute a single contravention if:

   (a)the contraventions are committed by the same person; and

   (b)the contraventions arose out of a course of conduct by the person.

   (2)     The civil remedy provisions are the following:

   …

   (b)section 45 (which deals with contraventions of modern awards);

   …

   (n)subsections 535(1) and (2) (which deal with employer obligations in relation to employee records);

   (o)subsections 536(1) and (2) (which deal with employer obligations in relation to pay slips);

   …

   s)any other civil remedy provisions prescribed by the regulations.

2. For the purposes of s.557(2)(s), reg.4.03A prescribes the civil remedy provisions set out in reg.4.01A(2), which include sub-regs.3.44(1) and (6).

Accessorial liability

1. Section 550 of the FW Act states:

   550 Involvement in contravention treated in same way as actual contravention

   (1) A person who is involved in a contravention of a civil remedy provision is taken to have contravened that provision.

   (2) A person is involved in a contravention of a civil remedy provision if, and only if, the person:

   (a) has aided, abetted, counselled or procured the contravention; or

   (b) has induced the contravention, whether by threats or promises or otherwise; or

   (c) has been in any way, by act or omission, directly or indirectly, knowingly concerned in or party to the contravention; or

   (d)     has conspired with others to effect the contravention.

Penalties and related orders

1. Section 539 of the FW Act provides that ss.45, 535 and 536 are civil remedy provisions. By virtue of reg.4.01A of the FW Regulations, sub-regs.3.44(1) and (6) are also civil remedy provisions.

2. Sections 539(2) and 546(2) of the FW Act provide that the maximum pecuniary penalty for a contravention of s.45 is 60 penalty units for an individual and 300 penalty units for a corporation. For a contravention of ss.535 and 536, ss.539(2) and 546(2) provide for maximum penalties of 30 penalty units for an individual and 150 penalty units for a corporation. Regulation 4.01A(2), read together with ss.539(4) and 546(2), provides that the maximum pecuniary penalty for a contravention of sub-regs.3.44(1) and (6) is 20 penalty units for an individual and 100 penalty units for a corporation. Until 27 December 2012 a penalty unit was worth $110. From 28 December 2012 to 30 July 2015 a penalty unit was worth $170: s.4AA Crimes Act.

3. Section 545(1) of the FW Act provides:

   Federal Court and Federal Circuit Court

   (1)  The Federal Court or the Federal Circuit Court may make any order the court considers appropriate if the court is satisfied that a person has contravened, or proposes to contravene, a civil remedy provision.

Modern Award

1. Schedule B to the Modern Award defines the award’s job classifications.  It provides:

   Schedule B—Classifications

   B.1 Fast Food Employee Level 1

   B.1.1An employee engaged in the preparation, the receipt of orders, cooking, sale, serving or delivery of meals, snacks and/or beverages which are sold to the public primarily to take away or in food courts in shopping centres.

   B.1.2A Fast Food Employee Level 1 will undertake duties as directed within the limits of their competence, skills and training including incidental cleaning and cleaning of toilets.

2. Clause 17 of the Modern Award sets out the weekly minimum wages payable to employees covered by the award whilst cl.18 sets out the wages to be paid to junior employees by reference to a percentage of the minimum weekly wages in cl.17.  Clause A.2.5 of sch.2 set out the transitional pay rates which applied to the Employees.  The parties’ agreement concerning the pay rates which the Employees were entitled to receive has been set out earlier in these reasons.

3. Clause 13 of the Modern Award provides:

   13.    Casual employment

   …

   13.2A casual will be paid both the ordinary hourly rate paid to a full-time employee and an additional 25% of the ordinary hourly rate for a full-time employee.

   …

   13.4The minimum daily engagement of a casual is three hours.

4. Clause A.5.4 of sch.2 set out the transitional casual loading rates which applied to the Employees.  The parties’ agreement concerning those rates has also been set out earlier in these reasons.

EVIDENCE

Ombudsman

Jinhee Hong

1. Ms Hong arrived in Australia from South Korea in May 2013 as the holder of a subclass 417 working holiday visa which was due to expire in May 2015.  She deposed that she understands a small amount of English but cannot write or hold a conversation in English.

2. Ms Hong deposed that she commenced work with Little Vienna in December 2014 after responding to an advertisement on a Korean classifieds website.  She deposed that she did not fill out any paperwork, such as tax paperwork, when she commenced work.  Ms Hong deposed that she was paid $10 an hour during her two-week training and thereafter was paid $12 an hour.  She deposed that she was paid in cash on a weekly basis and when she collected her pay she was required to sign a pay sheet which displayed her hours and pay for that week.  Ms Hong deposed that she worked Monday to Friday, initially from 6:30am to 2pm and then starting in January 2015 from 6am to 4pm.  She sometimes worked for up to twelve hours a day.

3. During her employment with Little Vienna Ms Hong made sandwiches, prepared and cooked food and cleaned the store after it closed.  She deposed that her duties were significant and she struggled with performing such hard work for so little money.  Ms Hong deposed that she resigned from Little Vienna in March 2015, earlier than her visa expiry date, because she had felt physically and mentally tired from working there.  She deposed that she was also unable to serve out her notice period because she felt very distressed and physically sick and could not attend work.

4. Ms Hong deposed that she had been aware that other Little Vienna employees who had been employed for longer were paid higher rates of pay, even though they did not work as hard as she did.  She deposed that she had been upset and disappointed by her low wages.  Ms Hong deposed that prior to working for Little Vienna, she had money saved and had hoped to top up her savings to allow her to apply for a student visa.  She deposed that for about six weeks while employed at Little Vienna she held a second job cleaning offices to earn additional money but she left that job after it became difficult because of her long working hours at Little Vienna.

5. Ms Hong deposed that in June 2015, after she had lodged her request for assistance with the Ombudsman in April 2015, Mr Kim telephoned her and offered to pay her $750 to sort out her complaint.  She deposed that later that day he deposited $750 into her account.

Misun Kim

1. Ms Kim arrived in Australia from South Korea in October 2014.  She deposed that she is able to speak and write English but cannot understand many English words and phrases.

2. Ms Kim deposed that she obtained employment at Little Vienna after being advised of a vacancy by one of the other employees, Mideum Park.  She deposed that at her interview on 24 November 2014, Little Vienna’s manager, Juyun “Jemma” Park, told her:

   When you first start, the rate is 10 dollars per hour.  After two weeks, it will go up to 12 dollars per hour, after three months, the business will move you onto tax and the rate will go up again.

3. Ms Kim deposed that she had not known whether those were good rates of pay because she had only been in Australia for a short time and had had no knowledge of minimum rates of pay. 

4. Ms Kim deposed that when she commenced work she was not provided with a contract of employment or asked to fill out any documents for tax or superannuation purposes.  She deposed that she worked Monday to Friday, usually from 8am to 4pm and sometimes from 7am to 5pm when she had to cover other employees’ shifts.  She deposed that she kept her own records of the hours she worked because Little Vienna did not keep such records.

5. Ms Kim deposed that on 5 March 2015, after she had been at Little Vienna for three months, she spoke to Ms Park and asked for an increase to her hourly rate of pay.  She deposed that a few days later Ms Park told her that Mr Kim had refused her request. 

6. Ms Kim deposed that Little Vienna had not remitted any tax on her behalf.  She deposed that she had understood from speaking to other employees that a taxed rate of pay meant that she would receive the same hourly rate but that Little Vienna would pay tax in addition to her hourly rate which she could then claim at the end of the financial year.  She deposed that on 11 and 12 March 2015 she sent Ms Park text messages enquiring about her tax.  Ms Kim deposed that she also spoke to Ms Park in person about the tax issue and the latter told her that Little Vienna would not add a tax component to her pay because she had not worked there for long enough. 

7. Ms Kim deposed that she was upset and angered by her conversation with Ms Park.  She deposed that immediately afterwards, she asked one of her colleagues how much he was paid and after he told her that he was paid $17 an hour after tax, she telephoned Ms Park and gave notice of her resignation. She deposed that she felt she could not continue working for Little Vienna when she was not paid the same as other employees.

8. Ms Kim deposed that throughout her employment with Little Vienna, she received money from her parents to cover her rent and living expenses.  She deposed that without her parents’ assistance she would not have been able to pay for her living expenses from the low wages she received from Little Vienna.

9. Ms Kim deposed that about a month after she ceased her employment, Mr Kim telephoned her asking her if she had made a complaint about Little Vienna to the Ombudsman or if she knew someone who had.  She deposed that a few days later he asked her to not lodge a complaint and said that he wanted to negotiate a settlement with her.  Ms Kim later lodged a request for assistance with the Ombudsman on 24 August 2015.

Kristopher Pronk

Investigation

1. Mr Pronk is the Fair Work Inspector who had carriage of the Ombudsman’s investigation of Little Vienna.  In his affidavit he set out the conduct of his investigation into Little Vienna.

2. Relevantly, he deposed that on 29 July 2015 and 23 September 2015 he conducted electronically recorded interviews with Mr Kim.  The transcript of those interview indicate that, amongst other things, Mr Kim stated that:

   a)he knew there was a minimum wage and had been applying the General Hospitality Award;

   b)he had discussed the issue with his accountant and chose to use the rates set in the Hospitality Award because the classifications were suitable to Little Vienna’s business.  He had a copy of the award which he had obtained from the Ombudsman’s website; and

   c)he was aware that pay rates within awards changed every year and had checked the new rates in July each year.

Prior complaints

1. Mr Pronk deposed that in March 2010 a former employee of Little Vienna had made a complaint to the Ombudsman about non-payment of annual leave on termination and outstanding wages accrued under the Shop Employees (State) Award.  He deposed that that complaint was voluntarily resolved.

Non-compliance in restaurant industry

1. Attached to Mr Pronk’s affidavit was a summary analysis of complaints made to the Ombudsman in relation to the fast food industry which was prepared by a data analyst in the Ombudsman’s Strategic Research, Reporting and Analysis Team.  The analysis identified that in the period from 1 July 2015 to 30 April 2016 the Ombudsman received 1,063 dispute forms in relation to the fast food industry.  It also revealed that:

   a)50% of the complainants were aged 25 and under;

   b)24.9% of complainants were subject to a visa;

   c)the complainants were most commonly employed on a casual basis; and

   d)from July 2015 to April 2016 the Ombudsman:

   i)completed 591 investigations into requests for assistance lodged by employees in the takeaway food industry and of those completed investigations there was a contravention rate of 48%;

   ii)issued 43 compliance notices to employers in the takeaway food industry, which represented 29% of all compliance notices issued;

   iii)issued 153 letters of caution to employers in the takeaway food industry, which represented 18% of all letters of caution issued;

   iv)issued 102 infringement notices to employers in the takeaway food industry, which represented 23% of all infringement notices issued; and

   v)entered into 12 enforceable undertakings with employers in the takeaway food industry, which represented 34% of all enforceable undertakings.

Respondents

Jae Kwang Kim

1. Mr Kim deposed that he had assisted the Ombudsman with its investigation, including by participating in two electronically recorded interviews.  He deposed that he had admitted his liability at the earliest stage of this proceeding and had assisted the Court and the Ombudsman to bring about an early resolution to the proceeding.  He further deposed that he had rectified the underpayments at the earliest opportunity, on 14 December 2015.

1. Attached to Mr Kim’s affidavit were character references from two of Little Vienna’s employees, Sunhwa Jang and Hyeran Hong. Both of them stated that they were aware of the substance of this proceeding.  They stated that Mr Kim was a hardworking man and had always treated them fairly and with kindness and respect.  They also stated that they had referred friends to work with Little Vienna and would not hesitate to so in the future.

CONSIDERATION

Relevant considerations

1. As Tracey J said in Kelly v Fitzpatrick (2007) 166 IR 14 at 18-19 [14], in Mason v Harrington Corporation Pty Ltd [2007] FMCA 7 Mowbray FM identified “a non-exhaustive range of considerations to which regard may be had in determining whether particular conduct calls for the imposition of a penalty, and if it does the amount of the penalty”. Tracey J adopted those considerations, describing them as follows:

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

   ·    The circumstances in which that 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 properly 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 had 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 and

   ·    The need for specific and general deterrence.

2. Considerations relevant to this case are:

   a)the nature and extent of the conduct;

   b)the circumstances in which the conduct took place;

   c)the nature and extent of any loss or damage sustained as a result of the breaches;

   d)whether there had been similar previous conduct by the respondents;

   e)whether the breaches were properly distinct or arose out of the one course of conduct;

   f)the size of the business enterprise involved;

   g)the deliberateness of the breaches;

   h)contrition, corrective action and co-operation with the enforcement authorities;

   i)compliance with minimum standards; and

   j)the need for specific and general deterrence.

3. In determining the penalties to be imposed I have had regard to the principle of proportionality, the purposes of sentencing and the task of instinctive synthesis of various factors into a single result which were discussed by Barker J in Australian Building & Construction Commissioner v Construction, Forestry, Mining & Energy Union (No 2) (2010) 199 IR 373 at 376 [4]-[7].

The nature and extent of the conduct

1. The facts of the matter have been clearly set out in the summary of the Statement of Agreed Facts set out earlier in these reasons and so it is not necessary to repeat them other than to observe, as the Ombudsman did, that the contraventions in this matter were of three types:

   a)underpayments and award contraventions, which involved underpayments of minimum wages and casual loadings and a failure to provide minimum hours of work for all of the Employees;

   b)the failure to keep proper records of matters such as rates of remuneration and amounts for all of the Employees and the failure to issue pay slips; and

   c)the falsification of records, in the form of recreated but incorrect pay records and the provision of those false records to the Ombudsman.

The circumstances in which the conduct took place

1. It appears that the Employees were all foreign nationals with limited understanding of Australia and with limited English language skills.  It appears that the circumstances of the Employees was such that they were in a small Korean-speaking work community centred on the Little Vienna sandwich shops with limited ability to learn from the surrounding society whether their employment conditions were appropriate.  I infer that they were comparatively isolated and vulnerable as a consequence.

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

1. The quantum of the losses suffered by the Employees has been set out already.  The only further matter needing to be noted is that although the jobs the Employees were performing were low skilled and consequently paid at a low level, the amounts which they were underpaid were not insignificant.  Further, the evidence of Ms Hong and Ms Kim is that their treatment distressed them and made it difficult to live in Australia.

Whether there had been similar previous conduct by the respondents

1. It appears that no proceedings of a sort similar to the present have been brought against the respondents.  Although the evidence indicates that a complaint had been made by a different employee in the past, there is insufficient evidence before the Court for any reliable inferences to be drawn from that fact or for any further conclusions to be based upon it.

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

1. The Ombudsman accepted that the respondents were entitled to have the benefit of:

   a)s.557 of the FW Act, in relation to each contravention of each separate term of the Modern Award and each contravention of sub-ss.535(1) and 536(1) of the FW Act; and

   b)s.557 of the FW Act and reg.4.03A of the FW Regulations, in relation to each contravention of sub-reg.3.44(6) of the FW Regulations,

   to the extent that those contraventions related to multiple employees.

2. The Ombudsman also accepted that the breaches of minimum wages under cl.17 and cl.A.2.5 of sch.A to the Modern Award, and the breaches of junior wages under cl.18 of that award both related to minimum wages and arose from Little Vienna’s decision to pay all the Employees substantially the same wages, and would have been grouped together but for the fact that Yedam So was a junior. The Ombudsman accepted that those contraventions should be grouped together for the purposes of penalty.

3. The Ombudsman also accepted that, to the extent that the Respondents:

   a)failed to comply with multiple record-keeping obligations under the FW Regulations in contravention of sub-s.535(1) of the FW Act; and

   b)failed to comply with multiple pay slip obligations under the FW Regulations in contravention of sub-s.536(1) of the FW Act,

   it would be appropriate to reduce those contraventions to:

   c)one group of contraventions of sub-s.535(1) for record-keeping, because the failures arose from the same system of inadequate record-keeping; and

   d)one group of contraventions of sub-s.536(2) for pay slips, because the failures arose from the same system of failing to issue pay slips.

   Arguably s.557 also applies to each of those groups of contraventions.

4. The respondents largely agreed with those concessions, which was appropriate on the basis that each breach of each separate legal obligation was a separate contravention and each continuing contravention was a course of conduct.  However, they also submitted that, in relation to Little Vienna, all the breaches of regs.3.44(1) and 3.44(6) ought to be grouped together.  It is apparent that there is some conceptual link between those contraventions but I do not believe that, properly, they can be grouped together.  The grouping principle was described by Mansfield J in Fair Work Ombudsman v Lifestyle SA Pty Ltd [2014] FCA 1151 at [63]:

   Although the Course of Conduct provisions apply where the WR Act (which applied to the Pre-Modern Award period) and the FW Act (which applied in the Modern Award Period) have mirror provisions, the Grouping Principle applies to those contraventions that relate to the same conduct, regardless of the legislative regime that was operative at the time. Thus, contraventions arising out of materially the same conduct ought to be grouped, such as the failure to pay penalty rates during each period.

   See also McKerracher J in Fair Work Ombudsman v Kentwood Industries Pty Ltd (No.3) [2011] FCA 579 at [32]. The essence of the grouping principle is that a contravener should not be penalised twice for what is, in substance, the same conduct.

5. I do not believe that the two contraventions of reg.3.44(1) were anything other than separate and distinct events. The respondents have not demonstrated that the creation of the documents in question was in any way, for instance, one act or part of a standard process. Further, I find that the creation of false records and their provision to the Ombudsman were not the same contravention and were not the same conduct. They were actions with distinctly different natures, even if related and undertaken in sequence.

6. For the same reasons, I do not accept the respondents’ submission that Mr Kim’s deemed contraventions of regs.3.44(1) and 3.44(6) should be grouped together.

The size of the business enterprise involved

1. Little Vienna is not a large business and, it appears, outsources its bookkeeping.  I appreciate the respondents’ submission that a large entity may be liable to heavier penalties than a small one, if only to ensure that the penalties have appropriate impact.  This is not a case where high range penalties would be appropriate.  Even so, the point to be made in relation to all enterprises, of whatever size, is that they have a fundamental obligation to pay their employees properly for the work they do.  The smallness of an enterprise is, without more, insufficient reason to lessen whatever penalty might otherwise be appropriate.

The deliberateness of the breaches

1. With the exception of the falsified records contraventions, I am satisfied that all the breaches were deliberate on the part of Mr Kim and, through him, Little Vienna.  In relation to the falsified records contraventions, the evidence does not persuade me one way or the other.  Given Mr Kim’s immediate admission to having done the wrong thing, I think it unlikely that he subsequently sought to escape liability by the creation of documents which could so easily be disproved.  I suspect that these documents reflect a lack of proper attention on his part, rather than an intent to deceive.

Contrition, corrective action and co-operation with the enforcement authorities

1. There is no doubt that the respondents have, from a very early time, admitted their culpability and have co-operated with the Ombudsman not only in his investigation but also in the prosecution of this proceeding. 

2. As to contrition, in ACE Insurance Ltd v Trifunovski (No 2) (2012) 215 IR 206 Perram J said, in comments which were not in issue on the subsequent appeal:

   It is not clear to me how an artificial construct such as a corporation can experience the complex human emotion of contrition made up, as it is, of an amalgam of distinctly human emotions such as regret, shame and sympathy.  I do not doubt that a corporation may exhibit signs of regret but it is too much to expect that such an artificial construct can be meaningfully contrite.

   For civil penalty cases involving corporations it would be more coherent to ask only whether the corporation has changed its behaviour.  Nothing more can be expected; a person who does not literally or physically exist may not wear sackcloth. (at 228-229 [113]-[114])

3. An acceptance of past transgressions does not amount to an intention to not repeat such conduct.  It might also be noted that Mr Kim has not given any evidence that he regrets what he did.  However, he, and so also Little Vienna, is willing to submit to the audit, training and reporting orders which will be discussed further shortly.  In my view that is valuable evidence of contrition of a sort appropriate to a body corporate.  Nevertheless, I repeat my observation that Mr Kim has not expressed remorse for his part in the relevant events.

4. Discounts for co-operation are not allowed simply because enforcement proceedings have been made less complicated and less expensive by appropriate concessions.  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: Mornington Inn v Jordan (2008) 168 FCR 383 at 405 [76].

5. I consider that a discount of 20% is appropriate in this case.

Compliance with minimum standards

1. The failure to keep necessary records is a particularly pernicious practice because it makes the proper quantification of workers’ entitlements more difficult than would otherwise be the case.  I adopt what Judge O’Sullivan said in Fair Work Ombudsman v Bound for Glory Enterprises Pty Ltd [2014] FCCA 432 at [76]:

   Ensuring compliance with minimum standards is an important consideration in this case. One of the principal objects of the FW Act is the maintenance of an effective safety net of employer obligations, and effective enforcement mechanisms. The failure to keep records by the respondents which is admitted arguably undermines and frustrates the attainment of that object. There is also the issue that the failure to keep the records themselves and the vice that conduct gives rise to. As was identified in Fair Work Ombudsman v Taj Palace Tandoori Indian Restaurant Pty Ltd & Anor [2012] FMCA 258 and Fair Work Ombudsman v Orwill Pty Ltd & Anor [2011] FMCA 730 the problem where employers don’t keep proper records is that it creates a structure within which breaches of the industrial laws can easily be perpetrated.  (reference omitted)

The need for specific and general deterrence

1. This case presents a novel feature relevant to the question of the need for specific deterrence.  The respondents have agreed to undergo a compliance audit and relevant training and to report to the Ombudsman.  The willingness of the respondents to submit themselves to those processes, at their own cost, suggests that an additional penalty amount for specific deterrence would be double punishment.  The penalties which will be ordered will not contain an element for specific deterrence.

2. Even so, some element for general deterrence must be included in the penalties to be imposed on the respondents in order that the law’s disapproval of the conduct in question is marked and the penalty imposed serve as a warning to others not to engage in similar conduct: CPSU, Community and Public Sector Union v Telstra Corporation Limited (2001) 108 IR 228 at 230-231 [9]. For a penalty to have the desired effect it must be imposed at a meaningful level: Finance Sector Union v Commonwealth Bank of Australia (2005) 147 IR 462 at 475 [41].

3. I see no reason to reduce this element of the penalties because, according to the respondents, the Ombudsman has made at least one public statement in relation to this matter which while perhaps slightly colourful was not, to the extent I am aware of its terms, inaccurate or unreasonable.  This is not the sort of publicity, and no special circumstances have been demonstrated in connection with it which would suggest it had a particularly adverse impact on the respondents, that required it be taken into account when determining the extent to which the penalties to be imposed will reflect an element of general deterrence.

PENALTIES

1. When determining the appropriate penalties to be imposed on Little Vienna, I have taken into consideration the matters discussed earlier in these reasons.  I consider the appropriate penalties to be:

Provision(s) Contravened	Description of contravention	Maximum penalty	Discount	Maximum after discount	Penalty as a percentage of maximum penalty	Penalty
Section 45 FW Act (clauses 17& A.2.5 Fast Food Award)	Failure to pay minimum wages to the Employees, except Yedam So	$51,000	20%	$40,800	50%	$20,400
Section 45 FW Act (clauses 18 & A.2.5 Fast Food Award)	Failure to pay junior minimum wages to Yedam So
Section 45 FW Act (clauses 13.2 and A.5.4 Fast Food Award)	Failure to pay casual loading to the Employees	$51,000	20%	$40,800	50%	$20,400
Section 45 FW Act (clause 13.4 Fast Food Award)	Failure to roster Hyewon Seo, Sojeong Ahn, Yedam So, Mideum Park and Jinhee Hong for the required minimum engagement	$51,000	20%	$40,800	10 %	$4,080
Subsection 535(1) FW Act	Failure to keep employee records that included name of employer, employment status, commencement date, ABN, hours worked, details of loading, details of superannuation, records of termination	$25,500	20%	$20,400	60%	$12,240
Subsection 536(1) FW Act	Failure to issue pay slips	$25,500	20%	$20,400	60%	$12,240
Sub-regulation 3.44(1) FW Regulations	Knowingly keeping false and misleading record in relation to commencement date	$17,000	20%	$13,600	10%	$1,360

Sub-regulation 3.44(1) FW Regulations	Knowingly keeping false and misleading records in relation to Jinhee Hong, Geunwon Seo, Yedam So and Seoyoon Kim	$17,000	20%	$13,600	20%	$2,720
Sub-regulation 3.44(6) FW Regulations	Providing false and misleading record in relation to Jinhee Hong, Geunwon Seo, Yedam So and Seoyoon Kim to the FWO	$17,000	20%	$13,600	20%	$2,720
TOTAL	$204,000	$76160

1. When determining the appropriate penalties to be imposed on Mr Kim, I have also taken into consideration the matters discussed earlier in these reasons.  I consider the appropriate penalties to be:

Provision(s) Contravened	Description of contravention	Maximum penalty	Discount	Maximum after discount	Penalty as a percentage of maximum penalty	Penalty
Section 45 FW Act (clauses 17 & A.2.5 Fast Food Award)	Failure to pay minimum wages to the Employees, except Yedam So	$10,200	20%	$8,160	55%	$4,488
Section 45 FW Act (clauses 18 & A.2.5 Fast Food Award)	Failure to pay junior minimum wages to Yedam So
Section 45 FW Act (clauses 13.2 and A.5.4 Fast Food Award)	Failure to pay casual loading to the Employees	$10,200	20%	$8,160	55%	$4,488
Section 45 FW Act (clause 13.4 Fast Food Award)	Failure to roster Hyewon Seo, Sojeong Ahn, Yedam So, Mideum Park and Jinhee Hong for the required minimum engagement	$10,200	20%	$8,160	10%	$816

Sub-regulation 3.44(1) FW Regulations	Knowingly keeping false and misleading records in relation to Jinhee Hong, Geunwon Seo, Yedam So and Seoyoon Kim	$3,400	20%	$2,720	20%	$544
Sub-regulation 3.44(6) FW Regulations	Providing false and misleading record in relation to Jinhee Hong, Geunwon Seo, Yedam So and Seoyoon Kim to the FWO	$3,400	20%	$2,720	20%	$544
TOTAL	$29,920	$10,880

1. The total of the penalties payable by Little Vienna is $76,160 and the total of the penalties payable by Mr Kim is $10,880.  I am satisfied that these are just and appropriate amounts as aggregate figures.

2. Those penalties are to be paid to the Commonwealth.

I certify that the preceding one-hundred and one (101) paragraphs are a true copy of the reasons for judgment of Judge Cameron

Date: 5 May 2017