Fair Work Ombudsman v Lycamobile Pty Ltd

This matter concerned a proceeding brought by the Fair Work Ombudsman against Lycamobile Pty Ltd. The dispute centred on alleged contraventions of clause 21.1 of the TS Award, specifically concerning the failure to pay overtime rates to an employee, Ms Thevakumar. This issue had previously been the subject of a decision in 2013, where Lycamobile Pty Ltd was penalised $59,400.00 for contraventions of the General Retail Industry Award 2010 and the TS Award in respect of nine different employees.

The court was required to determine whether Lycamobile Pty Ltd had contravened clause 21.1 of the TS Award in respect of Ms Thevakumar during 32 separate paid periods. These were divided into 7 pre-penalty contraventions (occurring before the 2013 decision) and 25 post-penalty contraventions (occurring after the 2013 decision). The central legal question was how these contraventions should be treated for the purposes of penalty, particularly in light of the previous penalty imposed and the provisions of the Fair Work Act 2009 (Cth) concerning re-offending.

The court considered submissions regarding the grouping of contraventions. The applicant conceded that the 25 post-penalty contraventions could be treated as a single contravention, as they stemmed from the same course of conduct. However, the applicant argued that the pre-penalty contraventions and post-penalty contraventions constituted two distinct groups, each requiring a penalty. The respondent contended that the conduct penalised in the 2013 decision encompassed the pre-penalty contraventions in the current proceeding. The court rejected the respondent's contention, finding that a bare assertion of factual similarity between the pre-penalty contraventions and those in the 2013 decision was insufficient to establish a course of conduct for the purposes of section 557(1) of the FW Act. The court relied on principles from Fair Work Ombudsman v Grouped Property Services Pty Ltd (No 2) [2017] FCA 557, which emphasised the need to identify the "same criminality" rather than mere similarity of subject matter when grouping contraventions.