Fair Work Ombudsman v Monaco Willows Pty Ltd (No 3)
[2025] FedCFamC2G 564
•16 April 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Fair Work Ombudsman v Monaco Willows Pty Ltd (No 3) [2025] FedCFamC2G 564
File number(s): MLG 3155 of 2024 Judgment of: JUDGE O'SULLIVAN Date of judgment: 16 April 2025 Catchwords: INDUSTRIAL LAW – application for civil penalty –contraventions of Fair Work Act 2009 (Cth) – failure to abide by compliance notice and breach of s.323 – penalty hearing – appropriate penalty Legislation: Corporations Act 2001 (Cth)
Fair Work Act 2009 (Cth) ss 323, 546, 550, 557, 716
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law Rules) 2021 (Cth) r.13.06
Cases cited: Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (‘CFMEU’) (2018) 262 CLR 157
Australian Building and Construction Commissioner v Pattinson (2022) 399 ALR 599; [2022] HCA 13
Australian Ophthalmic Supplies Pty Ltd v McAlary-Smith [2008] FCAFC 8
Commonwealth of Australia v Director, Fair Work Building Industry Inspectorate (2015) 258 CLR 482
Construction, Forestry, Mining and Energy Union v Mammoet Australia Pty Ltd (2013) 248 CLR
Fair Work Ombudsman v Austrend International Pty Ltd (No.2) [2020] FCA 1193
Fair Work Ombudsman v Grouped Property Services Pty Ltd (No 2) [2017] FCA 557
Fair Work Ombudsman v Hess [2021] FCCA 1883
Fair Work Ombudsman v Matcraft Pty Ltd [2021] FCCA 272
Fair Work Ombudsman v Monaco Willows Pty Ltd (No 2) [2025] FedCFamC2G 176
Fair Work Ombudsman v Monaco Willows Pty Ltd [2024] FedCFamC2G 1218
Fair Work Ombudsman v NSH North Pty Ltd trading as New Shanghai Charlestown [2017] 275 IR 148
Fair Work Ombudsman v Soma Kitchen Pty Ltd (No.2) [2020] FCCA 2583
Fair Work Ombudsman v Viper Industries Pty Ltd [2015] FCCA 492
Fair Work Ombudsman v Yogurberry World Square Pty Ltd [2016] FCA 1290
Kelly v Fitzpatrick (2007) 166 IR 14; [2007] FCA 1080
Division: Division 2 General Federal Law Number of paragraphs: 50 Date of last submission/s: 16 April 2025 Date of hearing: 16 April 2025 Place: Melbourne Solicitor for the Applicant: Ms A Cooper Solicitor for the First Respondent: No appearance Solicitor for the Second Respondent: In person ORDERS
MLG 3155 of 2024 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: FAIR WORK OMBUDSMAN
Applicant
AND: MONACO WILLOWS PTY LTD (ACN 006 816 333)
First Respondent
FRANCIS PLACENTINO
Second Respondent
ORDER MADE BY:
JUDGE O'SULLIVAN
DATE OF ORDER:
16 APRIL 2025
THE COURT ORDERS THAT:
1.Pursuant to section 546(1) of the FW Act the second respondent pay within 3 months a total pecuniary penalty of $ 7,995 for the contraventions set out in paragraph 4 of the orders dated 14 February 2025;
2.The Applicant have liberty to apply on seven days’ notice in the event that the preceding order is not complied with.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE O’SULLIVANINTRODUCTION
Before the Court are proceedings for the imposition of penalties for contraventions of the Fair Work Act 2009 (Cth) (“FW Act”).
BACKGROUND
On 16 September 2024 the Fair Work Ombudsman (‘the applicant’) commenced proceedings against Monaco Willows Pty Ltd (ACN 006 816 333) (‘the first respondent’) and Francis Placentino (‘the second respondent’).
The proceedings were initiated against the background of the applicant’s investigation (and then delivery of a compliance notice to the respondents) arising from concerns a former employee at the first respondent’s café/bar trading as Tusk in the Melbourne suburb of Windsor had been underpaid.
In its statement of claim the applicant sought declarations the first respondent had contravened s 323 & s 716 of the FW Act and that the second respondent (the sole director) was involved in those contraventions within the meaning of s 550(2) of the FW Act.
The procedural background is otherwise set out in Fair Work Ombudsman v Monaco Willows Pty Ltd [2024] FedCFamC2G 1218 and Fair Work Ombudsman v Monaco Willows Pty Ltd (No 2) [2025] FedCFamC2G 176 (Monaco No.2) which should be read with these reasons.
Following the making of declarations of contravention of the FW Act by both respondents at a default judgment hearing on 14 February 2025 for the reasons set out in Monaco No. 2 the matter was listed today for a penalty hearing.
Since then, the first respondent has been placed under external administration. The applicant has abjured the option of seeking leave to continue these proceedings as against the first respondent. As a result, these proceedings are stayed as against the first respondent by operation of the relevant provisions of the Corporations Act 2001 (Cth). The applicant does however press for the imposition of civil penalty on the second respondent for his involvement in the contraventions declared for the reasons set out in Monaco No.2.
The second respondent, who had multiple opportunities to properly participate in these proceedings (see Monaco No.2), had (save for providing written submissions for “mitigation on the breaches” on 14 March 2025) historically failed to do so. On 15 April 2025 the second respondent emailed the Court asking to be allowed to attend the penalty hearing through a video link as he had “come done with a fever”. He was advised he would need to provide a medical certificate explaining why he couldn’t attend in person (see MZZGY v Minister for Immigration and Border Protection [2014] FCA 448 at [13]). The second respondent then told the Court that whilst he believed that was “harsh and irresponsible” nonetheless and “contrary to [his] better judgment” he would do so.
As it transpired, when the penalty hearing was called on this morning the applicant was represented by Ms Cooper and the second respondent appeared in person. Having not filed any material in the matter (other than the written submissions which he told the Court was because, like his lack of participation, he couldn’t afford legal representation) the second respondent did not seek to rely on any additional documents.
The second respondent had had notice of the proceedings, the previous orders, and the penalty hearing.[1] In addition, the second respondent had had time to prepare and provide written submissions to the Court (marked as exhibit R1). Accordingly, it was considered appropriate to proceed with the penalty hearing pursuant to r 13.05 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law Rules) 2021 (Cth) (the Rules).
[1] see affidavit of Gabrielle Imperial filed 7 March 2025 (though I note the second respondent’s written submission appeared to suggest he hadn’t received the orders, but didn’t say he hadn’t received a copy of Monaco No.2 which contained the orders).
MATERIAL RELIED ON
The applicant relied on:
(a)the statement of claim filed 16 September 2024 (exhibit A1);
(b)the affidavit of Joseph Okraglik filed 5 February 2025 (exhibit A2);
(c)the affidavit of FWI Linda Tran filed 13 March 2025 (exhibit A3);
(d)the three affidavits of Gabrielle Imperial filed 13 March 2025 (exhibit A4); and
(e)the outline of submissions filed 7 March 2025 (exhibit A5).
The second respondent had filed submissions on 14 March 2025 which were marked as exhibit R1 and have been taken into account, in the context of the relevant factors for determining an appropriate penalty. However, the utility of those submissions is necessarily limited in the absence of any evidence from the second respondent to support those submissions and (at times) the colourful claims made therein.[2]
[2] see for e.g. claims about the “cruel and punitive decision” by the applicant to release details of allegations against him. This appeared to ignore the “consequences” complained about flowed “from a failure to comply with statutory obligations” (see Fair Work Ombudsman v Austrend International Pty Ltd (No.2) [2020] FCA 1193).
PRINCIPLES RELEVANT TO THE DETERMINATION OF PENALTY
The approach of the Court in determining penalties for contraventions of the FW Act is well settled. In Australian Building and Construction Commissioner v Pattinson (2022) 399 ALR 599; [2022] HCA 13 (“Pattinson”), the High Court said that:
[9]… Under the civil penalty regime provided by the Act, the purpose of a civil penalty is primarily, if not solely, the promotion of the public interest in compliance with the provisions of the Act by the deterrence of further contraventions of the Act. In that context, the penalties fixed by the primary judge were appropriate because they were no more than might be considered to be reasonably necessary to deter further contraventions of a like kind by Mr Pattinson, the CFMMEU or others. They represented a reasonable assessment of what was necessary to make the continuation of the CFMMEU’s non-compliance with the law, amply demonstrated by the history of its contraventions, too expensive to maintain.
[10]The Full Court’s critical error was that it was distracted by a concern, drawn from the criminal law, that a penalty must be proportionate to the seriousness of the conduct that constituted the contravention. The power conferred by s 546 of the Act is not subject to constraints drawn from the criminal law and there is no place for a “notion of proportionality”, in the sense in which the Full Court used that term, in a civil penalty regime. Further, and relatedly, their Honours were misled by the view that the Act required that the maximum penalty be reserved for only the most serious examples of the offending comprehended by s 349(1), and that this principle could prevent the court from imposing the maximum penalty even though a penalty in that amount might reasonably be considered to be necessary to deter future contraventions of a like kind. Nothing in the text, context or purpose of s 546 requires that the maximum penalty be reserved for the most serious examples of misconduct within s 349(1). What is required is that there be “some reasonable relationship between the theoretical maximum and the final penalty imposed”. That relationship is established where the maximum penalty does not exceed what is reasonably necessary to achieve the purpose of s 546: the deterrence of future contraventions of a like kind by the contravenor and by others. …
[15]Most importantly, it has long been recognised that, unlike criminal sentences, civil penalties are imposed primarily, if not solely, for the purpose of deterrence….
The Court has a broad discretion to assess the appropriate penalty. In Fair Work Ombudsman v NSH North Pty Ltd trading as New Shanghai Charlestown[3], Bromwich J endorsed the following approach:
(1)Identify the separate contraventions involved – each contravention of each separate obligation in the FW Act is a separate contravention;
(2)consider whether any of the contraventions arising from the above constitute a single course of conduct within the meaning of s.557(1) of the FW Act;
(3)consider the extent to which two or more of the contraventions have common elements – the penalties imposed should be an appropriate response to the conduct of the respondent;
(4)consider the appropriate penalty for each contravention and, if relevant, each group of contraventions; and
(5)finally, assess whether the overall penalty is an appropriate and proportionate response to the conduct as a whole which led to the contraventions. This is the application of the ‘totality principle’.
[3] [2017] 275 IR 148 at [36].
Fundamental to the Court’s task, is an assessment of the gravity and seriousness of the offending which it is called upon to penalise, having regard to all relevant factual circumstances. The considerations deemed relevant to this task are well known and frequently cited.[4] They include:
[4] see Pattinson at [18]; Kelly v Fitzpatrick [2007] FCA 1080 at [14].
(a)the nature and extent of the conduct which led to the breach;
(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 breach;
(d)whether there has been similar previous conduct by the respondent;
(e)whether the breach was properly distinct or arose out of one course of conduct;
(f)the size of the business enterprise involved;
(g)whether or not the breach was deliberate;
(h)the involvement of senior management in the breach;
(i)whether the party committing the breach has shown contrition;
(j)whether the party committing the breach has taken corrective action;
(k)whether the party committing the breach has cooperated with enforcement authorities;
(l)the need to ensure compliance with minimum standard by provision of an effective means for investigation and enforcement of employee entitlements; and
(m)the need for specific and general deterrence.
While this list is well-settled, it is not to be interpreted by the Court as a “rigid catalogue of matters for attention”.[5] In Pattinson, the High Court reiterated that this list of possible relevant considerations ought not to be treated as a checklist. There is no specific order in which these matters should be considered.
[5] Australian Ophthalmic Supplies Pty Ltd v McAlary-Smith [2008] FCAFC 8.
The Court may take into consideration matters relevant to both the character of the contravening conduct and of the contravener.[6] The Court's task is, and remains to be, the determination of what penalty is most appropriate given all the relevant circumstances of the case.[7]
[6] Pattinson at [19].
[7] Pattinson at [68].
CONSIDERATION
It is now convenient to turn to an analysis of the relevant considerations. Before doing so I am satisfied the applicant’s submissions accurately set out the following background to the contraventions:
9.On 13 September 2023, FWI Tran gave the Compliance Notice to the First Respondent after forming a reasonable belief that it had contravened provisions of the Restaurant Award 2020 relating to minimum weekly rates, public holiday penalty rates and overtime rates, as well as section 90(2) of the FW Act relating to accrued untaken annual leave on termination, in respect of Mr Sidhu.
10.The Compliance Notice required the First Respondent to calculate and pay the amounts owing to Mr Sidhu by 13 October 2023, with reasonable evidence of compliance to be produced to the Applicant by 20 October 2023.
11.The First Respondent failed to comply with the Compliance Notice by the specified dates and thereby contravened s 716(5) of the FW Act (Compliance Notice Contravention).
12.The First Respondent also contravened s 323(1)(a) of the FW Act by failing to pay Mr Sidhu in full for the performance of work, between 18 October 2021 and 26 March 2023(Deduction Period). The First Respondent underpaid Mr Sidhu $3,610 during the Deduction Period (Deduction Contraventions).
13.The Second Respondent is the sole director and secretary of the First Respondent and was responsible for its overall operation and control. The Second Respondent was involved, within the meaning of s 550(2) of the FW Act, in the Compliance Notice Contravention and the Deduction Contraventions. (footnotes from original omitted)
In this case, in relation to the Deduction Contraventions, the maximum penalty for a contravention of s 323 by an individual is 60 penalty units. Accepting the applicant’s submission and adopting the approach in the authorities the maximum penalty the Court may impose for a single contravention of s 323 of the FW Act is $16,500 for an individual, where the contravention occurred on or between 1 January 2023 and 30 June 2023 and the contravention was not serious.[8]
[8] see Fair Work Ombudsman v Grouped Property Services Pty Ltd (No 2) [2017] FCA 557 at [396] to [399].
In relation to the Compliance Notice Contraventions, the maximum penalty for a contravention of s 716(5) was 30 penalty units. Again accepting the correctness of the applicant’s submissions the maximum penalty the Court may impose on the second respondent for his accessorial liability in the Compliance Notice Contravention is $9,390.
The Compliance Notice Contravention and the Deduction Contraventions are separate and distinct and the Court will consider the appropriate penalties to be imposed for each and whether the overall penalty arrived at is an appropriate response to the contravening conduct.
Course of conduct
The applicant’s written submissions addressed this consideration at paragraph [19] to [26]. In this case whilst there were multiple contraventions of s 323 of the FW Act the applicant properly acknowledged that the second respondent was entitled to the benefit of s 557(1) of the FW Act such that the Deduction Contraventions should be treated as one (and a single penalty imposed) as they arose out of a common course of conduct.
The nature, circumstances and deliberateness of the breaches
The applicant’s written submissions addressed these considerations at paragraphs [43] to [47].
There is no evidence before the Court that the steps required by the compliance notice have been adhered to. The applicant’s evidence is the first respondent was provided with opportunities to give information that could constitute a reasonable excuse for its failure to comply with the compliance notice but did not do so.
As is clear from his own submissions, and as the applicant’s submissions pointed out, the second respondent disagreed with aspects of the compliance notice. However, the second respondent did not avail himself of the statutory mechanism to seek review of that notice by the Court. Accordingly, putting to one side for present purposes that there is no evidence about a claimed “stressed and confused mind” or “lack of financial resources”, because of this it is difficult to place any weight on claims made by the second respondent in his submissions about having a reasonable excuse. I accept the applicant’s submission that the absence of proper evidence of a reasonable excuse increases the objective seriousness of the contraventions. The claims made in the second respondent’s submissions about the deductions[9] do nothing to detract from the seriousness of the Deduction Contraventions.[10]
[9] The second respondent claimed (without evidence to support it) that he had “explained” to the applicant the “facts and circumstances” of the deductions and there hadn’t been a “deduction of wages” but a “payment of a credit account after tax”.
[10] see paragraphs [43]-[46] of applicant’s submissions. The mischief sought to be addressed by s.323 was addressed in Construction, Forestry, Mining and Energy Union v Mammoet Australia Pty Ltd (2013) 248 CLR 619 at 633-634.
The nature and extent of any loss or damage sustained as a result of the breaches
The applicant’s written submissions address this consideration at paragraphs [48] to [52]. The applicant submits that the first respondent’s actions (which the second respondent was involved in) have directly affected the former employee of the first respondent, denying him his entitlements for his employment.[11] There is also the issue that this has continued, even in the face of a court order.
[11] see Fair Work Ombudsman v Hess [2021] FCCA 1883 at [35].
Also relevant is the Compliance Notice Contravention caused the applicant to expend public funds pursuing these proceedings.[12] The legislature has set penalties for non-compliance because a failure to comply will cause the applicant (and the Court) to spend time and public funds dealing with civil remedy proceedings.
[12] see Fair Work Ombudsman v Viper Industries Pty Ltd [2015] FCCA 492 at [42].
Whether there has been similar previous conduct by the respondents
There was no submission made or evidence that there was similar previous conduct.
The size and financial circumstances of the business enterprise involved
The applicant’s written submissions address this consideration at paragraphs [56] to [58]. There has already been reference made to the (unsupported) claims made in the second respondent’s submissions about “difficult trading conditions” and “lack of financial resources”. I note the applicant’s advice that the first respondent has been placed into administration. The second respondent made clear he is aggrieved by the applicant’s decision to persist with these proceedings after he said he had given them documentation about his financial situation. Whilst it is notorious that trading conditions in the restaurant and café industry are challenging, despite being given every opportunity to properly participate the respondents have not provided any affidavit material to the Court concerning their financial circumstances.
In any event it is well established that the size and financial circumstances of an employer does not exculpate breaches of workplace laws, and that capacity to pay a penalty will be of less relevance than the objective of general deterrence.
As Tracey J said in Kelly v Fitzpatrick (2007) 166 IR 14; [2007] FCA 1080 at [28]:
No less than large corporate employers, small businesses have an obligation to meet minimum employment standards and their employees, rightly, have an expectation that this will occur. When it does not it will, normally, be necessary to mark the failure by imposing an appropriate monetary sanction. Such a sanction “must be imposed at a meaningful level” (citation omitted)
Whether senior management was involved in the breaches
The applicant correctly submits that the second respondent’s involvement in the contraventions by the first respondent (and the ongoing non-compliance) is a matter that should be considered in arriving at an appropriate penalty.
Contrition, corrective action and co-operation
The applicant’s written submissions address these considerations at paragraphs [61] to [63]. The second respondent has not cooperated in taking any steps to comply with the compliance notice and hasn’t properly engaged with these proceedings[13] or complied with any of the orders of this Court.
[13] The second respondent’s claims in his submissions about his “view” the applicant wouldn’t proceed against him and having a “misunderstanding” of “justice” are hard to accept as genuine from someone who hasn’t (till today) attended Court and hadn’t taken up the opportunities afforded to him for him to do so.
The applicant submits (and I agree) that no discount is available to the second respondent in respect of any corrective action, cooperation or contrition.
The need to ensure compliance with minimum standards
The applicant’s written submissions address this consideration at paragraphs [52] to [55]. Compliance with minimum standards is a principal object of the FW Act and the failure to meet those standards deprives employees of that safety net. The applicant submits (and I accept) that the failure to comply with the compliance notice undermines the legislation that serves to protect employees.
The applicant also submits that compliance notices are a tool that can prevent unnecessary court proceedings and therefore failing to comply with such notices should have serious consequences.[14]
[14] see Fair Work Ombudsman v Soma Kitchen Pty Ltd (No.2) [2020] FCCA 2583 and Fair Work Ombudsman v Matcraft Pty Ltd [2021] FCCA 272.
The need for specific and general deterrence
In Commonwealth ofAustralia v Director, Fair Work Building Industry Inspectorate (2015) 258 CLR 482, it was said at [55]:
No less importantly, whereas criminal penalties import notions of retribution and rehabilitation, the purpose of a civil penalty, as French J explained in Trade Practices Commission v CSR Ltd, is primarily if not wholly protective in promoting the public interest in compliance:
Punishment for breaches of the criminal law traditionally involves three elements: deterrence, both general and individual, retribution and rehabilitation. Neither retribution nor rehabilitation, within the sense of the Old and New Testament moralities that imbue much of our criminal law, have any part to play in economic regulation of the kind contemplated by Pt IV [of the Trade Practices Act]. ... The principal, and I think probably the only, object of the penalties imposed by s 76 is to attempt to put a price on contravention that is sufficiently high to deter repetition by the contravenor and by others who might be tempted to contravene the Act. (footnotes omitted)
Similarly, in Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (‘CFMEU’) (2018) 262 CLR 157 it was said at [116]:
As has been observed, the principal object of an order that a person pay a pecuniary penalty under s 546 is deterrence: specific deterrence of the contravener and, by his or her example, general deterrence of other would-be contraveners. According to orthodox sentencing conceptions as they apply to the imposition of civil pecuniary penalties, specific deterrence inheres in the sting or burden which the penalty imposes on the contravener. Other things being equal, it is assumed that the greater the sting or burden of the penalty, the more likely it will be that the contravener will seek to avoid the risk of subjection to further penalties and thus the more likely it will be that the contravener is deterred from further contraventions; likewise, the more potent will be the example that the penalty sets for other would-be contraveners and therefore the greater the penalty's general deterrent effect. Conversely, the less the sting or burden that a penalty imposes on a contravener, the less likely it will be that the contravener is deterred from further contraventions and the less the general deterrent effect of the penalty. Ultimately, if a penalty is devoid of sting or burden, it may not have much, if any, specific or general deterrent effect, and so it will be unlikely, or at least less likely, to achieve the specific and general deterrent effects that are the raison d'être of its imposition. (footnotes omitted)
Specific deterrence
The applicant’s written submissions addressed this consideration at paragraphs [40] to [42]. Specific deterrence is directed at the party who has contravened the provision. It is concerned with ensuring a contravening party is not prepared to engage in the contravening conduct in the future. The lack of proper engagement by the second respondent in the proceedings has meant there is a dearth of evidence for the matters raised in his submissions.[15]
[15] Moreover as in Fair Work Ombudsman v Klinsic Constructions Pty Limited (No.2) [2023] FedCFamC2G 283 at [46] the proceedings could have been avoided by compliance with the notice.
The applicant submitted that there is a particular need to deter the second respondent because:
41.1 he has demonstrated a disregard for his obligations under the FW Act by:
41.1.1 failing to comply with the Compliance Notice;
41.1.2 failing to pay Mr Sidhu in full all of the amounts owning to him in relation to the performance of work by him; and
41.2 while the business referred to at paragraph 7 is no longer operating, the Second Respondent is currently the director of three other companies. As such, there is a real prospect that the Second Respondent is currently responsible for the engagement of employees and has obligations under the FW Act and/or will assume that responsibility in the future.
It is incumbent on any employer to properly prioritise employee entitlements and to comply with workplace laws, no matter what other operational or financial difficulties may be visited upon a business or its proprietor. Given the evidence before the Court (and the rationale for penalty proceedings set out in the authorities)[16] I accept the applicant’s submissions on this consideration.
[16] see Pattinson at [10] and Fair Work Ombudsman v Yogurberry World Square Pty Ltd [2016] FCA 1290 at [27].
General deterrence
General deterrence is concerned with ensuring, among other things, that the penalty is likely to act as a deterrent in preventing similar contraventions by like-minded persons. The applicant’s written submissions addressed the concept of general deterrence at paragraphs [37] to [39].
The applicant submits that it is necessary and appropriate to impose a penalty on the second respondent to signal to employers in the hospitality and café industry that non-compliance with the statutory notices will not be tolerated and to deter employers from making unauthorised deductions and ensure employees are paid in full for their performance of work.
The important concept of compliance notices as an enforcement tool and ensuring employees are not subject to unauthorised deduction (and the need to deter other employers from engaging in conduct such as occurred in this case) is something that should be taken into account when arriving at the penalty to be imposed.
Importantly, in relation to general deterrence, it is necessary and appropriate to impose a penalty that signals non-compliance with statutory notices will not be tolerated. The efficacy of these notices could be undermined if recipients think that a failure to comply has no meaningful consequences. There is also a need for general deterrence for all persons to not engage in conduct such as occurred in this case and to be motivated (by seeing the imposition of civil penalties) to know and conform with their obligations under industrial instruments.
Appropriate penalties
Given the above, the applicant submitted[17] that the following penalty ranges were appropriate:
(a)between $4,695 to $5,634 for the second respondent’s contravention of s 716(5), being 50% to 60% of the maximum penalty; and
(b)between $3,300 to $4,950 for the second respondent’s contravention of s 323(1)(a), being 20% to 30% of the maximum penalty.
[17] The second respondent had had notice of the applicant’s submissions and was again asked whether he had anything to say in relation to the penalty range sought by the applicant but indicated he didn’t wish to do so.
Totality principle
On this issue the applicant submitted that:
66.The Applicant submits that at most only a limited reduction can be applied to any penalty the Second Respondent should be ordered to pay on the basis of totality, as the overall sentences are just and appropriate having regard to the circumstances of the case, the contraventions of ss 716(5) and 323(1)(a) of the FW Act being separate and distinct, and the Deduction Contraventions having already been treated as a single course of conduct.
Given the absence of affidavit material from the second respondent there is no evidence that suggests that penalties within the proposed range/s would be crushing or oppressive.
CONCLUSION
I have taken into account the material before the Court in the context of the above-mentioned relevant considerations and am satisfied in each case a penalty at the lower end of the range is appropriate. In all the circumstances a penalty on the second respondent of $4,695 for the Compliance Notice Contravention and $3,300 for the Deduction Contraventions reflects an appropriate response to the offending conduct. Whilst the second respondent at today’s penalty hearing asked for 12 months to pay, absent a proper evidential foundation to do so I would only allow 3 months as this wasn’t opposed.
Accordingly, there will be orders as set out at the beginning of these reasons for decision.
I certify that the preceding fifty (50) numbered paragraphs are a true copy of the Reasons for Judgment of Judge O'Sullivan. Associate:
Dated: 16 April 2025
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