Fair Work Ombudsman v Noorpreet Pty Ltd
[2018] FCCA 1246
•18 May 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
FAIR WORK OMBUDSMAN v NOORPREET PTY LTD & ANOR [2018] FCCA 1246
Catchwords:
INDUSTRIAL LAW – Pecuniary penalties pursuant to the Fair Work Act 2009 (Cth) – contraventions of the Act admitted by the respondents – only the issue of pecuniary penalties and quantum of penalty – appropriate amount of the discount – consideration of factors relevant to penalty.
Legislation:
Evidence Act 1995 (Cth), s.191
Fair Work Act 2009, ss.535, 536, 546, 550, 557
Fair Work Regulations 2009 (Cth), regs.3.36, 3.37, 3.40, 3.44, 4.03A
Paid Parental Leave Act 2010 (Cth), ss.8, 13, 72, 101, 147
Cases cited:
Gibbs v The Mayor, Councillors and Citizens of City of Altona [1992] FCA 374; (1992) 37 FCR 216McIver v Healey [2008] FCA 425
Australian Opthalmic Supplies Pty Ltd v McAlary-Smith [2008] FCAFC 8; (2008) 165 FCR 560
Mornington Inn Pty Ltd v Jordan [2008] FCAFC 70; (2008) 168 FCR 383
Fair Work Ombudsman v Theravanish Investments Pty Ltd & Ors [2014] FCCA 1170
Kelly v Fitzpatrick [2007] FCA 1080
Mason v Harrington Corporation Pty Ltd [2007] FMCA 7
General Manager of the Fair Work Commission v Thomson (No.4) [2015] FCA 1433
Fair Wok Ombudsman v Zillion Zenith International Pty Ltd & Anor [2014] FCCA 433
Fair Work Ombudsman v ECFF Pty Ltd & Ors [2014] FCCA 2996
FWO v Oz Staff Career Services Pty Ltd & Ors (No 2) [2016] FCCA 2594 Commonwealth of Australia v Director, Fair Work Building Industry Inspectorate [2015] HCA 46; (2015) 258 CLR 482; (2015) 326 ALR 476
Re Trade Practices Commission v CSR Ltd [1990] FCA 521
Clean Energy Regulator v MT Solar Pty Ltd [2013] FCA 205
Plancor Pty Ltd v Liquor Hospitality and Miscellaneous Union [2008] FCAFC 170; (2008) 171 FCR 357
Applicant: FAIR WORK OMBUDSMAN
First Respondent: NOORPREET PTY LTD ACN 146 743 973
Second Respondent: KULPREET SINGH
File Number: SYG 1368 of 2016
Judgment of: Judge Nicholls
Hearing date: 10 August 2017
Date of Last Submission: 10 August 2017
Delivered at: Sydney
Delivered on: 18 May 2018 REPRESENTATION
Counsel for the Applicant: Ms V Brigden
Solicitors for the Applicant: The Office of the Fair Work Ombudsman
Counsel for the Respondents: Mr M Valentin
Solicitors for the Respondents: Legal and Company Solicitors BY CONSENT, THE COURT DECLARES THAT:
(1)The first respondent contravened s.72(2) of the Paid Parental Leave Act 2010 (Cth).
(2)The first respondent contravened:
(a)Section 535(1) of the Fair Work Act 2009 (Cth), by failing to make and keep records of the kind prescribed by the Fair Work Regulations 2009 (Cth) in relation to:
(i)annual and personal leave accrued and taken by Ms Brar, and the balance of Ms Brar's entitlement to that leave from time to time;
(ii)superannuation contributions made on behalf of Ms Brar;
(iii)the date of, and manner of, termination of Ms Brar's employment.
(b)Section 536(1) of the Fair Work Act 2009 (Cth), by failing to provide payslips to Ms Brar within one day of making payment, or at all;
(c)Regulation 3.44(1) Fair Work Regulations 2009 (Cth), by failing to ensure the Alleged Payment Record (as defined in the Statement of Agreed Facts dated 8 August 2017) was not knowingly false or misleading;
(d)Regulation 3.44(6) of the Fair Work Regulations 2009 (Cth), by knowingly making use of a false and misleading record on 18 September 2015.
(3)The second respondent was involved in each of the contraventions by the first respondent set out in paragraphs 85(a) and (b) of the Statement of Agreed Facts dated 8 August 2017.
ORDERS
(1)The first respondent pay an aggregate penalty of $60,450 under s.546 of the Fair Work Act 2009 (Cth) to the Commonwealth within 28 days of the making of this order.
(2)The second respondent pay an aggregate penalty of $12,090 under s.546 of the Fair Work Act 2009 (Cth) to the Commonwealth within 28 days of the making of this order.
(3)The first respondent pay a penalty of $38,250 under s.147 of the Paid Parental Leave Act 2010 (Cth) to the Commonwealth within 28 days of the making of this order.
(4)The second respondent pay a penalty of $7,650 under s.147 of the Paid Parental Leave Act 2010 (Cth) to the Commonwealth within 28 days of the making of this order.
FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEYSYG 1368 of 2016
FAIR WORK OMBUDSMAN Applicant
And
NOORPREET PTY LTD ACN 146 743 973 First Respondent
KULPREET SINGH Second Respondent
REASONS FOR JUDGMENT
1.This is an application made on 30 May 2016 by the Fair Work Ombudsman (“the FWO”, “the applicant”) alleging breaches by Noorpreet Pty Ltd ACN 146 743 973 (“the first respondent”) and Mr Kulpreet Singh (“the second respondent”) of the Fair Work Act 2009 (Cth) (“the FWA”), the Fair Work Regulations 2009 (Cth) (“the Regulations”) and the Paid Parental Leave Act 2010 (Cth) (“the PPL Act”). The second respondent was at all material times, a director of the first respondent company.
2.The respondents have admitted to the contraventions outlined in the applicant’s Statement of Claim filed on 30 May 2016 (see further below). The parties have agreed to orders which provide for declarations that the first respondent contravened the relevant provisions of the PPL Act, the FWA and the Regulations, and that the second respondent was “involved” in each of those contraventions. The agreed orders also provide that the first and second respondent each pay a pecuniary penalty in respect of the contraventions (the agreed orders are set out below at [23]).
3.Therefore, the purpose of this judgment is to determine the quantum of the pecuniary penalties payable by the first and second respondents.
Before the Court
4.On 29 August 2016, the applicant filed a Statement of Agreed Facts (“SOAF”). On 9 August 2017, the applicant filed a second SOAF. At the hearing on 10 August 2017, the applicant informed the Court that the document filed on 9 August 2017 was essentially the same document as previously filed on 29 August 2016, but with some minor amendments to correct “erroneous” dates and references to legislation. The applicant tendered the SOAF dated 9 August 2017 at the hearing. There was no objection from the respondents.
5.The SOAF is signed by the legal representatives for the parties (I note that in relation to the respondents, the SOAF was signed by Legal and Company for the “respondent”. Given that Legal and Company is the legal representative for both the first and second respondents, in context, the document appears to have been signed on behalf of both of the respondents). At page one of the SOAF, the parties state the following:
“This Statement of Agreed Facts (SOAF) is an agreed document of the Applicant and the First and Second Respondents (collectively, the Respondents) made in these proceedings for the purposes of section 191 of the Evidence Act 1995 (Cth).”
6.I am satisfied that pursuant to ss.191(2)(a) and 191(3)(b) of the Evidence Act 1995 (Cth) (“the EA”), evidence is not required to prove the existence of the facts set out in the SOAF. [See further, and variously below, references to the SOAF].
7.The applicant sought, and was granted, leave to read the following affidavits:
a)The affidavit of Emma Rodwell, Team Leader – Customer Engagement Team, Office of the FWO, made on 28 October 2016 (no objections);
b)The affidavit of Sukhvir Kaur Brar, Student, made on 25 October 2016 (no objections);
8.The applicant sought, and was granted, leave to tender the following documents:
a)A bundle of documents produced on subpoena and referred to in the applicant’s written submissions (no objections) (“AE1”).
b)A personal name extract for Kulpreet Singh dated 8 August 2017 (no objections) (“AE2”).
c)A company search for Noorpreet Pty Ltd dated 8 August 2017 (no objections) (“AE3”).
d)A title search for Folio 20/9370 dated 8 August 2017 (no objection) (“AE4”).
9.The respondents sought, and were granted, leave to read the affidavit of Kulpreet Singh, unemployed, made on 4 October 2016. The applicant’s objections to this affidavit and the disposition of those objections are as set out in Schedule 1 to this judgment.
Background
10.The relevant background is as follows. Noorpreet Pty Ltd, the first respondent is an entity that operated a United Petroleum service station, and a roadhouse restaurant contained therein, on the Great West Highway in New South Wales (“the roadhouse”). Mr Singh was at all relevant times, a director and shareholder of the first respondent. A list of his responsibilities in relation to the first respondent company is set out at [8] of the SOAF as follows:
“The Second Respondent, Mr Kulpreet Singh is, and was at all material times:
(a) a director of the First Respondent;
(b) a shareholder of the First Respondent;
(c) the only director of the First Respondent resident in Australia;
(d) the person responsible for the overall direction, management and supervision of the First Respondent's business;
(e) the person responsible for ensuring that the First Respondent complied with its legal obligations under the FW Act and the PPL Act;
(f) the person responsible, on behalf of the First Respondent, for determining and applying terms and conditions of employment of Ms Brar as an employee of the First Respondent, including payment of wages, creating and maintaining records and pay slips in relation to Ms Brar on behalf of the First Respondent;
(g) a person with knowledge of the First Respondent’s practices in relation to the making and keeping of employment records for Ms Brar, and practice not to issue pay slips each time the First Respondent made payments to Ms Brar;
(h) the person responsible, on behalf of the First Respondent, for transferring parental leave pay to Ms Brar;
(i) the person with access to the First Respondents bank account into which the parental leave pay funds were transferred by the Department of Human Services (DHS) on 30 April 2015;
(i) a person with knowledge that the First Respondent did not pay Ms Brar parental leave pay on 4 May 2015;
(k) the person responsible for dealing with DHS, the Applicant’s office and Fair Work Inspectors in relation to Ms Brar’s parental leave payment, and for complying with requests that the First Respondent provide documents about Ms Brar’s parental leave pay;
(l) a person whose conduct and state of mind is attributable to the First Respondent pursuant to sections 793(1) and (2) of the FW Act; and
(m) a person who by reason of these matters had actual knowledge of the factual matters that comprise each of the contraventions admitted by the First Respondent.”
11.
Ms Brar was an employee of the first respondent on a part-time basis from March 2013 until “later in 2013”. She was employed on a
full-time basis from around “September 2013 to early August 2014”, when she ceased work due to her pregnancy. She remained an employee of the first respondent until on, or about, 15 June 2015 ([9] of the SOAF). Ms Brar performed work for the first respondent as a chef at the roadhouse and at another restaurant operated by Mr Singh ([10] of the SOAF). She was permitted to work in Australia pursuant to a subclass 187 permanent visa (regional employer nomination), sponsored by the first respondent ([10] of the SOAF).
12.Ms Brar made a claim for parental leave pay on 7 November 2014. She provided “proof of birth” to the Department of Human Services (“the DHS”) on 24 December 2014 ([13] of the SOAF).
13.On 6 January 2015, an employer determination under s.101 of the PPL Act was made by the DHS in relation to the first respondent ([16] of the SOAF).
14.On 17 January 2015, Ms Brar wrote to the respondents, advising she wanted to extend her parental leave for six months for health reasons ([43] of the SOAF).
15.On 2 April 2015, the DHS issued a compliance notice to the first respondent for its failure to register as Ms Brar’s employer for paid parental leave. The date for compliance was 23 April 2015 ([45] of the SOAF).
16.Due to Mr Singh’s delay in registering the first respondent as Ms Brar’s employer with the DHS, the DHS did not make its determination that parental leave pay was payable to Ms Brar under s.13 of the PPL Act, until 28 April 2015. The period for which parental leave was payable was 24 December 2014 to 28 April 2015 ([14] and [44] of the SOAF).
17.On 30 April 2015, an amount of $11,538.90 of parental leave pay for Ms Brar was transferred to the first respondent’s bank account by the DHS ([17] and [48] of the SOAF). The pay day for the instalment to Ms Brar was 4 May 2015 (as nominated by Mr Singh on behalf of the first respondent) ([18] of the SOAF).
18.On 22 May 2015, DHS transferred an additional amount of $897.47 to the first respondent in error (this amount is currently being “recovered” from Ms Brar by the DHS) ([48] of the SOAF).
19.On 16 June 2015, Ms Brar reported to the DHS that she had not received any parental leave payments. This was confirmed by Ms Brar on 18 June 2015 ([50] – [51] of the SOAF).
20.After attempts to contact Mr Singh and obtain evidence that he had (through the first respondent) made the parental leave payments to Ms Brar, the DHS referred the matter to the FWO (the applicant). The FWO’s investigation into Ms Brar’s complaint commenced in early August 2015 ([52] – [56] of the SOAF).
21.Details of the FWO’s investigation into Ms Brar’s complaint are set out at [57] – [84] of the SOAF as follows:
“[57] On 10 August 2015, Ms Brar advised FWI O’Leary that her parental leave pay had not been paid.
[58] On 11 August 2015, the Second Respondent advised FWI O’Leary that Ms Brar’s parental leave payment had been paid and agreed to provide evidence of payment.
[59] On 23 August 2015, after requests by FWI O’Leary on 18 and 20 August 2016 that the Second Respondent provide evidence of payment, the Second Respondent provided to FWI O’Leary a copy of a document purporting to be an authority signed by Ms Brar (Alleged Payment Authority) for the Second Respondent to pay her parental leave pay to Mr Brar on 4 May 2015.
[60] On 10 September 2015, FWI O'Leary returned from a period of leave and contacted the Second Respondent He requested that the Second Respondent provide additional records to confirm that Ms Brar’s parental leave pay had been paid.
[61] On 11 and 17 September 2015, the Second Respondent contacted FWI O’Leary and requested additional time to provide the records. On 11 September, the Second Respondent stated that he would pay Ms Brar ‘again’ if this was necessary to resolve the matter.
[62] On 18 September 2015, the Second Respondent produced to FWI O’Leary the Alleged Payment Record and stated that Ms Brar had been paid her parental leave pay on 4 May 2015.
[63] On 25 September 2015, Ms Brar participated in a recorded interview with FWI O’Leary and FWI Emma Rodwell under caution. In the interview Ms Brar stated that:
(a) she was not provided with pay slips for each pay period;
(b) the Second Respondent had delayed registering the First Respondent as her employer with Centrelink for the purposes of paid parental leave;
(c) the First Respondent had not transferred her paid parental leave pay to her account, although she was aware that Centrelink had transferred the funds to the First Respondent on 30 April 2015. She and Mr Brar had made several requests to the Second Respondent that the money be paid to her. Frequently, the Second Respondent did not respond;
(d) Mr Brar had not met with the Second Respondent on 4 May 2015 and had not received any of Ms Brar’s parental leave pay from the Second Respondent;
(e) she had not completed and provided the Alleged Payment Authority to the Second Respondent; and
(f) Mr Brar had attended the Roadhouse on 9 May 2015 to request the parental leave pay, but the Second Respondent did not give it to him.
[64] Also on 25 September 2015, Mr Brar participated in a separate recorded interview with FWI O'Leary and FWI Emma Rodwell under caution. In the interview, Mr Brar stated that:
(a) he did not meet with the Second Respondent on 4 May 2015 and had not received any of Ms Brar’s parental leave pay from the Second Respondent. He was at work in Victoria on that day;
(b) at no time did Mr Brar sign any document confirming receipt of the paid parental leave pay; and
(c) he attended the Roadhouse on 9 May 2015 in the company of a friend, Mr Gurwinder Singh, to request the parental leave pay, but the Second Respondent did not give it to him. The Second Respondent said he would transfer the money at a later date.
[65] On 7 October 2015, FWI Louise Batistic and FWI Martine Merritt conducted a telephone interview with the Second Respondent under caution. In the interview the Second Respondent stated that:
(a) he had some records of the hours Ms Brar worked;
(b) he did not pay Ms Brar when she took carer’s leave and she would instead work longer hours at a subsequent time;
(c) he did not use payslips often as he would have to pay his accountant to create them and he gave payslips to people who needed them;
(d) he had delayed registering the First Respondent as Ms Brar’s employer with Centrelink for the purposes of paid parental leave;
(e) he received the parental leave pay from Centrelink on 30 April 2015;
(f) he was unable to make a bank transfer of the entire amount of the payment from the First Respondent’s bank account to Ms Brar’s bank account, as he had a $2,000 transfer limit;
(g) he paid the parental leave pay to Mr Brar in cash on 4 May 2015;
(h) Mr Brar attended the Roadhouse on 4 May 2015 to collect the cash. He was accompanied by another person, who sat outside in the car;
(i) he received the Alleged Payment Authority from Ms Brar to authorise payment of the parental leave pay to Mr Brar payment (sic) by fax on 4 May 2015, although he did not look at the fax before paying the cash to Mr Brar and was unable to provide any fax record confirming receipt;
(j) Mr and Mrs Brar made numerous requests to him for the money after 4 May 2015; and
(k) ‘I’m ready to pay this again ... if you guys think I did something wrong I’m ready to pay her again’.
[66] On 13 October 2015, the First Respondent paid Ms Brar her parental leave pay.
[67] On 14 October 2015, the Second Respondent contacted FWI O’Leary to confirm that he had paid Ms Brar her parental leave pay and to provide a deposit receipt.
[68] On 27 October 2015, FWI O’Leary issued the First Respondent with a Notice to Produce records relating to Ms Brar’s employment (NTP), requiring compliance within 21 days.
[69] On 16 November 2015, the Second Respondent requested an extension of 10 days to comply with the NTP.
[70] On 18 November 2015, FWI O’Leary wrote to the Second Respondent regarding his failure to comply with the NTP, requesting an explanation and advising that if no reasonable excuse was available, the Office of the Applicant may commence legal action.
[71] On 26 November 2015, the Second Respondent wrote to FWI O’Leary stating that he had lost Ms Brar’s employment contract; confirming that she worked full time; 40 hours per week; and attaching a group certificate for the period ending 30 June 2015; a payslip for the period ending 13 July 2014; and a superannuation guarantee charge statement naming Ms Brar’s employer as K S Cleaning Australia Pty Ltd.
[72] On 1 December 2015, FW1 O’Leary wrote to the Second Respondent, seeking clarification as to why he had provided documents only in relation to category one in the NTP and as to why the employer name on the superannuation guarantee charge statement was K S Cleaning Australia Pty Ltd.
[73] On 3 December 2015, the Second Respondent wrote to FW1 O’Leary, stating that the naming of K S Cleaning Australia Pty Ltd as Ms Brar’s employer was a mistake by his accountant that would be corrected that month.
[74] On 22 December 2015, FWI O’Leary issued a Notice to Produce to ANZ Bank, requesting records for accounts held by the Respondents. The records provided by ANZ Bank in response show that an amount of $11,538.90 was deposited into the First Respondent’s bank account (Noorpreet Pty Ltd 012−401 2001−75278) on 30 April 2015 and an amount of $897.47 was deposited on 22 May 2015.
[75] On 13 October 2015, the sum of $12,436.37 marked as ‘Card Entry (ANZ ATM Rate) Lithgow Branch’ was transferred out of the First Respondent's bank account (Noorpreet Pty Ltd 012−401 2001−75278).
[76] On 6 January 2016, FWI O’Leary wrote to the Second Respondent regarding non-compliance with the NTP and requesting contact details of the Second Respondent’s accountant, who may be able to produce the records.
[77] On 11 January 2016, the Second Respondent wrote to FWI O’Leary requesting additional time for compliance and stating that his paperwork was disorganised due to 'family crises and repeated business loss’. He enclosed an unaddressed letter seeking to alter the name in the superannuation guarantee charge statement.
[78] On 13 January 2016, FWI Rodwell and FWI Kelly Brown conducted a telephone interview with Mr Gurwinder Singh under caution. Relevantly, Mr Singh stated that:
(a) he did not attend the Roadhouse on 4 May 2015;
(b) he and Mr Brar travelled to Sydney together on 8 May 2015. He received a toll fine while they were there;
(c) he attended the Roadhouse with Mr Brar on 9 May 2015. He entered the Roadhouse with Mr Brar, who requested the money from the Second Respondent. The Second Respondent stated that he would pay the money later; and
(d) Mr Singh did not witness the Second Respondent provide the money to Mr Brar.
[79] On 19 January 2016, FWI O’Leary wrote to the Second Respondent confirming non-compliance with the NTP and again requesting clarification as to whether the records existed at all and, if so, whether contact could be made with the accountant holding them.
[80] On 29 January 2016, FW[I] Rodwell sent a contravention letter to the First Respondent, addressed to the Second Respondent, in which she concluded that there had been contraventions of the PPL Act (failure to pay the parental leave pay instalment on time) and the FW Act, including a failure to comply with the NTP. The letter advised that further enforcement action may commence and that efforts by the Second Respondent to respond to the contraventions would be taken into account in this respect. The letter was sent by registered post and email.
[81] FWI Rodwell telephoned the Second Respondent on 29 January 2016 to confirm that the contravention letter was being sent. FWI Rodwell said to the Second Respondent that the Respondents may wish to consider seeking legal advice. During that conversation, the Second Respondent confirmed that he was collating records in response to the NTP but was unable to say what those records were, as the matter was in the hands of his accountant.
[82] On 15 February 2016, the Second Respondent emailed FWI Rodwell with a letter dated 5 February 2016, in which he stated that he had not maintained employment records for Ms Brar adequately due to ill health associated with his divorce. He also stated that he had paid Ms Brar’s parental leave pay twice, on both 4 May 2015 and 13 October 2015.
[83] Enclosed with the letter of 5 February 2016 was:
(a) a letter dated 12 August 2013 from a psychologist regarding the Second Respondent;
(b) a copy of the July 2013 employment contract;
(c) Ms Brar’s superannuation choice form;
(d) Ms Brar’s group certificate for the year ending 30 June 2015;
(e) three payslips (31 March 2014, 7 April 2014 and 14 July 2014); and
(f) a document which purportedly showed when wages were paid to Ms Brar. The document was prepared after the date the NTP was issued.
[84] On 21 April 2016, the Second Respondent wrote to FWI O‘Leary, enclosing some rosters, time sheets and a bank statement. He further stated that ‘We don’t have any other document.’”
Contraventions
22.The contraventions, admitted by the respondents, are set out at [1] – [4] of the SOAF as follows:
“[1] The First Respondent admits that it contravened the following civil remedy provisions:
(a) section 72(2) of the Paid Parental Leave Act 2010 (Cth) (PPL Act) by failing to pay Sukhvir Kaur Brar (Ms Brar) Commonwealth−funded parental leave pay of $11,538.90 on 4 May 2015; and
(b) section 535 of the Fair Work Act 2009 (Cth) (FW Act) by failing to make and keep records of:
(i) annual and personal leave accrued and taken by Ms Brar and the balance of Ms Brar’s annual and personal leave from time to time, as required by regulation 3.36(1) of the Fair Work Regulations 2009 (Cth) (FW Regulations);
(ii) information regarding superannuation contributions made on behalf of Ms Brar, as required by regulation 3.37(1) of the FW Regulations; and
(iii) the date of, and manner of, termination of Ms Brar’s employment, as required by regulation 3.40(1) of the FW Regulations.
(c) section 536(1) of the FW Act, by failing to give payslips to Ms Brar within one day of paying Ms Brar for the performance of work, or at all.
(d) regulation 3.44(1) of the FW Regulations, by failing to ensure that records of pay for Ms Brar were not false or misleading to its knowledge, by making a pay record stating that Ms Brar had been paid parental leave pay on 4 May 2015, when payment had not in fact been made.
(e) regulation 3.44(6) of the FW Regulations, by knowingly making use of a false or misleading record by providing a Fair Work Inspector on 18 September 2015 with a copy of the pay record stating that Ms Brar had been paid parental leave pay on 4 May 2015, when payment had not in fact been made.
(Collectively, the Admitted FW Contraventions).
[2] The Second Respondent admits that he was involved in the First Respondent’s contravention of section 72(2) of the PPL Act, within the meaning of section 145(1) of the PPL Act and is therefore to be treated as having himself contravened section 72(2) of the PPL Act.
[3] The Second Respondent admits that he was involved in each of the Admitted FW Contraventions set out in paragraph 1(b) to (e) above, within the meaning of section 550(2) of the FW Act, and is therefore to be treated as having himself contravened each of the provisions set out in paragraphs 1(b) to 1(e) above.
[4] The Respondents admit that the contravention of the PPL Act resulted in Ms Brar not being paid $11,538.90 of parental leave pay on 4 May 2015. The payment was made on 13 October 2015.”
23.The agreed orders are set out at [85] of the SOAF as follows:
“[85] The Applicant and the Respondent agree to the following:
(a) A declaration that the First Respondent contravened section 72(2) of the PPL Act.
(b) A declaration that the First Respondent contravened:
(i) section 535(1) of the FW Act, by failing to make and keep records of the kind prescribed by the FW Regulations in relation to:
(A) annual and personal leave accrued and taken by Ms Brar, and the balance of Ms Brar’s entitlement to that leave from time to time;
(B) superannuation contributions made on behalf of Ms Brar;
(C) the date of, and manner of, termination of Ms Brar’s employment
(ii) section 536(1) of the FW Act, by failing to provide pay slips to Ms Brar within one day of making payment, or at all;
(iii) regulation 3.44(1) of the FW Regulations, by failing to ensure the Alleged Payment record was not knowingly false or misleading;
(iv) regulation 3.44(6) of the FW Regulations, by knowingly making use of a false and misleading record on 18 September 2015.
(c) A declaration that the Second Respondent was involved in each of the contraventions by the First Respondent set out in paragraphs 85(a) and (b) above.
(d) Orders pursuant to section 147(1) of the PPL Act that the First Respondent and the Second Respondent each pay a pecuniary penalty in respect of the contravention of section 72(2) of the PPL Act.
(e) Orders pursuant to section 546(1) of the FW Act that the First Respondent and the Second Respondent each pay a pecuniary penalty in respect of the contraventions of sections 535(1) and 536(1) of the FW Act and regulations 3.44(1) and (6) of the FW Regulations.
(f) Orders pursuant to section 147(1) of the PPL Act and section 546(3) of the FW Act that the First Respondent and the Second Respondent pay their respective penalties to the Commonwealth, within 28 days of the Court’s order.
(g) An order that the Applicant have liberty to apply on seven days’ notice in the event that any of the preceding orders are not complied with.
(h) Such further or other orders as the Court deems fit.”
24.Having regard to the admissions by the respondents, and the evidence before the Court, I will make the declarations sought by the parties at (a), (b) and (c) of the agreed orders. I am also satisfied that the agreed orders (d) and (e) regarding the payment of pecuniary penalties by the respondents should be made. I will now turn to consider the quantum of those penalties. It is here that the only dispute between the parties in these proceedings arises.
Quantum of Penalties
25.The applicant set out the steps it says the Court should take in determining the penalties payable by the first and second respondents (see [11] of its written submissions).
26.First, the starting point for the Court is to identify the separate contraventions involved. Further, each breach of each separate obligation in the FWA and the Regulations is a separate contravention (Gibbs v The Mayor, Councillors and Citizens of City of Altona [1992] FCA 374; (1992) 37 FCR 216 at [24] (“Gibbs”) and McIver v Healey [2008] FCA 425 at [16]) ([11](a) of the applicant’s written submissions).
27.Second, the Court should consider whether the breaches arising in the first step constitute a single course of conduct. As the applicant submitted, s.557(1) of the FWA provides that where two or more contraventions of a single civil remedy provision arise out of one course of conduct, they are taken to be a single contravention of the provision (see [12] of the applicant’s written submissions). Regulation 4.03A of the FW Regulations is an equivalent provision for contraventions of the FW Regulations.
28.The applicant submitted that s.557 of the FWA and reg.4.03A of the FW Regulations will apply to the repeated contraventions of ss.535 and 536 of the FWA (see ss.557(2)(n) and 557(2)(o) of the Act and regs.3.36(1), 3.37(1) and 3.40(1) of the FW Regulations). The applicant submitted that “multiple contraventions of each provision resulted from two single decisions”. These are, one, “the decision not to maintain accurate records in relation to Ms Brar’s employment” and two, “the decision not to provide payslips within one day of payment being made” ([13] of the applicant’s written submissions).
29.The applicant submitted that when applying the statutory course of conduct provisions in this case (s.557(1) of the Act and reg.4.03A of the FW Regulations), there are seven separate contraventions in respect of the first respondent, and which all “involved” conduct by Mr Singh pursuant to s.550 of the FWA ([14] of the applicant’s written submissions).
30.These are not specifically set out in the applicant’s written submissions. However, when applying the statutory course of conduct provisions (s.557(1) of the Act and reg.4.03A of the Regulations), the seven contraventions by the first respondent, and the seven contraventions by the second respondent (due to his involvement in the contraventions of the first respondent) are those set out at [1](a), [1](b)(i), [1](b)(ii), [1](b)(iii), [1](c), [1](d) and [1](e) of the SOAF (and see [22] above).
31.Third, the applicant submitted that where two or more contraventions have “common elements”, this should be taken into account when considering the appropriate penalty for each contravention. Further, that the respondents “should not be penalised more than once for the same or substantially similar conduct”, and that the penalties should be an “appropriate response” to the respondents’ conduct ([11](c) and [16] of the applicant’s written submissions, citing Australian Opthalmic Supplies Pty Ltd v McAlary-Smith [2008] FCAFC 8; (2008) 165 FCR 560 (“Merringtons”) at [46]). The applicant submitted that “[t]his task is distinct from and in addition to the final application of the ‘totality principle’” (Mornington Inn Pty Ltd v Jordan [2008] FCAFC 70; (2008) 168 FCR 383 (“Mornington Inn”) at [41] – [46].
32.Given what is set out above (at [31]), the applicant submitted that the Court should “group together” the contraventions so that the failure to maintain accurate records of Ms Brar’s annual and personal leave, superannuation contributions, and date and manner of termination of employment, due to their “common elements” and “significant factual overlap”, are treated as one contravention ([16] of the applicant’s written submissions, citing Fair Work Ombudsman v Theravanish Investments Pty Ltd & Ors [2014] FCCA 1170 at [71]). Essentially, the applicant’s submission is that the act of failing to maintain proper employment records is the same conduct which led to contraventions of more than one civil penalty provision.
33.However, the applicant submitted that no further grouping should occur. It submitted that the contraventions should be “grouped” as follows ([17] of the applicant’s written submissions):
“The applicant does not accept that, in this case, any further grouping should be applied. Each of the contraventions, being:
(a) the failure to pay Ms Brar her parental leave pay instalments;
(b) the failure to maintain records pertaining to Ms Brar’s employment;[1]
[1] The record keeping and payslip contraventions are separate contraventions and should not be grouped: Fair Work Ombudsman v Dosanjh [2016] FCCA 923.
(c) the failure to provide payslips within one day of payment;
(d) the keeping of a false and misleading record;[2] and
(e) the making use of a false and misleading record[3];
should be treated as a separate contravention attracting an appropriate penalty. It would ignore proper distinctions between the conduct which was actually engaged in to further group the Contraventions.”
[Footnotes renumbered.]
[2] The decisions to keep and make use of false and misleading records are separate breaches, attracting separate penalties: FWO v Oz Staff Career Services Pty Ltd & Ors (No.2) [2016] FCCA 2594 at [16] and Fair Work Ombudsman v Mai Pty Ltd & Anor [2016] FCCA 1481 at [101].
[3] The decisions to keep and make use of false and misleading records are separate breaches, attracting separate penalties: FWO v Oz Staff Career Services Pty Ltd & Ors (No.2) [2016] FCCA 2594 at [16] and Fair Work Ombudsman v Mai Pty Ltd & Anor [2016] FCCA 1481 at [101].
34.The respondents have not made any submissions in relation to the statutory course of conduct provisions (s.557(1) of the FWA and reg.4.03A of the FW Regulations). Nor have the respondents made any submissions in relation to how the contraventions should be “grouped” when regard is had to any “common elements” between them.
35.I agree with the applicant, for the reasons given by the applicant, that the contraventions should be considered by the Court in the way outlined above at [28] to [30] (with regard to the statutory course of conduct provisions), and at [31] to [33] (with regard to the common elements between the contraventions).
36.The applicant submitted that the next step for the Court is to consider the appropriate penalty for each contravention, taking into account all of the relevant circumstances ([11](d) of the applicant’s written submissions).
37.Finally, the applicant submitted that the once the Court has “fixed an appropriate penalty for each contravention, [it] should consider whether the aggregate penalty is an appropriate response” to the respondents’ conduct ([11](e) of the applicant’s written submissions, citing Kelly v Fitzpatrick [2007] FCA 1080 at [30] (“Kelly”) and Merringtons at [23], [71] and [102]). Further, that the Court should apply an “instinctive synthesis” in making its assessment, known as the “totality principle”.
38.The respondents also submitted that the Court must apply the “totality principle” in its assessment of the appropriate penalty in the circumstances (see [36] – [39] of the respondents’ written submissions).
39.The applicant submitted that the Court is entitled to refer to the maximum penalties that could be imposed on the respondents ([18] of the applicant’s written submissions). The maximum penalty that can be imposed on each of the first and second respondents for each contravention, having regard to the course of conduct and grouping approach proposed by the applicant, is set out in the table at Schedule 2 to this judgment (and see [21] of the applicant’s written submissions). The table also indicates the applicant’s proposed penalty with the range of possible penalty that can be imposed up to the maximum penalty for each contravention.
40.The parties are in agreement that the relevant factors to the imposition of a penalty have been summarised by Mowbray FM (as he then was) in Mason v Harrington Corporation Pty Ltd [2007] FMCA 7 (“Mason”) at [26] – [59], and “adopted” by Tracey J in Kelly at [14] (see [22] of the applicant’s written submissions and [31] of the respondents’ written submissions).
41.The relevant factors are as follows (Kelly at [14]):
“- 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.”
Consideration
42.As set out above, the parties agree on a large number of factors relevant to the disposition of this case. In particular, the respondents agree that a pecuniary penalty should be paid by each of the first and second respondents.
43.The one area of disagreement however, is the quantum of pecuniary penalty to be applied to each of the respondents. In essence, the respondents submitted that having regard to certain circumstances, particularly pertinent to Mr Singh, the Court should apply a “10% discount” to which the respondents are “entitled”.
44.The applicant’s position is that the respondents’ conduct was such that the penalty should be toward the “higher” end of the range, leading to the maximum penalty that could be imposed under the relevant legislation. That is, generally, with a 5% discount.
45.There was no real dispute between the parties as to the relevant factors to be considered in the current assessment. Although the respondent proposed a “list” of factors differently expressed to that set out in the relevant authorities. I understood the factors identified in the respondents’ submissions to be the factors that they assert to be particularly relevant to the current circumstances. In any event, the considerations below are set out as against each of the factors identified in Mason and Kelly.
Nature, extent and circumstances of the contravening conduct
46.The applicant submitted as significant, that Ms Brar’s right to reside in Australia was dependent on the continuation of a subclass 187 visa, which was sponsored by the first respondent (see annexure “SKB-4” of Ms Brar’s affidavit at page 26) and that that this placed her in a position of some vulnerability.
47.The respondents submitted that the contraventions “occurred during a period of great personal turmoil on the part of [Mr] Singh” ([32]I. of the respondents’ written submissions). This is presumably a reference to the Mr Singh’s marriage breakdown, which occurred in 2013 (see [7] of Mr Singh’s affidavit). Mr Singh’s evidence is that his wife was responsible for managing the administrative tasks associated with running the business, and that their marital breakdown left him “stress[ed]”. Further, that his “inexperience in owning and operating a business resulted in [his] failure to comply with standard accounting practices” (see [5] - [10] of Mr Brar’s affidavit).
48.There is no evidence currently before the Court that the marital breakdown caused anything beyond what Mr Singh says was “stress” as a result of the marital breakdown. [I note that there is a psychologist’s letter annexed to Mr Singh’s affidavit at annexure “C”, but this was not admitted into evidence (see Schedule 1 to this judgment)]. In any event, the marital breakdown occurred approximately two years before the failure to pay the parental leave payments occurred.
49.In relation to the failure to keep proper employment records, and the failure to provide payslips, the SOAF states (at [24] and [30]):
“[24] The First Respondent did not make and keep records in relation to Ms Brar’s employment of the kind specified at paragraphs 22 and 23.
…
[30] During the period of her employment, the First Respondent failed to provide pay slips within one working day of paying Ms Brar for the performance of work and in some cases did not provide pay slips at all.”
50.This, in context, infers that the failure to keep proper employment records, and provide payslips to Ms Brar, occurred from the beginning of her employment and was ongoing. Therefore, Mr Singh’s marital breakdown could not have been the reason for the failure to provide payslips. Even if Mr Singh’s wife was responsible for the business’ administration during a part of this period, Ms Brar did not receive payslips in circumstances where Mr Singh was the responsible party.
51.In the circumstances, I do not accept that Mr Singh’s marital breakdown provides an adequate explanation for Mr Singh’s failure to comply with the FWA, the Regulations or the PPL Act.
52.The applicant submitted that the amount that the respondents failed to pay Ms Brar on the required date (4 May 2015) was a “substantial amount of money”, particularly at a time when Ms Brar was incurring expenses relating to the birth of her child, as well as her ill health (see [27] – [28] and [31] of Ms Brar’s affidavit and [26] of the applicant’s written submissions).
53.The failure to pay the amount, which was, by the applicant’s calculation, equivalent to more than a quarter of Ms Brar’s salary, more than five months after it was due, caused Ms Brar “financial difficulties” (see [33] of Ms Brar’s affidavit and [26] of the applicant’s written submissions).
54.Further, the applicant submitted that the respondents’ failure to provide Ms Brar with her payslips and to keep records of her employment “compromised” the applicant’s ability to verify whether Ms Brar had received her entitlements ([26] of the applicant’s written submissions).
55.It is of particular note that the parental leave payment was only made to Ms Brar by the respondents following intervention by the DHS and the FWO. Further, that after the Office of the FWO began its investigation into Ms Brar’s complaint, the respondents “created and produced a false payment record in an attempt to conceal the PPL contravention” ([27] of the applicant’s written submissions). This fact is not in dispute (see [32] - [41] of the SOAF).
56.In my view, this fact, of itself, provides great weight to the proposition that the penalty imposed should be at the higher end of the range and not “discount[ed]”, as the respondents urged.
57.It is one thing for an employer, even an employer under personal stress, to make a “mistake” in overlooking required payments to employees or “neglecting” to maintain proper employment records.
58.However, on the agreed facts and evidence before the Court, this case does not merely involve a “mistake”. Rather, Mr Singh engaged in “positive” conduct to deceive and conceal his (and the first respondent’s) failure to pay Ms Brar her entitlements under the relevant law.
59.Further, that conduct by Mr Singh occurred not only in relation to Ms Brar (which is of itself serious), but involved an attempt to deceive and mislead government agencies, and in particular, the FWO, which is charged with, amongst other things, assisting employers to ensure compliance with their legal obligations towards an employee.
60.The applicant submitted that the respondents’ “propensity to provide inaccurate records has continued” ([27] of the applicant’s written submissions). This is in reference to the respondents’ response to a Notice to Produce issued by the FWO on 27 October 2015, to the first respondent. The respondents produced two different sets of timesheets and rosters, one on 21 April 2016 and the other on 16 May 2016, which were conflicting (see [22] - [27] of the affidavit of Ms Rodwell and annexures “ER-12” and “ER- 16” to that affidavit).
61.The applicant submits that this, as well as Mr Singh’s assertion that he paid Ms Brar’s parental leave entitlement on 4 May 2015 (see [65](a) of the SOAF), “hampered” the FWO’s investigation into Ms Brar’s complaint, and has hindered its ability to further investigate other potential breaches of the FWA and the Regulations by the respondents ([28] of the applicant’s written submissions).
62.Therefore, the respondents’ impugned conduct was not just limited to one occasion. As serious as that was, Mr Singh’s conduct (and that of the first respondent), involved continuous deception both in relation to Ms Brar and the FWO.
Any similar previous conduct
63.The respondents submitted that they have a “lack of prior history” (see [32]V. of the respondents’ written submissions). Presumably, this is a reference to an absence of any previous breaches of the FWA or the Regulations by the respondents. The applicant concedes that neither of the respondents have previously been found to have contravened the FWA or the Regulations.
64.However, the applicant submitted that this factor should not be given much, or any, weight in the circumstances ([30] of the applicant’s written submissions). This is due to first, the number of contraventions by the respondents on this occasion, and second, the fact that the respondents’ attempted to conceal the contraventions.
65.Before the Court, the applicant submitted that given the respondents’ attempts to conceal their contraventions, the Court may infer that the respondents may have concealed contraventions in the past. The applicant explained that therefore in these circumstances, the respondents’ lack of previous contraventions should not mitigate any penalty awarded against them (see General Manager of the Fair Work Commission v Thomson (No.4) [2015] FCA 1433 at [7]).
66.It is trite to say that the Court should only proceed on the evidence before it. In this light, speculation as to what may otherwise have occurred, or could have occurred, is to be resisted.
67.In the current circumstances, it is not open on the evidence to draw any reasonable inference that the respondents contravened the FWA or the Regulations in the past, and further, whether they sought to conceal any such contraventions.
68.However, in the current circumstances, it is not necessary to do so in any event. The respondents’ conduct as set out above, and to which the respondents admit, is, of itself, of sufficient concern and character such that it is not reasonably open to find mitigation on the basis of any lack of previous similar conduct, and to assign some lesser penalty than that sought by the applicant now.
Nature and extent of the loss or damage sustained
69.The applicant concedes that the first respondent “eventually” paid Ms Brar her parental leave payment. However, the submission is that the five month delay in doing so is “significant”, particularly in relation to Ms Brar’s circumstances (see [52] above).
70.The respondents submit that the extent of the loss is the monetary amount of $11,538.90 (being Ms Brar’s parental leave payment entitlement), and the time spent by enforcement authorities investigating Ms Brar’s complaint ([32]II. of the respondent’s written submissions).
71.The respondents’ submissions here are that, in essence, after Mr Singh was approached by Ms Brar in April 2015 in relation to her paid parental leave entitlements ($11,538.90), he became “confused” as to how to make the payments, given a daily maximum bank transfer limit of $2,000 ([23] of the respondents’ written submissions).
72.Further, by April 2015, Mr Singh had made a number of “cash payments” to Ms Brar and her husband, and was “confused” as to what he had paid her and for what purpose ([24] of the respondents’ written submissions).
73.The respondents submit that Mr Singh had “no intention to deprive [Ms] Brar” of her entitlement ([25] of the respondent’s written submissions). This assertion is by way of submission and was not put in any evidentiary context. [I note that a statement of this kind was in Mr Singh’s affidavit at [14], however it was not admitted into evidence, see Schedule 1 to this judgment.]
74.What remains is that Ms Brar, who had just given birth to her child, incurred related necessary expenses, and was entitled to access parental leave payments. That payment did not occur until over five months after it should have. Ms Brar’s evidence is that this caused her financial difficulties.
75.It is to be remembered that Mr Singh, at the relevant time, was a businessman and company director. His latter status required him to take steps to ensure that he complied and discharged all of the first respondent’s obligations.
76.Even if his wife had been responsible for the “bookkeeping” of the business as he submitted, noting again his wife’s involvement had ceased approximately two years prior to the failure to make the parental leave payment, he had ample time, and in particular, a responsibility, to acquaint himself as to the proper conduct of his and the company’s affairs in relation to his employees.
77.It must be said that the “excuse” proffered by Mr Singh now, that he delayed payment to Mrs Brar because he did not know how to achieve such payment (over a period of six months) because of bank transfer limits, stretches to incredulity.
78.Further, this “excuse” is inconsistent with the submission also made that Mr Singh is “contrite for what he has done” ([28] of the respondents’ written submissions). True contrition, in my view, cannot include reliance on excuses which, it must be said, are absurd.
79.What adds to this state of affairs is that the first respondent’s bank account (operated by Mr Singh), had credited to it, by the DHS, the amount to be paid to Ms Brar on 30 April 2015. That is, Mr Singh had the money to pay Ms Brar as at 30 April 2015, and this was considerably earlier than when the payment was actually made to her.
80.All of the circumstances, including when regard is had to the nature and extent of the loss suffered by Ms Brar, argue for a penalty payment at the maximum end of the range, not at the “discount[ed]” amount now urged by the respondents.
Size and financial circumstances of the business enterprise
81.As outlined above (at [10]), the first respondent operated a United Petroleum service station and a roadhouse restaurant. The applicant submitted that it does not appear that the first respondent had a large number of employees (see [20] of the affidavit of Ms Rodwell affidavit and annexure “ER-9” to that affidavit). The respondents characterised the first respondent company as a “small business” ([32]IV. of the respondents’ written submissions).
82.The respondents’ submitted that “in view of the fact that it is no longer in operation the company’s capacity to pay a fine is diminished” ([13] of the respondent’s written submissions). Further, that the financial circumstances of Mr Singh are such that he does not have the capacity to pay a penalty imposed by the Court ([15] - [19] of the respondents’ written submissions).
83.Before the Court, the respondents’ counsel submitted (which, he conceded was not put in any evidentiary context before the Court), that the first respondent will have difficulty in meeting a “large” pecuniary penalty, and a penalty “may lead to some form of bankruptcy proceedings” against Mr Singh.
84.Before the Court, the applicant accepted that the first respondent’s Australian Business Number was cancelled from 30 June 2016, and the company is now no longer in operation (see AE3).
85.However, the applicant submitted that as at 2016, both the first respondent and Mr Singh held bank accounts (see AE1 and annexure “D” to the affidavit of Mr Singh), and that the evidence in AE1 shows payments in 2016 from the first respondent to Mr Singh’s bank account.
86.The applicant concedes that the bank account statements in AE1, and the transactions recorded therein, are from 2016, and therefore do not provide an indication of the respondents’ present capacity to pay any penalty. However, the applicant relies on these bank account statements for the submission that there is “no real concrete evidence” of the respondents’ “limited capacity to pay any penalties imposed”.
87.The applicant submitted that while Mr Singh’s evidence is that he is not currently employed and is living on personal savings (see [18] of Mr Singh’s affidavit), there is no evidence of his expenses or other income. Further, Mr Singh, on the evidence at least as at 2016, owned a property in Lithgow, NSW (see AE4).
88.In any event, the applicant submits that the capacity to pay a penalty is “not determinative”. The applicant refers to Kelly at [28] (citing Australian Competition and Consumer Commission v ABB Transmission and Distribution Ltd [2001] ATPR 41-815 at [13]):
“…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’.”
89.On the evidence, I find that the first respondent was a small business employer, and that is no longer in operation. In this light, it may be accepted that its capacity to pay any penalty is diminished.
90.In relation to Mr Singh, there is no evidence from the applicant, nor was he challenged in any cross-examination (no cross-examination took place), as to his evidence that he is currently unemployed and living off his savings. In the circumstances, this evidence must be accepted.
91.On the other hand, Mr Singh has not provided any, let alone comprehensive, evidence as to his financial circumstances. In particular, there is nothing to indicate the extent of his asserted “personal savings”. Put simply, he may not be working because he does not need to do so to earn income.
92.I make no finding in this regard. What can be said however, is that even if Mr Singh is in relatively straitened financial circumstances, this is only one element to weigh in the ultimate determination of any penalty to be imposed.
93.In that analysis, Mr Singh’s conduct in seeking to conceal the contraventions still stands as significant, and greater in weight, to his claimed inability to pay a significant penalty.
94.Mr Singh’s relevant conduct as the director of the first respondent is also relevant to the assessment of its penalty. However, as indicated above (at [81] – [83]), its capacity to pay is, on the evidence, different to that of Mr Singh.
Whether the breaches were deliberate
95.The applicant submitted that the Court should find that the respondents’ contraventions were deliberate, and that such a finding would cause the Court to impose penalties in a high range ([37] of the applicant’s written submissions). The applicant submitted that at least in relation to the failure to pay Ms Brar’s parental leave pay entitlement, and in relation to the creation and use of the misleading records, the “only credible explanation” is that those breaches were deliberate.
96.The applicant also submitted that the evidence and submissions filed by the respondents in these proceedings, is “at odds” with the contention that Mr Singh knew that Ms Brar was not paid her parental leave pay entitlementon 4 May 2015, or until October 2015 (a fact which the respondents have admitted, see [36] of the SOAF) (see further below).
97.At [39] if its written submissions, the applicant submits:
“It is clear that the First Respondent received the parental leave pay it was required to transfer to Ms Brar and elected not to transfer it. It is also clear that the Second Respondent deliberately created the Alleged Payment Record and Alleged Payment Authority and provided them to the Applicant in August 2015 and September 2015 in an attempt to rely on them as evidence of the Respondents’ compliance with its parental leave pay obligations.[4] The Second Respondent further repeatedly advised DHS and the Applicant that payment had been made on 4 May 2015 to Ms Brar’s husband in person, when this was not in fact the case. The representation that Ms Brar had already been paid was made to DHS on 25 June 2015 (allegation that the payment had been made some 5 to 6 weeks previously);[5] to FWI O’Leary on 11 August (allegation that the payment had been made and evidence would be provided);[6] to FWI O’Leary on 23 August 2015 (allegation that payment had been made and the Alleged Payment Authority dated 4 May 2015 produced as evidence of this);[7] to FWI O’Leary on 11 September 2015 (allegation that the payment had been made, but would be made ‘again’ if necessary);[8] to FWI O’Leary on 18 September 2015 (allegation that payment had been made on 4 May 2015 and the Alleged Payment Record dated 4 May 2015 produced as evidence of this);[9] and to FWI Batistic and FWI Merritt on 7 October 2015 (allegation that payment had been made on 4 May 2015 and the Alleged Payment Authority and Alleged Payment Record provided as evidence of this).[10] Ms Brar’s unequivocal evidence is that she did not sign the Alleged Payment Authority and never received the Alleged Payment Record, which was in any case not sent to her address.[11] Given the circumstances of the allegation, this is not a matter about which the Second Respondent might be found to have been mistaken, leading to a conclusion that the Second Respondent lied about this.”
[Footnotes renumbered].
[4] SOAF at [65].
[5] SOAF at [53]; Affidavit of FWI Rodwell at [11]; Annexure ER−3 to the Affidavit of FWI Rodwell at
[6] SOAF at [58]; Affidavit of FWI Rodwell at [16]; Annexure ER−6 to the Affidavit of FWI Rodwell at
[7] SOAF at [59]; Affidavit of FWI Rodwell at [16]; Annexure ER−6 to the Affidavit of FWI Rodwell at
[8] SOAF at [61]; Affidavit of FWI Rodwell at [16]; Annexure ER−6 to the Affidavit of FWI Rodwell at
[9] SOAF at [62]; Affidavit of FWI Rodwell at [16]; Annexure ER−6 to the Affidavit of E Rodwell at page 38.
[10] Affidavit of FWI Rodwell at [20]; Annexure ER−9 to the Affidavit of E Rodwell.
[11] Affidavit of Sukhvir Brar, at [48] and [49].
98.In relation to the respondents’ failure to issue payslips in accordance with s.536 of the FWA, the applicant submitted that Mr Singh made a “conscious decision” to not issue payslips in order to “save money” ([40] of the applicant’s written submissions).
99.The applicant submitted that in relation to the failure to keep employment records, the social “upheaval” (being the breakdown of the Mr Singh’s marriage) proffered by the respondents as an explanation for this failure, this does not “adequately explain breaches of the law in 2015” ([40] of the applicant’s written submissions.
100.It is of relevance to note that in their written and oral submissions, the respondents made no express or direct submissions that the breaches were not deliberate. Rather, the respondents sought to “explain” the various contraventions with references to Mr Singh’s claimed personal circumstances at the relevant time (and earlier).
101.I find that the failure to pay Ms Brar’s parental leave pay entitlement in and around April 2015 was deliberate on the part of Mr Singh and the first respondent. The creation of a “false record” of the payment of Ms Brar’s parental leave pay entitlement by Mr Singh, was also a deliberate act, which further emphasises that the initial failure to make the payment was deliberate in itself.
102.As set out above, this was not some omission or “mistake” by Mr Singh. It was an express and active intervention to initially deprive Ms Brar of the payment to which she was entitled. This is compounded by the fact that Mr Singh (and the first respondent) had been provided with the funds from the DHS for the express purpose of paying Ms Brar.
103.That deceptive conduct continued when subsequently, on the evidence, Mr Singh falsely advised the DHS that the payment had been made in May 2015. There is no evidence to address, let alone explain, that this was as a result of some “mistake”.
104.Importantly, what was in evidence before the Court (and not challenged in any evidentiary context by Mr Singh), was that he had produced an “alleged payment record” dated 4 May 2015, which was said to have followed a signed payment authority from Ms Brar.
105.I accept Ms Brar’s evidence (there is nothing in the evidence before the Court to doubt it), that she did not sign the alleged payment authority. In the circumstances, Mr Singh’s presentation of this document, and what appeared on its face, was a deliberate deception by him. In short, as the applicant submitted, Mr Singh “lied” ([39] of the applicant’s written submissions).
106.In relation to the other contraventions (relating to the failure to issue payslips and to keep employment records), at best, Mr Singh’s “explanation” is that his divorce had cause significant psychological stress, and had impacted on his business. This was said to be a significant factor in his failure, in particular, to keep proper business records.
107.On the evidence, Mr Singh’s divorce predated the relevant times of the contraventions relating to the failure to pay Ms Brar her parental leave pay entitlements, and the false payment record, by approximately two years. While plainly, the deterioration or dissolution of a marital relationship can cause significant stress, there is no evidence from Mr Singh as to how that stress directly affected his capacity to comply with his lawful obligations as company director of the first respondent.
108.Nor is there any evidence before the Court, including any medical evidence, to support the implied proposition that Mr Singh was so “stressed” by his marital dissolution that two years later, he lacked the capacity to distinguish between the truth, and a deliberate lie.
109.This element weighs heavily against Mr Singh’s plea to the Court that the penalty be assessed with a “10% discount”. His position with the first respondent makes it equally responsible.
Whether senior management was involved
110.The applicant submits that as one of the two directors of the first respondent company at the time of the contraventions, Mr Singh was the “person responsible” for the operations of the first respondent, and that he was “the architect of the [c]ontraventions” ([41] of the applicant’s written submissions).
111.The respondents concede that Mr Singh “was in essence a senior manager of the [f]irst [r]espondent and had direct involvement in the commission of the breaches” ([34] of the respondents’ written submissions).
112.There is no dispute between the parties that Mr Singh was the senior manager of the first respondent. Nor is there any real dispute that he had direct involvement in the contraventions.
113.Therefore, in relation to the first respondent, this is not a case where the contraventions can be said to have been caused by some junior employee. Nor, given what is set out above, can it be said that the contraventions were other than deliberate, and effected by a senior manager.
Contrition
114.Mr Singh has stated that he is “sorry for any inconvenience caused to Ms Brar” as a result of her not receiving her parental leave pay entitlement until October 2015, and that he is “extremely sorry for what [he] has done [in relation to the preparation of the false payment record]” ([14] and [17] of Mr Singh’s affidavit).
115.The respondents submitted that Mr Singh has shown “contrition”, and has paid the money owed to Ms Brar ([32]VI. of the respondents’ written submissions).
116.The applicant submitted that while Mr Singh has made expressions of “contrition”, limited weight should be placed on these, given that “there is no clear statement of contrition by either [r]espondent with respect to the record keeping and pay slip failures” and the statements of contrition “have been made late, only in the course of these proceedings, and there is no evidence that the [r]espondents have apologised to Ms Brar” ([43] of the applicant’s written submissions).
117.The applicant submitted that admissions are “usually” evidence of contrition. However, the respondents’ contrition “may be seen as limited” ([44] – [45] of the applicant’s written submissions). This is said to be because the continued production of false records by the respondents, and the evidence filed by the respondents in these proceedings, which is inconsistent with the SOAF (to which they clearly agreed).
118.It must be said, and in my view, the applicant has been generous in describing Mr Singh’s statements in his affidavit as “statements of contrition” ([43](b) of the applicant’s written submissions).
119.In the circumstances generally set out above, what appears in Mr Singh’s affidavit is formulaic, general, and limited in its scope and application.
120.An expression of sorrow for “any inconvenience” caused to Ms Brar for not receiving her entitled payment for parental leave is, in my view, not a proper expression of contrition.
121.There is nothing to acknowledge that Ms Brar was required, by his conduct and omission, to approach him to receive the payment to which she was entitled. There is also no evidence that Mr Singh has proffered any apology to Ms Brar, even in writing.
122.Further, expressing now that he is “extremely sorry” for preparing a false payment record can only be reasonably seen in all the circumstances as a self-serving statement. Mr Singh was, to be blunt, well and truly caught out by the FWO, perpetrating a deliberate falsehood in relation to the false payment record.
123.It is to be remembered that the payment of Ms Brar’s parental leave pay entitlement was not some matter of discretion. It was a lawful requirement under s.72 of the PPL Act. Mr Singh’s presentation of the false payment record was an attempt to conceal his breach of this legal obligation. Further, and importantly, it was done in circumstances where he had received the monies to pay Ms Brar her entitlement, from the Australian taxpayer.
124.In relation to the record keeping and payslip contraventions, there is no acknowledgement in his evidence, or indeed for that matter his submissions, that Mr Singh accepts that what he did was in contravention of the law, and relevantly, that he is sorry and remorseful for such conduct.
125.In all, I agree with the applicants that no weight should be given to Mr Singh’s “expressions of contrition”.
Corrective action
126.In its written submissions, the applicant submitted there is no evidence before the Court that the respondents have taken any steps to comply with the relevant requirements to keep employment records and to provide payslips to employees ([47] of the applicant’s written submissions).
127.However, before the Court, the applicant conceded that now that the first respondent is no longer trading, corrective action can no longer be taken. In this light, this factor cannot weigh against the respondents.
Cooperation with enforcement authorities
128.The applicant submitted that the respondents have co-operated with enforcement authorities in a “limited sense” ([49] of the applicant’s written submissions). This element should be treated in the same fashion as “contrition” above, and for the same reasons (see further above at [117].
Compliance with Minimum Standards
129.The applicant submitted that when considering the penalties, the Court should bear in mind the principle of the FWA, being the preservation of “an effective safety net for employee entitlements and effective enforcement mechanisms” (see Fair Wok Ombudsman v Zillion Zenith International Pty Ltd & Anor [2014] FCCA 433 at [76] and [50] of the applicant’s written submissions).
130.The applicant submitted that the record keeping obligations in the FWA and the Regulations are particularly important, due to their central role in the regulator’s capacity “to monitor and enforce compliance with minimum employment standards” ([51] of the applicant’s written submissions).
131.The applicant submitted that given that the respondents’ record keeping contraventions included creating a false payment record, using that false payment record by providing it to the FWO, and also failing to keep employment records in relation to Ms Brar, they are particularly “egregious”. The applicant relies on Fair Work Ombudsman v ECFF Pty Ltd & Ors [2014] FCCA 2996 (“ECFF”) and FWO v Oz Staff Career Services Pty Ltd & Ors (No 2) [2016] FCCA 2594 (“Oz Staff”), which are both cases involving the creation of false records. In Oz Staff Burchardt J stated (at [43]):
“…Creating and keeping false records and then producing them to try and defeat an audit is, at least in terms of the sort of conduct it represents, about as serious as it gets.”
132.I respectfully agree with Judge Buchardt. Mr Singh’s conduct was “about as serious as it gets”. Whatever view Mr Singh may have taken of the minimum standards, these were not subject to the exercise of any discretion, or election, by him. He was required, pursuant to s.535 of the FWA, to maintain proper employment records.
133.Mr Singh’s lack of integrity in this regard and the lack of any expression of true remorse in the circumstances, makes the failure to comply with the minimum standards required of an employer, of the most serious nature.
The Need for Specific and General Deterrence
134.The applicant noted that the High Court has recently endorsed the primacy of deterrence in determining penalties in civil penalty proceedings in Commonwealth of Australia v Director, Fair Work Building Industry Inspectorate [2015] HCA 46; (2015) 258 CLR 482; (2015) 326 ALR 476 at [55] where it endorsed what was emphasised by French J (as he then was) in Re Trade Practices Commission v CSR Ltd [1990] FCA 521, where His Honour stated (at [40]):
“…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.”
135.The applicant submitted that in light of the High Court’s endorsement, and in the particular circumstances of this case, deterrence is an especially important factor in the Court’s determination of the appropriate penalties in this matter.
136.The applicant submitted that the Court should “mark its disapproval of the [r]espondents’ conduct by setting a penalty that serves as a warning to others” and that the penalties imposed by the Court “are needed to send a message” that “failure to comply with PPL Act obligations and attempts to mislead the regulator…will not be tolerated” ([55] and [59] of the applicant’s written submissions).
137.The applicant specifically drew the Court’s attention to the fact that parental leave payments made under the PPL Act are taxpayer funded, and the process whereby the Commonwealth transfers the payment to the employer so that the employer is responsible for transferring the payment to the employee, relies on a significant level of trust in the employer.
138.The applicant submitted that any failure by an employer to transfer paid parental leave payments to an employee essentially amounts to the employer “dishonestly appropriating Commonwealth funds” ([56] of the applicant’s written submissions).
139.The applicant further submitted in relation to the record keeping contraventions, that the maintenance of accurate employment records “is not a trivial or technical matter”, and as noted above, is critical to the regulator’s ability to ensure compliance with minimum employment standards by employers ([57] of the applicant’s written submissions).
140.In relation to specific deterrence, the applicant submits that although Mr Singh does not presently direct any companies or employ any employees, he may do so in the future. Further, that any contrition shown by Mr Singh, should be met with some “skeptic[ism]”, for the reasons set out above at [114] – [117].
141.Finally, the applicant submits that specific deterrence is especially significant where, as here, the contraventions “involve deliberate, calculated and coordinated wrongdoing” (see Clean Energy Regulator v MT Solar Pty Ltd [2013] FCA 205 at [161]), and that given the nature of the contraventions, only penalties imposed at the “high end” of the range are likely to deter the respondents from any future contraventions ([63] – [64] of the applicant’s written submissions).
142.The respondents concede that “the provision of a false record to an enforcement authority” is a serious breach, and thus “will require an order that ensures a greater emphasis on general and specific deterrence” ([33] of the respondents’ written submissions).
143.The matter of specific deterrence is focused on the party on whom the penalty is to be imposed (see Plancor Pty Ltd v Liquor Hospitality and Miscellaneous Union [2008] FCAFC 170; (2008) 171 FCR 357 at [37]).
144.As set out above, the first respondent is no longer operating. There is nothing in the evidence before the Court to indicate that this state of affairs may change in the reasonably foreseeable future. In this light, the element of specific deterrence does not weigh in the consideration of the quantum of penalty for the first respondent.
145.That is not the case however, for Mr Singh. He operated the business of the first respondent. There is nothing before the Court to say that he would not operate a similar business in the foreseeable future. Before the Court, Mr Singh’s counsel raised the matter of the potential bankruptcy of Mr Singh if the penalty was set at too high a level. I cannot see that this can weigh in Mr Singh’s favour in relation to the assessment of deterrence. Even if this were to be a consequence of the penalty order, it is not a sufficient reason to not set the penalty at the otherwise “appropriate” level.
146.With regards to general deterrence, setting an appropriate level of penalty against both respondents would signal disapproval of their conduct and serve as a general deterrent to others in the hospitality industry. Therefore, the level of pecuniary penalty should reflect this objective.
Discount
147.The applicant submitted that the respondents’ may be entitled to a 5% discount as reflected in the applicant’s proposed penalty ranges (set out at Schedule 2 to this judgment, and see [66] - [68] of the applicant’s written submissions). Its reasoning is that although the respondents made early admissions of liability, and although Mr Singh has shown some contrition, this is mitigated by the conduct of the respondents’ during the FWO’s investigation into Ms Brar’s complaint.
148.The respondents submitted that due to the respondents’ poor financial position (which, as conceded by the respondents’ representative, is not properly in evidence before the Court), the respondents’ should be entitled to a 10% discount from the applicant’s proposed penalty ranges.
149.In general terms, the dispute between the parties now is, in essence, whether the applicant’s proposed maximum penalties (the percentage as against each of the proposed maximum penalties as against each contravention, or grouping of contraventions, set out at Schedule 2 to this judgment), should be “discounted” by 5% (the applicant), or by 10% (the respondents).
150.The respondents’ approach in this case can be best characterised as being that the respondents should be given a 10% discount because Mr Singh was, at relevant times, under “stress”, and is now expressing contrition for the contraventions. This is in circumstances where he has admitted to the contraventions in these proceedings.
151.However, as the applicant submitted, correctly in my view, a discount for admissions made in proceedings is not automatic, simply on the fact of an admission being made.
152.Any discount to a penalty should be applied to circumstances where there is some indication of acceptance of wrongdoing and a suitable credible expression of regret (Mornington Inn at [74] – [76]).
153.There is no question that the respondents had made “early” (in the context of the current proceedings), admissions of liability. That is to be taken into account.
154.However, what sits at the heart of the circumstances relevant to the issue now before the Court is that Mr Singh, who managed and operated the business of the first respondent, deliberately withheld payment of Ms Brar’s parental leave pay entitlement in circumstances where he had been given the funds to cover that payment, and then deliberately sought to conceal his action by producing and presenting documents to the FWO that he knew were false.
155.Those circumstances alone call for the highest level of penalty that can be reasonably imposed.
Totality
156.The parties also made submissions on the “totality principle”. The respondents submitted that there have been two “differing approaches” taken to the method of determining whether “an aggregate sentence is just and appropriate” (see [37] of the respondents’ written submissions):
“The effect of the totality principle is to require the sentencing Court in circumstances such as the present case to review the aggregate sentence and consider whether the aggregate sentence is just and appropriate in the circumstances (Mill v The Queen (1988) 166 CLR 59). There have been two differing approaches as to the method of determining [whether] an aggregate sentence is just an[d] appropriate.”
157.In my respectful view, what was said by Tracy J in Kelly provides direction in the circumstances of this case (at [30]) (and see also Merringtons):
“Another factor which must be taken into account in the fixing of pecuniary penalties for multiple breaches of statutory stipulations is the totality principle. This principle is designed to ensure that the aggregate of the penalties imposed is not such as to be oppressive or crushing. Different views have been expressed as to the manner in which the principle ought properly to be applied. On one view the starting point should be the determination of an appropriate total penalty. That figure would then be divided by the number of breaches to produce a penalty for each breach: see CPSU v Telstra Corporation Limited (2001) 108 IR 228 at 230[7]. The orthodox position, however, which I consider should be adopted, is that the starting point is the determination of appropriate penalties for each contravention of the statutory norm. The aggregate figure is then considered with a view to ensuring that it is an appropriate response to the conduct which led to the breaches: see Australian Competition and Consumer Commission v Australian Safeway Stores Pty Ltd (1997) 145 ALR 36 at 53. See also Ponzio v B & P Caelli Constructions Pty Ltd [2007] FCAFC 65 at [145] per Jessup J. This approach was recently described, in the criminal context from which the totality principle is derived, as ‘the orthodox, but not necessarily immutable, practice’ adopted by sentencing courts: see Johnson v R (2004) 205 ALR 346 at 356[26] per Gummow, Callinan & Heydon JJ.”
158.In light of what is set out above in relation to each contravention (or grouping), I find that the penalty should be imposed on each of the respondents, against each contravention, as set out in Schedule 3 to this judgment.
159.As against each of the contraventions (with reference to the grouping numbers as set out above and as indicated in Schedule 2 and Schedule 3 to this judgment), I find the following (as set out in Schedule 3 to this judgment).
160.Groups one and two. The failure to pay Ms Brar the relevant instalments of paid parental leave on the relevant day, and the failure to maintain proper employment records, are, in the circumstances as set out above, serious breaches. They warrant penalties at the higher end of the scale. The proposed 75% of the maximum penalty is appropriate.
161.Mr Singh’s “explanation” (as described above) does not provide a sufficient basis to “discount” that amount by 10%. However, the early admission does warrant a 5% discount in the circumstances.
162.Group three. The failure to provide payslips to Mrs Brar within one day of payment, or at all, is important, but does not achieve the level of seriousness as compared to the circumstances of the other contraventions.
163.Taking this into account, the lower end of the proposed range (35% of the maximum) is appropriate. I note this would also include a discount of 5% for the early admission.
164.Groups four and five. It is one thing not to pay an employee that to which she is entitled. In my view, it is even worse to then embark on conduct in knowingly creating false records and persisting in misleading the employee and relevant authorities. A mere formulaic statement of contrition now, without any true acknowledgement of wrongdoing, is not sufficient to argue for a lower penalty.
165.For that reason, and as explained generally above, the penalty here should be at the higher end of the proposed range and without any discount. That is 90% of the maximum penalty for both respondents in relation to both groupings of contraventions.
166.In the totality of the circumstances set out above, I am satisfied, on the evidence, that these amounts are reasonable, just, and appropriate.
167.The aggregate figure for the first respondent is $98,700.00 and for Mr Singh it is $19,740.00.
Conclusion
168.I am satisfied given what is generally set out in this judgment, and in particular the matter set out at [154] above, that these are appropriate responses to the conduct which led to the contraventions.
169.I will make the orders that the respondents pay the penalties of the totals set out at Schedule 3 to this judgment.
I certify that the preceding one hundred and sixty-nine (169) paragraphs are a true copy of the reasons for judgment of Judge Nicholls
Date: 18 May 2018
Schedule 1
| Affidavit | Part | Objection | Disposition on Evidence |
| Kulpreet Singh made on 4 October 2016 | [8] including Annexure C | Relevance, Hearsay | Not admitted (evidence not pressed). |
| [11], third and fourth sentences | Section 192(2)(b) of the EA; contradicts or qualifies [4], [35] and [36] of the SOAF | Not admitted (evidence not pressed). | |
| [12] | Section 192(2)(b) of the EA; contradicts or qualifies [36] of the SOAF | Not admitted (evidence not pressed). | |
| [13], the words “I am now aware that” | Section 192(2)(b) of the EA; contradicts or qualifies [36] of the SOAF | Not admitted (evidence not pressed). | |
| [14], first sentence | Section 192(2)(b) of the EA; contradicts or qualifies [36] of the SOAF | Not admitted (evidence not pressed). | |
| [15], second sentence | Section 192(2)(b) of the EA; contradicts or qualifies [1(a), [4], [35] and [36] of the SOAF | Not admitted (evidence not pressed). | |
| [15], third sentence, the words “Not wanting to pay the amount twice” | Section 192(2)(b) of the EA; contradicts or qualifies [1(a), [4], [35] and [36] of the SOAF | Not admitted (evidence not pressed). | |
| [16] | Section 192(2)(b) of the EA; contradicts or qualifies [3] and [4] of the SOAF | Admitted (objection not pressed on the basis that the applicant will submit that if Mr Singh accepts that he knew it was false or misleading to make the payment record that he made, he must have known that that was something that was against the law). |
Schedule 2
Contravention
Description
Date of Contravention
Penalty Unit
Grouping
Maximum Penalty
Applicant’s Proposed Range
First Respondent
Second Respondent
First Respondent
Second Respondent
Section 72(2) of the PPL Act
Failure to pay instalments of parental leave pay on the instalment pay day
Payment due, but not made, 4 May 2015
$170
Failure to pay instalments of parental leave pay to Ms Brar on 4 May 2015
300 Penalty Units
$51,000
60 Penalty Units
$10,200
65% - 75%
$33,150 - $38,250
65% - 75%
$6,630 - $7,650
Section 535 of the FWA and reg.3.36(1) of the Regulations
Failure to record annual and personal leave accrued and the balance of annual and personal leave from time to time
Prior to 31 July 2015
$170
Failure to maintain records relating to Ms Brar’s employment
150 penalty units
$25,500
30 penalty units
$5,100
65% - 75%
$16,575 - $19,125
65% - 75%
$3,315 – $3,825
Section 535 of the FWA and reg.3.37(1) of the Regulations
Failure to record information regarding superannuation contribution
Prior to 31 July 2015
$170
Section 535 of the FWA and reg.3.40(1) of the Regulations
Failure to record the date of, and manner of, termination of employment
Prior to 31 July 2015
$170
Section 536 of the FWA
Failure to provide payslips within one day of payment
Prior to 31 July 2015
$170
Failure to provide payslips to Ms Brar within one day of payment
150 penalty units
$25,500
30 penalty units
$5,100
35% - 45% $8,925 - $11,475
35% - 45%
$1,785 - $2,295
Regulation 3.44(2) of the Regulations
Knowingly failing to ensure records were not false and misleading
False record created August 2015
$180
Creating a false and misleading pay record
100 penalty units
$18,000
20 penalty units
$3,600
75% - 85%
$13,500 - $15,300
75% - 85%
$2,700 - $3,060
Regulation 3.44(6) of the Regulations
Knowlingly making use of a false and misleading record
False record used August 2015 and onward
$180
Making use of false and misleading record by providing it to the applicant
100 penalty units
$18,000
20 penalty units
$3,600
75% - 85%
$13,500 - $15,300
75% - 85%
$2,700 - $3,060
Schedule 3
Group Number
Group Description
Contraventions
Percentage of Maximum Penalty
Penalty Amount First Respondent
Penalty Amount Second Respondent
One
Failure to pay instalments of parental leave pay to Ms Brar on 4 May 2015
Section 72(2) of the PPL Act
75%
$38,250
$7,650
Two
Failure to maintain records relating to Ms Brar’s employment
Section 535 of the FWA and reg.3.36(1), reg.3.37(1) and reg.3.40(1) of the FW Regulations
75%
$19,125
$3,825
Three
Failure to provide payslips within one day of payment
Section 536 of the FWA
35%
$8,925
$1,785
Four
Creating a false and misleading pay record
Regulation 3.44(2) of the FW Regulations
90%
$16,200
$3,240
Five
Making use of false and misleading record by providing it to the applicant
Regulation 3.44(6) of the FW Regulations
90%
$16,200
$3,240
Total: $98,700
Total: $19,740
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