Fair Work Ombudsman v Orwill Pty Ltd & Ors
[2011] FMCA 730
•28 September 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| FAIR WORK OMBUDSMAN v ORWILL PTY LTD & ORS | [2011] FMCA 730 |
| INDUSTRIAL LAW – Civil penalties – employee records – agreed facts and admissions – assessment of penalty – general principles – factors for consideration. |
| Corporations Act 2001 (Cth) Fair Work Act 2009 (Cth), ss.35, 536, 539, 546 Workplace Relations Act 1996 (Cth), ss.4, 6, 169(1), 535, 536, 719(4), 728 Workplace Relations Regulations 2006 (Cth), regs.14.3(2), 14.4, 14.5, 19.4, 19.8, 19.11, 19.20, Ch.2, 19.1 |
| Attorney-General v Tishy (1982) 30 SASR 84 Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union [2011] FCA 810 Australian Competition and Consumer Commission v IPM Operation and Maintenance Loy Yang Pty Ltd (No 21) [2007] FCA 11 Australian Ophthalmic Supplies v McAlary-Smith (2008) 165 FCR 560; [2008] FCAFC 8 CFMEUvAustral Bricks (Qld) Pty Ltd (2009) 178 IR 470; [2009] FMCA 143 Commonwealth Bank of Australia & Anor v Finance Sector Union of Australia (2007) 157 FCR 329; [2007] FCAFC 18 Fair Work Ombudsman v Industrial Road Pavers (WA) Pty Ltd & Anor (2010) 194 IR 436; [2010] FMCA 204 Finance Sector Union of Australia v Commonwealth Bank of Australia (2005) 224 ALR 467; [2005] FCA 1847 Fleming v Restaurant Services Group and Ors [2008] FMCA 455 Kelly v Fitzpatrick (2007) 166 1R 14; [2007] FCA 1080 Klousia v TKM Investments Pty Ltd [2009] FMCA 208 Leighton Contractors & Anor v CFMEU & Ors (2006) 164 IR 375; [2006] WASC 317 Mason v Harrington Corporation Pty Ltd [2007] FMCA 7 NW Frozen Foods Pty Ltd v Australian Competition and Consumer Commission (1996) 71 FCR 285 Olsen v Sterling Crown Pty Ltd (2008) 177 IR 337; [2008] FMCA 1392 Ponzio v B&P Caelli Constructions Pty Ltd (2007) 158 FCR 543; [2007] FCAFC 65 Secretary, Department of Health and Ageing v Pagasa Australia Pty Ltd [2008] FCA 1545 Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64 Workplace Ombudsman v Golden Maple Pty Ltd (2009) 186 IR 211; [2009] FMCA 664 |
| Applicant: | FAIR WORK OMBUDSMAN |
| First Respondent: | ORWILL PTY LTD |
| Second Respondent: | TOTAL TRADES PERSONNEL AUSTRALIA PTY LTD |
| Third Respondent: | IRWAN LEWIS FARKAS |
| Fourth Respondent: | SIAW KIN YEOW |
| File Number: | PEG 73 of 2010 |
| Judgment of: | Lucev FM |
| Hearing date: | 18 February 2011 |
| Date of Last Submission: | 18 February 2011 |
| Delivered at: | Perth |
| Delivered on: | 28 September 2011 |
REPRESENTATION
| Counsel for the Applicant: | Ms K L Weir |
| Solicitors for the Applicant: | Sparke Helmore Lawyers |
| Counsel for the Respondents: | Mr A H M Lai |
| Solicitors for the Respondents: | Tang Legal |
DECLARATIONS
The Court declares:
That in relation to the employment of Ms Zhao Zi Xiang, Mr Lang Ting Sen and Mr Wang Biao (the Employees), the First Respondent contravened:
(a)regulation 19.8(1) of the Workplace Relations Regulations 2006 (Cth), by failing to maintain records showing:
(i)whether the Employees’ employment is full time or part time;
(ii)whether the Employees’ employment is permanent, temporary or casual; or
(iii)the date on which the Employees’ employment began.
(b)regulations 19.11(1)-(4) of the Workplace Relations Regulations 2006 (Cth), by failing to maintain records for the entire period of the Employees’ employment showing:
(i)details of the rate of remuneration paid to Employees;
(ii)a record of the hours worked by the Employees;
(iii)details of any payment, bonus, loading, rate, allowance or entitlement;
(iv)the gross and net amounts paid to the Employees; or
(v)any deductions made from the gross amount paid to the Employees;
(c)regulation 19.4 of the Workplace Relations Regulations 2006 (Cth), by contravening regs.19.8 and 19.11; and
(d)regulation 19.20 of the Workplace Relations Regulations 2006 (Cth), by not issuing pay slips for the Employees’ entire period of employment:
(i)relating to each payment of an amount by the First Respondent to the Employee as remuneration; or
(ii)which were issued within 1 day of the payment to which the pay slip related being made to the Employees,
(together, the Contraventions).
The Second Respondent was involved in the Contraventions within the meaning of s.728 of the Workplace Relations Act 1996 (Cth).
The Third Respondent was involved in the Contraventions within the meaning of s.728 of the Workplace Relations Act 1996 (Cth).
The Fourth Respondent was involved in the Contraventions within the meaning of s.728 of the Workplace Relations Act 1996 (Cth).
ORDERS
The Court orders:
That a penalty of $12,100 be imposed on the First Respondent pursuant to reg.14.4 of the Workplace Relations Regulations 2006 (Cth) for breaching regs.19.8, 19.4, 19.11 and 19.20 of the Regulations as declared above.
That a penalty of $12,100 be imposed on the Second Respondent pursuant to reg.14.4 of the Workplace Relations Regulations 2006 (Cth) for breaching regs.19.8, 19.4, 19.11 and 19.20 of the Regulations as declared above.
That a penalty of $2,200 be imposed on the Third Respondent pursuant to reg.14.4 of the Workplace Relations Regulations 2006 (Cth) for breaching regs.19.8, 19.4, 19.11 and 19.20 of the Regulations as declared above.
That a penalty of $2,420 be imposed on the Fourth Respondent pursuant to reg.14.4 of the Workplace Relations Regulations 2006 (Cth) for breaching regs.19.8, 19.4, 19.11 and 19.20 of the Regulations as declared above.
That the above ordered penalties be paid into the Consolidated Revenue Fund of the Commonwealth pursuant to subsection 841(a) of the Workplace Relations Act 1996 (Cth) by 28 October 2011.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PERTH |
PEG 73 of 2010
| FAIR WORK OMBUDSMAN |
Applicant
And
| ORWILL PTY LTD |
First Respondent
| TOTAL TRADES PERSONNEL AUSTRALIA PTY LTD |
Second Respondent
| IRWAN LEWIS FARKAS |
Third Respondent
| SIAW KIN YEOW |
Fourth Respondent
REASONS FOR JUDGMENT
Application
The applicant, the Fair Work Ombudsman,[1] seeks orders for the imposition of penalties against each of the four respondents, Orwill Pty Ltd,[2] Total Trades Personnel Australia Pty Ltd,[3] Irwan Lewis Farkas,[4] and Siaw Kin Yeow,[5] for contraventions, or involvement in contraventions, of the Workplace Relations Regulations 2006 (Cth),[6] as follows:
a)regulation 19.4 – the requirement to make and keep employee records;
b)regulation 19.8 – the requirement to record certain details of each employee’s employment;
c)regulation 19.11 – the requirement to record details of the rates of pay for each employee; and
d)regulation 19.20 – the requirement to issue written payslips,
with respect to three employees – Messrs Lang and Wang and Ms Zhao.[7]
[1] “FW Ombudsman”.
[2] “Orwill”.
[3] “Total Trades Personnel”.
[4] “Mr Farkas”.
[5] “Mr Siaw”.
[6] “WR Regulations”.
[7] “Employees”.
The only issue which remains in these proceedings is for the Court to assess the quantum of penalty payable for the contraventions by each of the respondents.
Statement of agreed facts and admissions
There is a statement of agreed facts and admissions in the following terms:
“BACKGROUND
1.The Applicant has standing and authority to bring these proceedings.
2.The First Respondent (Orwill) and the Second Respondent (TTPA) are and were at all relevant times:
(a)companies incorporated under the provisions of the Corporations Act 2001 (Cth);
(b)able to be sued in and by their corporate name; and
(c)constitutional corporations within the meaning of section 4 of the Workplace Relations Act 1996 (WR Act).
3.Orwill is and was at all relevant times an employer within the meaning of section 6 of the WR Act.
4.Orwill’s registered office is and was at all relevant times at Greenhill Road, Wayville in South Australia.
5.Orwill’s registered principal place of business is and was at all relevant times at ‘Wycliffe Well’ via Stuart Highway, Tennant Creek in the Northern Territory.
6.TTPA’s registered office is and was at all relevant times at Northside Drive, Hillarys in Western Australia.
7.TTPA’s registered principal place of business is and has been since 21 July 2008, 29 Foxton Boulevard, High Wycombe in Western Australia.
8.The Third Respondent (Farkas) is and was at all relevant times a director of Orwill.
9.The Fourth Respondent (Siaw) is and has been since 21 May 2008, a director of TTPA.
THE EMPLOYEES
10.Orwill employed the following employees:
(a)Ms Zhao Zi Xiang (Zhao) from on or about 4 March 2008 to 6 August 2008;
(b)Mr Lang Ting Sen (Lang) from on or about 4 March 2008 to 10 November 2008; and
(c)Mr Wang Biao (Wang) from on or about 3 March 2008 to 10 October 2008;
(together, the Employees).
JACARANDA DELI AND CAFÉ
11.TTPA and Siaw carried on a deli/café business, with the registered name of “Jacaranda Deli and Café” (Registration number BN11119913) (Jacaranda Deli), which:
(a)was registered on 31 July 2008 in the names of both TTPA and Siaw; and
(b)had its principal place of business at 29 Foxton Boulevard, High Wycombe, Western Australia 6057 (High Wycombe Address).
12.From 1 March 2008, the lease for the premises at the High Wycombe Address was held by Orwill.
13.In the first half of 2007, Farkas and Siaw entered a business arrangement whereby:
(a)Orwill would sponsor workers under the subclass 457 business visa scheme to work primarily at the Jacaranda Deli;
(b)TTPA and/or Siaw would operate the Jacaranda Deli;
(c)the workers would be supervised by Siaw and/or TTPA at the Jacaranda Deli;
(d)Siaw and/or TTPA would be responsible for calculating and making payment to the Employees for hours worked; and
(e)Orwill and Farkas would not be responsible for the operation of the Jacaranda Deli (the Arrangement).
14.During the course of their employment with Orwill, Zhao and Lang worked solely at the Jacaranda Deli.
15.For the majority of his employment with Orwill, Wang worked at the Jacaranda Deli.
16.For a period of three months during his employment with Orwill, Wang worked at a business operated by Orwill in the Northern Territory.
17.For the course of their employment with Orwill (with the exception of the time that Wang worked in the Northern Territory), the Employees lived together at 459 Rockingham Road, Spearwood, WA 6163 (Spearwood Address).
18.The Jacaranda Deli ceased its major trading activities in or about October 2008 and was closed for business from 24 January 2009.
THE EMPLOYEES’ EMPLOYMENT DOCUMENTS
Employment Contracts
19.On or about 28 May 2007, Zhao entered into a written contract of employment with Orwill.
20.On or about 30 May 2007, Lang entered into a written contract of employment with Orwill.
Business Sponsor and Visa Applications
21.On or about 11 July 2007, Orwill received approvals (Business Sponsor Approvals) from the Department of Immigration and Citizenship (DIAC) to act as a Business Sponsor for applications for “Subclass 457” visas with respect to the Employees.
22.On or about 29 November 2007, Farkas received notification from DIAC that a Subclass 457 visa had been approved for Zhao for the period 29 November 2007 to 29 December 2009.
23.On or about 9 January 2008, Farkas received notification from DIAC that a Subclass 457 visa had been approved for each of Lang and Wang for the period 8 January 2008 to 8 February 2010.
Tax File Number Declarations
24.On or about 1 May 2008, Farkas, on behalf of Orwill, signed Tax File Number Declaration forms in relation to each of the Employees.
Pay Advice Notices/ Pay Slips
25.On or about 30 July 2008 and 23 August 2008, Pay Advice Notices were issued to Zhao at the High Wycombe Address, showing Orwill’s name and ABN.
26.On multiple occasions between about 30 July 2008 and 22 October 2008, Pay Advice Notices were issued to Lang, showing Orwill’s name and ABN.
27.On 29 October 2008, Pay Advice Notices were issued to Wang at the Spearwood Address showing Orwill’s name and TTPA’s ABN.
Termination Notice - Zhao
28.On or about 31 July 2008, Zhao was issued with a notice of termination of her employment:
(a)on Orwill’s letterhead;
(b)under the name of Farkas, but signed by Siaw; and
(c)purporting to be effective from 6 August 2008.
29.On or about 21 August 2008, a letter was sent to Zhao regarding termination of her employment at Jacaranda Deli:
(a)on Orwill’s letterhead;
(b)signed by and under the name of Siaw; and
(c)stating that she finished work at Jacaranda Deli on 6 August 2008.
Termination Notice – Lang
30.On or about 8 October 2008, Lang was issued with a notice of termination of his employment:
(a)on Orwill’s letterhead;
(b)under the name of Farkas, but signed by Siaw; and
(c)purporting to be effective from 10 November 2008.
Termination Notice – Wang
31.On or about 10 October 2008, Wang was issued with a notice of termination of his employment:
(a)on Orwill’s letterhead;
(b)under the name of Farkas, but signed by Siaw; and
(c)purporting to be effective immediately, with one month’s salary in lieu of notice.
Payment Summaries for the year ending 30 June 2009
32.On or about 2 September 2008, a Payment Summary for the year ending 30 June 2009 was issued to Zhao:
(a)showing Orwill’s name and ABN in the Payer Details; and
(b)showing Farkas’ name as the “signature of authorised person”.
33.On or about 23 October 2008, a Payment Summary for the year ending 30 June 2009 was issued to Lang:
(a)showing TTPA’s name and ABN in the Payer Details.
(b)showing Catherine Ong as the “signature of authorised person”.
34.On or about 29 October 2008, a Payment Summary for the year ending 30 June 2009 was issued to Wang:
(a)showing Orwill’s name and ABN in the Payer Details; and
(b)showing Farkas’ name as the “signature of authorised person”.
NOTICES TO PRODUCE DOCUMENTS
35.Pursuant to section 169(2)(c) of the WR Act, the Applicant issued a Notice to Produce Documents (NTP) to the Proper Officer of each of:
(a)TTPA, at 29 Foxton Boulevard, High Wycombe in Western Australia on 26 February 2009; and
(b)Orwill by facsimile, on 6 March 2009.
36.Each NTP sought the following documents in relation to employees engaged at Jacaranda Deli between 1 February 2008 and 1 February 2009:
(a)a master staffing list;
(b)details for those employees, including contact details, commencement dates, classification level and status;
(c)copies of contracts provided or entered into;
(d)sponsorship details for any employee working with a visa;
(e)copies of rosters;
(f)records showing start and finish times and any overtime worked for all employees;
(g)records showing monies paid and deductions made for each pay period;
(h)records showing any leave taken;
(i)group certificates for the 2007/2008 financial year;
(j)employment declaration forms; and
(k)details of any terminations of employment.
37.The NTP to Orwill required Orwill to produce the requested documents by 23 March 2009. Orwill did not respond to the NTP.
38.Siaw responded to the NTP issued to TTPA, and provided:
(a)the documents referred to under the heading ‘Employees’ Employment Documents’ above;
(b)documents titled “Time Sheet” with the word “Jacaranda” in the top left corner, purporting to record time worked by the Employees between 28 April 2008 and 8 June 2008;
(c)documents titled “Monday to Sunday Timesheet” (completed in non-Latin script) for time worked between 28 July 2008 to 28 September 2008; and
(d)lodgement/payment receipts for payroll payments made by Jacaranda Deli (by internet banking) to the Employees on various dates between 15 May and 9 October 2008, indicating employment commencing on 4 March 2008 in the case of Lang,
(together, Documents).
39.The Documents comprise all the records kept by either Orwill or TTPA in relation to the Employees.
THE CONTRAVENTIONS
40.Orwill was obliged, pursuant to Part 19 of the Workplace Relations Regulations 1996 (Cth) (WR Regulations), to keep certain records relating to the Employees, and to issue the Employees with pay slips.
41.The Documents do not record (as required by Regulation 19.8(1)):
(a)whether the Employees’ employment was full-time or part-time;
(b)whether the Employees’ employment was permanent, temporary or casual; or
(c)the date on which the Employees’ employment began.
42.The Documents do not record for certain periods of the Employees’ employment (as required by Regulation 19.11(1)-(4)):
(a)details of the rate of remuneration paid to the Employees;
(b)a record of the hours worked by the Employees;
(c)details of any payment, bonus, loading, rate, allowance or entitlement;
(d)the gross and net amounts paid to the Employees; or
(e)any deductions made from the gross amount paid to the Employees.
43.The Documents do not include pay slips for certain periods of the Employees’ employment:
(a)in relation to payment of wages to the Employees;
(b)issued within 1 day of each payment of wages.
INVOLVEMENT OF FARKAS
44.At all material times, Farkas, on behalf of Orwill:
(a)entered into the Arrangement with Siaw;
(b)executed the lease for the premises where the Employees worked;
(c)applied to act and did act as the Business Sponsor contact person for Subclass 457 visas in relation to the Employees;
(d)executed written employment contracts with Zhao and Lang;
(e)signed tax file number declaration forms in relation to each of the Employees;
45.Farkas personally:
(a)was named as the contact person in relation to the visa applications for the Employees;
(b)was named as the authorised person on payment summaries for the year ending 30 June 2009 issued to Zhao and Wang;
(c)was aware that Orwill was not maintaining the records in relation to the Employees as Farkas and Orwill were not concerned in the operations of Jacaranda Deli; and
(d)was responsible, in his position as director of Orwill, for Orwill’s failure to do so.
INVOLVEMENT OF SIAW
46.Siaw, personally and from 21 May 2008 as director of TTPA:
(a)organised the Arrangement with Orwill;
(b)was responsible for supervising the Employees including determining the Employees’ shifts, working hours and conditions;
(c)was responsible for calculating and making payment to the Employees for hours worked;
(d)from 21 May 2008, was the only director of TTPA involved in the operation of the Jacaranda Deli;
(e)signed the termination notices for each of the Employees;
(f)either created the Pay Advices,
(g)was aware that the Documents were insufficient records in regards to the requirements of the WR Regulations;
(h)failed to provide Orwill with sufficient information for Orwill to be able to issue payslips to the Employees for certain period of the Employee’s employment in accordance with the WR Regulations.
INVOLVEMENT OF TTPA
47.From 21 May 2008, TTPA:
(a)was responsible for calculating and making payment to the Employees for hours worked;
(b)through its director, Siaw, was aware that the Documents were insufficient records in regards to the requirements of the WR Regulations.
(c)through its director Siaw failed to provide Orwill with sufficient information for Orwill to be able to issue payslips to the Employees for certain period of the Employee’s employment in accordance with the WR Regulations.
ADMISSIONS
48.Orwill admits the following contraventions alleged by the Applicant:
(a)failure to make and maintain records showing details of the Employee’s employment status, in contravention of Regulation 19.8(1);
(b)failure to make and maintain records showing details of the hours worked by, and wages paid to, the Employees, in contravention of Regulation 19.11(1)-(4);
(c)failure to make and maintain records required by Part 19, Divisions 3 and 4 in relation to the Employees, in contravention of Regulation 19.4; and
(d)failure to issue pay slips to the Employees, in contravention of Regulation 19.20.
49.TTPA admits that it was involved in Orwill’s contraventions within the meaning of section 728 of the WR Act.
50.Farkas admits that he was involved in Orwill’s contraventions within the meaning of section 728 of the WR Act.
51.Siaw admits that he was involved in Orwill’s contraventions within the meaning of section 728 of the WR Act.”
General principles concerning penalty
The courts have regard to general principles which have been developed in relation to the imposition of penalties, including the following:
a)fundamentally, the penalty must be proportionate to the gravity of the contravening conduct;[8]
[8] Attorney-General v Tishy (1982) 30 SASR 84 at 92 per Wells J; Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union [2011] FCA 810 at para.25 per Gilmour J (“ABCC”).
b)penalties are imposed for the following purposes:
i)punishment, proportionate to the offence and according to prevailing standards;
ii)personal or specific deterrence, assessing the risk of reoffending, and general deterrence, as a deterrent to others who might be likely to offend; and
iii)rehabilitation;[9]
c)the sentencing task is one of instinctive synthesis in which the court takes account of all relevant factors and arrives at a single result taking due account of all of those relevant factors;[10]
d)proportionality and consistency are a final check on the penalty assessed;[11]
e)courts may identify a range of factors appropriate to the assessment of penalty, but ought to be wary of the use of check lists which “give rise to the risk of transforming the process of instinctive synthesis into the application of a rigid catalogue of matters for attention”;[12] and
f)courts ought also be wary of comparing penalties from other cases when assessing the amount of penalty to be fixed.[13]
[9] Ponzio v B & P Caelli Constructions Pty Ltd and Ors (2007) 158 FCR 543 at 559-560 per Lander J; [2007] FCAFC 65 at para.93 per Lander J (“Caelli Constructions”); ABCC at para.26 per Gilmour J.
[10] Australian Ophthalmic Supplies Pty Ltd v McAlary-Smith (2008) 165 FCR 560 at 567-568 per Gray J and 572 per Graham J; [2008] FCAFC 8 at para.27 per Gray J and para.55 per Graham J (“Australian Ophthalmic Supplies”); Wong v The Queen (2001) 207 CLR 584 at 611-612 per Gaudron, Gummow and Hayne JJ; [2001] HCA 64 at paras.74-76 per Gaudron, Gummow and Hayne JJ; ABCC at para.27 per Gilmour J.
[11] Australian Ophthalmic Supplies FCR at 572 per Graham J; FCAFC at para.54 per Graham J; ABCC at para.28 per Gilmour J.
[12] ABCC at para.30 per Gilmour J; Australian Ophthalmic Supplies FCR at 579-580 per Buchanan J; FCAFC at paras.89-91 per Buchanan J.
[13] NW Frozen Foods Pty Ltd v Australian Competition and Consumer Commission (1996) 71 FCR 285 at 295 per Burchett and Kiefel JJ; ABCC at para.31 per Gilmour J.
General considerations relevant to assessment of penalty
Considerations which may be taken into account in assessment of penalty are well established and have been consistently applied by this Court.[14] Broadly, the relevant factors can be listed as follows:
[14] Examples include: Mason v Harrington Corporation Pty Ltd [2007] FMCA 7; Olsen v Sterling Crown Pty Ltd (2008) 177 IR 337; [2008] FMCA 1392 (“Sterling Crown); CFMEUv Austral Bricks (Qld) Pty Ltd (2009) 178 IR 470; [2009] FMCA 143; Workplace Ombudsman v Golden Maple Pty Ltd (2009) 186 IR 211; (2009] FMCA 664 (“Golden Maple”); Fair Work Ombudsman v Industrial Roadpavers (WA) Pty Ltd [2010] FMCA 204 (“Industrial Roadpavers”).
a)the nature and extent of the conduct which led to the contraventions;
b)the circumstances of the conduct (including deliberate defiance or disregard of Commonwealth industrial relations legislation);
c)the consequences of the contravening conduct;
d)the objects of Commonwealth industrial relations legislation;
e)whether the contraventions are distinct or arise from a single course of conduct;
f)deterrence, both general and specific;
g)relevant record of civil penalty contraventions;
h)the size and financial resources of the contravener;
i)co-operation with regulatory authorities (if any);
j)the contravener's contrition (if any);
k)the size of the prescribed penalty, and any recent increases to that prescription; and
l)the totality principle.
A number of the factors are relevant to the present case and are therefore considered below.
Nature of the contraventions and the extent, circumstances and consequences of the conduct
Applicant’s submissions
The applicant submits that:
a)Orwill’s contravening conduct was a failure to make and maintain certain employment records and to issue payslips to the Employees as required by the WR Regulations;
b)the contraventions took place over a considerable period of time. The evidence indicates that:
i)there were no pay slips issued to Wang until 29 October 2008 (after his employment had ceased).[15] There is no evidence of when any wage payments to Wang in fact occurred;
[15] Affidavit of Madeleine Susan Jones, affirmed 22 October 2010, Annexure F, pp298-301 (“Jones Affidavit”).
ii)there were no pay slips issued to Zhao or Lang until 30 July 2008 (almost five months after they commenced work at the Jacaranda Deli);[16]
iii)Zhao was not paid any wages until 1 August 2008;[17]
iv)the only payment of wages to Lang was on 9 October 2008;[18] and
v)there were payments of $652 made in relation to each of the Employees on 15 May 2008 and 20 May 2008, however, it is unclear whether these were wage payments to the Employees;[19]
c)on the basis of the above evidence, it appears that Orwill had the benefit of free labour for a significant period of time (at least 3 months, and more likely 5 months);
d)the contravening conduct took place in the context of the Arrangement between Siaw and Farkas (on behalf of Orwill).
As part of the Arrangement, the respondents effectively took advantage of a government migration programme to obtain workers without fulfilling the responsibilities of employers under that migration scheme or under Australian workplace law;e)although Orwill’s failure to keep records or issue payslips (and the other respondents’ involvement in that failure) did not immediately impact upon any person in terms of loss or damage, such conduct has the effect of undermining the ability of the applicant to effectively investigate complaints of more serious conduct and enforce compliance with minimum standards and industrial instruments; and
f)the respondents’ conduct has stifled the applicant’s ability to conduct a proper investigation of complaints made against the Jacaranda Deli business. Such conduct undermines the effectiveness of the principal objects of the workplace relations system.
[16] Jones Affidavit, Annexure F, pp275-297.
[17] See bank records at Jones Affidavit, Annexure F, p304.
[18] Jones Affidavit, Annexure F, p302.
[19] Jones Affidavit, Annexure F, pp307-312.
Respondents’ submissions
The respondents submit that:
a)the respondents agree with the applicant’s submission that the contravening conduct was a failure to make and maintain certain employment records and to issue payslips, for a certain period, to, and in relation to, the Employees as required by the WR Regulations.
b)the respondents however submit that it is incorrect to assume or infer from the lack of records that:
i)Zhao was not paid any wages until 1 August 2008;[20]
[20] Applicant’s Submission, paragraph 25(c).
ii)the only payment of wages to Lang was on 9 October 2008;[21] and
iii)Orwill had the benefit of free labour for a significant period of time (at least 3 months, and more likely 5 months);[22]
c)whilst the respondents admit that they have failed to make and maintain certain employment records and to issue payslips for a certain period, the respondents submit that payment of wages to the Employees was made at all times and Orwill did not have the benefit of free labour for any period of time, and it follows that no advantage was taken by the respondents and no loss or damage was suffered by the Employees as a result of the respondents’ contraventions;
d)the respondents acknowledge that failure to make and maintain records is not a trivial offence because it undermines the ability of the applicant to effectively investigate further on the matter;
e)Total Trades Personnel and Mr Siaw were responsible for making and maintaining employment records and to issue payslips to the Employees, pursuant to the Arrangement;
f)Mr Siaw is a Singaporean national and had prior business experience in Singapore, but he has no, or extremely limited, experience in running a business in Australia and he was not familiar with the Commonwealth industrial relations legislation. Mr Siaw, in particular during the period when the Jacaranda Deli first commenced trading, was not specifically aware of all records that must be kept for each employee;
g)therefore the respondents submit that the failure to make and maintain employment records and to issue payslips for certain periods were a direct result of ignorant behaviour as opposed to a deliberate disregard;
h)further, the Jacaranda Deli was run at a loss at all times since it commenced trading in or about March 2008, and Mr Siaw and Total Trades Personnel had diverted all their attention and resources into improving the business’ profitability which distracted Mr Siaw and Total Trades Personnel from keeping proper records for the Employees, in particular during the initial stage. This again shows that the contraventions were not deliberate; and
i)accordingly, there should be a reduction in the quantum of penalties on the grounds that the contraventions were a result of the ignorant behaviour of the respondents as opposed to deliberate or dishonest conduct.[23]
[21] Applicant’s Submission, paragraph 25(d).
[22] Applicant’s Submission, paragraph 26.
[23] Citing Fleming v Restaurant Services Group and Ors [2008] FMCA 455.
Consideration
The Court accepts that the contravening conduct was a failure to make and maintain certain employment records relating to, and to issue payslips to, the Employees during certain periods, as required by the WR Regulations.
The Court does not accept the respondents’ submission that their respective failures, or involvement in the failures, were the result of ignorance. Indeed, that submission is directly contrary to the Agreed Facts and Submissions which provided that:
a)Farkas, who was at all relevant times a director of Orwill[24] was personally aware that Orwill was not maintaining the records in relation to the Employees;[25]
b)Siaw, personally, and from 21 May 2008 as a director of Total Trades Personnel was aware of the insufficiency of the relevant records in regards to the requirements of the WR Regulations;[26] and
c)Total Trades Personnel, through its director Siaw, was also aware from 21 May 2008, of the insufficiency of the relevant records in regards to the requirements of the WR Regulations.[27]
[24] Agreed Facts and Submissions, para.8.
[25] Agreed Facts and Submissions, para.45(c).
[26] Agreed Facts and Submissions, para.46(g).
[27] Agreed Facts and Submissions, para.46(b).
The respondents’ plea of ignorance rests uneasily with the somewhat sophisticated property, corporate and employment arrangements entered into by the respondents.
The assertion of the respondents that Total Trades Personnel and Mr Siaw were focusing their attention on improving profitability, and that this was done by diverting their attention from keeping proper records for the Employees is, in its terms, contradictory. One cannot be distracted from a requirement of which one is said to be ignorant. The Court is asked to believe that the corporate respondents, and their directors, are sufficiently knowledgeable to:
a)enter into an assignment of the lease of property for the Jacaranda Deli, and in the case of Mr Farkas to act as guarantor in relation thereto;
b)employ people under a contract of employment, which contains significant and relatively complex legal terms, particularly as to, for example, confidentiality;
c)complete relevant taxation documentation, such as Tax File Number declarations;
d)in the case of Total Trades Personnel, to act as a labour hire agency providing the services of employees; and
e)make migration arrangements for the sponsorship of the Employees, and the grant of Visas,
but that they did not realise, or make any enquiry into, the nature of employment record keeping requirements. Even if such a proposition were believable of itself, it is here inconsistent with the Agreed Facts and Submissions as set out above, and is therefore not believable. It ill behoves the respondents, having entered into the Agreed Facts and Submissions to have then made a submission contrary to its terms, and is arguably evidence that any contrition or co-operation with the authorities is questionable.
The Court does not accept the submission by the respondents that payment of wages to the Employees was made at all times, and that Orwill did not have the benefit of free labour for any period of time. This is not an agreed fact. Nor is it a fact, or facts, in relation to which any of the respondents have provided any evidence. Evidence of payment to Employees does not come merely from employment records or the issue of payslips for the relevant periods. It was within the ability of any or all of the respondents to provide affidavit material indicating when, where and how the Employees were paid, and if, for example, the payment was by way of bank transfer, that is electronically, to provide details of the electronic transfer. Similarly, if it was by way of cheque, details of the relevant cheques could have been provided. In either case relevant bank records could have been produced. Similarly, if cash was being paid to the Employees then the proper record of cash payments could have been provided.
The evidence indicates that:
a)Mr Lang was paid a lump sum payment of wage of $11,188.24 for wages from 4 March 2008 to 27 July 2008 on 7 August 2008;[28]
b)on 30 July 2008 Mr Zhao was paid back pay of $9,496.64 for 448.5 hours (or close to 12 38 hour weeks) for the period ending 27 July 2008;[29]
c)Mr Zhao was paid for the period to June 2008 to 27 July 2008, a sum of $4,318.20, no earlier than 21 August 2008, that is at least one month late and up to at least two months late;[30] and
d)Mr Zhao was paid for the period 4 March 2008 to 1 June 2008 in the sum of $5,486.30, no earlier than 1 August 2008, that is, at least two months late, and up to at least four months late;[31]
[28] Jones Affidavit, Annexure F, page 293.
[29] Jones Affidavit, Annexure F, page 296.
[30] Jones Affidavit, Annexure F, page 303.
[31] Jones Affidavit, Annexure F, page 304.
The evidence therefore indicates that at least for Mr Lang and Mr Zhao they were often not paid for several months at a time, and even when lump sum payments were made, they were still delayed because payment was ordered to be on a “not before date” some weeks after the end of the period for which they were being paid.
It therefore follows, contrary to the submissions of the parties, that there was loss or damage suffered by the Employees as a result of the respondents’ contraventions. At a minimum, the Employees would have been entitled to be paid fortnightly. To the extent that the Employees were not paid fortnightly, and on the evidence it appears that several months lapsed before at least Zhao and Lang were paid wages, it is apparent that Orwill did have the benefit of free labour, or labour for which it did not pay, for a significant period of time. More particularly, the Employees did not have the benefit of fortnightly wages payments.
It would be significant in the Court’s view that the respondents were able to obtain the benefit of an Australian Government programme to obtain workers under business sponsorship arrangements, and then the respondents failed to fulfil their responsibilities as employers in relation to the making and maintaining of employee records under Australian workplace law. However, there is no evidence before the Court of the precise nature of the responsibilities imposed upon the respondents as employers under the business sponsorship arrangements entered into with the Department of Immigration and Citizenship under which the Employees were granted the relevant Visas, and in particular no evidence of relevant employment, wages and wages records requirements. Additionally, the Court was not taken to any relevant law applicable in 2008 in this regard.
Finally, it is appropriate to have regard to the objects of the WR Act and WR Regulations.
The principal object of the WR Act “is to provide a framework for cooperative workplace relations which promotes the economic prosperity and welfare of the people of Australia by:
…
(c) providing an economically sustainable safety net of minimum wages and conditions for those whose employment is regulated by this Act; and
…
(f) ensuring compliance with minimum standards, industrial instruments and bargaining processes by providing effective means for the investigation and enforcement of:
(i) employee entitlements; and
(ii) the rights and obligations of employers and employees, and their organisations; and
(g) ensuring that awards provide minimum safety net entitlements for award‑reliant employees which are consistent with Australian Fair Pay Commission decisions and which avoid creating disincentives to bargain at the workplace level.
Section 169(1) of the WR Act sets out the purpose for which powers of inspectors can be exercised, and is in the following terms:
Purpose for which powers of inspectors can be exercised
(1) The powers of a workplace inspector under this section may be exercised:
(a) for the purpose of determining whether any of the following are being, or have been, observed:
(i) workplace agreements;
(ii) awards;
(iii) the Australian Fair Pay and Conditions Standard;
(iv) minimum entitlements and orders under Part 12;
(v) the requirements of this Act and the regulations; or
(b) for the purposes of a provision of the regulations that confers powers or functions on inspectors.
The consequences of contravening conduct may include loss of, or damage to, the relevant statutory objective. That is, “conduct … [which] undermines the utility and effectiveness of a fundamental object”[32] of, in this case, the WR Act and WR Regulations. In this case, the failure to make and maintain various records and to issue payslips undermines the utility and effectiveness of the purpose of Part 19 of the WR Regulations which provides for “the inspection of records by workplace inspectors”.[33] The statutory purpose of the WR Regulations ties in with the purposes for which the powers of workplace inspectors can be exercised under s.169 of the WR Act, those purposes including determination of whether various industrial instruments and minimum standards and entitlements, and the requirements of the WR Act and WR Regulations themselves, are being observed.[34] Manifestly, failure to make and maintain records in relation to employee entitlements, undermines the utility and effectiveness of workplace inspectors, and their ability to determine whether or not there has been compliance with minimum standards and industrial instruments, and the provision of effective means for investigation and enforcement of employee entitlements.[35] Assuming, as per the relevant banking and wages records which have been produced, that payment was to occur monthly to each of the Employees, there has also been a failure to comply with minimum standards for timely payment imposed by agreements entered into between the Employees and Orwill. The failure to pay the Employees for months at a time is a not an insignificant aggravating factor when assessing penalty.
Whether the contraventions arose from a single course of conduct
[32] Secretary, Department of Health and Ageing v Pagasa Australia Pty Ltd [2008] FCA 1545 at para.56 per Flick J (“Pagasa”).
[33] WR Regulations, Ch.2, reg.19.1.
[34] WR Act, s.169(1).
[35] Sterling Crown IR at 350-351 per Lucev FM; FMCA at paras.51-52 per Lucev FM.
Applicant’s submissions
The applicant submits that:
a)Regulation 14.5 of the WR Regulations[36] provides:
[36] “Course of Conduct Provision”.
(1) This regulation applies if:
(a) a person commits 2 or more contraventions of a civil remedy provision of these Regulations; and
(b) each contravention relates to the same action or course of conduct of the person.
(2) The contraventions are taken, for these Regulations, to be a single contravention of the civil remedy provision.
b)where the Course of Conduct Provision operates, the number of contraventions, and therefore the applicable maximum penalty, is reduced. However, the Course of Conduct Provision has no application to contraventions of separate civil remedy provisions. Each of the Regulations listed above is a separate civil remedy provision;
c)the FWO alleges that each of the respondents either contravened, or assisted in the contravention of, each of the four WR Regulations listed above, in relation to each of the three Employees. That is, each of the respondents either committed or was involved in (at least) twelve contraventions of the WR Regulations;
d)however, in the circumstances of this matter, the applicant acknowledges that those contraventions arose out of one course of conduct. Accordingly, the Course of Conduct Provision applies to reduce the number of contraventions for each respondent to a single contravention of each of the four WR Regulations listed at paragraph 1 above;
e)the applicable maximum penalty for Orwill and Total Trades is therefore $22,000 each, comprising:
i)$5,500 for one contravention of regulation 19.4;
ii)$5,500 for one contravention of regulation 19.8;
iii)$5,500 for one contravention of regulation 19.11; and
iv)$5,500 for one contravention of regulation 19.20.
f)the applicable maximum penalty for Mr Siaw and Mr Farkas is $4,400 each, comprising:
i)$1,100 for one contravention of regulation 19.4;
ii)$1,100 for one contravention of regulation 19.8;
iii)$1,100 for one contravention of regulation 19.11; and
iv)$1,100 for one contravention of regulation 19.20.
Respondents’ submissions
The respondents agree with the applicant’s submission that the contraventions arose out of one course of conduct and the Course of Conduct Provisions[37] apply to reduce the number of contraventions for each respondent to a single contravention of each of the four WR Regulations referred to in paragraph 1 above, and that the applicable maximum penalties are as set out in paragraph [22](e) and (f) above.
[37] WR Regulations, reg.14.5.
The respondents submit that there is some common ground and conduct in the above contraventions by each of the respondents, and, having regard to that, therefore a further small discount in the range of 5-10% is appropriate.[38]
[38] Citing Industrial Roadpavers IR at 446 per Lucev FM; FMCA at para.27 per Lucev FM.
Consideration
Having regard to the provisions of reg.14.5 of the WR Regulations, and the parties’ submissions, the Court finds that there has been a single contravention of each of the four WR Regulations by each of the respondents.
The size of the prescribed penalty
Applicant’s submissions
The applicant submits that:
a)the applicant submits that it is relevant that the maximum penalties under the WR Regulations are already substantially lower than maximum penalties for contraventions of the substantive legislation;[39] and
b)Parliament has since decided that failure to comply with an employer’s obligations to keep records and issue payslips warrants a higher penalty, by prescribing significantly higher penalties for equivalent contraventions under the Fair Work Act 2009 (Cth) ($16,500 for a body corporate and $3,300 for an individual for each contravention).[40]
[39] Workplace Relations Act 1996 (Cth), s.719(4).
[40] Fair Work Act 2009 (Cth) (“FW Act”), ss.35 and 536 (equivalent civil penalty provisions), ss.539 and 546 (maximum penalties).
Respondents’ submissions
The respondents acknowledge and do not disagree with the applicant’s submission in respect of the size of the prescribed penalty.
Consideration
The fact that the penalties under the WR Regulations are lower than maximum penalties for contraventions of the WR Act, and that Parliament has since increased penalties for like offences under the FW Act, is irrelevant to the question of the assessment of penalty in the circumstances of this case. Penalty can only be assessed in this case based upon the Court’s consideration of the circumstances of this case, and its obligation to set an appropriate penalty for the matter before it. That requires consideration of the nature of the conduct leading to the contravention in order to set an appropriate penalty by reference to the nature of the conduct, bearing in mind the maximum penalty for the contravention alleged.
Deterrence
Applicant’s submissions
The applicant submits that:
a)the courts have recognised that general deterrence is an important and relevant consideration in assessing penalty for contraventions of Commonwealth industrial legislation. The penalty should be of a kind that would have the effect of deterring similar conduct by like-minded persons or organisations.[41] This consideration is equally important to small businesses as to large employers;[42]
b)the contraventions in this case involved foreign workers. It is particularly important that the Court impose a penalty that demonstrates to employers of such workers the importance of complying with Australian workplace laws. Record-keeping is particularly important in this context as a way for the authorities to monitor government programmes such as a sponsored business visa scheme; and
c)although the Jacaranda Deli has closed, Orwill and Total Trades Personnel continue in business, and Mr Farkas and Mr Siaw continue to be involved in the employment of employees. It is particularly significant that Total Trades Personnel continues to operate primarily as a labour hire company. In these circumstances, specific deterrence is relevant to the determination of an appropriate penalty.
[41] Citing Caelli Constructions FCR at 559-560 per Lander J; FCAFC at para.94 per Lander J.
[42] Citing Kelly v Fitzpatrick (2007) 166 IR 14 at 21 per Tracey J; [2007] FCA 1080 at para.28 per Tracey J.
Respondents’ submissions
The respondents submit that:
a)the Jacaranda Deli has closed for business, Orwill and Total Trades Personnel no longer operate any business in Australia, and Mr Farkas and Mr Siaw are not employing any employees at the time of these proceedings, and do not intend to do so in the future;
b)the respondents, in any event, had “learnt a lesson” in respect of the importance of record keeping for employees and there is no, or at least minimum, chance of re-offending;
c)further, the contraventions were not deliberate, the respondents complied with the requests of the authorities investigating the matter, and the respondents have demonstrated contrition, by way of the high level of co-operation with the investigating authority prior to and subsequent to the commencement of the current proceedings; and
d)accordingly, the respondents submit that under the current circumstances, no specific deterrence is required while the general deterrence should be at the lower end of the scale.
Consideration
General and specific deterrence are significant considerations in any penalty case because deterrence is a primary objective of imposing penalties.[43] Specific deterrence relates to the need to deter further breaches of the law by the respondents, whilst general deterrence refers to the need to deter others from similar breaches by showing the seriousness with which the Court treats those breaches. Penalties must be meaningful and consistent with other considerations to be taken into account in determining an appropriate penalty,[44] and in light of legislative changes in recent years breaches of industrial laws are now treated more seriously than has been the case in the past.[45]
[43] Leighton Contractors & Anor v CFMEU & Ors (2006) 164 IR 375 at 391 per Le Miere J; [2006] WASC 317 at para.74 per Le Miere J.
[44] Australian Competition and Consumer Commission v IPM Operation and Maintenance Loy Yang Pty Ltd (No 21) [2007] FCA 11 at para.66 per Young J.
[45] Finance Sector Union of Australia v Commonwealth Bank of Australia (2005) 224 ALR 467 at 487 per Merkel J; [2005] FCA 1847 at para.72 per Merkel J; Commonwealth Bank of Australia & Anor v Finance Sector Union of Australia (2007) 157 FCR 329 at 364 per Branson J; [2007] FCAFC 18 at paras.191-192 per Branson J; ABCC at paras.32-33 per Gilmour J.
In the Court’s view there is a need for specific deterrence in this matter as each of the respondents continues to operate, both at a corporate and individual level. Moreover, Total Trades Personnel continues to operate as a labour hire company. There is no evidence from the respondents that their operations, either corporately or individually, in Australia have ceased, or that they do not intend to operate in Australia in the future. Ample opportunity was afforded to the respondents to file affidavits in these penalty proceedings, and apart from causing their lawyer to file information about their financial position, no evidence as to their future intentions, corporately or individually, was filed. There is no evidence that the respondents do not intend to operate businesses in the future, or that they acknowledge the errors made on this occasion, saving so far as the admissions, and some co-operation with the applicant indicates some measure of contrition. There is however no overt expression of contrition on behalf of any of the respondents. Further, the Court notes that Mr Farkas has not participated in interviews with the applicant, despite two arranged appointments.[46] There is also no evidence that the contraventions were not deliberate, and the Court has, for reasons outlined above, not accepted that the contraventions were the result of ignorance on the part of the respondents. In the circumstances there must be an element of specific deterrence in the assessment of penalty. As for general deterrence, it is appropriate in circumstances where there has been a failure to provide records over a prolonged period, and, on the evidence, that has occurred in relation to foreign workers who have entered Australia on a sponsored business visa scheme, for there to be a significant element of general deterrence. The Court ought leave no room for doubt as to its view that foreign workers who enter Australia on business sponsored visas ought to have their employment records maintained as required by Commonwealth workplace relations legislation.
Background of the respondents
[46] Jones Affidavit, para.20.
Applicant’s submissions
The applicant submits that:
a)the applicant acknowledges that none of the respondents have a record of contravening Commonwealth workplace relations legislation, and agrees that some discount to the maximum penalty may be appropriate on this basis;
b)there is no evidence before the Court that any of the respondents are in financial difficulty. Orwill and Total Trades Personnel continue to carry on business, and Mr Siaw and Mr Farkas continue to act as directors of those companies. Both Mr Siaw and Mr Farkas have been involved in business for a significant time. Mr Farkas has been a director of Orwill since 1989.[47]
Mr Siaw has told the applicant at interview that he has a masters degree in management from the University of Cambridge and a bachelors degree in business;[48] andc)accordingly, there should be no reduction in the quantum of any penalties on the grounds of the respondents’ size, financial position or experience.
[47] See ASIC register extract for Orwill at Annexure E to the Chapple Affidavit.
[48] Jones affidavit, Annexure G, p336.
Respondents’ submissions
The respondents submit that:
a)none of the respondents have a record of contravening Commonwealth workplace relations legislation, therefore a reduction in the quantum of penalties, in the range of 20%-30%, is appropriate;[49]
[49] Citing Industrial Roadpavers IR at 451 per Lucev FM; FMCA at para.59 per Lucev FM and Klousia v TKM Investments Pty Ltd [2009] FMCA 208.
b)the respondents have provided evidence to the applicant in respect of the respondents’ current financial position, which they say indicates the following:
i)Orwill sold most of its assets in April 2010 and almost all of the proceeds from the sale were used to repay various debts Orwill and Mr Farkas previously had;
ii)Orwill ceased any major business activities since April 2010 and had very limited net assets at the time of these proceedings;
iii)Mr Farkas is in financial difficulties since 2010 and at the time of this proceedings, Mr Farkas had very limited cash reserves, earning minimum income, and is in fact considering selling his residential house and applying for a pension in order to meet his daily expenses;
iv)at the time of this proceedings, Total Trades Personnel is no longer operating any business and has very limited net assets;
v)Mr Siaw is in financial difficulties since 2010 and for the past six months he has had very limited cash reserves; and
vi)Mr Siaw and/or Total Trades Personnel has incurred a loss of approximately $60,000 as a result of the Jacaranda Deli investment;
c)the size and financial resources of the contravener including their ability to pay the penalty are relevant in determining the quantum of the penalty;[50] and
d)it is submitted that the Court should take into account that all the respondents are in financial difficulties and they are not in a position, in particular in regards to the cash reserves each respondent currently has, to pay any substantial penalties, in particular if it is to be paid as a lump sum.
[50] Citing Industrial Road Pavers IR at 448 per Lucev FM; FMCA at para.41 per Lucev FM.
Consideration
The Court accepts that each of the respondents are first time contravenors of Commonwealth workplace relations legislation, and are accordingly entitled to some discount on penalty by reason of that fact.
The evidence before the Court does not indicate that Orwill or Total Trades Personnel have ceased to trade or operate businesses, save that Orwill sold a business in the Northern Territory in April 2010.[51] Both Orwill and Total Trades Personnel remain registered corporations with “current” status.[52]
[51] Affidavit of Anfernee Hok Ming Lai, sworn 4 February 2011 (“Lai’s Affidavit”), Annexure AHML 4. Mr Lai swore a supplementary affidavit annexing two pages omitted from annexures to Lai’s Affidavit and a profit and loss statement: Supplementary Affidavit of Anfernee Hok Ming Lai, sworn 17 February 2011 (“Lai’s Supplementary Affidavit”)
[52] See exhibits 1 and 2 being the relevant ASIC extracts for Orwill and Total Trades Personnel respectively.
In relation to:
a)Orwill the evidence indicates:
i)a profit after tax of $64,978 for the year ended 30 June 2010;[53] and
[53] Lai’s Supplementary Affidavit, Annexure AHML 6.
ii)a sum to be paid to it on settlement of the sale of the Wycliffe Well Holiday Park on 20 April 2010 of $243,321.98;[54]
[54] Lai’s Affidavit, Annexure AHML 4.
iii)a balance, as at 21 January 2011, of $960.39 in a Business Cheque Plus Account with Westpac Bank;[55]
[55] Lai’s Affidavit, Annexure AHML 4.
b)Total Trades Personnel the evidence indicates:
i)revenue of $751,417 for the year ended 30 June 2008;
ii)a small profit of $5,280 for the year ended 30 June 2008;
iii)income, almost exclusively from labour hire, of $1,117,204.18 for the three quarters ended March 2009;
iv)a profit of $98,982.78 for the three quarters ended March 2009;[56]
[56] Lai’s Affidavit, Annexure AHML 1.
c)Mr Farkas the evidence indicates:
i)income of $36,130 for the year ended 30 June 2010;[57]
ii)a sum to be paid to on settlement of the sale of the Wycliffe Well Holiday Park on 20 April 2010 of $1,600,000 to IL & LBK Farkas for the sale of the land on which the Wycliffe Well Holiday Park business was situated;[58]
iii)a Westpac credit card debt of $1,963.25 as at 12 January 2011;[59]
iv)a credit union account with a credit balance of $3,418.51 as at 31 December 2010;[60]
v)an IL & LBK Farkas balance sheet showing an excess of liabilities over assets of $90,722 as at 30 June 2010.[61]
d)Mr Siaw the evidence indicates:
i)an amended Notice of Assessment from the Inland Revenue Authority of Singapore dated 19 August 2010 showing total income of $S105,882, assessable income of $S105,839.50, and a tax credit of $4,470.87 for the 2010 assessment year;
ii)a bank account showing regular deposits of sums in excess of $S1000 between July and October 2010.[62]
[57] Lai’s Affidavit, Annexure AHML 4.
[58] Lai’s Affidavit, Annexure AHML 4.
[59] Lai’s Affidavit, Annexure AHML 4.
[60] Lai’s Affidavit, Annexure AHML 4.
[61] Lai’s Supplementary Affidavit, Annexure AHML 5.
[62] Lai’s Affidavit, Annexure AHML 2.
The above evidence does not establish an inability to pay any penalty imposed by the Court in relation to this matter on the part of any of the respondents. The levels of profit and revenue streams for Orwill and Total Trades Personnel indicate an ability to pay penalty. So too does the income stream of Mr Siaw. Mr Farkas’ income stream is smaller, but there was payment of a significant sum of money to IL and LBK Farkas (which the Court assumes is a partnership) on the sale of the Northern Territory business, and there has been no explanation of the disposition of that sum in relation to Mr Farkas. To the extent that the “partnership” balance sheet shows an excess of liabilities over assets the sum is not such, assuming that Mr Farkas has liability with respect to the total sum, to make out an argument that Mr Farkas does not have the ability to pay any penalty (which must be less than $4,400) in this matter.
The above conclusions assume that the financial evidence is admissible. If it is not admissible then there is no evidence from the respondents as to their financial position which would found a conclusion that they are unable to pay any penalty.
For the above reasons, the Court has concluded that there ought to be some reduction in penalty on account of the fact that the respondents are first time contraveners, but no reduction on the basis that the respondents are unable to pay penalty, because the evidence does not support the latter proposition.
The respondents’ contrition and co-operation with authorities
Applicant’s submissions
The applicant’s submits that it acknowledges that the respondents have for the most part co-operated with the applicant’s investigation. The respondents have admitted liability for the contraventions and entered into an Statement of Agreed Facts and Admissions prior to hearing, thereby saving the applicant’s and the Court’s resources.
Respondents’ submissions
The respondents submit that:
a)Mr Siaw is a Singaporean national and after the Jacaranda Deli was closed down for business, Mr Siaw predominately resided in Singapore;
b)in assisting the applicant’s investigation, Mr Siaw has produced all relevant documents, on behalf of Total Trades Personnel, to the applicant and participated in a voluntary interview in which he openly admitted that he is responsible for any contravention;[63]
c)Mr Siaw and Total Trades Personnel had continued to co-operate with the applicant, despite that he was residing predominately in Singapore, and admitted to liabilities at the earliest opportunity after the current proceedings were commenced;
d)Mr Farkas and Orwill were not involved in the Jacaranda Deli and therefore had no documents or information to produce to the applicant during the investigation process, but have nevertheless co-operated to the fullest extent and admitted to liabilities at the earliest opportunity after the current proceedings were commenced;
e)all the respondents are now well aware of the importance of record keeping for employees and are apologetic in respect of their failure to do so previously;
f)in light of these circumstances, the respondents have therefore demonstrated contrition in respect of the contraventions; and
g)accordingly, a considerable reduction in the quantum of penalties, in the range of 15-20%, is appropriate.
[63] Jones Affidavit, paragraph 21.
Consideration
The Court accepts that there has been a reasonably significant degree of co-operation with the applicant, particularly by Mr Siaw and Total Trades Personnel with respect to the provision of documents, and by all respondents in relation to admission of liability, thereby saving the parties and the Court considerable time and money with respect to court proceedings.
The Court notes that apart from what can be inferred from the admissions, and the co-operation of Mr Siaw in Total Trades Personnel with respect to the provision of documents, and Mr Siaw’s statements in his record of interview with officers of the applicant,[64] there is no overt apology or contrition from any of the respondents. Further, as noted above, Mr Farkas on two occasions did not participate in interviews with the applicant which had been arranged. It is also erroneous to suggest, as the respondents’ submissions do, that Mr Farkas and Orwill were not involved in the Jacaranda Deli and therefore had no documents or information to produce to the applicant during the investigation process. Mr Farkas was the guarantor with respect to the deed of assignment for the lease of the property from the previous lessees to Total Trades Personnel and Mr Siaw, and Mr Farkas and Orwill were inextricably intertwined in the arrangements necessary for each of the Employees to obtain visas and to work at the Jacaranda Deli. Orwill was the employer and the sponsoring employer for migration purposes.
[64] Jones Affidavit, Annexure G.
There will therefore be some discount before the co-operation which has been exhibited, and for the contrition inherent in that co-operation and the admissions with respect to the contraventions. A more significant discount would have been afforded had there been an overt expression of contrition from each of the respondents.
Conclusions as to penalty
Applicant’s conclusion as to penalty
By way of conclusion the applicant submitted that:
a)the applicant acknowledges that in determining an appropriate penalty to be awarded against the respondents, the Court is obliged to apply the ‘totality principle’ to ensure that the total penalty is just and appropriate in all of the circumstances;
b)while the respondents’ contravening conduct occurred over a significant period of time and was in relation to relatively vulnerable Employees, the respondents have admitted liability and co-operated with the authorities;
c)in all of the circumstances, the applicant respectfully submits that the penalties awarded against Orwill, Total Trades Personnel and Mr Siaw should be in the mid-range of the scale; that is between 50-70% of the maximum penalty; and
d)the applicant acknowledges that Mr Farkas’ involvement in the contraventions was less significant and accordingly submits that a penalty in the low to mid range (30-60% of the maximum penalty) is appropriate.
Respondents’ conclusions as to penalty
The respondents submit by way of conclusion that:
a)in all of the circumstances, including taking into account the ‘totality principle’, the respondents submit that the penalties awarded against Orwill, Total Trades Personnel and Mr Siaw should be in the low to mid range of the scale, that a penalty in the range of 30-50% of the maximum penalty is appropriate;
b)on the basis that Mr Farkas’ involvement in the contraventions was less significant and therefore it is submitted that Mr Farkas should be awarded a penalty in the lower end of the scale, that a penalty in the range of 20-30% of the maximum penalty is appropriate; and
c)the respondents say that:
i)the contraventions are not trivial in that the contraventions have undermined the capacity of the applicant to further investigate the matter;
ii)however, substantial deductions in the quantum of penalties are warranted on the grounds that:
A.the contraventions were not deliberate;
B.none of the respondents had any records of civil penalty contraventions;
C.the contraventions arose from a single course of conduct and there are common grounds to each of the contraventions;
D.there is no need for specific deterrence, and the chance of any of the respondents re-offending is minimum;
E.the respondents are in financial difficulties; and
F.the respondents had co-operated with the applicant to the fullest extent both prior to and subsequent to the commencement of the current proceedings, which also demonstrated contrition on the part of the respondents.
Consideration
In the Court’s view the contraventions in this case fall within a broad mid-range as not being in the most serious category, nor being in the least serious category, of contravention. Therefore, a penalty of somewhere within the range of 30%-70% of the maximum would be appropriate.
Each of the respondents is entitled to a reduction in penalty on the basis that they are first time contraveners, there is a single course of conduct with some overlap between the various contraventions, and that there has been some co-operation with the applicant in relation to agreed facts, admissions and the provision of some but not all documents (either in relation to the substance of the contravention or the respondents’ financial position). The Court accepts that Mr Farkas’ involvement is somewhat less than the other respondents, but notes that Mr Farkas’ co-operation with the applicant in relation to the contraventions was not to the same level as that of the other respondents.
For reasons set out above, the Court is not satisfied that the contraventions were the result of ignorance, or that the contraventions were not deliberate. Further, for reasons set out above, the Court is of the view that there is a need for specific deterrence and general deterrence at a significant and relatively high level.
In all the circumstances, including a consideration of the totality of the penalty for each respondent, the Court has concluded that the penalties ought to be as follows:
a)for Orwill, Total Trades Personnel and Mr Siaw the penalty ought to be 55% of the maximum penalty for each of them. That is a total penalty of $12,100 for Orwill and Total Trades Personnel and $2,420 for Mr Siaw; and
b)for Mr Farkas, for reasons explained above the penalty ought be less, but not significantly so, and the Court considers that a penalty of 50% of the maximum penalty is appropriate for Mr Farkas, that is, a sum of $2,200.
Conclusion and orders
For the reasons set out above, the Court will make the declarations which have been sought by the applicant, and impose penalties of $12,100 on Orwill and Total Trades Personnel respectively, $2,420 on Mr Siaw and $2,200 on Mr Farkas. The penalties are to be paid to the Commonwealth Consolidated Revenue Fund and paid by 28 October 2011. There will be orders accordingly.
I certify that the preceding fifty-two (52) paragraphs are a true copy of the reasons for judgment of Lucev FM
Associate:
Date: 28 September 2011
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