Fair Work Ombudsman v Palcoy Pty Ltd
[2013] FCCA 1411
•23 September 2013
FEDERAL CIRCUIT COURT OF AUSTRALIA
| FAIR WORK OMBUDSMAN v PALCOY PTY LTD & ANOR | [2013] FCCA 1411 |
| Catchwords: INDUSTRIAL LAW – Workplace Relations – breaches of Act – failure to pay minimum wage – failure to pay award entitlements – non English speaking employees – penalty. |
| Legislation: Workplace Relations Act 1996, sub-ss.181(1), 185(2) |
|
FWO v Ramsay Food Processing Pty Limited (No 2) [2012] FCA 408 |
| Applicant: | FAIR WORK OMBUDSMAN |
| First Respondent: | PALCOY PTY LTD (ACN 071 682 874) |
| Second Respondent: | JOHN WATTS |
| File Number: | SYG 2338 of 2012 |
| Judgment of: | Judge Raphael |
| Hearing date: | 13 September 2013 |
| Date of Last Submission: | 13 September 2013 |
| Delivered at: | Sydney |
| Delivered on: | 23 September 2013 |
REPRESENTATION
| Solicitors for the Applicant: | Fair Work Ombudsman |
| Solicitors for the Respondents: | Carneys Lawyers |
ORDERS
The Court makes the Orders and Declarations contained in the Short Minutes of Order annexed to these reasons.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2338 of 2012
| FAIR WORK OMBUDSMAN |
Applicant
And
| PALCOY PTY LTD (ACN 071 682 874) |
First Respondent
| JOHN WATTS |
Second Respondent
REASONS FOR JUDGMENT
There came before me on 13 September 2013 a penalty hearing in respect of some admitted breaches of the Workplace Relations Act 1996[1] by the first respondent company of which the second respondent was a director but neither the sole director nor the sole shareholder. The matter proceeded on the basis of a Statement of Agreed Facts filed in Court on 9 May 2013. In this Statement the following relevant matters appear.
[1] “WR Act”
The first respondent company conducts a business of a mailing house trading as Packone and Post. It is a small to medium sized business which, from the evidence given to me at the hearing, employed at the relevant time about fifty part time or casual employees but now employees fifteen to sixteen full time employees. The business had no human resources department. The second respondent, Mr Watts, although a director of the company, operated as its production manager, being principally responsible for the overall direction of management and supervision of its operations. Mr Watts was responsible for ensuring that the employees were paid in accordance with the appropriate award and received their entitlements thereunder.
Between October 2009 and August 2011 twenty one casual employees lodged workplace complaints. These employees were low skilled female workers, usually immigrants to Australia with no English language abilities and native Chinese speakers. Another Mandarin speaker was employed by the company to instruct these employees in their tasks and in any communications between them and management or between management and them. The workers performed basic mailing house tasks which included folding and collating printing material and placing material in envelopes and boxes for distribution through Australia Post.
During the period from 27 March 2006 to 31 December 2009 the company was covered by NAPSA derived from the Printing Industries (State) Award[2] with respect to the terms and conditions of employment of the employees and the Australian Pay and Classification Scale[3] derived from the SPA with respect to the basic periodic rates of pay payable to employees. On 27 March 2006 sub-section 185(2) of the Act which required casual loadings to be paid in addition to the basic periodic rate of pay commenced operation.
[2] “SPA”
[3] “APCS”
Between 27 March 2006 and October 2009 the employees were paid between $11.00 and $13.00 per hour when they were entitled to be paid between $15.30 to $17.70 per hour pursuant to the APCS derived from the SPA. Thereafter, the company increased the employees’ rates of pay to the rate applicable under the APCS derived from the SPA. Since 1 January 2010 the employees have been paid under the Graphic Arts, Printing and Publishing Award 2010 which is a modern award.
The first respondent admits that during the period 27 March 2006 to 31 December 2009:
(a)The first respondent did not pay each of the employees at least the basic periodic rates of pay contained in the APCS derived from the State Printing Award for all hours worked;
(b)The first respondent did not pay the employees any separate remuneration in respect of casual loadings as required by subsection 185(2) of the WR Act;
(c)The first respondent paid 19 Employees (that is, all employees other than Ping Cal and Yi Hua Qui), their standard hourly rate of pay for hours or part hours worked on occasions when they performed shifts of less than four hours, and not an amount equivalent to four hours pay as required under the NAPSA derived from the State Printing Award;
(d)The first respondent did not pay 13 of the employees (that is, Xudong Chen, Xiu Qin Chen, Si Man Gao, Shao Juan Guo, Bizhen Hou, Fei Liang, Qin Lin, Weijing Ni, Ji Lian Wu, Hong Xu, Yuet Man Ying and Ping Zhang) a rate of double time and a half for work performed on a public holiday as required under the NAPSA derived from the State Printing Award; and
(e)The first respondent did not pay the employees overtime rates of pay as required under the NAPSA derived from the State Printing Award for overtime hours worked.
At the conclusion of the applicant’s investigation the applicant determined, and the first and second respondents accept, that the first respondent has underpaid the twenty one employees a total amount of $359,563.58. The first respondent has made substantial rectification of this underpayment. The determination of contravention notice which detailed the underpayments was issued on 5 April 2011 and repayments started in May 2011. Further repayments were made after calculations were provided between February and June 2012. At the time the Agreed Statement of Facts was filed there was $48,075.98 outstanding but of that two sums of $18,119.45 and $17,675.12 were paid in May 2013. There remains outstanding the sum of $14,664.64 plus interest which the first respondent has agreed to pay within fifty six days of these orders.
Both parties provided the court with written submissions as to penalty and both agreed that the guide considered first by Mowbray FM in Mason v Harrington Corporation Pty Ltd t/as Pangaea Restaurant & Bar (2007) FMCA 7 and summarised by Tracy J in Kelly v Fitzpatrick (2007) 166 IR 14[4] was a list of considerations that should guide but was not a substitute for what Gyles J called the “unrestrained statutory discretion” in Sharpe v Dogma Enterprises Pty Ltd (2007) FCA 1550 at [11].
[4] “Kelly”
In considering these matters the court had the assistance of an affidavit filed on behalf of the applicant by Vi-Lay Liu affirmed on 12 June 2013, two affidavits of John Douglas Watts, one sworn on 20 May 2013 and the other on 11 July 2013 and an affidavit of John Tamplin sworn on 10 July 2013. In his first affidavit Mr Watts describes his background, how the company was established and how it came to employ almost solely Mandarin speaking staff. Mr Watts stated that he earned approximately $60,000.00 per annum salary but had not received any dividends from the company for the last two years because of falling profits and, it would appear, the need to reimburse the underpaid employees. The essence of Mr Watts’ affidavit is that he only took over responsibility for employees’ remuneration after an original shareholder, Mr Zhang, retired due to ill health. He understood that the employees were award free and that the minimum wage applied. He told that in 2006 the company retained the services of a business advisor Ms Kouloukakis “to assist in relation to employment issues and occupational health and safety matters”. She advised that the employees were award free and the company proceeded on that basis until the intervention of the FWO. When that happened a new consultant, Mr Tamplin, was brought in. He made it clear that the award situation was not easy to comprehend because of the fact that the business, although described as a mail house, had not been roped into the Federal award covering mail houses. He did, however, conclude that the employees were covered by the State award.
Importantly, for the purposes of this decision, even though Mr Watts conceded that the employees should be paid at least the minimum wage, he never enquired as to what that was and as a result did not even pay the employees that amount. Coincidentally, the amount payable to these employees under the State Award was identical to the minimum wage. Furthermore, Mr Watts did not make enquiries or discover that as from 27 March 2006 casual loadings had to be paid to casual workers on the minimum wage.
There was another difficulty with the way in which employees were remunerated. Instead of paying them a weekly wage based upon the hours worked including overtime the company adopted what it called an “hours banking system” so that excess hours worked in one week could be “banked” against lesser hours worked in the following week. Whilst this provided the employees with a less volatile remuneration it had the effect of excluding overtime payments. The calculations that have been done of underpayments take all these matters into account.
The most contentious issue with which the court is required to deal is whether or not it can be said as the applicant submits that the respondents were wilfully blind to their obligations to these employees. In regard to what is required evidentially to establish wilful blindness the applicant says:
“46.The evidence specifically shows that the respondents knew of the existence of rules governing minimum wages and also knew of available services to obtain information about the minimum rates of pay but chose not to utilise these services. In particular:
(a)the second respondent has given evidence that he was aware of the existence of minimum wages regulations, including that the minimum wage would increase from time to time. The second respondent states that he “would note media reports on increases to the minimum wage, taking a clipping or record these reports”
(b)in respect of the respondents’ knowledge of available sources of information:
(i) the second respondent has stated that on at least two occasions he sought advice from a free government service regarding award coverage, therefore, he was aware of the existence of such services; and
(ii) McPherson Binding, which is a business operated from the same complex as the first respondent by two of the directors of the first respondent (Mr Halters and Mr McPherson) is and has been a member of the Printing Industries Associate (PIA) (a membership based employer association) since 1979. Mr Halters stated that “having been a member of PIA for over 30 years there have been over 100 occasions when McPB’s payroll officer… has contacted PIA about an industrial or award question”. Therefore it could be reasonably expected that the first respondent knew of the existence of the PIA and knew that the PIA offered services including answering questions about industrial relations and award coverage.”
The applicant relies on the close connection between Palcoy and the company known as McPherson Binding Pty Limited which had common directorships with Palcoy and provided it with some bookkeeping services. Mr Watts in his affidavit says the two companies operated independently and that it was always invoiced for the accounting services provided. Ms V-Lay Liu also relies on the fact that although Palcoy was not a member of the employer association or an industry association it had the ability to access information and advice through its shared directors of McPherson that was a member. She refers to a letter she had received from that company which states:
“Having been a member of PIA for over thirty years there have been over 100 occasions when MPB’s payroll officer has contacted PIA about industrial award question.”
It is not necessary in order to come to an appropriate penalty to make a finding of wilful blindness. There is no doubt that Mr Watts was aware of the existence of minimum wages and was aware that these change from time to time and that when they change there was generally quite significant publicity given to those changes. Whether or not his failure to make any enquiries or to implement any changes that he became aware of can have bestowed upon it the soubriquet of wilful blindness does not detract from the seriousness of the failing. Similarly, although Mr Watts says he was unaware of the change to the law that required payment of casual loadings to persons on minimum wages it would not be right to use that as a mitigating factor. The applicant refers to the remarks of the late Chief Industrial Magistrate Hart in David Armstrong v VK Holdings Pty Limited (unreported, 28 November 2007):
“An employer has an obligation to find out and provide the minimum lawful entitlements prescribed for its employees.”
As both parties have used the Kelly guidelines as their point of reference I shall too.
Nature and extent of the conduct and resulting loss
The contraventions arose from the payment of a flat hourly rate below the minimum hourly rate in accordance with the APCS and failure to pay additional monetary entitlements such as loadings, penalties and overtime required under the SPA. This had much to do with the implementation of the “banking of hours” system that I have described. The conduct continued for over three years and the resulting loss to the employees for a very large sum of money being $359,563.58. The average underpayment per employee was $17,122.08, the highest was $31,461.40 representing 45.8 weeks pay for the employee. It is to be remembered that these employees are right at the bottom of the wage scale. These factors tell significantly against the respondents.
The circumstances in which the conduct took place
These have been described earlier in these reasons but particular note should be taken of the vulnerability of the employees due to their language constraints, ethnicity, age and sex.
Need to ensure compliance of minimum standards
In this case the respondents were claiming to pay their employees what was the minimum standard. They were not even doing that. I accept the applicant’s submission that:
“One of the principal objects of the WR Act is the maintenance and effective safety net of employer obligations and effective enforcement mechanisms.”
It is also correct to say that when one employer does not pay the minimum standard the disadvantage is not only to his own employees but also other persons in the industry who do.
The size and sophistication of the business
The respondents would have the court believe that this is an unsophisticated business. It produced some photographs. To my mind those photographs indicate that the business is working with up to date machinery in a reasonably up to date dedicated space. It employed, albeit on a casual basis, quite a large number of employees who were operating what appears to have been reasonably sophisticated machinery. As Tracy J said in Kelly at [28]:
[28]… No less than large corporate employers, small businesses have an obligation to meet minimum employment standards and their employees, rightly, have an expectation that this will occur. When it does not it will, normally, be necessary to mark the failure by imposing an appropriate monetary sanction. Such a sanction “must be imposed at a meaningful level”: see Australian Competition and Consumer Commission v ABB Transmission and Distribution Ltd [2001] ATPR 41-815 at [13].
Whether or not the breaches were deliberate
The respondents say that they took advice early on in their operations prior to these infringements and that was advice was confirmed by Ms Kouloukakis that the employees were award free. But to my mind that does not excuse the failure to pay even the minimum wage which Mr Watts agrees he was aware of. No explanation is offered for the implementation of the “banked hours system” as complying with the relevant legislation. I do not consider the claims of general ignorance about the effect of s.185(2) of the WR Act is of assistance. If Mr Watts had followed the advice received and paid the minimum wage then these massive underpayments would not have occurred.
Whether the party committing the breach and co-operating with the enforcement authorities
The applicant accepts that this is the case. The offences were admitted. An Agreed Statement of Facts was able to be drawn up and much court time has been saved.
Whether there had been similar previous conduct
There has been no record of previous similar conduct on the party of either of the respondents.
Whether the party committing the breach has taken corrective action
Although almost all of the underpayments have now been rectified it took a very long for this to happen. It is to be remembered that the applicant came on the scene in 2009 yet no repayments commenced until 2011. It would have been clear from the moment the respondents received the advice of Mr Tamplin that the employees had been underpaid because Mr Tamplin had told the respondents that the state award applied. Whilst the calculations may not have been easy some rectification could have taken place prior to receive of the notice from the FWO. The final amount outstanding was not agreed until the hearing but it has now been agreed at $14,664.64. The first respondent has agreed to make that payment within fifty-six days.
The need for general deterrence
Whilst, regrettably, this case is not unique, it does have some factors, particularly the vulnerability of the employees described above and the banking of hours system in respect of which general deterrence would operate by communicating to other employers that these vulnerable people should not and cannot be taken advantage of.
Whether the party committing the breach had exhibited contrition
The respondent’s submissions on this point are quite lengthy and points to the asserted ignorance of the applicable minimum employment entitlements, to the assertion that the banking of hours system was employee instigated and to an allegation that there were errors in the time and wage records. This conduct on the part of the respondents is to my mind more of an unsuccessful attempt to explain why the underpayments occurred rather than evidence of a lack of contrition once the errors were pointed out. I think the speedy appointment of Mr Tamplin speaks well for the respondents as does their admission of fault.
Involvement of senior management in the contraventions
Mr Watts is the man responsible and accepts that he was a person knowingly concerned in the contraventions committed by the first respondent. He is a director and shareholder but not the sole director or sole shareholder of the company. He is not the alter ego of the company. He has held other directorships. I think that the quotation from the decision of Buchanan J in FWO v Ramsay Food Processing Pty Limited (No 2) [2012] FCA 408 at [8] put in submissions by the applicant is apt:
“[8]A submission was made by the respondents that some consideration should be given to reducing the amount of the penalty imposed on one or other of the respondents to account for the intimate connection between the actions of the first respondent and the conduct of the second respondent. As I understood the submission, it was that there was a risk of punishing twice for the same conduct – i.e. punishing both the first and second respondents for the conduct of the second respondent. The submission appeared to rely on the judgment of Mansfield J in Australian Prudential Regulation Authority v Holloway (2000) 45 ATR 278; [2000] FCA 1245, although I do not understand how it could do so. In that judgment Mansfield J fixed lesser penalties on Mr Holloway, the “alter ego” of Holloway & Co, than on Holloway & Co. In the legislative scheme which his Honour was applying no distinction was made between the maximum penalty that could be applied to corporations and the maximum penalty that could be applied to individuals. That is not the case here. The present legislative scheme fixes quite different (and much lower) penalties for individuals than for corporations. The culpability of each respondent must be assessed individually and in the context set by the maximum penalty prescribed in each case. I reject the suggestion, if this was what was intended, that either or both respondents might have the benefit of any reduction in penalty because they were jointly, as well as individually, culpable.”
Totality
The respondents accept that the totality principle is relevant in this case.
Although I have quoted extensively from the applicant’s written submissions I have taken into account what has been put by the respondents. I have tried to show that I have particular concerns and where I have not been able to accept in full the mitigating submissions made for the respondents. In coming to the views which I have on penalty I have particularly taken into account those areas in this decision record where I have been most critical of the respondents. I cannot accept the respondent’s submission that the penalties should fall into the lower part of the range and certainly cannot accept that Mr Watts should be relieved of all penalties as has been put to me.
The First Respondent
The applicant has suggested that the court apply a 20% discount to the penalties it would otherwise apply because of the respondents’ acceptance of liability and significant rectification. I believe that is an appropriate figure. The applicant suggests that from this discounted maximum the penalty I should apply for breaches of s.185(2) of the Act, the casual loading section, in respect of which the underpayments were $182,150.00 is 70% of the maximum. The resultant figure of $18,480.00 places the penalty in the middle of the range. Coming as I have independently to the figures I believe that an appropriate penalty is $17,500.00.
The respondents suggest that the breach of Clause 8(d) of the SPA, being the failure to pay the minimum engagement periods, where the loss was $1,269.00 should require a penalty from the first respondent of 40% of the discounted figure, namely $10,560.00. My independent view is that this is the least egregious of all the contraventions and an appropriate penalty is $9,000.00. The penalty for breach of Clause 8(f) of the SPA for failure to pay public holiday penalties resulted in a loss of $7,569.00. The respondents suggest a penalty of $15,840.00, being 60% of the discounted figure. My independent view is that this is too close to the penalty for the larger and very serious underpayments that I believe is appropriate and that a penalty of $12,500.00 should suffice.
The applicant seeks a penalty for breach of sub-s.181(1) of the WR Act for non payment of minimum wages resulting in an underpayment of $8,813.00 a penalty of $10,560.00 being 40% of the discounted maximum. My independent view is that although the underpayment is small the contravention is serious and I would impose a penalty of $12,500.00. Finally, the applicant suggests in respect of the breaches of Clauses 13(c) and 11(a)(iii) of the SPA, failure to pay overtime rates of pay that resulted in a loss of $159,759.00 be subject to the same penalty of $18,480.00 as suggested for the breach of sub.s185(2) of the WR Act. I take the same view of that as I do of the earlier contravention and would impose a penalty of $17,500.00.
The Second Respondent
The applicant applies the same modus operandi to its recommendations as to penalty to be imposed upon the second respondent utilising the discounted figure of the maximum figure of $5,280.00 ($6,600.00 less 20%). My independent view of the culpability of Mr Watts leads me to impose the following penalties. For breach of sub-s.182(1) of the WR Act a penalty of $3,000.00. For breach of sub-.185(2) of the WR Act a penalty of $4,000.00. For breach of Clause 8(d) of the SPA a penalty of $500.00. For breach of Clause 8(f) of the SPA a penalty of $2,000.00. For breach of Clauses 13(c) and 11(a)(iii) of the SPA a penalty of $3,000.00.
I have been provided with some Short Minutes of Order agreed by the parties save as to the amounts of penalty to be placed therein. Those Short Minutes will be annexed to these reasons. Order 4 of those orders relate to payment of interest. The calculations of that pre-judgment interest are also attached to these reasons.
I certify that the preceding thirty four (34) paragraphs are a true copy of the reasons for judgment of Judge Raphael
Associate:
Date: 23 September 2013
ANNEXURE 1
SHORT MINUTES OF ORDER
THE COURT DECLARES THAT:
1.During the period from 27 March 2006 to approximately November 2009, the first respondent underpaid 21 of its employees a total amount of $359,563.58 and thereby contravened the following:
(a) Subsection 182(1) of the Workplace Relations Act 1996 (Cth) (WR Act) by failing to pay the required basic periodic rates of pay under the Australian Pay and Classification Scale derived from the Printing Industries (State) Award [AN120432] (State Printing Award) to the following employees:
(i)Mrs Ping Cai;
(ii)Mrs Xiu Qin Chen;
(iii)Mrs Xudong Chen;
(iv)Mrs Quiping Chen;
(v)Mrs Xing Xian Gao;
(vi)Mrs Si Man Gao;
(vii)Mrs Lin Gong;
(viii)Ms Shao Juan Guo;
(ix)Mrs Bizhen Hou;
(x)Mrs Xinyuan Li;
(xi)Mrs Fei Liang;
(xii)Mrs Qin Lin;
(xiii)Mrs Weijing Ni;
(xiv)Ms Yi Hua Qiu
(xv)Ms Elaine Weng;
(xvi)Mrs Ji Lian Wu;
(xvii)Mrs Dan Xi;
(xviii)Mrs Hong Xu;
(xix)Mrs Xiawei Xu;
(xx)Ms Yuetman Ying; and
(xxi)Mrs Ping Zhang
(the Employees).
(b) Subsection 185(2) of the WR Act by failing to each of the 21 Employees their guaranteed casual loading percentage under the Australian Pay and Classification Scale derived from the State Printing Award.
(c) Clause 8(d) of the Notional Agreement Preserving a State Award (NAPSA) derived from the State Printing Award by failing to pay 19 of the Employees (that is, each of the Employees other than Ping Cai and Yi Hua Qui) a minimum of four hours pay per engagement;
(d) Clause 8(f) and clause 18(g)(ii) of the NAPSA derived from the State Printing Award by failing to pay 13 of the Employees (that is, Xudong Chen, Xiu Qin Chen, Si Man Gao, Shao Juan Guo, Bizhen Hou, Fei Liang, Qin Lin, Weijing Ni, Ji Lian Wu, Hong Xu, Xiawei Xu, Yuetman Ying and Ping Zhang) penalty rates for work performed on public holidays; and
(e) Clause 13(c) and clause 11(a)(iii) of the NAPSA derived from the State Printing Award by failing to pay overtime rates of pay to each of the 21 Employees.
2.The second respondent was involved in (within the meaning of subsection 728(1) of the WR Act) each of the contraventions committed by first respondent as listed in paragraph 1 above.
THE COURT ORDERS THAT:
3.Pursuant to sub-section 719(6) of the WR Act, the first respondent is to rectify the outstanding underpayments owed to 10 of the Employees in the total amount of $14,664.64 for losses suffered as result of the first respondent’s contraventions of the WR Act in the following individual amounts:
(a) Qin Lin: $1,000.00
(b) Yi Hua Qiu: $26.49
(c) Xing Xian Gao: $45.80
(d) Ying Yuet Man: $3,621.02
(e) Elaine Weng: $1,407.79
(f) Wu Ji Lian: $2,174.12
(g) Guo Shao Juan: $2,418.54
(h) Dan Xi: $787.65
(i) Li Xin Yuan: $800.00
(j) Si Man Gao: $2,383.23
4.Pursuant to section 722 of the WR Act, the first respondent is to pay pre-judgment interest on the amounts referred to in paragraph 3 above at the pre-judgment interest rates provided in Practice Note CM 16 of the Federal Court of Australia for the period from 18 October 2012 to the date of these Orders contained in Annexure 2.
5.Pursuant to sub-section 719(1) of the WR Act, the first respondent is to pay penalties in the total amount of $69,000.00 in respect of its contraventions of the WR Act (as listed at paragraph 1 above) comprised of the following amounts:
(a) A penalty of $12,500 in respect of the first respondent’s contravention listed at paragraph 1(a) above (that is, failure to pay minimum wages);
(b) A penalty of $17,500 in respect of the first respondent’s contravention listed at paragraph 1(b) above (that is, failure to pay casual loadings);
(c) A penalty of $9,000.00 in respect of the first respondent’s contravention listed at paragraph 1(c) above (that is, failure to pay minimum casual engagement periods);
(d) A penalty of $12,500.00 in respect of the first respondent’s contravention listed at paragraph 1 (d) above (that is, failure to pay public holiday penalties); and
(e) A penalty of $17,500.00 in respect of the first respondent’s contravention listed at paragraph 1(e) above (that is, failure to pay overtime rates of pay).
6.The second respondent is to pay penalties pursuant to sub-sections 719(1) and 728 of the WR Act in the total amount of $12,500.00 in respect of his involvement in the first respondent’s contraventions of the WR Act (as listed at paragraph 1 above) comprised of the following amounts:
(a) A penalty of $3,000.00 in respect of the second respondent’s involvement in the contravention listed at paragraph 1(a) above (that is, failure to pay minimum wages);
(b) A penalty of $4,000.00 in respect of the second respondent’s involvement in the contravention listed in paragraph 1(b) above (that is, failure to pay casual loadings);
(c) A penalty of $500.00 in respect of the second respondent’s involvement in the contravention listed in paragraph 1(c) above (that is, failure to pay minimum casual engagement periods);
(d) A penalty of $2,000.00 in respect of the second respondent’s involvement in the contravention listed in paragraph 1(d) above (that is, failure to pay overtime rates of pay).
(e) A penalty of $3,000.00 in respect of the second respondent’s involvement in the contravention listed in paragraph 1(e) above (that is, failure to pay overtime rates of pay).
7.Pursuant to sub-section 841(b) of the WR Act, the first and second respondents are to pay the penalty amounts set out in paragraphs 5 and 6 above to the Consolidated Revenue Fund of the Commonwealth.
8.The payments specified at paragraph 3 above are to be made within a period of 56 days from the date of these Orders.
9.The payments specified in paragraphs 4 to 6 of these Orders are to be made within a period of three months from the date of these Orders.
10.The applicant has liberty to apply on 7 days’ notice in the event that any of the preceding Orders are not complied with.
ANNEXURE 2
PRE-JUDGMENT INTEREST CALCULATIONS
| Employee name | Amount owed | Pre-judgment interest |
| Qin Lin | $1,000.00 | $63.95 |
| Yi Hua Qiu | $26.49 | $1.69 |
| Zing Xian Gao | $45.80 | $2.93 |
| Ying Yuet Man | $3,621.02 | $231.56 |
| Elaine Weng | $1,407.79 | $90.03 |
| Wu Ji Lian | $2,174.12 | $139.03 |
| Guo Shao Juan | $2,418.54 | $154.66 |
| Dan Xi | $787.65 | $50.37 |
| Li Xin Yuan | $800.00 | $51.16 |
| Si Man Gao | $2,383.23 | $152.41 |
| Total | $14,664.64 | $937.79 |
Key Legal Topics
Areas of Law
-
Employment Law
Legal Concepts
-
Penalty
-
Statutory Construction
2
4