Fair Work Ombudsman v PPR Ryde (NSW) Pty Ltd; Fair Work Ombudsman v Gateharvest Pty Ltd; Fair Work Ombudsman v Wong
[2019] FCCA 3085
•19 November 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| FAIR WORK OMBUDSMAN v PPR RYDE (NSW) PTY LTD & ANOR FAIR WORK OMBUDSMAN v GATEHARVEST PTY LTD & ANOR FAIR WORK OMBUDSMAN v WONG | [2019] FCCA 3085 |
| Catchwords: INDUSTRIAL LAW – Fair Work – application for penalties – consideration of factors bearing upon penalties. |
| Legislation: Fair Work Act 2009 (Cth), ss.44, 45, 535, 536, 545, 546, 550, 557 |
| Cases cited: Australasian Meat Industry Employees’ Union v Meneling Station Pty Ltd [1987] FCA 2; (1987) 16 IR 245 Fair Work Ombudsman v Bundaberg Security Pty Ltd [2014] FCCA 592 |
| Applicant: | FAIR WORK OMBUDSMAN |
| First Respondent: | PPR RYDE (NSW) PTY LTD ACN 600 356 894 |
| Second Respondent: | LOKE CHENG WONG |
| File Number: | SYG 672 of 2019 |
| Applicant: | FAIR WORK OMBUDSMAN |
| First Respondent: | GATEHARVEST PTY LTD ACN 168 491 147 |
| Second Respondent: | LOKE CHENG WONG |
| File Number: | SYG 673 of 2019 |
| Applicant: | FAIR WORK OMBUDSMAN |
| Respondent: | LOKE CHENG WONG |
| File Number: | SYG 674 of 2019 |
| Judgment of: | Judge Driver |
| Hearing date: | 19 September 2019 |
| Delivered at: | Sydney |
| Delivered on: | 19 November 2019 |
REPRESENTATION
| Counsel for the Applicant: | Mr J Darams |
| Solicitors for the Applicant: | Office of the Fair Work Ombudsman |
| Counsel for the Respondents: | Mr P Barry |
| Solicitors for the Respondents: | LegalVision ILP |
ORDERS
SYG 672 of 2019
THE COURT DECLARES BY CONSENT THAT
The First Respondent, PPR Ryde (NSW) Pty Ltd, contravened the following civil remedy provisions:
(a)section 45 of the Fair Work Act 2009 (Cth) (FW Act) by failing to pay 44 adult employees minimum hourly rates in respect of each ordinary hour worked pursuant to clause 20.1 of the Restaurant Industry Award 2010 (the Award);
(b)section 45 of the FW Act by failing to pay a junior employee the minimum hourly rates pursuant to clause 20.3(a) of the Award;
(c)section 45 of the FW Act by failing to pay 32 casual employees casual loading pursuant to clause 13.1 of the Award;
(d)section 45 of the FW Act by failing to pay 41 employees a penalty rate in respect of each ordinary hour worked on a Saturday pursuant to clause 34.1 of the Award;
(e)section 45 of the FW Act by failing to pay 36 employees a penalty rate in respect of each ordinary hour worked on a Sunday pursuant to clause 34.1 of the Award;
(f)section 45 of the FW Act by failing to pay 24 employees a penalty rate in respect of each ordinary hour worked on a public holiday pursuant to clause 34.1 of the Award;
(g)section 45 of the FW Act by failing to pay 16 employees overtime rates for any hours worked outside of the spread of hours or rostered hours between Monday to Friday pursuant to clause 33.2(a) of the Award;
(h)section 45 of the FW Act by failing to pay 12 employees overtime rates for any hours worked outside of the spread of hours or rostered hours on a Saturday pursuant to clauses 33.2(b) of the Award;
(i)section 45 of the FW Act by failing to pay 11 employees overtime rates for any hours worked outside of the spread of hours or rostered hours on a Sunday pursuant to clauses 33.2(c) of the Award;
(j)section 45 of the FW Act by failing to engage nine employees for a minimum period of six hours on any one day pursuant to clause 31.2(a) of the Award;
(k)section 45 of the FW Act by failing to make a written agreement about a regular pattern of work with part-time employees upon engagement, pursuant to clause 12.3 of the Award;
(l)section 44(1) of the FW Act by failing to correctly accrue annual leave entitlements, pursuant to s.87 of the FW Act;
(m)section 44(1) of the FW Act by failing to correctly accrue personal leave entitlements, pursuant to s.96 of the FW Act;
(n)section 535(1) of the FW Act by failing to make records of the kind required by regulations 3.32 and 3.36 of the Fair Work Regulations 2009 (Cth) (FW Regulations);
(o)section 536(1) of the FW Act by failing to provide pay slips within one working day of payment; and
(p)section 536(2) of the FW Act by failing to provide pay slips with the information prescribed by regulation 3.46(3) of the FW Regulations.
The Second Respondent, Loke Cheng Wong, was involved, within the meaning of s.550(1) of the FW Act, in the contraventions set out in Declarations 1(a) to (f) above.
THE COURT ORDERS THAT
The First Respondent pay a total penalty of $141,751 pursuant to s.546(1) of the FW Act for the contraventions set out in Declaration 1 above;
The Second Respondent pay a total penalty of $13,770 pursuant to s.546(1) of the FW Act for his involvement in the contraventions set out in Declarations 1(a) to (f) above;
The First and Second Respondents each pay their respective penalty amounts to the Consolidated Revenue Fund of the Commonwealth within 28 days of the Court’s order pursuant to s.546(3) of the FW Act;
Pursuant to s.545(1) of the FW Act, the Second Respondent:
(a)within a period of two months, register with the Applicant’s “My Account” portal at and complete the profile including the Award options;
(b)within a further month after the period in Order (4)(a) provide to the Applicant his “My Account” registration number; and
(c)within a period of two months, register with the Applicant’s Online Learning Centre at and complete all education courses designed for employers and provide the Applicant with evidence of completion of those courses within a further one month.
The Applicant have liberty to apply on seven days’ notice in the event that any of the preceding orders are not complied with.
SYG 673 of 2019
THE COURT DECLARES BY CONSENT THAT
The First Respondent, Gateharvest Pty Ltd, contravened the following civil remedy provisions:
(a)section 45 of the FW Act by failing to pay 28 adult employees minimum hourly rates in respect of each ordinary hour worked pursuant to clause 20.1 of the Award;
(b)section 45 of the FW Act by failing to pay two junior employees the minimum hourly rates pursuant to clause 20.3(a) of the Award;
(c)section 45 of the FW Act by failing to pay 14 casual employees casual loading pursuant to clause 13.1 of the Award;
(d)section 45 of the FW Act by failing to pay 28 employees a penalty rate in respect of each ordinary hour worked on a Saturday pursuant to clause 34.1 of the Award;
(e)section 45 of the FW Act by failing to pay 23 employees a penalty rate in respect of each ordinary hour worked on a Sunday pursuant to clause 34.1 of the Award;
(f)section 45 of the FW Act by failing to pay 15 employees a penalty rate in respect of each ordinary hour worked on a public holiday pursuant to clause 34.1 of the Award;
(g)section 45 of the FW Act by failing to pay seven employees overtime rates for any hours worked outside of the spread of hours or rostered hours between Monday to Friday pursuant to clause 33.2(a) of the Award;
(h)section 45 of the FW Act by failing to pay seven employees overtime rates for any hours worked outside of the spread of hours or rostered hours on a Saturday pursuant to clauses 33.2(b) of the Award;
(i)section 45 of the FW Act by failing to pay seven employees overtime rates for any hours worked outside of the spread of hours or rostered hours on a Sunday pursuant to clauses 33.2(c) of the Award;
(j)section 45 of the FW Act by failing to pay 19 employees a penalty rate for all ordinary hours worked between the hours of 10:00pm and midnight on Monday to Friday pursuant to clause 34.2(a)(i) of the Award;
(k)section 45 of the FW Act by failing to pay Seng Ming Siew (You Cheng) a penalty rate for all ordinary hours worked between midnight and 7:00am on Monday to Friday pursuant to clause 34.2(a)(ii) of the Award;
(l)section 45 of the FW Act by failing to pay 10 employees a penalty for working through a meal break on Monday to Friday and the weekends pursuant to clause 32.2 of the Award;
(m)section 45 of the FW Act by failing to pay 10 employees a penalty in addition to any penalties payable to these employees pursuant to clause 34.3 of the Award;
(n)section 45 of the FW Act by failing to pay four full-time employees and 14 part-time employees a split shift allowance for working a broken day pursuant to clause 24.2 of the Award;
(o)section 45 of the FW Act by failing to engage six employees for a minimum period of six hours on any one day pursuant to clause 31.2(a) of the Award;
(p)section 45 of the FW Act by failing to pay Seng Ming Siew (You Cheng) and Robertus Robertus annual leave loading of 17.5 per cent in addition to any annual leave entitlements paid pursuant to clause 35.2(b) of the Award;
(q)section 45 of the FW Act by failing to make a written agreement about a regular pattern of work with part-time employees upon engagement, pursuant to clause 12.3 of the Award;
(r)section 44(1) of the FW Act by failing to correctly accrue annual leave entitlements, pursuant to s.87 of the FW Act;
(s)section 44(1) of the FW Act by failing to correctly accrue personal leave entitlements, pursuant to s.96 of the FW Act;
(t)section 535(1) of the FW Act by failing to make records of the kind required by regulations 3.32 and 3.36 of the FW Regulations;
(u)section 536(1) of the FW Act by failing to provide pay slips within one working day of payment; and
(v)section 536(2) of the FW Act by failing to provide pay slips with the information prescribed by regulation 3.46(3) of the FW Regulations.
The Second Respondent, Loke Cheng Wong, was involved, within the meaning of s.550(1) of the FW Act, in the contraventions set out in Declarations 1(a) to (f) above.
THE COURT ORDERS THAT
The First Respondent pay a total penalty of $131,626 pursuant to s.546(1) of the FW Act for the contraventions set out in Declaration 1 above.
The Second Respondent pay a total penalty of $10,530 pursuant to s.546(1) of the FW Act for his involvement in the contraventions of the First Respondent set out in Declarations 1(a) to (f) above.
The First and Second Respondents pay their respective penalty amounts to the Consolidated Revenue Fund of the Commonwealth within 28 days of the Court’s order pursuant to s.546(3) of the FW Act.
Pursuant to s.545(1) of the FW Act, the Second Respondent:
(a)within a period of two months, register with the Applicant’s “My Account” portal at and complete the profile including the Award options;
(b)within a further month after the period in Order (4)(a) provide to the Applicant his “My Account” registration number;
(c)within a period of two months, register with the Applicant’s Online Learning Centre at and complete all education courses designed for employers and provide the Applicant with evidence of completion of those courses within a further one month; and
(d)compliance with Order (4) in matter SYG672 of 2019 shall be taken to be compliance with this order.
The Applicant has liberty to apply on seven days’ notice in the event that any of the preceding orders are not complied with.
SYG 674 of 2019
THE COURT DECLARES BY CONSENT THAT:
The Respondent was involved, within the meaning of s.550(1) of the FW Act, in contraventions by PPR Sydney NSW Pty Ltd (PPR Sydney) of the following provisions:
(a)section 45 of the FW Act by failing to pay 24 adult employees minimum hourly rates in respect of each ordinary hour worked pursuant to clause 20.1 of the Award;
(b)section 45 of the FW Act by failing to pay one junior employee the minimum hourly rates pursuant to clause 20.3(a) of the Award;
(c)section 45 of the FW Act by failing to pay 18 casual employees casual loading pursuant to clause 13.1 of the Award;
(d)section 45 of the FW Act by failing to pay 29 employees a penalty rate in respect of each ordinary hour worked on a Saturday pursuant to clause 34.1 of the Award;
(e)section 45 of the FW Act by failing to pay 24 employees a penalty rate in respect of each ordinary hour worked on a Sunday pursuant to clause 34.1 of the Award; and
(f)section 45 of the FW Act by failing to pay 15 employees a penalty rate in respect of each ordinary hour worked on a public holiday pursuant to clause 34.1 of the Award.
THE COURT ORDERS THAT
The Respondent pay a total penalty of $10,125 pursuant to s.546(1) of the FW Act for his involvement in the contraventions of PPR Sydney set out in Declaration 1 above;
The Respondent pay his penalty amount to the Consolidated Revenue Fund of the Commonwealth within 28 days of the Court’s order pursuant to s.546(3) of the FW Act;
Pursuant to s.545(1) of the FW Act, the Respondent:
(a)within a period of two months, register with the Applicant’s “My Account” portal at and complete the profile including the Award options;
(b)within a further month after the period in Order (3)(a) provide to the Applicant his “My Account” registration number;
(c)within a period of two months, register with the Applicant’s Online Learning Centre at and complete all education courses designed for employers and provide the Applicant with evidence of completion of those courses within a further one month; and
(d)compliance with Order (4) in matter SYG672 of 2019 shall be taken to be compliance with this order.
The Applicant have liberty to apply on seven days’ notice in the event that any of the preceding orders are not complied with.
THE COURT FURTHER ORDERS IN ALL OF THE ABOVE PROCEEDINGS THAT:
The sum of $159,082 paid into Court on 26 September 2019 be released to the Applicant on behalf of the Commonwealth.
The Respondents may set off the amount of $159,082 against the sum total of the amounts required to be paid by them.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 672 of 2019
| FAIR WORK OMBUDSMAN |
Applicant
And
| PPR RYDE (NSW) PTY LTD ACN 600 356 894 |
First Respondent
LOKE CHENG WONG
Second Respondent
SYG 673 of 2019
| FAIR WORK OMBUDSMAN |
Applicant
And
GATEHARVEST PTY LTD ACN 168 491 147
First Respondent
LOKE CHENG WONG
Second Respondent
SYG 674 of 2019
| FAIR WORK OMBUDSMAN |
Applicant
And
LOKE CHENG WONG
Respondent
REASONS FOR JUDGMENT
Introduction and background
On 19 March 2019 the applicant, the Fair Work Ombudsman (FWO), commenced proceedings against each of the three respondents in these matters alleging contraventions of the Fair Work Act 2009 (Cth) (FW Act) and the Fair Work Regulations 2009 (Cth) (FW Regulations) and the Restaurant Industry Award 2010 (Award) by the two corporate respondents, Gateharvest and PPR Ryde, and Mr Wong, for his involvement in those contraventions and for his direct involvement in a third proceeding.
The respondents, including by Statements of Agreed Facts filed on 27 and 29 May 2019 (SOAF), admit the contraventions.
The contraventions arose in circumstances where, unsure of the operation of the Award, Mr Wong oversaw the payment of flat rates of pay to the relevant employees.
The respondents accept the failings in relation to the matters alleged in the FWO’s statement of claim and agreed to in the SOAF.
The respondents have cooperated with the FWO’s investigation in that the respondents:
a)assisted the FWO throughout the investigation;
b)provided the FWO with relevant documents where requested;
c)responded to the FWO’s various questions; and
d)provided information where requested.
When advised of the underpayments outlined in the FWO’s investigations, the respondents ensured the amounts were rectified in full other than to the extent to which two former employees were uncontactable and the amounts due to them were paid to the FWO to hold on trust.
When the FWO commenced these proceedings, the respondents:
a)admitted, at the first opportunity, the failings in relation to the alleged contraventions;
b)by admitting the failings, spared the FWO the cost of a contested matter and the need for witnesses in a contested matter;
c)agreed to enter into the SOAF; and
d)expressed contrition.
On 19 September 2019, I conducted a penalty hearing in this matter. The three matters were heard concurrently. The FWO relied upon its application and statement of claim, the SOAF and affidavits of Fair Work Inspector Danielle Ruth Partridge made on 22 July 2019, and the affidavit of Suman Maharajan made on 24 July 2019.
The respondents relied upon an affidavit by Mr Wong made on 21 June 2019.
The dispute between the parties, identified at the trial, was within a very narrow compass relating to the appropriate amounts of penalty to be imposed. In relation to that, Mr Wong had identified in his submissions a range of penalties for the corporate respondents and himself that he would accept as reasonable. Importantly, in his affidavit, Mr Wong deposed that he considered himself personally responsible for the debts of the corporate respondents. In the circumstances, I invited Mr Wong to pay into court the minimum sum that he would accept as penalties for the three respondents. Mr Wong undertook to pay into court the sum of $159,082 by 30 September 2019 in respect of the FWO’s claims for penalties in the three matters. The payment was made on 26 September 2019.
Principles on the determination of penalty
The primary purpose of civil penalties is to promote the public interest in compliance and to attempt to put a price on a contravention that is sufficiently high to deter repetition by the contravener and by others who are in a position to contravene legislation.[1]
[1] Commonwealth v Director, Fair Work Building Industry Inspectorate; Construction, Forestry, Mining and Energy Union v Director, Fair Work Building Industry Inspectorate [2015] HCA 46; (2015) 258 CLR 482 at [55] and [110].
The authorities establish that the Court has a broad discretion to assess the appropriate penalty.[2] The well-established steps that will assist the Court in determining the question of penalty are as follows:[3]
a)identify the separate contraventions, with each breach of each obligation being a separate contravention, and each breach of a term of the Award being a separate contravention;
b)consider whether each separate contravention should be dealt with independently or with some degree of aggregation for those contraventions arising out of a course of conduct, noting that s.557 of the FW Act provides that two or more contraventions of a given civil remedy provision are to be taken to be a single contravention if committed by the same person and arising out of a course of conduct by that person;
c)consider whether there should be further adjustment to ensure that, to the extent of any overlap between groups of separate aggregated contraventions, there is no double penalty imposed, and that the penalty is an appropriate response to what each respondent did;
d)consider the appropriate penalty in respect of each final individual group of contraventions, taken in isolation; and
e)consider the overall penalties arrived at, including by reference to those which may be proposed by the FWO[4] and what is proposed by the respondents, and apply the totality principle, to ensure that the penalties for each respondent are appropriate and proportionate to the conduct viewed as a whole, making such adjustments as are necessary.[5]
[2] see, for example, Fair Work Ombudsman v Jetstar Airways Ltd [2014] FCA 33 at [28].
[3] Fair Work Ombudsman v NSH North Pty Ltd t/a New Shanghai Charlestown [2017] FCA 1301 at [36].
[4] as permitted by Commonwealth v Director, Fair Work Building Industry Inspectorate [2015] HCA 46; (2015) 258 CLR 482 at [64].
[5] see Kelly v Fitzpatrick [2007] FCA 1080; (2007) 166 IR 14 at [30]; Australian Ophthalmic Supplies Pty Ltd v McAlary-Smith [2008] FCAFC 8; (2008) 165 FCR 560 at [23], [71] and [102].
Identified contraventions
The relevant contraventions admitted in these proceedings by the corporate respondents and Mr Wong were set out in tables annexed to the FWO’s submissions. Mr Wong admitted that he was involved in the contraventions by the corporate respondents relating to minimum wages, junior wages, casual loading, Saturday penalty rates, Sunday penalty rates and public holiday penalty rates.
Grouping of contraventions
Section 557(1) of the FW Act provides that two or more contraventions of the same civil remedy provision are taken to constitute a single contravention if the contraventions are committed by the same person, and arise out of a single course of conduct by the person. In such circumstances the Court is required to impose one penalty for the multiple contraventions.[6] The respondents bear the onus of establishing the application of this provision to the breaches.[7]
[6] see Rocky Holdings Pty Ltd v Fair Work Ombudsman [2014] FCAFC 62; (2014) 221 FCR 153 at [10] to [18]; Fair Work Ombudsman v Construction, Forestry, Maritime, Mining and Energy Union (the Hutchison Ports Appeal) [2019] FCAFC 69 at [48] and [68].
[7] see Australasian Meat Industry Employees’ Union v Meneling Station Pty Ltd [1987] FCA 2; (1987) 16 IR 245 at [45]; IR 257 per Evatt J.
In these proceedings, where the corporate respondents or Mr Wong contravened the same term of the Award, the same provision of the National Employment Standards, or the same provision of the FW Regulations in relation to record-keeping or pay slips, in relation to multiple employees or different pay periods, the FWO accepts that the contraventions may be the subject of grouping under s.557(1) of the FW Act, provided that there is one course of conduct with one decision. The FWO accepts that such grouping is appropriate in this proceeding.
Common law course of conduct
In addition to the statutory course of conduct provision, multiple contraventions of different obligations may be treated as arising out of a single course of conduct if they have a “common element” in the decision or action which led to the contraventions,[8] so that an offender is not punished twice for what is essentially “the same criminality”.[9] In considering whether there are contraventions arising from one course of conduct with common elements, the Court is required to give weight to the separate legal character of the contraventions.[10]
[8]Fair Work Ombudsman v Offshore Marine Services Pty Ltd [2012] FCA 498 at [7] and [23]-[26] (per Gilmour J).
[9] Construction, Forestry, Mining and Energy Union v Cahill [2010] FCAFC 39; (2010) 269 ALR 1 at [39], cited in Parker v Australian Building & Construction Commissioner [2019] FCAFC 56 at [269].
[10] Fair Work Ombudsman v Ramsey Food Processing Pty Ltd (No 2) [2012] FCA 408 at [2] (per Buchanan J).
However, in comparison to grouping under s.557 of the FW Act, where the Court finds that multiple contraventions arise out of a single course of conduct under the common law, the Court is not bound to impose only one penalty: it must ensure that the wrongdoing is adequately punished and the objects for fixing penalty have been adequately met.[11]
[11] The Hutchison Ports Appeal at [90] per Ross J, citing Cahill at [48].
Further, when grouping contraventions under the common law, the number of contraventions does not reduce. Rather, as explained by Judge Jarrett in Fair Work Ombudsman v Bundaberg Security Pty Ltd[12] at [12]:
Where contraventions are grouped together in such a way, the contraventions remain (unlike a grouping under s557(1) where the grouped contraventions are treated as one contravention alone), but different penalties might be fixed for different contraventions within the group so that any overlap or commonality is taken into account. Accordingly, a penalty might be imposed for one contravention and no penalty or different penalties (usually lesser in amount) imposed for the others.
[12] [2014] FCCA 592.
Consistently with this position, the FWO contends that the contraventions in the Gateharvest matter should fall into 18 groups with six contraventions that Mr Wong committed in five groups. In the PPR Ryde matter, the FWO submits that the 17 contraventions established should fall into 13 groups with the six contraventions admitted by Mr Wong falling into five groups. Likewise, in the matter involving Mr Wong personally, the FWO contends that of the six contraventions established, the contraventions should fall into five groups.
In each matter, the FWO contends in respect of the remaining contraventions that the legal and factual elements do not have sufficient overlap and the contraventions should not be grouped. I accept that contention but, as is made clear below, broader considerations impact upon the amount of penalties to be imposed.
Maximum penalties and assessment of appropriate penalties
Because of the significant number of contraventions and the three respondents involved, the maximum penalties that could be imposed are very substantial indeed. The FWO accepts, however, that there should be a discount on totality.
Having regard to the maximum penalties, and the FWO’s proposed discounts, the penalties the FWO seeks represent 14 per cent to 20 per cent of the total maximum penalties that could be imposed. In addition, the FWO proposes a 25 per cent discount for cooperation and rectification.
The nature and extent of the conduct which led to the breaches and the circumstances in which that conduct took place
Mr Wong pleads ignorance of the relevant award requirements, but the evidence establishes that he was aware of the existence of an award and did not make further enquiries until the details of the Award, and the consequential underpayments, were brought to his attention. On the other hand, on being informed of the underpayments, Mr Wong admitted his mistake and took prompt steps to rectify the underpayments, including by taking out a loan to fund the repayments to the affected employees.
Other matters
The underpayments resulting from the contraventions were significant and affected a large number of employees, although the underpayments in each case were relatively modest. Neither Mr Wong nor his companies have been found to have breached the Award or the FW Act previously.
PPR Sydney has been liquidated but Mr Wong continues to accept responsibility for its debts. PPR Ryde is still trading while Gateharvest has ceased operations and is apparently insolvent. Again, Mr Wong has accepted personal responsibility for its debts.
The breaches identified were not deliberate although the FWO describes them as “reckless”. Mr Wong prefers the description “careless”. The reality appears to be that Mr Wong was focussed on other aspects of the business but could have shifted his focus, if he had chosen to.
Mr Wong has expressed contrition. That has been factually demonstrated by his prompt remedying of the underpayments, his ready admission of the contraventions, his acceptance of responsibility for the corporate respondents as well as himself and, significantly, his payment into court.
Specific deterrence remains relevant but, in substance, I am satisfied that Mr Wong has learnt his lesson. There remains a need for general deterrence, especially in the industry in which the respondents have operated. That is a consideration of some substance.
Determination of the penalty amounts
Both the FWO and the respondents made submissions as to the range of penalties that should be imposed in each matter. It is noteworthy that the minimum penalties sought in each matter by the FWO are less than the maximum penalties in those matters conceded by Mr Wong. In the Gateharvest matter, the FWO sought a minimum penalty of $98,718.75 in respect of Gateharvest and $7,897.50 in respect of Mr Wong. For its part, Gateharvest conceded a maximum penalty amount of $131,626 and Mr Wong conceded a maximum penalty of $10,530 in that matter. In the PRR Ryde matter, the FWO sought a minimum penalty of $106,312.50 against the corporate respondent and $10,327.50 in respect of Mr Wong. The respondents in that matter conceded a maximum penalty of $141,751 in respect of the company and $13,770 in respect of Mr Wong. In the proceedings against Mr Wong personally, the FWO sought a minimum penalty against Mr Wong of $7,593.75 and Mr Wong conceded a maximum penalty of $10,125.
In these circumstances, it is a pity that the parties, having reached agreement on all other matters, could not reach agreement on penalty. Perhaps it was thought necessary or appropriate to obtain the Court’s imprimatur for the imposition of penalties. In any event, and having regard to all of the circumstances, including the totality principle, I have come to the view that the penalties that should be imposed by the Court should not exceed the maximum amounts conceded by the respondents which, as I have already noted, exceed the minimum amounts sought by the FWO.
I will make the orders which have been sought by consent, including the declarations sought, consistently with the short minutes annexed to the FWO’s submissions. I will in addition make orders in relation to the funds paid into court.
I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of Judge Driver
Associate:
Date: 19 November 2019
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