Fair Work Ombudsman v QHA Foods Pty Ltd
[2019] FCCA 3120
•1 November 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
FAIR WORK OMBUDSMAN v QHA FOODS PTY LTD & ORS [2019] FCCA 3120
Catchwords:
INDUSTRIAL LAW – Pecuniary penalties – contraventions of the Fair Work Act 2009 (Cth) – quantum of penalties – taking adverse action because of national extraction by discriminating and injuring – underpayment of entitlements – failure to make and keep records – altering records – failure to provide pay slips.
Legislation:
Crimes Act 1914 (Cth), s.4AA
Evidence Act 1995 (Cth), s.191
Fair Work Act 2009 (Cth), ss.3, 45, 342, 360, 361, 351, 535, 536, 545, 546, 550, 557
Fair Work Regulations 2009, regs.3.32, 3.33, 3.44
Fast Food Industry Award 2010, cls.12.2, 12.5, 13.2, 13.4, 17, 18, 19.2, 19.6, 25.5, 28.3, 30.3
Cases cited:
Ahmed v Al-Hussain Pty Ltd t/as The Cheesecake Shop (No 3) [2019] FCA 848
Australia Ophthalmic Supplies v McAlary-Smith (2008) 165 FCR 560
Eva v Southern Motors Box Hill Pty Ltd (1977) 30 FLR 213
Commonwealth of Australia v Director, Fair Work Building Industry Inspectorate [2015] HCA 46
Construction, Forestry, Mining and Energy Union v Cahill [2010] FCAFC 39
Cousins v Merrington’s Pty Ltd (No 2) [2008] VSC 340
Fair Work Ombudsman v ACN 146 435 118 Pty Ltd (No 2) [2013] FCCA 1270
Fair Work Ombudsman v Construction, Forestry, Maritime, Mining and Energy Union (the Hutchison Ports Appeal) [2019] FCAFC 69
Fair Work Ombudsman v Corioliss Pty Ltd & Ors [2017] FCCA 2479
Fair Work Ombudsman v Go Yo Trading Pty Limited [2012] FMCA 865
Fair Work Ombudsman v Grouped Property Services Pty Ltd (No 2) [2017] FCA 557
Fair Work Ombudsman v Hiyi Pty Ltd [2016] FCCA 1634
Fair Work Ombudsman v Kentwood Industries Pty Ltd (No 2) [2010] FCA 1156
Fair Work Ombudsman v Kojima [2013] FCCA 976
Fair Work Ombudsman v NSH North Pty Ltd trading as New Shanghai Charlestown [2017] FCA 1301
Fair Work Ombudsman v Promoting U Pty Ltd & Anor [2012] FMCA 58
Fair Work Ombudsman v Taj Palace Tandoori Indian Restaurant Pty Ltd [2012] FMCA 258
Fair Work Ombudsman v The Meatball and Wine bar Pty Ltd & Anor [2018] FCCA 2288
Fair Work Ombudsman v MMP Management Services Pty Ltd & Anor [2012] FMCA 207
Fair Work Ombudsman v Yogurberry World Square Pty Ltd [2016] FCA 1290
Hansen Pty Ltd v Jones [2009] FCA 192
Hansen v Mt Martha Community Learning Centre Inc (No 2) [2015] FCA 1283
Kelly v Fitzpatrick [2007] FCA 2080.
Mason v Harrington Corporation Pty Ltd [2007] FMCA 7
Markarian v R [2005] HCA 25
Mornington Inn Pty Ltd v Jordan [2008] FCAFC 70
Pearce v The Queen (1998) 194 CLR 610
Plancor Pty Ltd v Liquor, Hospitality and Miscellaneous Union [2008] FCAFC 170
Ponzio v B & P Caelli Constructions (2007) 158 FCR 543
Rajagopalan v BM Sydney Building Materials Pty Ltd [2007] FMCA 1412
Rocky Holdings Pty Ltd v Fair Work Ombudsman [2014] FCAFC 62
Singtel Optus Pty Ltd v Australian Competition and Consumer Commission [2012] FCAFC 20
Applicant: FAIR WORK OMBUDSMAN
First Respondent: QHA FOODS PTY LTD (ACN 166 392 436)
Second Respondent: ANANDH KUMARASAMY
Third Respondent: HARIDAS RAGHURAM
File Number: LNG 73 of 2018
Judgment of: Judge Baker
Hearing date: 7 and 18 June 2019
Date of Last Submission: 18 June 2019
Delivered at: Hobart
Delivered on: 1 November 2019 REPRESENTATION
Counsel for the Applicant: Cathy Dowsett of Counsel
Solicitors for the Applicant: Fair Work Ombudsman
Counsel for the Respondents: Dexter Marcenko
Solicitors for the Respondents: Ogilvie Jennings THE COURT DECLARES BY CONSENT THAT:
(1)The First Respondent contravened:
(a)section 45 of the Fair Work Act 2009 (‘FW Act’), by failing to pay minimum adult wages as required by clause 17 of the Fast Food Industry Award 2010 (‘Award’) to Shahidur Rahman, Ashraf Hossain, Biplob Chowdhury, Herin Patel, Annabelle Rival, Byron Sawbridge, Ellenika Giomataris, Harry Pascoe, Janelle Doyle and Sean Wilson;
(b)section 45 of the FW Act, by failing to pay minimum junior wages as required by clause 18 of the Award to Chloe Hills, Liam Tassel, and Shahidur Rahman;
(c)section 45 of the FW Act, by failing to pay the casual loading as required by clause 13.2 of the Award to the Shahidur Rahman, Ashraf Hossain, Biplob Chowdhury, Herin Patel, Annabelle Rival, Chloe Hills, Ellenika Giomataris, Harry Pascoe, Liam Tassel and Rainjan Blakers;
(d)section 45 of the FW Act, by failing to pay the special clothing allowance as required by clause 19.2(b)(ii) of the Award to Angus Woodcock, Annabelle Rival, Byron Sawbridge, Chloe Hills, Rainjan Blakers, Ellenika Giomataris, Harry Pascoe, Janelle Doyle, Liam Tassel, Sean Wilson, Shahidur Rahman, Ashraf Hossain, Biplob Chowdhury and Herin Patel;
(e)section 45 of the FW Act, by failing to pay the transport allowance as required by clause 19.6(b) of the Award to Byron Sawbridge, Harry Pascoe, Sean Wilson, Shahidur Rahman, Ashraf Hossain, Biplob Chowdhury and Herin Patel;
(f)section 45 of the FW Act, by failing to pay the evening loading as required by clause 25.5(a)(i) of the Award to Rainjan Blakers, Janelle Doyle, Ellenika Giomataris, Harry Pascoe, Annabelle Rival, Byron Sawbridge, Liam Tassel, Sean Wilson, Angus Woodcock, Shahidur Rahman, Ashraf Hossain, Biplob Chowdhury and Herin Patel;
(g)section 45 of the FW Act, by failing to pay the Saturday loading as required by clause 25.5(b) of the Award to Janelle Doyle, Ellenika Giomataris, Chloe Hills, Harry Pascoe, Annabelle Rival, Byron Sawbridge, Sean Wilson, Shahidur Rahman, Ashraf Hossain, Biplob Chowdhury and Herin Patel;
(h)section 45 of the FW Act, by failing to pay the Sunday loading as required by clause 25.5(c)(ii) of the Award to Byron Sawbridge, Harry Pascoe, Janelle Doyle, Liam Tassel, Rainjan Blakers, Shahidur Rahman, Ashraf Hossain, Biplob Chowdhury and Herin Patel;
(i)section 45 of the FW Act, by failing to pay the public holiday penalty rate as required by clause 30.3 of the Award to Annabelle Rival, Ashraf Hossain, Byron Sawbridge, Ellenika Giomataris, Harry Pascoe, Herin Patel, Janelle Doyle, Sean Wilson and Shahidur Rahman;
(j)section 45 of the FW Act by failing to pay annual leave loading as required by clause 28.3 of the Award to Angus Woodcock, Byron Sawbridge and Sean Wilson;
(k)section 45 of the FW Act, by failing to provide the minimum daily engagement as required by clause 13.4 of the Award to Rainjan Blakers, Ellenika Giomataris, Chloe Hills, Harry Pascoe, Annabelle Rival, Liam Tassel, Shahidur Rahman, Ashraf Hossain, Biplob Chowdhury and Herin Patel;
(l)section 45 of the FW Act, by failing to roster Angus Woodcock, Byron Sawbridge, Janelle Doyle and Sean Wilson for a minimum of three consecutive hours in any shift as required by clause 12.5 of the Award;
(m)section 45 of the FW Act by failing to agree in writing with each of Angus Woodcock, Byron Sawbridge, Janelle Doyle and Sean Wilson on a regular pattern of work as required by clause 12.2 of the Award;
(n)section 536(1) of the FW Act by failing to provide pay slips to each of Shahidur Rahman, Ashraf Hossain, Biplob Chowdhury and Herin Patel within one working day of making payment for the performance of work;
(o)section 535(1) of the FW Act by failing to:
(i)make or keep any employment records in relation to Shahidur Rahman, Ashraf Hossain, Biplob Chowdhury and Herin Patel; and
(ii)make and keep records as required by regulations 3.32, 3.33(1) and 3.33(3) of the Fair Work Regulations 2009 (‘FW Regulations’) in relation to Byron Sawbridge, Chloe Hills, Ellenika Giomataris, Harry Pascoe, Janelle Doyle and Sean Wilson;
(p)regulation 3.44(4) of the FW Regulations by altering the Time Records, as employee records required to be kept pursuant to regulation 3.33(2) of the FW Regulations;
(q)section 351(1) of the FW Act by taking adverse action against Shahidur Rahman, Ashraf Hossain, Biplob Chowdhury and Herin Patel by discriminating between them and Angus Woodcock, Annabelle Rival, Byron Sawbridge, Chloe Hills, Rainjan Blakers, Ellenika Giomataris, Harry Pascoe, Janelle Doyle, Liam Tassel and Sean Wilson, because of their national extraction; and
(r)section 351(1) of the FW Act by taking adverse action against Shahidur Rahman, Ashraf Hossain, Biplob Chowdhury and Herin Patel by injuring them in their employment, because of their national extraction.
(2)A declaration that the Second Respondent was involved in each of the First Respondent’s contraventions in paragraph (1) above, pursuant to section 550(1) of the FW Act.
(3)A declaration that the Third Respondent was involved in each of the First Respondent’s contraventions in paragraph (1) above, pursuant to section 550(1) of the FW Act.
THE COURT ORDERS THAT:
(4)The First Respondent pay $80,000 in penalties pursuant to section 546(1) of the FW Act in respect of the contraventions set out in paragraph (1) above.
(5)The Second Respondent pay $12,000 in penalties pursuant to section 546(1) of the FW Act in respect of his involvement in the contraventions set out in paragraph (1) above.
(6)The Third Respondent pay $12,000 in penalties pursuant to section 546(1) of the FW Act in respect of his involvement in the contraventions set out in paragraph (1) above.
(7)Pursuant to section 546(3)(a) of the FW Act that the penalties be paid to Commonwealth within 60 days of the date of these orders.
(8)Pursuant to section 545(1) of the FW Act the First Respondent is to engage, at its own expense, a person or organisation with professional qualifications in workplace relations, to provide training to the Second and Third Respondents and any other person involved in the management of the First Respondent within six months of the date of this order that covers the following:
(a)obligations under the Award and the National Employment Standards at Part 2-2 of the FW Act;
(b)record keeping and pay slip obligations in Division 3 of Part 3-6 of the FW Act; and
(c)general protections obligations in Part 3-1 of the FW Act.
(9)The Applicant have liberty to apply on seven days’ notice in the event that any of the preceding orders are not complied with.
FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT HOBARTLNG 73 of 2018
FAIR WORK OMBUDSMAN Applicant
And
QHA FOODS PTY LTD (ACN 166 392 436) First Respondent
ANANDH KUMARASAMY Second Respondent
HARIDAS RAGHURAM Third Respondent
REASONS FOR JUDGMENT
Introduction
1.This is an application by the Fair Work Ombudsman (‘FWO’) for declarations and the imposition of penalties upon the first respondent (‘QHA’), which operates the Crust Gourmet Pizza Store in Hobart, Tasmania (‘the Business’), and upon the second respondent (‘Mr Kumarasamy’), and the third respondent (‘Mr Raghuram’), who are directors and shareholders of QHA.
2.The penalties are sought on the basis of admitted contraventions of the Fair Work Act 2009 (Cth) (‘FW Act’) and the Fair Work Regulations 2009 (‘FW Regulations’) and breaches of the Fast Food Industry Award 2010 (‘Award’) during the period 1 January 2016 to 31 July 2016 (‘Assessment Period’). The contraventions relate to fourteen employees and involve the underpayment of $16,178.53 of wages; a series of non-underpayment contraventions relating to record keeping and pay slips; and adverse action against four of the employees.
3.On 21 December 2018, a Statement of Agreed Facts (‘SOAF’) was filed pursuant to s.191 of the Evidence Act 1995 (Cth) in which QHA admitted to all contraventions alleged in the Statement of Claim (‘SOC’) and Mr Kumarasamy and Mr Raghuram agreed that they are accessorily liable for the admitted contraventions, due to their knowing involvement.[1] All other relief sought by the FWO was agreed, except for the quantum of penalties. The respondents did not file a defence.
[1] Statement of Agreed Facts filed 21 December 2018, [122]–[125] (‘SOAF’).
4.As outlined in the SOAF, the following contraventions are admitted:[2]
[2] Note that each contravention affected varying numbers of the fourteen employees.
a)Failure to pay the required minimum wages to adult employees;[3]
[3] Award, cl 17.
b)Failure to pay the required minimum wages to junior employees;[4]
[4] Ibid cl 18.
c)Failure to pay the required casual loading;[5]
[5] Ibid cl 13.2.
d)Failure to pay the required special clothing allowance;[6]
[6] Ibid cl 19.2(b)(ii).
e)Failure to pay the required transport allowance;[7]
[7] Ibid cl 19.6(b).
f)Failure to pay the required evening loading;[8]
[8] Ibid cl 25.5(a)(i).
g)Failure to pay the required Saturday loading;[9]
h)Failure to pay the required Sunday loading;[10]
i)Failure to pay the required public holiday penalty rate;[11]
j)Failure to pay the required annual leave loading;[12]
k)Failure to provide the required minimum daily engagement of casual employees;[13]
l)Failure to roster part-time employees for a minimum of three consecutive hours in any shift;[14]
m)Failure to agree in writing with part-time employees on a regular pattern of work;[15]
n)Failure to provide pay slips within one working day of making payment for the performance of work;[16]
o)Failure to make or keep employment records; and[17]
p)Altering records of hours worked by employees.[18]
[9] Ibid cl 25.5(b).
[10] Ibid cl 25.5(c)(ii).
[11] Ibid cl 30.3.
[12] Ibid cl 28.3.
[13] Ibid cl 13.4.
[14] Ibid cl 12.5.
[15] Ibid cl 12.2.
[16] Act, s 536.
[17] Ibid s 535; Regulations, regs 3.32, 3.33(1) and 3.33(3).
[18] Regulations, regs 3.44(4) and 3.33(2).
5.QHA admitted that it took adverse action against the four international employees by discriminating between the international employees and the Australian employees and by injuring the international employees in their employment for the reason of, or for the reasons which included their national extraction.[19] It was agreed that Biplob Chowdhury, Ashraf Hossain and Shahidur Rahman are Bangladeshi nationals and are of Bangladeshi descent, and Herin Patel is an Indian national and of Indian descent.[20] It was agreed that the international employees’ national extraction within the meaning of s.351(1) of the FW Act is Bangladeshi and Indian, and not Australian.[21] Mr Kumarasamy and Mr Raghuram admitted accessorial liability.[22]
[19] SOAF, [116]–[119].
[20] Ibid [11]–[12].
[21] Ibid [117].
[22] Ibid [122].
6.Each of the Australian employees:
a)was paid varying hourly rates of between $13.29 and $19.44, which appeared to be in accordance with the Award minimum rates for the years 2014 and 2015;[23]
b)was paid a transport allowance of $0.41 per kilometre when performing delivery duties;
c)were paid wages into their bank account; and
d)received payslips.
[23] Applicant Outline of Submissions on Penalty filed 26 April 2019, [16(a)] (‘Applicant Written Submissions’), citing SOAF, Annexure A, and Affidavit of Benjamin Arthur Abey filed 12 April 2019, [3].
7.In comparison, each of the international employees:
a)was paid a flat rate of $12 per hour for all hours worked, which was not in accordance with any Award rates;
b)was not paid a per kilometre transport allowance when performing delivery duties, instead receiving $1 per pizza delivery;
c)was not paid wages into their bank accounts, instead receiving cash only; and
d)did not receive payslips.
8.The FWO has recommended a range of penalties to be imposed. In respect of the grouping of contraventions proposed by the FWO, the maximum penalties that can be imposed are $1,017,000 for QHA, and $203,400 for Mr Kumarasamy and Mr Raghuram respectively. The FWO has recommended the following ranges:
a)QHA: $241,200 - $313,920;
b)Mr Kumarasamy: $48,240 - $62,784; and
c)Mr Raghuram: $48,240 - $62,784.
Background
9.During the Assessment Period, QHA had fourteen employees (‘the employees’) who performed duties at the Business including delivery driving, making and garnishing pizzas, serving customers and cleaning.
10.Four of the employees were international students who held student visas, and were from India and Bangladesh. Mr Kumarasamy deposed and Mr Raghuram agreed that they met each of the international employees through social interaction with the migrant community in Hobart, and they were employed on an informal casual basis.
11.During the Assessment Period, the international employees were:
Name
Employment type
Period of Employment
Biplob Chowdhury
Adult Casual
9 April 2016–16 April 2016
Ashraf Hossain
Adult Casual
1 January 2016–2 April 2016
Herin Patel
Adult Casual
13 June 2016–31 July 2016
Shahidur Rahman
Junior Casual
1 January 2016–16 June 2016
12.The remaining ten employees were either Australian nationals or of Australian descent. Six were employed on a casual basis and four on a part-time basis. Some were inherited when Mr Kumarasamy and Mr Raghuram purchased the Business in 2014, and others were hired later.
13.During the Assessment Period, the Australian employees were:
Name
Employment type
Period of Employment
Rainjan Blakers
Junior Casual
9 June 2016–31 July 2016
Janelle Doyle
Adult Part-time
1 January 2016–31 July 2016
Ellenika Giomataris
Adult Casual
1 January 2016–31 July 2016
Chloe Hills
Junior Casual
10 June 2016–23 June 2016
Harry Pascoe
Adult Casual
1 January 2016–31 July 2016
Annabelle Rival
Adult Casual
17 March 2016–30 March 2016
Byron Sawbridge
Adult Part-time
1 January 2016–31 July 2016
Liam Tassel
Junior Casual
15 January 2016–24 January 2016
Sean Wilson
Adult Part-time
1 January 2016–15 July 2016
Angus Woodcock
Junior Part-time
7 January 2016–31 January 2016
14.On 16 July 2016, Shahidur Rahman made a complaint to the FWO regarding his employment with QHA and an investigation was subsequently undertaken.
15.From 25 February 2018 to 5 September 2018, QHA paid a series of instalments to the employees that rectified the total underpayments.[24]
[24] SOAF, [93].
16.On 5 October 2018, the FWO commenced proceedings in the Federal Circuit Court of Australia. A hearing was held on 7 June 2019 in relation to the determination of the quantum of penalties. The parties made oral submissions and relied on the SOAF, the affidavits filed, and written submissions that had also been filed. Mr Raghuram and Mr Kumarasamy both gave oral evidence.
17.On 18 July 2019, I requested that the FWO clarify a number of matters. The FWO submitted that:
a)Figures could not be provided for the total underpayment for each of the international employees in relation to transport allowance because no records had been kept by the respondents;
b)Figures could be provided in relation to the minimum daily engagement contraventions;
c)In the minute of proposed orders, declaration 1(b), the employee Rainjan Blakers was listed in error;
d)In the minute of proposed orders, declaration 1(g), the employees Rainjan Blakers and Angus Woodcock were listed in error;
e)In the minute of proposed orders, declaration 1(h), the employee Angus Woodcock was listed in error; and
f)An error had been made about the maximum penalty amount specified for the contravention of regulation 3.44(4) of the FW Regulations.
18.The FWO made the appropriate amendments and provided the information requested, with a completed table, annexed to these reasons.
19.On 16 August 2019, the FWO clarified that the relevant clause of the Award in respect of Saturday loading during the Assessment Period was 25.5(b), not 25(b)(ii). The FWO confirmed that the other clauses of the Award relied upon were correct, and there were no errors in relation to the calculation of underpayments that needed to be rectified.
The Legislation and Principles
Modern Awards
20.It was agreed that QHA was bound by the FW Act and the FW Regulations in respect of its employees. It was agreed that QHA was bound by the Fast Food Industry Award 2010 (‘Award’), which is a modern award, in respect of the employment of its employees.
21.It was agreed that each of the employees were performing duties of Fast Food Employee Level 1 in accordance with Schedule B.1 to the Award.
22.Section 45 of the FW Act provides: “a person must not contravene a term of a modern award.”
Pay Slips
23.Section 536 of the FW Act provides:
536 Employer obligations in relation to pay slips
(1) An employer must give a pay slip to each of its employees within one working day of paying an amount to the employee in relation to the performance of work.
(2) The pay slip must:
(a) if a form is prescribed by the regulations—be in that form; and
(b) include any information prescribed by the regulations.
(3) An employer must not give a pay slip for the purposes of this section that the employer knows is false or misleading.
(4) Subsection (3) does not apply if the pay slip is not false or misleading in a material particular.
Records
24.Section 535 of the FW Act provides:
535 Employer obligations in relation to employee records
(1) An employer must make, and keep for 7 years, employee records of the kind prescribed by the regulations in relation to each of its employees.
(2) The records must:
(a) if a form is prescribed by the regulations—be in that form; and
(b) include any information prescribed by the regulations.
(3) The regulations may provide for the inspection of those records.
(4) An employer must not make or keep a record for the purposes of this section that the employer knows is false or misleading.
(5) Subsection (4) does not apply if the record is not false or misleading in a material particular.
25.The FW Regulations detail the content of the employee records required to be kept under s.535 of the FW Act. The relevant regulations provide:
3.32 Records—content
For subsection 535(1) of the Act, a kind of employee record that an employer must make and keep is a record that specifies:
(a) the employer’s name; and
(b) the employee’s name; and
(c) whether the employee’s employment is full‑time or part‑time; and
(d) whether the employee’s employment is permanent, temporary or casual; and
(e) the date on which the employee’s employment began; and
(f) on and after 1 January 2010—the Australian Business Number (if any) of the employer.
3.33 Records—pay
(1) For subsection 535(1) of the Act, a kind of employee record that an employer must make and keep is a record that specifies:
(a) the rate of remuneration paid to the employee; and
(b) the gross and net amounts paid to the employee; and
(c) any deductions made from the gross amount paid to the employee
(2) If the employee is a casual or irregular part‑time employee who is guaranteed a rate of pay set by reference to a period of time worked, the record must set out the hours worked by the employee.
(3) If the employee is entitled to be paid:
(a) an incentive‑based payment; or
(b) a bonus; or
(c) a loading; or
(d) a penalty rate; or
(e) another monetary allowance or separately identifiable entitlement;
the record must set out details of the payment, bonus, loading, rate, allowance or entitlement.
3.44 Records—accuracy
(4) An employer must not alter a record that the employer is required to keep under the Act or these Regulations except:
(a) in compliance with subregulation (2) or (3); or
(b) to any extent otherwise permitted by the Act or these Regulations.
Adverse Action
26.Section 351 of the FW Act provides:
351 Discrimination
(1) An employer must not take adverse action against a person who is an employee, or prospective employee, of the employer because of the person’s race, colour, sex, sexual orientation, age, physical or mental disability, marital status, family or carer’s responsibilities, pregnancy, religion, political opinion, national extraction or social origin.
(2) However, subsection (1) does not apply to action that is:
(a) not unlawful under any anti‑discrimination law in force in the place where the action is taken; or
(b) taken because of the inherent requirements of the particular position concerned; or
(c) if the action is taken against a staff member of an institution conducted in accordance with the doctrines, tenets, beliefs or teachings of a particular religion or creed—taken:
(i) in good faith; and
(ii) to avoid injury to the religious susceptibilities of adherents of that religion or creed.
(3) Each of the following is an anti‑discrimination law:
… (ac) the Racial Discrimination Act 1975;
(f) the Anti‑Discrimination Act 1998 of Tasmania;
27.The FW Act further provides:
342 Meaning of adverse action
(1) The following table sets out circumstances in which a person takes adverse action against another person.
Meaning of adverse action Item Column 1
Adverse action is taken by ...
Column 2
if ...
1 an employer against an employee the employer:
(a) dismisses the employee; or
(b) injures the employee in his or her employment; or
(c) alters the position of the employee to the employee’s prejudice; or
(d) discriminates between the employee and other employees of the employer.
360 Multiple reasons for action
For the purposes of this Part, a person takes action for a particular reason if the reasons for the action include that reason.
361 Reason for action to be presumed unless proved otherwise
(1) If:
(a) in an application in relation to a contravention of this Part, it is alleged that a person took, or is taking, action for a particular reason or with a particular intent; and
(b) taking that action for that reason or with that intent would constitute a contravention of this Part;
it is presumed that the action was, or is being, taken for that reason or with that intent, unless the person proves otherwise.
(2) Subsection (1) does not apply in relation to orders for an interim injunction.
Accessorial Liability
28.Section 550 of the FW Act provides:
550 Involvement in contravention treated in same way as actual contravention
(1) A person who is involved in a contravention of a civil remedy provision is taken to have contravened that provision.
(2) A person is involved in a contravention of a civil remedy provision if, and only if, the person:
(a) has aided, abetted, counselled or procured the contravention; or
(b) has induced the contravention, whether by threats or promises or otherwise; or
(c) has been in any way, by act or omission, directly or indirectly, knowingly concerned in or party to the contravention; or
(d) has conspired with others to effect the contravention.
Penalties
29.The power of the Court to order the imposition of penalties for contraventions of the FW Act arises under s.546. Section 546(1) provides:
(1) The Federal Court, the Federal Circuit Court or an eligible State or Territory court may, on application, order a person to pay a pecuniary penalty that the court considers is appropriate if the court is satisfied that the person has contravened a civil remedy provision.
30.The FW Act describes the maximum penalties that may be imposed by the Court for contraventions by reference to penalty units, the dollar value of which is set by s.4AA of the Crimes Act 1914 (Cth).[25]
[25] Act, s 539(2).
31.There is a distinction between the maximum penalties that are imposed on persons and corporations. Section 546(2) of the FW Act provides:
Determining amount of pecuniary penalty
(2) The pecuniary penalty must not be more than:
(a) if the person is an individual—the maximum number of penalty units referred to in the relevant item in column 4 of the table in subsection 539(2); or
(b) if the person is a body corporate—5 times the maximum number of penalty units referred to in the relevant item in column 4 of the table in subsection 539(2).
32.At all relevant times, all of the contraventions in this matter (except those of s.535 and 536 of the Act, and reg.3.44(4) of the FW Regulations) attracted a maximum number of 60 penalty units for an individual. During the time each of the contraventions occurred, ‘penalty unit’ was defined as $180.[26] The contraventions of s.535 and s.536 of the FW Act attracted a maximum number of 30 penalty units for an individual. The contraventions of reg.3.44(4) attracted a maximum number of 20 penalty units for an individual. Each of the maximum penalties is multiplied by five for corporations.[27]
[26] Crimes Act 1914, s 4AA.
[27] Act, s 546(2)(b).
33.The Court should consider the maximum penalties that could be imposed on each of the respondents because “they do provide, taken and balanced with all of the other relevant factors, a yardstick” when determining the appropriate penalty.[28]
[28] Applicant Written Submissions, [35], citing Markarian v R [2005] HCA 25, [31], and Mornington Inn Pty Ltd v Jordan [2008] FCAFC 70, [88].
Approach in Determining Penalties
34.The FWO cited the decision of Commonwealth of Australia v Director, Fair Work Building Industry Inspectorate[29] in which the High Court explained:
whereas criminal penalties import notions of retribution and rehabilitation, the purpose of a civil penalty, as French J explained in Trade Practices Commission v CSR Ltd, is primarily if not wholly protective in promoting the public interest in compliance:
"Punishment for breaches of the criminal law traditionally involves three elements: deterrence, both general and individual, retribution and rehabilitation. Neither retribution nor rehabilitation, within the sense of the Old and New Testament moralities that imbue much of our criminal law, have any part to play in economic regulation of the kind contemplated by Pt IV [of the Trade Practices Act]. ... The principal, and I think probably the only, object of the penalties imposed by s 76 is to attempt to put a price on contravention that is sufficiently high to deter repetition by the contravenor and by others who might be tempted to contravene the Act."[30]
[29] [2015] HCA 46, and see Applicant Written Submissions, [21].
[30] Commonwealth of Australia v Director, Fair Work Building Industry Inspectorate [2015] HCA 46, [55].
35.The FWO submitted that to determine the appropriate penalty, the Court should follow the five-step approach enunciated by Bromwich J in Fair Work Ombudsman v NSH North Pty Ltd trading as New Shanghai Charlestown (‘NSH North’):[31]
(a)first step: identify the separate contraventions, with each obligation being a separate contravention, and each breach of a term of the Award and the FW Act being a separate contravention of a civil remedy provision for the purposes of section 539(2) of the FWAct;
(b)second step: 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 section 557 of the FWAct provides that two or more contraventions of a given civil remedy provision are to be taken as a single contravention if committed by the same person and arising out of the same conduct by that person;
(c)third step: consider whether there should be a 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)fourth step: consider the appropriate penalty in respect of each final individual group of contraventions, taken in isolation: and
(e)fifth step: consider the overall penalties arrived at, including by reference to those which may be proposed by the Applicant44 and what is proposed by the respondents, and may 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.[32]
[31] [2017] FCA 1301.
[32] Applicant Written Submissions, [23], citing NSH North [2017] FCA 1301, [36].
36.This approach was accepted by the respondents.
37.Submissions were made by both parties addressing considerations relevant to the imposition of penalty at the fourth step. These considerations are drawn from the non-exhaustive list elucidated and adopted by Tracey J in the decision of Kelly v Fitzpatrick.[33] In that decision, Tracey J cited with approval the various considerations identified by Mowbray FM (as he then was) in the decision of Mason v Harrington Corporation Pty Ltd.[34] The relevant factors, which are intended as a guide and do not restrict the Court’s discretion, include:
[33] [2007] FCA 2080.
[34] [2007] FMCA 7.
a) The nature and extent of the conduct which led to the breaches.
b) The circumstances in which that conduct took place.
c) The nature and extent of any loss or damage sustained as a result of the breaches.
d) Whether there had been similar previous conduct by the respondent.
e) Whether the breaches were properly distinct or arose out of the one course of conduct.
f) The size of the business enterprise involved.
g) Whether or not the breaches were deliberate.
h) Whether senior management was involved in the breaches.
i) Whether the party committing the breach had exhibited contrition.
j) Whether the party committing the breach had taken corrective action.
k) Whether the party committing the breach had cooperated with the enforcement authorities.
l) The need to ensure compliance with minimum standards by provision of an effective means for investigation and enforcement of employee entitlements; and
m) The need for specific and general deterrence.[35]
[35] Kelly v Fitzpatrick [2007] FCA 2080, [14].
38.I shall consider these factors further on in these reasons.
Consideration
Step 1: The Contraventions
39.The admitted contraventions are set out in [4] and [5] above.
Step 2: Course of Conduct
40.Section 557(1) of the FW Act provides:
557 Course of conduct
(1) For the purposes of this Part, 2 or more contraventions of a civil remedy provision referred to in subsection (2) are, subject to subsection (3), taken to constitute a single contravention if:
(a) the contraventions are committed by the same person; and
(b) the contraventions arose out of a course of conduct by the person.
41.Sections 45, 535 and 536 of the FW Act, and reg 3.44(4) of the FW Regulations are civil remedy provisions referred to in subsection (2) of s.557 of the FW Act.
42.The FWO accepted that the respondents are entitled to the benefit of s.557(1) for:
…the repeated contraventions which affected the four International Employees and the ten Australian employees as set out in Annexure A, such that there is a single contravention for each term of the Award that was contravened in respect of the International Employees and in respect of the Australian Employees, where identified. Similarly, the Applicant accepts the repeat contraventions in respect of the failure to issue payslips and the records contraventions can be treated as a single contravention.[36]
[36] Applicant Written Submissions, [26], noting that Annexure A is annexed to these reasons.
43.The FWO submitted that the repeated contraventions relating to the international employees and Australian employees regarding the minimum hourly rate, transport allowance, Saturday loading, Sunday loading, public holiday penalty rate, and the failure to make and keep records could not be grouped as, “each arose due to separate decisions by the respondents and are therefore properly characterised as different courses of conduct.”[37] It was submitted that in respect of these entitlements, there was a differential in the treatment of the international employees and the Australian employees and “the very different approach that the respondents took to the international employees puts them in a very different position than someone who was just underpaid.”
[37] Applicant Written Submissions, [27].
44.The FWO submitted that for the contraventions of the failure to pay casual loading, special clothing allowance and evening loading, none of the employees received any payment, so the course of conduct was consistent among all the employees.
45.The respondents agreed with all the groupings proposed by the FWO.
46.In Fair Work Ombudsman v Grouped Property Services Pty Ltd (No 2),[38] Katzmann J discussed the operation of s.557. Her Honour cited the Explanatory Memorandum to the Fair Work Bill 2008, which provided the following example of the way s.557(1) was intended to operate:
If a company contravenes a single term of a modern award in respect of ten employees, these ten contraventions are taken to be a single contravention…Similarly, if a company contravenes five separate terms of a modern award in respect of ten employees, these 50 contraventions are taken to be five contraventions.[39]
[38] [2017] FCA 557.
[39] Ibid [413].
47.Her Honour cited with approval the comments of Middleton and Gordon JJ in the Full Court decision of Construction, Forestry, Mining and Energy Union v Cahill,[40] where their Honours explained the course of conduct principle as follows:
[The course of conduct principle] recognises that where there is an interrelationship between the legal and factual elements of two or more offences for which an offender has been charged, care must be taken to ensure that the offender is not punished twice for what is essentially the same criminality. That requires careful identification of what is “the same criminality” and that is necessarily a factually specific enquiry. Bare identity of motive for commission of separate offences will seldom suffice to establish the same criminality in separate and distinct offending acts or omissions.[41]
[40] [2010] FCAFC 39.
[41] Ibid [39].
48.The course of conduct principle was discussed recently by the Full Court in Fair Work Ombudsman v Construction, Forestry, Maritime, Mining and Energy Union (the Hutchison Ports Appeal),[42] where their Honours Flick, Ross and Rangiah JJ cited with approval the Full Court decision in Rocky Holdings Pty Ltd v Fair Work Ombudsman:[43]
In Rocky Holdings it was held at [18] that the object and purpose of s 557 is to ensure that an “offender is not punished twice for what is essentially the same criminality”.[44]
[42] [2019] FCAFC 69.
[43] [2014] FCAFC 62.
[44] Ibid [178].
49.The international employees and the Australian employees were treated differently. I agree with the submission made by the FWO that there were two separate courses of conduct, one for the Australian employees and one for the international employees. Whilst they did the same work, there was a different remuneration scheme for both groups. QHA deliberately adopted a different system of payment for the international employees.
50.In regard to the minimum hourly rate, transport allowance, Saturday loading, Sunday loading, and public holiday penalty rate, QHA applied the Award to the Australian employees, albeit an outdated version. QHA paid the international employees a flat rate for all hours worked and a flat rate for each pizza delivery. The international employees were required by QHA to travel to more distant locations than the Australian employees. There were no employee records made and kept by QHA for the international employees. There were employee records made and kept by QHA for the Australian employees with some inaccuracies in respect of six of them.
51.Although these contraventions fall within the same provisions for both groups, the groupings proposed mean that the course of conduct provisions apply separately to the two groups.
Step 3: Further Grouping of Contraventions and Common Elements
52.The FWO submitted that in addition to the statutory course of conduct provision groupings made under s.557 of the FW Act, there should be further grouping of contraventions where they overlap or where, if treated separately, “this would potentially penalise the respondents twice for substantially similar conduct.”[45] The decision of the High Court of Australia in Pearce v The Queen,[46] was cited as authority, where their Honours McHugh, Hayne and Callinan JJ stated that there are cases where two offences of which an offender stands convicted may overlap as they contain common elements, and in those circumstances, “it would be wrong to punish that offender twice for the commission of the elements that are common.”[47]
[45] Ibid [28].
[46] (1998) 194 CLR 610, [40].
[47] Ibid [40].
53.The FWO submitted that the following contraventions should be grouped together for the purposes of penalty:
a)The failure to pay minimum wages in respect of adults and in respect of juniors. I agree that these two contraventions contain common elements and should be grouped.
b)The minimum daily engagement contraventions in respect of part- time and casual employees. I agree that there is commonality in respect of these two contraventions, in that a casual employee and a part-time employee is required to be engaged for a minimum of three hours. These contraventions should be grouped.
c)The adverse action contraventions. I agree that the s.351 contraventions affecting the four international employees are a result of the same, overlapping conduct by the respondents. It is appropriate to have one group for the four employees for the two types of adverse action of discrimination and injury because of substantial overlap of the offences.
54.The respondents agreed with the groupings proposed by the FWO.
Step 4: Appropriate Penalty
The nature and extent of the conduct which led to the breaches and the circumstances under which they occurred.
The International Employees
Underpayment of Wages
55.The contraventions came about because the $12 per hour rate of pay was insufficient to meet each of their entitlements under the Award. The underpayments formed just under half of each of their entitlements during the seven month assessment period.
56.Mr Kumarasamy deposed that he and Mr Raghuram did not consider the Award when setting Mr Rahman’s rate of pay. Mr Raghuram deposed that he was not fully aware of the Award entitlements. This is inconsistent with their admissions that they were aware that the Award applied to the employees of QHA.[48] This is also inconsistent with the fact that five Australian employees, who started employment after Mr Hossain and Mr Rahman, were paid in accordance with the Award, although as it applied in 2014 and 2015.[49]
[48] SOAF, [7(e)], [8(e)].
[49] Applicant Written Submissions, [47] and [54}, citing Affidavit of Benjamin Arthur Abey filed 12 April 2019, [3].
57.During the investigation, Mr Kumarasamy and Mr Raghuram gave incorrect details to Fair Work Inspector Abey (‘FWI Abey’) of the hourly rate paid to Mr Rahman. I accept the FWO’s submission that this conduct is not consistent with the assertion that their differential treatment was unintentional.[50] The conduct towards the international employees was deliberate. I agree with the submission of the FWO that Mr Kumarasamy and Mr Raghuram attempted to conceal the rate of remuneration paid to them and the differential treatment of them.
[50] Applicant Written Submissions, [49].
Adverse action contraventions
58.The consequences of the injury and discrimination were largely the underpayments, for which penalties are being sought. The FWO submitted that the elements of the treatment of the international employees went beyond the underpayments, such as by not paying their wages into a bank account, not keeping records of their deliveries, and not providing them with pay slips.
59.Mr Rahman and Mr Hossain gave evidence that they were aware that QHA treated them differently from the Australian employees. Neither of them asked why they were paid differently to the Australian employees. They both complained that they were given cash and were required to make deliveries to more distant locations than the other employees.
Record-keeping contraventions
60.QHA admitted the failure to make and keep records, the alteration of the clock-in record of hours and failure to provide payslips to the international employees.
61.The record keeping contraventions are serious. The failure by QHA to keep records of the international employees’ hours and the failure to provide them with payslips demonstrates a complete disregard of its obligations to them. The failure to give payslips meant they could not monitor and pursue their legal entitlements.[51] This also meant that the capacity of the FWO to monitor and enforce compliance with minimum employment standards was hindered.[52]
[51] Fair Work Ombudsman v Taj Palace Tandoori Indian Restaurant Pty Ltd [2012] FMCA 258, [67].
[52] Applicant Written Submissions, [90].
62.I agree with the FWO’s submission that the provision of incorrect hourly rates, together with the failure to keep records, the deletion of the entries in the clock in system that recorded hours of work, and the failure to give payslips is evidence that “the respondents were aware that they were contravening the law.”[53]
[53] Applicant Written Submissions, [50], citing NSH North, [200].
Vulnerability
63.The FWO submitted that the international employees were vulnerable because of “their recent arrival in Australia, their visa status and their lack of knowledge of the Australian workplace relations regime”.[54] It was submitted that the respondents took advantage of this, and that the exploitation of them is an aggravating factor and should be given considerable weight in assessing the appropriate penalty.
[54] Applicant Written Submissions, [52].
64.In support of this submission, the FWO cited Fair Work Ombudsman v ACN 146 435 118 Pty Ltd (No 2) [55] in which Judge Lucev stated: “Whether an employee is vulnerable, and whether that vulnerability has been exploited in the course of an employer’s contravention is relevant to the determination of penalty.”[56]
[55] [2013] FCCA 1270.
[56] Ibid [43]; Applicant Written Submissions, [51].
65.The FWO also cited Fair Work Ombudsman v Yogurberry World Square Pty Ltd,[57] in which the employees were considered vulnerable because they “spoke little English or (at least) did not speak English as their first language, [and were] persons who were young and from overseas”.[58] The FWO further cited Fair Work Ombudsman v Go Yo Trading Pty Limited,[59] and Fair Work Ombudsman v Kojima,[60] where it was accepted that foreign nationals holding a visa fall into a class of vulnerable workers.
[57] [2016] FCA 1290, [24]–[26].
[58] Ibid [24].
[59] [2012] FMCA 865, [15].
[60] [2013] FCCA 976, [35]–[36], [40].
66.In cases such as these, the employees’ poor grasp of English was a factor in the courts’ determination that they were vulnerable. This restricted their ability to seek advice and enforce their entitlements. In decisions such as Fair Work Ombudsman v Corioliss Pty Ltd & Ors,[61] and Fair Work Ombudsman v Kentwood Industries Pty Ltd (No 2),[62] visa status also created vulnerability because the employer was sponsoring the employee’s visa, and the employee risked losing the visa if they sought to enforce their entitlements.
[61] [2017] FCCA 2479.
[62] [2010] FCA 1156.
67.In the recent Federal Court of Australia decision of Ahmed v Al-Hussain Pty Ltd t/as The Cheesecake Shop (No 3),[63] the employer made threats to cease sponsorship of the employee’s visa if demands to make cashback payments were not complied with.[64] It was found by Rares J that all the underpayment and cashback contraventions exploited the applicant’s vulnerability by reason of his immigration status. All the contraventions were found to be at the highest range of seriousness.
[63] [2019] FCA 848.
[64] Ibid [27].
68.The FWO provided evidence about the language skills from two of the four international employees, Mr Rahman and Mr Hossain. Mr Hossain gave evidence that he is fluent in reading, writing and speaking English. Mr Rahman has good language skills, as he studied at an English school prior to moving to Australia. Although Mr Hossain and Mr Rahman did not have knowledge of the Australian workplace laws, Mr Rahman was able to speak to the Australian employees about his entitlements. He spoke to a local pizza restaurant owner, who gave him the telephone number of the FWO and provided him with information about his entitlements.
69.In relation to their visa status, the international employees were on student visas. Although Mr Rahman raised an issue of working more hours than the student visa allowed, there was no evidence that the employees risked losing their visa status by seeking to enforce their entitlements. There is evidence that they may have worked more hours than what was allowed under the terms of their student visas, but this was not used against them in any way by the respondents. Mr Rahman gave evidence that he had notified the respondents that he could not work more than 20 hours per week and they had “said something like ‘that should be fine’”.[65]
[65] Affidavit of Mr Rahman, [10].
70.In respect of the FWO’s submission that the international employees were vulnerable because of their recent arrival in Australia, there was no evidence about the circumstances of the arrival date and work experience of Mr Chowdhury and Mr Patel. However, the arrival of Mr Rahman and Mr Hossain in Australia was not recent. Mr Rahman arrived in Australia in 2014 to study, and commenced a casual job at Coles later that year. In October 2015, he commenced working for QHA. Mr Hossain also arrived in Australia to study in February 2014, and worked at an IT support company and as a house keeper before commencing work for QHA in November 2015. These employees had both been living in Australia and working for at least one year prior to commencing work for QHA. Mr Rahman had borrowed money from a friend during his time employed by QHA, and had also received financial support from his parents when he was not working in Australia. Mr Hossain deposed that he left the employment of QHA in March 2016 because he was struggling to balance his study requirements with work.
71.Whilst the international employees were vulnerable, due to their limited understanding of workplace laws, they had good English skills and were not vulnerable to the extent of employees on visas in other cases discussed. Nevertheless, they detriment suffered by them was of “greater and different character” than the Australian employees.[66]
[66] Hansen Pty Ltd v Jones [2009] FCA 192, [57]–[62] as cited in Fair Work Ombudsman v ACN 146 435 118 Pty Ltd & Anor (No.2) [2013] FCCA 1270, [44].
The Australian Employees
72.The FWO accepted in both their written and oral submissions that the contraventions in respect of the Australian employees were not deliberate.[67] It was submitted that the underpayment contraventions “appear to have arisen in circumstances where outdated minimum rates were paid by the First Respondent to the Australian Employees pursuant to the Award as it applied in 2014 and 2015.”[68] No amounts were paid to the Australian employees in respect of casual loading, clothing allowance, evening loading and annual leave loading.
[67] Applicant Written Submissions, [71].
[68] Applicant Written Submissions, [54].
73.QHA admitted that it did not make or keep any employment records recording the matters listed in regulations 3.32, 3.33(1) and 3.33(3) of the FW Regulations in relation to Janelle Doyle, Ellenika Giomataris, Chloe Hills, Harry Pascoe, Byron Sawbridge and Sean Wilson.[69]
[69] SOAF, [107].
Nature and Extent of Loss or Damage
74.The international and Australian employees were on the lowest classification during the Assessment Period, ‘Fast Food Employee Level 1’ in accordance with Schedule B.1 to the Award.[70] QHA denied them of the protections they were entitled to under the FW Act.
[70] Ibid [57], citing SOAF, [32].
75.In respect of the international employees, over the Assessment Period, Shahidur Rahman was employed for five and a half months; Ashraf Hossein was employed for three months; Herin Patel was employed for seven weeks; and Biplob Chowdhury was employed for nine days.
76.The total underpayments owing to the International employees ranged from $154.59 (Biplob Chowdhury) to $5,281.51 (Shahidur Rahman).
77.Six of the Australian employees were employed by QHA on a casual basis and the other four were employed on a part-time basis. Five Australian employees worked for QHA throughout the whole assessment period. The other five worked for short periods.
78.The total underpayments owing to the Australian employees ranged from $64.43 (Liam Tassel) to $2,426.55 (Harry Pascoe). Eight of the employees were underpaid for less than $500 and one was underpaid less than $1,000. Five employees were underpaid more than $1,000.[71]
[71] Statement of Claim filed 5 October 2018, Annexure B.
79.I consider that the quantum of the underpayments is relevant to the appropriate penalty that should be imposed.[72]
[72] NHS North [2017] FCA 1301, [43].
80.The quantum of the underpayments is as follows:
1. Grouped failure to pay the required minimum wage for adults and failure to pay the required minimum wage for juniors – international employees
Names
Hours
Entitlement
Paid
Underpayment
Biplob Chowdhury
9.50
$180.41
$114
$66.41
Ashraf Hossain
151.17
$2,870.64
$1,814
$1,056.64
Herin Patel
92.07
$1,774.20
$996.30
$777.90
Shahidur Rahman
(Junior)337.76
$5,772.17
$4,053
$1,719.17
Shahidur Rahman
(Adult)33.53
$636.80
$402.40
$234.40
Total Underpayment
$3,854.52
2. Grouped failure to pay the required minimum wage for adults and failure to pay the required minimum wage for juniors – Australian employees
Names
Hours
Entitlement
Paid
Underpayment
Janelle Doyle
185.72
$3,537.65
$3,465.11
$72.54
Ellenika Giomataris
283.51
$5,395.61
$5276.83
$118.78
Chloe Hills
22.83
$346.84
$246.57
$100.27
Harry Pascoe
409.12
$7,797.33
$7,645.06
$152.27
Annabelle Rival
12.03
$228.51
$205.01
$23.50
Byron Sawbridge
432.53
$8,240.72
$8,155.96
$164.91
Liam Tassel
17.05
$226.64
$226.30
$0.34
Sean Wilson
133.18
$2,529.73
$2,468.57
$61.16
Total Underpayment
$693.77
3. Failure to pay the required casual loading
Names
Hours
Entitlement
Paid
Underpayment
Biplob Chowdhury
8
$38.00
Nil
$38.00
Ashraf Hossain
113.63
$539.78
Nil
$539.78
Herin Patel
92.07
$443.64
Nil
$443.64
Shahidur Rahman
305.15
$1,316.50
Nil
$1,316.50
Rainjan Blakers
85.25
$286.40
Nil
$286.40
Ellenika Giomataris
283.51
$1,349.57
Nil
$1,349.57
Chloe Hills
22.83
$86.77
Nil
$86.77
Harry Pascoe
390.4
$1,860.94
Nil
$1,860.94
Annabelle Rival
12.03
$57.15
Nil
$57.15
Liam Tassel
13.72
$45.54
Nil
$45.54
Total Underpayment
$6,024.29
4. Failure to pay the required special clothing allowance
Names
Hours
Entitlement
Paid
Underpayment
Biplob Chowdhury
5
$6.25
Nil
$6.25
Ashraf Hossain
35
$43.75
Nil
$43.75
Herin Patel
26
$32.50
Nil
$32.50
Shahidur Rahman
87
$108.75
Nil
$108.75
Rainjan Blakers
32
$40.00
Nil
$40.00
Janelle Doyle
63
$78.75
Nil
$78.75
Ellenika Giomataris
97
$121.25
Nil
$121.25
Chloe Hills
8
$10.00
Nil
$10.00
Harry Pascoe
132
$165.00
Nil
$165.00
Annabelle Rival
6
$7.50
Nil
$7.50
Byron Sawbridge
144
$180.00
Nil
$180.00
Liam Tassel
5
$6.25
Nil
$6.25
Sean Wilson
49
$61.25
Nil
$61.25
Angus Woodcock
17
$21.25
Nil
$21.25
Total Underpayment
$882.50
5. Failure to pay the required transport allowance – Australian Employees
Names
Hours
Entitlement
Paid
Underpayment
Harry Pascoe
2,691
$1,103.31
$1,077.29
$26.02
Byron Sawbridge
3,212
$1,316.92
$1,309.95
$6.97
Sean Wilson
1,629
$667.89
$667.73
$0.16
Total Underpayment
$33.15
6. Failure to pay the required transport allowance – international employees
81.There were no records kept in relation to transport for the international employees, so their entitlement cannot be calculated. The FWO submitted that because they were paid a flat rate, it is likely that there was a significant underpayment.
7. Failure to pay the required evening loading
Names
Hours
Entitlement
Paid
Underpayment
Biplob Chowdhury
1.25
$2.38
Nil
$2.38
Ashraf Hossain
15.95
$30.30
Nil
$30.30
Herin Patel
13.52
$25.97
Nil
$25.97
Shahidur Rahman
32.37
$56.13
Nil
$56.13
Rainjan Blakers
11.60
$15.56
Nil
$15.56
Janelle Doyle
1.75
$3.34
Nil
$3.34
Ellenika Giomataris
3.47
$6.60
Nil
$6.60
Harry Pascoe
12.43
$23.65
Nil
$23.65
Annabelle Rival
0.18
$0.35
Nil
$0.35
Byron Sawbridge
10.53
$20.06
Nil
$20.06
Liam Tassel
0.93
$1.24
Nil
$1.24
Sean Wilson
0.55
$1.04
Nil
$1.04
Angus Woodcock
8.9
$11.84
Nil
$11.84
Total Underpayment
$198.46
8. Failure to pay the required Saturday loading – Australian employees
Names
Hours
Entitlement
Paid
Underpayment
Janelle Doyle
81.72
$389.50
$381.50
$8.00
Ellenika Giomataris
30.52
$144.95
$141.29
$3.66
Chloe Hills
3.05
$11.59
Nil
$11.59
Harry Pascoe
78.23
$373.06
$365.19
$7.87
Annabelle Rival
2.33
$11.08
$5.57
$5.51
Byron Sawbridge
85.85
$409.12
$400.94
$8.53
Sean Wilson
25.47
$120.96
$117.91
$3.05
Total Underpayment
$48.21
9. Failure to pay the required Saturday loading – international employees
Names
Hours
Entitlement
Paid
Underpayment
Biplob Chowdhury
4.25
$20.19
Nil
$20.19
Ashraf Hossain
54.85
$260.56
Nil
$260.56
Herin Patel
21.55
$103.73
Nil
$83.89
Shahidur Rahman
61.47
$264.65
Nil
$264.65
Total Underpayment
$629.29
10. Failure to pay the required Sunday loading – Australian employees
Names
Hours
Entitlement
Paid
Underpayment
Rainjan Blakers
25.83
$260.74
$163.32
$97.42
Janelle Doyle
5.62
$53.36
$52.07
$1.29
Harry Pascoe
15.73
$224.04
$145.84
$78.20
Byron Sawbridge
87.33
$832.28
$857.85
$16.66
Liam Tassel
3.33
$33.23
$22.17
$11.06
Total Underpayment
$204.63
11. Failure to pay the required Sunday loading – international employees
Names
Hours
Entitlement
Paid
Underpayment
Biplob Chowdhury
1.50
$21.36
Nil
$21.36
Ashraf Hossain
37.53
$534.48
Nil
$534.48
Herin Patel
3
$102.06
$87.48
$14.58
Shahidur Rahman
66.13
$855.56
Nil
$855.56
Total Underpayment
$1,425.98
12. Failure to pay the required public holiday penalty rate – Australian Employees
Names
Hours
Entitlement
Paid
Underpayment
Janelle Doyle
3
$142.44
$138.93
$3.51
Ellenika Giomataris
5.47
$285.47
$253.26
$32.21
Harry Pascoe
19.13
$999.14
$886.54
$112.60
Annabelle Rival
3
$156.66
$69.46
$87.20
Byron Sawbridge
10.18
$483.50
$264.12
$219.38
Sean Wilson
8.80
$417.83
$407.52
$10.31
Total Underpayment
$465.21
13. Failure to pay the required public holiday penalty rate – International Employees
Names
Hours
Entitlement
Paid
Underpayment
Ashraf Hossain
11.07
$577.90
$132.80
$445.10
Herin Patel
5
$261.10
$60.00
$201.10
Shahidur Rahman
20.23
$969.15
$242.80
$726.35
Total Underpayment
$1,372.55
14. Failure to pay the required annual leave loading
Names
Hours
Entitlement
Paid
Underpayment
Byron Sawbridge
6
$19.92
Nil
$19.92
Sean Wilson
36.45
$121.01
Nil
$121.01
Angus Woodcock
88
$205.04
Nil
$205.04
Total Underpayment
$345.97
15. Grouped failure to pay the required daily minimum engagement and failure to roster part-time employees for a minimum of three consecutive hours in a shift
82.Although the FWO did not seek rectification of an underpayment in relation to this contravention, the following figures were provided to assist the Court to assess the seriousness of these breaches.
Names
Occurrences
Entitlement
Paid
Underpayment
Biplob Chowdhury
3
$130.58
Nil
$130.58
Ashraf Hossain
2
$55.48
Nil
$55.48
Herin Patel
2
$21.47
Nil
$21.47
Shahidur Rahman
17
$286.90
Nil
$286.90
Rainjan Blakers
3
$17.10
Nil
$17.10
Ellenika Giomataris
21
$227.16
Nil
$227.16
Chloe Hills
3
$23.10
Nil
$23.10
Harry Pascoe
23
$163.25
Nil
$163.25
Annabelle Rival
2
$77.96
Nil
$77.96
Liam Tassel
1
$0.55
Nil
$0.55
Angus Woodcock
1
$5.26
Nil
$5.26
Janelle Doyle
18
$120.23
Nil
$120.23
Sean Wilson
17
$237.01
Nil
$237.01
Byron Sawbridge
41
$216.73
Nil
$216.73
Total Underpayment
$1,582.78
Whether there had been similar previous conduct by the respondent
83.The respondents have not previously been the subject of proceedings for contraventions of workplace laws.
The size of the business enterprise involved
84.The Business was a small enterprise, which was not disputed. Mr Kumarasamy and Mr Raghuram deposed that they are two of the three directors of QHA.[73] Mr Raghuram deposed that the Business was purchased in 2014 for $370,000 and that he and Mr Kumarasamy went into debt to purchase it. They had a third silent partner invest in the Business with them. The Business is a franchisee of Retail Food Group (‘RFG’). Mr Kumarasamy deposed that it was operating at a loss when it was purchased.
[73] Affidavit of Anandh Kumarasamy filed 1 April 2019, [2]; and Affidavit of Haridas Raghuram filed 1 April 2019, [1].
85.Mr Kumarasamy gave oral evidence that when the Business was first purchased, he had a training session at the head office and was told about the RFG website. Mr Raghuram did not attend the training session, but the respondents had access to this web-site and a franchisee power point presentation, titled ‘Introduction to Employment & Fair work Laws’.[74] They had access to online resources and access to their business development manager and operational team. They were sent memoranda in respect of reminders of their workplace obligations to employees.
[74] See Affidavit of Benjamin Arthur Abey filed 14 February 2019, Annexure BAA-7.
86.Counsel for the FWO relied on the decisions of Rajagopalan v BM Sydney Building Materials Pty Ltd[75] and Kelly v Fitzpatrick[76] in support of the submission that employers are required to comply with the law regardless of their size, and meaningful penalties for contraventions should be imposed irrespective of the financial position of QHA.
[75] [2007] FMCA 1412.
[76] [2007] FCA 2080.
87.I agree that the size of a business does not excuse an employer from complying with the law relating to employment of its employees.[77] However, as observed by Judge Jones in Fair Work Ombudsman v Hiyi Pty Ltd,[78] it may be a relevant consideration in determining the appropriate penalty.[79] Her Honour cited Jessup J in Hansen v Mt Martha Community Learning Centre Inc (No 2)[80] as follows:
[77] Kelly v Fitzpatrick [2007] FCA 2080, [28].
[78] [2016] FCCA 1634.
[79] Ibid, [47]–[47].
[80] [2015] FCA 1283.
In Hansen v Mt Martha Community Learning Centre Inc (No 2) [2015] FCA 1283, Jessup J observed at [5]:
“The next matter concerns the size and financial circumstances of the respondent. It was submitted on behalf of the respondent that it was “a small, not-for-profit enterprise”. That submission, which was not put in issue, factually, by the applicant, must be accepted. But it was submitted on behalf of the applicant, remarkably in my respectful assessment, that “the size and financial resources of a business is not relevant”. Counsel relied on the judgment of Tracey J in Kelly v Fitzpatrick (2007) 166 IR 14 for the proposition that “a penalty will normally be imposed at a meaningful level”. In that case, his Honour said (166 IR at 21, [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].
So much may be accepted, but what constitutes an “appropriate monetary sanction”, or the imposition of a penalty at “a meaningful level”, can rarely be determined without at least some consideration of the size of the relevant contravener, as Tracey J himself accepted in Kelly (see 166 IR at 18-19 [14] and 20 [21]). The authorities in this area of the law were recently discussed by the Full Court in Australian Competition and Consumer Commission v BAJV Pty Ltd [2014] FCAFC 52 at [39]-[41].”[81]
[81] Fair Work Ombudsman v Hiyi Pty Ltd [2016] FCCA 1634, [46].
88.In Fair Work Ombudsman v The Meatball and Wine bar Pty Ltd & Anor,[82] Judge McNab cited the decision of Judge Lucev in Fair Work Ombudsman v MMP Management Services Pty Ltd & Anor.[83] Judge Lucev cited a number of decisions of the Federal Court of Australia, in which the size and financial resources of the employer has been considered in setting penalties in industrial matters.[84] The case authorities indicate that whilst the size and financial circumstances of an employer does not exculpate contravening conduct, it is relevant in determining the imposition of a penalty at a “meaningful level”.[85]
[82] [2018] FCCA 2288.
[83] [2012] FMCA 207.
[84] Ibid [42]-[49].
[85] Ibid [42].
89.The Business was not profitable in the first four financial years of operation. It was not disputed that QHA operated the Business at no profit or at a loss during the Assessment period.
90.During the 2015/2016 financial year, Mr Raghuram and Mr Kumarasamy drew wages of between $400 and $600 per week each.
91.Although QHA had an obligation to pay its employees properly, I consider that financial circumstances of the respondents during the Assessment period should be given weight in determining a relevant penalty.
92.By 2017, Mr Kumarasamy had been able to reduce the debt incurred to purchase the Business. He currently earns $500 to $700 per month drawings from the Business. He lives in a rental property and a friend pays his rent. He has various debts including a credit card debt, several debts to family and friends, and a tax debt to the Australian Tax Office. His housemate is the guarantor of the franchise agreement. He has been able to keep the Business solvent and still trades. He deposed that he will struggle with a fine but will “do my very best to pay the fine so that I can pay my creditors and support my staff.”[86]
[86] Affidavit of Anandh Kumarasamy filed 1 April 2019, [44].
93.Mr Raghuram moved from Hobart to Adelaide in 2016. He bought into another Crust Pizza franchise in Adelaide. It is struggling to break even and he does not earn an income from it. He deposed that he is attempting to sell it. He has obtained a casual job making pizzas for another business. He does not take any drawings from either the North Hobart or the Adelaide businesses.
94.It was submitted by counsel for the respondents that the financial position of QHA, which is experiencing solvency issues, is such that the penalties sought by the FWO are oppressive and will drive the company into liquidation.
95.In respect of the financial positions of Mr Kumarasamy and Mr Raghuram, it was submitted that they have struggled to pay off the loans obtained to purchase the Business, and the penalties sought by the FWO are crushing and will thrust them into bankruptcy.
96.Mr Raghuram and Mr Kumarasamy both deposed that they are currently in difficult financial circumstances. Although they did not provide any documentation to support their assertions, they were not challenged about their current circumstances during cross-examination.
97.The FWO acknowledged that their current financial circumstances could be a factor in consideration of a discount in the penalty in application of the totality principle.[87] I agree that their current financial circumstances are relevant when considering the totality principle.
[87] Applicant Written Submissions, [124].
Whether senior management was involved in the breaches
98.Mr Raghuram and Mr Kumarasamy are the senior management of QHA and the Business, being directors and shareholders. Mr Raghuram gave evidence that he also managed the business as company secretary.[88] Mr Raghuram and Mr Kumarasamy were responsible for the overall day-to-day management and operation of QHA and the Business. They were responsible for decisions in respect of the employees’ terms and conditions. They were directly involved in the contraventions, both for the purposes of penalty assessment and accessorial liability.
[88] Affidavit of Haridas Raghuram filed 1 April 2019, [10].
99.Both Mr Raghuram and Mr Kumarasamy deposed that there is a third director or silent partner who contributed to the purchase of the Business.[89] There is no evidence that this director had further involvement with the Business.
[89] Affidavit of Haridas Raghuram filed 1 April 2019, [8]; Affidavit of Anandh Kumarasamy filed 1 April 2019, [2], [10].
100.Mr Rahman deposed that Mr Kumarasamy hired him and met with him each Monday to give him his pay, which was “…cash in a plastic bag out of the till”.[90] Mr Hossain deposed that Mr Raghuram hired him, and either Mr Kumarasamy or Mr Raghuram would give him money out of the till for his pay each week. Mr Rahman also said that either Mr Raghuram or Mr Kumarasamy would text the international employees informing them of when to come in to work a shift, and either of them would allocate pizza deliveries. He was not sure how the Australian employees were informed of their shifts. I accept that Mr Raghuram and Mr Kumarasamy were equally involved in the contraventions.
[90] Affidavit of Shahidur Rahman filed 14 February 2019, [22].
101.The Court has not distinguished between QHA and Mr Raghuram and Mr Kumarasamy for the purposes of assessing penalty percentage, given that the acts of QHA were the acts of Mr Raghuram and Mr Kumarasamy.
Contrition, Co-operation and Corrective Action
102.Mr Raghuram and Mr Kumarasamy have expressed regret and remorse for the contravening conduct and also an intention to communicate an apology to the affected employees. The FWO submitted that little, if any, weight should be given for these expressions of remorse because they were made around two years after the contravening conduct, and they were accompanied by unsatisfactory explanations as to how the contraventions occurred.[91] I accept that the expression of remorse occurred only recently, and that unsatisfactory explanations were given, and that little weight should be given for the expression of remorse.
[91] Applicant Written Submissions, [74].
103.The FWO acknowledged that the respondents have co-operated in their investigation. They participated in the recorded interviews during the investigation stage. They made full admissions by way of a SOAF on 21 December 2018, which has reduced the length and cost of the proceedings. I consider that this demonstrates an acceptance of their responsibility.
104.I accept the submission of the FWO that when assessing the value of co-operation, and any discount, it is relevant that Mr Raghuram and Mr Kumarasamy inaccurately informed FWI Abey on several occasions during the investigation that the international employees were paid $20 per hour during the week and $25 or $28 during the weekend.[92] The FWO was also required to issue a Notice to Produce on a third party in order to access the records of the international employees because their clock-in records were deleted.
[92] Affidavit of Benjamin Arthur Abey filed 14 February 2019, [12], Annexure BAA-3, [17]–[18]
105.QHA rectified the underpayment to all employees between 25 February 2018 and 5 September 2018. These payments commenced shortly after the FWO sent to the respondents its Findings of Contravention letter on 21 December 2017. The payments were finalised prior to the commencement of the proceedings on 5 October 2018.[93]
[93] Applicant Written Submissions, [76]; and SOAF, [93].
106.Mr Kumarasamy and Mr Raghuram are now ensuring that all employees are paid above their award entitlements. The wages are calculated based on the pay calculator and awards requirements information of the FWO website. They were not challenged about this during cross-examination. I accept their evidence about this.
107.Counsel for the FWO cited Mornington Inn Pty Ltd v Jordan[94] in which Stone and Buchanan JJ stated:
A conventional consideration in assessing a discount in a criminal case for a plea of guilty is the stage in the proceedings at which the plea is entered. Normally, the maximum discount on this factor, sometimes thought to be 25%, is reserved for a plea made at the first reasonable opportunity although, as was indicated in Cameron 209 CLR 339 at [23]-[24] there is no obligation to make an early plea to a charge which wrongly particularises the substance to which the charge relates.
As Branson J has pointed out (see Alfred v Walter Construction Group Ltd [2005] FCA 497) the rationale for providing a discount for an early plea of guilty in a criminal case does not apply neatly to a case, such as the present, where a civil penalty is sought and the case proceeds on pleadings. Nevertheless, in our view, it should be accepted, for the same reasons as given in Cameron 209 CLR 339, that a discount should not be available simply because a respondent has spared the community the cost of a contested trial. Rather, the benefit of such a discount should be reserved for cases where it can be fairly said that an admission of liability: (a) has indicated an acceptance of wrongdoing and a suitable and credible expression of regret; and/or (b) has indicated a willingness to facilitate the course of justice.
[94] [2008] FCAFC 70.
108.I consider that the discount of penalty of 20% of the maximum penalty as proposed by the FWO should be allowed.
The need to ensure compliance with minimum standards by provision of an effective means for investigation and enforcement of employee entitlements
109.One of the main objects of the FW Act is to provide a guaranteed safety net of minimum terms and conditions for employees, and effective enforcement mechanisms.[96]
[96] Fair Work Act 2009 (Cth), s 3(b).
110.I accept the submission of the FWO that the maintenance of a safety net is pertinent in a competitive service industry, such as fast food, where employment costs can be one of the most significant outlays and form the basis of for price competition.[97]
[97] Applicant Written Submissions, [88].
The need for specific and general deterrence
111.The need for general and specific deterrence is an important factor as stated by Lander J in the decision of Ponzio v B & P Caelli Constructions,[98]
There are three purposes at least for imposing a penalty: punishment; deterrence; and rehabilitation. The punishment must be proportionate to the offence and in accordance with the prevailing standards of punishment: R v Hunter (1984) 36 SASR 101 at 103. Therefore the circumstances of the offence or contravention are especially important. The penalty must recognise the need for deterrence, both personal and general. In regard to personal deterrence, an assessment must be made of the risk of re-offending. In regard to general deterrence, it is assumed that an appropriate penalty will act as a deterrent to others who might be likely to offend: Yardley v Betts (1979) 22 SASR 108. The penalty therefore should be of a kind that it would be likely to act as a deterrent in preventing similar contraventions by like minded persons or organisations. If the penalty does not demonstrate an appropriate assessment of the seriousness of the offending, the penalty will not operate to deter others from contravening the section. However, the penalty should not be such as to crush the person upon whom the penalty is imposed or used to make that person a scapegoat. In some cases, general deterrence will be the paramount factor in fixing the penalty: R v Thompson (1975) 11 SASR 217. In some cases, although hardly in this type of contravention, rehabilitation is an important factor. [99]
[98] (2007) 158 FCR 543.
[99] Ibid [93].
112.In respect of specific deterrence, the FWO relied on the decision of Plancor Pty Ltd v Liquor, Hospitality and Miscellaneous Union,[100] in which Gray J stated:
… Specific deterrence focuses on the party on whom the penalty is to be imposed and the likelihood of that party being involved in a similar breach in the future. Much will depend on the attitude expressed by that party as to things like remorse and steps taken to ensure that no future breach will occur…[101]
[100] [2008] FCAFC 170.
[101] Ibid [37].
113.Mr Kumarasamy has deposed that payroll practices of the Business have been rectified to ensure that further contraventions will not take place. He was not challenged about this and I accept his evidence about this.
114.Mr Raghuram bought into another Crust Pizza franchise in Adelaide and confirmed that all employees have been paid in full in accordance with their award entitlements.
115.It was raised by the respondents that the FWO investigation has attracted media attention. Mr Kumarasamy gave evidence that he has already learned a very strong lesson and will never again allow himself to be in a position where he may be breaching any legal obligations. He deposed that a detailed Google search for his name revealed the following results:
a. "Claim Workers Underpaid More Than $16,000" - the Mercury
b. "Not Australian: Crust Pizza Hobart underpaid migrant staff' - Perth Now
c. "Two Indian employers taken to court for discriminating against migrant workers" - SBS
d. "Migrant Hobart pizza shop staff underpaid' - 4MK.com.au
e. "Crust pizza franchisee allegedly discriminated against migrant workers" - Fair Work website
f. "Court action taken against pizza shop managers for alleged discrimination" - The Mercury
g. "Franchisee paid non-Aussies much less" - "Four overseas workers at Crust Pizza outlet unlawfully paid much less than Australian colleagues" - The Australian
i. "Crust pizza in court accused of discriminating against overseas workers" - discriminationclaims.com.au
j. "Migrant Hobart pizza staff underpaid' - Daily Mail
k. "Crust Pizzas outlet accused of discrimination" - Harassment Claims
l. "Migrant Hobart pizza shop staff underpaid' - Star IO19[102]
[102] Affidavit of Anandh Kumarasamy filed 1 April 2019, [38].
116.It was submitted that:
…the profound reputational damage caused by the reporting addressed at paragraph 38 of Mr Kumarasamy’s Affidavit can give the Court a great deal of confidence that he has already experienced a strong specific deterrent from engaging in this conduct again in the future. He has lost everything bar his family and his Guarantor friend as a result of the investigation so far.[103]
[103] Respondent Outline of Submissions on Penalty filed 27 May 2019, [52] (‘Respondent Written Submissions’).
117.The FWO submitted that the authorities indicate that generally, the impact of media coverage will only operate to mitigate the penalty when the effect of the media coverage has been ‘adverse’.[104] The FWO cited the decisions of Eva v Southern Motors Box Hill Pty Ltd[105] and Cousins v Merrington’s Pty Ltd (No 2)[106] in support of its submission that there is no evidence that the information released by the FWO was adverse in the sense referred to in these decisions, namely that there has been unfair or incorrect reporting.
[104] Applicant Written Submissions, [105].
[105] (1977) 30 FLR 213.
[106] [2008] VSC 340.
118.I am not persuaded by the evidence that the media attention should mitigate the penalties imposed upon QHA, Mr Kumarasamy, or Mr Raghuram. There was no evidence before the Court of the text of the Google search results referred to by Mr Kumarasamy to determine whether they were unfair, inaccurate or misleading. As Smithers J observed, “adverse publicity is often one of the inevitable consequences of wrongdoing and in most cases is without influence in the assessment of appropriate penalty.”[107]
[107] Eva v Southern Motors Box Hill (1977) 30 FLR 213, 222.
119.It was acknowledged by the FWO that there is no evidence that there have been any further contraventions of workplace laws by the respondents since the Assessment Period in 2016. I consider that this, and their affidavit and oral evidence of how their lives have been affected by their wrongdoing, demonstrates that it is likely they will be deterred from any further contraventions.
120.I consider it is unlikely that the respondents will reoffend. Specific deterrence does not “…loom large as a consideration in determining penalty. It does not follow that the need for general deterrence be disregarded.”[108]
[108] Kelly v Fitzpatrick [2007] FCA 1080, [28].
121.In respect of general deterrence, the FWO relied on the decision of Singtel Optus Pty Ltd v Australian Competition and Consumer Commission,[109] and submitted that a civil penalty should be imposed at a level that is likely to act as a deterrent in preventing similar contraventions by like-minded individuals or organisations.[110]
[109] [2012] FCAFC 20.
[110] Applicant Written Submissions, [114].
122.The FWO submitted that there is a high need for general deterrence in the fast food, restaurant and cafe services industry because of the high number of complaints, it is notorious for its non-compliance, and is one where courts have found contraventions involving the exploitation of vulnerable employees, such as young visa workers.[111]
[111] Ibid [116]–[118].
123.The FWO relied on the Industry Risk Analysis: Fast Food, Restaurants and Cafes report,[112] which says that 14% of FWO complaints come from this industry despite it only comprising 5% of all employed people. It was reported that the industry has a high concentration of potentially vulnerable employees.[113]
[112] Strategic Analysis and Reporting Team, Kate de Jonk and Toni Macdowell, Industry Risk Analysis: Fast Food, Restaurants and Cafes (January 2019).
[113] Applicant Written Submissions, [117].
124.I accept the submission that general deterrence in this industry is a significant factor to take into account in determining an appropriate penalty.[114]
[114] Fair Work Ombudsman v Promoting U Pty Ltd & Anor [2012] FMCA 58.
Recommended Penalties
125.With the grouping proposed by the FWO, the maximum penalties that could be imposed are $1,017,000 on QHA and $203,400 on each of the Mr Raghuram and Mr Kumarasamy.
126.The FWO did not seek penalties to be imposed for two groups of contraventions due to their minimal impact. These were the contraventions for failing to pay transport allowance and failing to pay Saturday loading in respect of the Australian employees.
127.The FWO recommended various penalty ranges for the different groups of contraventions as set out in Annexure A attached to these reasons.
128.The FWO submitted that the appropriate aggregate penalties, applying various discount rates, fall within the following ranges:
a)Total for QHA: $241,200 - $313,920;
b)Total for Mr Kumarasamy: $48,240 - $62,784; and
c)Total for Mr Raghuram: $48,240 - $62,784.
129.It was submitted by counsel for the respondents that the recommended penalties would be ‘crushing’ in the circumstances of this case. A recommended amount was not provided in the written submissions. It was submitted that far lesser penalties than those sought by the FWO would more appropriately serve the objectives of the FW Act. During oral submissions, counsel for the respondents submitted that one quarter of the range of each grouped contravention should be the penalty amount.
Conclusion
130.I have taken into account the matters discussed. It is appropriate to impose penalties for the contraventions as follows:
1. International employees – Grouped:
(a) failure to pay the required minimum wage for adults; and
(b) failure to pay the required minimum wage for juniors.
131.This grouped contravention affected four employees of a total underpayment amounting to $3,854.52.
132.I impose penalties of $17,280 on QHA and $3,456 on each of Mr Kumarasamy and Mr Raghuram.
2. Australian Employees – Grouped:
(a) failure to pay the required minimum wage for adults; and
(b) failure to pay the required minimum wage for juniors.
133.This grouped contravention affected eight employees of a total underpayment amounting to $693.77.
134.I impose penalties of $4,320 for QHA and $864 each for Mr Kumarasamy and Mr Raghuram.
3. Failing to pay the required casual loading
135.This contravention affected ten employees of a total underpayment amounting to $6,024.29.
136.I impose penalties of $17,280 on QHA and $3,456 on each of Mr Kumarasamy and Mr Raghuram.
4. Failing to pay the required special clothing allowance
137.This contravention affected fourteen employees of a total underpayment amounting to $882.50.
138.I impose penalties of $1,080 on QHA and $216 on each of Mr Kumarasamy and Mr Raghuram.
5. Australian Employees – Failing to pay the required transport allowance
139.This contravention affected three employees of a total underpayment amounting to $33.15.
140.The FWO did not seek a penalty. I consider that this is appropriate.
6. International employees – Failing to pay the required transport allowance
141.The four employees were paid $1.00 for each delivery. There were no records for the kilometres driven by them, which meant the amount of the underpayments could not be calculated.
142.I impose $8,640 on QHA and $1,728 on each of Mr Kumarasamy and Mr Raghuram.
7. Failing to pay the required evening loading
143.This contravention affected thirteen employees of a total underpayment amounting to $198.46.
144.I impose $1,080 for QHA and $216 for Mr Kumarasamy and Mr Raghuram.
8. Australian employees – Failing to pay the required Saturday loading
145.This contravention affected seven employees of a total underpayment amounting to $48.21.
146.The FWO did not seek a penalty. I consider that this is appropriate.
9. International employees – Failing to pay the required Saturday loading
147.This contravention affected four employees of a total underpayment amounting to $629.29.
148.I impose a penalty of $8,640 for QHA and $1,728 for each of Mr Kumarasamy and Mr Raghuram.
10. Australian employees – Failing to pay the required Sunday loading
149.This contravention affected five employees of a total underpayment amounting to $204.63.
150.I impose a penalty of $1,080 for QHA and a penalty of $216 for each of Mr Kumarasamy and Mr Raghuram.
11. International employees – Failing to pay the required Sunday loading
151.This contravention affected four employees of a total underpayment amounting to $1,425.98.
152.I impose a penalty of $8,640 for QHA and $1,728 for each of Mr Kumarasamy and Mr Raghuram.
12. Australian employees – Failing to pay the required public holiday penalty rate
153.This contravention affected six employees of a total underpayment amounting to $465.21.
154.I impose a penalty of $1,080 for QHA and $216 for each of Mr Kumarasamy and Mr Raghuram.
13. International employees – Failing to pay the required public holiday penalty rate
155.This contravention affected three employees of a total underpayment amounting to $1,372.55.
156.I impose a penalty of $8,640 for QHA and $1,728 for each of Mr Kumarasamy and Mr Raghuram.
14. Failing to pay the required annual leave loading
157.This contravention affected three employees of a total underpayment amounting to $345.97.
158.I impose a penalty of $1,080 for QHA and a penalty of $216 for each of Mr Kumarasamy and Mr Raghuram.
15. Grouped:
(a) failure to pay the required daily minimum engagement; and
(b) failure to roster part-time employees for a minimum of three consecutive hours in a shift
159.This grouped contravention affected fourteen employees.
160.The FWO did not seek rectification of underpayments in relation to this contravention. The underpayments ranged from 55 cents to $286.90. The total of the underpayments was $1,582.78.
161.I impose a penalty of $4,320 for QHA and $864 for each of Mr Kumarasamy and Mr Raghuram.
16. Failure to agree in writing with each part-time employee on a regular pattern of work
162.This contravention affected four employees.
163.I impose a penalty of $1,080 on QHA and $216 on each of Mr Kumarasamy and Mr Raghuram.
17. Failure to provide payslips within one working day of making payment for the performance of work in contravention of s.536(1) of the FW Act
164.This contravention affected the four international employees.
165.I impose a penalty of $6,480 on QHA and $1,296 on each of Mr Kumarasamy and Mr Raghuram.
18. Australian employees – Failure to make or keep required records as required by s.535(1) of the FW Act and regulations 3.32, 3.33(1) and 3.33(3) of the FW Regulations
166.This contravention affected six employees. Records were made and kept, but did not contain the requisite details.
167.I impose a penalty of $2,160 on QHA and $432 each on Mr Kumarasamy and Mr Raghuram.
19. International employees – Failure to make or keep required records as required by s.535(1) of the FW Act
168.This contravention affected four employees. No employment records were kept in respect of them.
169.I impose a penalty of $12,960 on QHA and $2,592 each on Mr Kumarasamy and Mr Raghuram.
20. Altering employee records required to be kept pursuant to regulation 3.33(2) of the FW Regulations in contravention of regulation 3.44(4) of the FW Regulations
170.This contravention affected the four international employees.
171.I impose a penalty of $10,080 on QHA and $2,016 each on Mr Kumarasamy and Mr Raghuram.
21. Grouped:
(a) taking adverse action against the international employees by discriminating between them and the Australian employees because of their national extraction; and
(b) taking adverse action against the international employees by injuring them in their employment because of their national extraction.
172.This grouped contravention affected the four international employees.
173.The FWO sought one penalty for eight contraventions and proposed an amount of 70%–80% of the maximum penalty after co-operation discount of 20%, amounting to a range of $30,240–$34,560 for QHA and $6,048–$6,912 for each of Mr Kumarasamy and Mr Raghuram.
174.It is serious to take adverse action against an employee in breach of s351 of the FW Act. However, I consider that the penalty sought by the FWO is disproportionate to the scale of seriousness of the unlawful conduct of the respondents.
175.QHA has been punished for the underpayments, record keeping and pay slip contraventions in respect of the international employees by the imposition of penalties, separate from the Australian employees, due to a different course of conduct. Mr Kumarasamy and Mr Raghuram have been punished for their involvement. This needs to be considered when determining the penalties for taking adverse action against the international employees, so that double punishment does not occur.
176.I impose a penalty of $2,000 on QHA and $400 on each of Mr Kumarasamy and Mr Raghuram.
Conclusion
177.The total penalty amount imposed on QHA is $117,920 and on each of Mr Kumarasamy and Mr Raghuram, it is $23,584.
Step 5: The Totality Principle
178.The totality principle requires the Court to consider whether the final or aggregate penalty is appropriate for the total of the contravening conduct involved.[115] The Court should do “a final check …to ensure that a final, total or aggregate penalty is not unjust or out of proportion to the circumstances of the case.”[116] In doing so the Court should apply an “instinctive synthesis” in making this assessment.[117]
[115] NHS North [2017] FCA 1301; Kelly v Fitzpatrick [2007] FCA 1080.
[116] Mornington Inn Pty Ltd v Jordan [2008] FCAFC 70, [42].
[117] Australia Ophthalmic Supplies v McAlary-Smith (2008) 165 FCR 560.
179.The FWO submitted that this may be an appropriate case for a discount of the total penalties on the basis of the totality principle. The total recommended penalty range once the totality reduction had been applied by the FWO was:
a)QHA: $190,000 to $210,000
b)Mr Kumarasamy: $30,000 to $35,000
c)Mr Raghuram: $30,000 to $35,000.
180.It was submitted that this discount adequately acknowledged the current financial limitations of the respondents, “while still recognising the seriousness of the conduct.”[118]
[118] Applicant Written Submissions, [124].
181.Counsel for the respondents submitted that the penalties proposed by the FWO would still be both oppressive and crushing with the totality reduction proposed by the FWO. The Court was urged to consider that: “the offenders’ desperate personal circumstances are much more financially dire than those of the average offender.”[119]
[119] Respondent Written Submissions, [56].
182.I rely on what Jessup J observed in Hansen v Mt Martha Community Learning Centre Inc (No 2).[120] I consider that the size of the contravener is relevant in this matter in imposing a penalty at a meaningful level. I consider that it would be oppressive and crushing to require the respondents to pay the total penalties. I am satisfied that it is appropriate that there be a reduction for totality, and the following penalties be paid:
a)QHA: $80,000;
b)Mr Kumarasamy: $12,000;
c)Mr Raghuram: $12,000.
[120] [2015] FCA 1283.
183.I consider that these totals are an appropriate response to the conduct which led to the breaches.
I certify that the preceding one hundred and eighty-three (183) paragraphs are a true copy of the reasons for judgment of Judge Baker
Associate:
Date: 1 November 2019
Annexure A (as amended)
| QHA Foods Pty Ltd – First Respondent | |||||||
| No | Contravention | Maximum Penalty | Cooperation Discount (20%) | Penalty Range (%) | Penalty Range ($) | ||
| 1 | Grouped failure to pay minimum wage for adults and minimum wages for juniors as required by clauses 17 and 18 of the Award in contravention of section 45 of the FW Act – International Employees | $54,000 | $43,200 | 60% | 70% | $25,920 | $30,240 |
| 2 | Grouped failure to pay minimum wage for adults and minimum wages for juniors as required by clauses 17 and 18 of the Award in contravention of section 45 of the FW Act - Australian Employees | $54,000 | $43,200 | 20% | 30% | $8,640 | $12,960 |
| 3 | Failure to pay casual loading as required by clause 13.2 of the Award in contravention of section 45 of the FW Act | $54,000 | $43,200 | 60% | 70% | $25,920 | $30,240 |
| 4 | Failure to pay special clothing allowance as required by clause 19.2(b)(ii) in contravention of section 45 of the FW Act | $54,000 | $43,200 | 20% | 30% | $8,640 | $12,960 |
| 5 | Failure to pay transport allowance as required by clause 19.6(b) of the Award in contravention of section 45 of the FW Act - Australian Employees | $54,000 | $43,200 | No Penalty | No Penalty | $0 | $0 |
| 6 | Failure to pay transport allowance as required by clause 19.6(b) of the Award in contravention of section 45 of the FW Act - International Employees | $54,000 | $43,200 | 40% | 50% | $17,280 | $21,600 |
| 7 | Failure to pay evening loading as required by clause 25.5(a)(i) of the Award in contravention of section 45 of the FW Act | $54,000 | $43,200 | 20% | 30% | $8,640 | $12,960 |
| 8 | Failure to pay the Saturday loading as required by clause 25.5(b)(ii) of the Award in contravention of section 45 of the FW Act – Australian Employees | $54,000 | $43,200 | No penalty | No penalty | $0 | $0 |
| 9 | Failure to pay the Saturday loading as required by clause 25.5(b)(ii) of the Award in contravention of section 45 of the FW Act - International Employees | $54,000 | $43,200 | 30% | 40% | $12,960 | $17,280 |
| 10 | Failure to pay the Sunday loading as required by clause 25.5(c)(ii) of the Award in contravention of section 45 of the FW Act - Australian Employees | $54,000 | $43,200 | 20% | 30% | $8,640 | $12,960 |
| 11 | Failure to pay the Sunday loading as required by clause 25.5(c)(ii) of the Award in contravention of section 45 of the FW Act – International Employees | $54,000 | $43,200 | 40% | 50% | $17,280 | $21,600 |
| 12 | Failure to pay public holiday penalty rate as required by clause 30.3 of the Award in contravention of section 45 of the FW Act - Australian Employees | $54,000 | $43,200 | 20% | 30% | $8,640 | $12,960 |
| 13 | Failure to pay public holiday penalty rate as required by clause 30.3 of the Award in contravention of section 45 of the FW Act - International Employees | $54,000 | $43,200 | 40% | 50% | $17,280 | $21,600 |
| 14 | Failure to pay annual leave loading as required by clause 28.3 of the Award in contravention of section 45 of the Award | $54,000 | $43,200 | 10% | 20% | $4,320 | $8,640 |
| 15 | Grouped failure to pay daily minimum engagement as required by clause 13.4 of the Award and failure to roster part-time employees for a minimum of three consecutive hours in a shift as required by clause 12.5 of the Award in contravention of section 45 of the FW Act | $54,000 | $43,200 | 20% | 30% | $8,640 | $12,960 |
| 16 | Failure to agree in writing, with each part-time employee, on a regular pattern of work as required by clause 12.2 of the Award in contravention of section 45 of the FW Act | $54,000 | $43,200 | 10% | 20% | $4,320 | $8,640 |
| 17 | Failure to provide pay slips within one working day of making payment for the performance of work in contravention of section 536(1) of the FW Act | $27,000 | $21,600 | 30% | 40% | $6,480 | $8,640 |
| 18 | Failure to make or keep required records as required by section 535(1) of the FW Act - Australian Employees | $27,000 | $21,600 | 20% | 30% | $4,320 | $6,480 |
| 19 | Failure to make or keep required records as required by section 535(1) of the FW Act - International Employees | $27,000 | $21,600 | 60% | 70% | $12,960 | $15,120 |
| 20 | Altering employee records required to be kept pursuant to regulation 3.33(2) of the FW Regulations in contravention of regulation 3.44(4) of the FW Regulations | $18,000 | $14,400 | 70% | 80% | $10,080 | $11,520 |
| 21 | Grouped taking of adverse action against the International Employees by discriminating between and injuring them in their employment based on their national extraction in contravention of section 351(1) of the FW Act | $54,000 | $43,200 | 70% | 80% | $30,240 | $34,560 |
| Total | $1,017,000 | $813,600 | - | - | $241,200 | $313,920 | |
| Total (Totality Reduction) | - | - | - | - | $190,000 | $210,000 | |
| Mr Anandh Kumarasamy – Second Respondent | |||||||
| No | Contravention | Maximum Penalty | Cooperation Discount (20%) | Penalty Range (%) | Penalty Range ($) | ||
| 1 | Grouped failure to pay minimum wage for adults and minimum wages for juniors as required by clauses 17 and 18 of the Award in contravention of section 45 of the FW Act – International Employees | $10,800 | $8,640 | 60% | 70% | $5,184 | $6,048 |
| 2 | Grouped failure to pay minimum wage for adults and minimum wages for juniors as required by clauses 17 and 18 of the Award in contravention of section 45 of the FW Act - Australian Employees | $10,800 | $8,640 | 20% | 30% | $1,728 | $2,592 |
| 3 | Failure to pay casual loading as required by clause 13.2 of the Award in contravention of section 45 of the FW Act | $10,800 | $8,640 | 60% | 70% | $5,184 | $6,048 |
| 4 | Failure to pay special clothing allowance as required by clause 19.2(b)(ii) in contravention of section 45 of the FW Act | $10,800 | $8,640 | 20% | 30% | $1,728 | $2,592 |
| 5 | Failure to pay transport allowance as required by clause 19.6(b) of the Award in contravention of section 45 of the FW Act - Australian Employees | $10,800 | $8,640 | No Penalty | No Penalty | $0 | $0 |
| 6 | Failure to pay transport allowance as required by clause 19.6(b) of the Award in contravention of section 45 of the FW Act - International Employees | $10,800 | $8,640 | 40% | 50% | $3,456 | $4,320 |
| 7 | Failure to pay evening loading as required by clause 25.5(a)(i) of the Award in contravention of section 45 of the FW Act | $10,800 | $8,640 | 20% | 30% | $1,728 | $2,592 |
| 8 | Failure to pay the Saturday loading as required by clause 25.5(b)(ii) of the Award in contravention of section 45 of the FW Act - Australian Employees | $10,800 | $8,640 | No penalty | No penalty | $0 | $0 |
| 9 | Failure to pay the Saturday loading as required by clause 25.5(b)(ii) of the Award in contravention of section 45 of the FW Act - International Employees | $10,800 | $8,640 | 30% | 40% | $2,592 | $3,456 |
| 10 | Failure to pay the Sunday loading as required by clause 25.5(c)(ii) of the Award in contravention of section 45 of the FW Act - Australian Employees | $10,800 | $8,640 | 20% | 30% | $1,728 | $2,592 |
| 11 | Failure to pay the Sunday loading as required by clause 25.5(c)(ii) of the Award in contravention of section 45 of the FW Act – International Employees | $10,800 | $8,640 | 40% | 50% | $3,456 | $4,320 |
| 12 | Failure to pay public holiday penalty rate as required by clause 30.3 of the Award in contravention of section 45 of the FW Act - Australian Employees | $10,800 | $8,640 | 20% | 30% | $1,728 | $2,592 |
| 13 | Failure to pay public holiday penalty rate as required by clause 30.3 of the Award in contravention of section 45 of the FW Act - International Employees | $10,800 | $8,640 | 40% | 50% | $3,456 | $4,320 |
| 14 | Failure to pay annual leave loading as required by clause 28.3 of the Award in contravention of section 45 of the Award | $10,800 | $8,640 | 10% | 20% | $864 | $1,728 |
| 15 | Grouped failure to pay daily minimum engagement as required by clause 13.4 of the Award and failure to roster part-time employees for a minimum of three consecutive hours in a shift as required by clause 12.5 of the Award in contravention of section 45 of the FW Act | $10,800 | $8,640 | 20% | 30% | $1,728 | $2,592 |
| 16 | Failure to agree in writing, with each part-time employee, on a regular pattern of work as required by clause 12.2 of the Award in contravention of section 45 of the FW Act | $10,800 | $8,640 | 10% | 20% | $864 | $1,728 |
| 17 | Failure to provide pay slips within one working day of making payment for the performance of work in contravention of section 536(1) of the FW Act | $5,400 | $4,320 | 30% | 40% | $1,296 | $1,728 |
| 18 | Failure to make or keep required records as required by section 535(1) of the FW Act - Australian Employees | $5,400 | $4,320 | 20% | 30% | $864 | $1,296 |
| 19 | Failure to make or keep required records as required by section 535(1) of the FW Act - International Employees | $5,400 | $4,320 | 60% | 70% | $2,592 | $3,024 |
| 20 | Altering employee records required to be kept pursuant to regulation 3.33(2) of the FW Regulations in contravention of regulation 3.44(4) of the FW Regulations | $3,600 | $2,880 | 70% | 80% | $2,016 | $2,304 |
| 21 | Grouped taking of adverse action against the International Employees by discriminating and injuring them in their employment based on their national extraction in contravention of section 351(1) of the FW Act | $10,800 | $8,640 | 70% | 80% | $6,048 | $6,912 |
| Total | $203,400 | $162,720 | - | - | $48,240 | $62,784 | |
| Total (Totality Reduction) | - | - | - | - | $30,000 | $35,000 | |
| Mr Haridas Raghuram - Third Respondent | |||||||
| No | Contravention | Maximum Penalty | Cooperation Discount (20%) | Penalty Range (%) | Penalty Range ($) | ||
| 1 | Grouped failure to pay minimum wage for adults and minimum wages for juniors as required by clauses 17 and 18 of the Award in contravention of section 45 of the FW Act – International Employees | $10,800 | $8,640 | 60% | 70% | $5,184 | $6,048 |
| 2 | Grouped failure to pay minimum wage for adults and minimum wages for juniors as required by clauses 17 and 18 of the Award in contravention of section 45 of the FW Act - Australian Employees | $10,800 | $8,640 | 20% | 30% | $1,728 | $2,592 |
| 3 | Failure to pay casual loading as required by clause 13.2 of the Award in contravention of section 45 of the FW Act | $10,800 | $8,640 | 60% | 70% | $5,184 | $6,048 |
| 4 | Failure to pay special clothing allowance as required by clause 19.2(b)(ii) in contravention of section 45 of the FW Act | $10,800 | $8,640 | 20% | 30% | $1,728 | $2,592 |
| 5 | Failure to pay transport allowance as required by clause 19.6(b) of the Award in contravention of section 45 of the FW Act - Australian Employees | $10,800 | $8,640 | No Penalty | No Penalty | $0 | $0 |
| 6 | Failure to pay transport allowance as required by clause 19.6(b) of the Award in contravention of section 45 of the FW Act - International Employees | $10,800 | $8,640 | 40% | 50% | $3,456 | $4,320 |
| 7 | Failure to pay evening loading as required by clause 25.5(a)(i) of the Award in contravention of section 45 of the FW Act | $10,800 | $8,640 | 20% | 30% | $1,728 | $2,592 |
| 8 | Failure to pay the Saturday loading as required by clause 25.5(b)(ii) of the Award in contravention of section 45 of the FW Act - Australian Employees | $10,800 | $8,640 | No penalty | No penalty | $0 | $0 |
| 9 | Failure to pay the Saturday loading as required by clause 25.5(b)(ii) of the Award in contravention of section 45 of the FW Act - International Employees | $10,800 | $8,640 | 30% | 40% | $2,592 | $3,456 |
| 10 | Failure to pay the Sunday loading as required by clause 25.5(c)(ii) of the Award in contravention of section 45 of the FW Act - Australian Employees | $10,800 | $8,640 | 20% | 30% | $1,728 | $2,592 |
| 11 | Failure to pay the Sunday loading as required by clause 25.5(c)(ii) of the Award in contravention of section 45 of the FW Act – International Employees | $10,800 | $8,640 | 40% | 50% | $3,456 | $4,320 |
| 12 | Failure to pay public holiday penalty rate as required by clause 30.3 of the Award in contravention of section 45 of the FW Act - Australian Employees | $10,800 | $8,640 | 20% | 30% | $1,728 | $2,592 |
| 13 | Failure to pay public holiday penalty rate as required by clause 30.3 of the Award in contravention of section 45 of the FW Act - International Employees | $10,800 | $8,640 | 40% | 50% | $3,456 | $4,320 |
| 14 | Failure to pay annual leave loading as required by clause 28.3 of the Award in contravention of section 45 of the Award | $10,800 | $8,640 | 10% | 20% | $864 | $1,728 |
| 15 | Grouped failure to pay daily minimum engagement as required by clause 13.4 of the Award and failure to roster part-time employees for a minimum of three consecutive hours in a shift as required by clause 12.5 of the Award in contravention of section 45 of the FW Act | $10,800 | $8,640 | 20% | 30% | $1,728 | $2,592 |
| 16 | Failure to agree in writing, with each part-time employee, on a regular pattern of work as required by clause 12.2 of the Award in contravention of section 45 of the FW Act | $10,800 | $8,640 | 10% | 20% | $864 | $1,728 |
| 17 | Failure to provide pay slips within one working day of making payment for the performance of work in contravention of section 536(1) of the FW Act | $5,400 | $4,320 | 30% | 40% | $1,296 | $1,728 |
| 18 | Failure to make or keep required records are required by section 535(1) of the FW Act - Australian Employees | $5,400 | $4,320 | 20% | 30% | $864 | $1,296 |
| 19 | Failure to make or keep required records as required by section 535(1) of the FW Act - International Employees | $5,400 | $4,320 | 60% | 70% | $2,592 | $3,024 |
| 20 | Altering employee records required to be kept pursuant to regulation 3.33(2) of the FW Regulations in contravention of regulation 3.44(4) of the FW Regulations | $3,600 | $2,880 | 70% | 80% | $2,016 | $2,304 |
| 21 | Grouped taking of adverse action against the International Employees by discriminating and injuring them in their employment based on their national extraction in contravention of section 351(1) of the FW Act | $10,800 | $8,640 | 70% | 80% | $6,048 | $6,912 |
| Total | $203,400 | $162,720 | - | - | $48,240 | $62,784 | |
| Total (Totality Reduction) | - | - | - | - | $30,000 | $35,000 | |
[95] Ibid [75]-[76].
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