Fair Work Ombudsman v Quickpoint Pty Ltd
[2022] FedCFamC2G 991
Federal Circuit and Family Court of Australia
(DIVISION 2)
Fair Work Ombudsman v Quickpoint Pty Ltd [2022] FedCFamC2G 991
File number: PEG 363 of 2020 Judgment of: JUDGE KENDALL Date of judgment: 29 November 2022 Catchwords: INDUSTRIAL LAW – Penalty hearing – factors for consideration – nature, extent and circumstances of the contravening conduct – compliance with minimum standards – size and financial circumstances of the business – the need for specific and general deterrence – cooperation, corrective action and contrition – totality. Legislation: Corporations Act 2001 (Cth)
Crimes Act 1914 (Cth);
Fair Work Act 2009 (Cth), ss 3, 12, 14, 535, 536, 539, 546, 550, 687, 700, 701, 712, 718A, 793
Fair Work Regulations 2009 (Cth), reg 3.46
Workplace Relations Act 1996 (Cth)
Cases cited: Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union [2017] FCAFC 113
Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union [2018] HCA 3
Australian Building and Construction Commissioner v Pattinson [2022] HCA 13
Fair Work Ombudsman v ACN 052 182 180 Pty Ltd & Anor [2013] FCCA 688
Fair Work Ombudsman v Dosanjh [2016] FCCA 923
Fair Work Ombudsman v Han Investments Pty Ltd [2017] FCA 623
Fair Work Ombudsman v Malevi Pty Ltd & Ors [2020] FCCA 2875
Fair Work Ombudsman v NSH North Pty Ltd trading as New Shanghai Charlestown [2017] FCA 1301
Fair Work Ombudsman v Soleimani & Anor [2014] CA 2380
Fair Work Ombudsman v Tac Pham Pty Ltd & Anor [2020] FCCA 3036
Jordan v Mornington Inn Pty Ltd [2007] FCA 1384
Kelly v Fitzpatrick [2007] FCA 1080
Mason v Harrington Corporation Proprietary Limited t/as Pangaea Restaurant & Bar [2007] FMCA 7
Mornington Inn v Jordan [2008] FCAFC 70
Plancor Pty Ltd v Liquor, Hospitality & Miscellaneous Union [2008] FCAFC 170
Ponzio v B & P Caelli Constructions Pty Ltd and Ors [2007] FCAFC 65
Trade Practices Commission v CSR Ltd [1990] FCA 521
Division: Division 2 General Federal Law Number of paragraphs: 181 Date of hearing: 21 October 2022 Place: Perth Counsel for the Applicant: Ms G Walker Solicitor for the Applicant: Office of the Fair Work Ombudsman Counsel for the Respondents: Mr J Dasey Solicitor for the Respondents: Dasey Legal Pty Ltd ORDERS
PEG 363 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: FAIR WORK OMBUDSMAN
Applicant
AND: QUICKPOINT PTY LTD (ACN 163 962 098)
First Respondent
AUGUSTINE LAWRENCE CHIA
Second Respondent
order made by:
JUDGE KENDALL
DATE OF ORDER:
29 NOVEMBER 2022
THE COURT ORDERS THAT:
1.The first respondent pay a pecuniary penalty to the Commonwealth of Australia in the sum of $168,415 within 90 days of the date of this order.
2.The second respondent pay a pecuniary penalty to the Commonwealth of Australia in the sum of $24,580 within 90 days of the date of this order.
3.The applicant have liberty to apply on seven days’ notice in the event that order 1 or 2 above is not complied with.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE KENDALL:
Introduction
The First Respondent owned and operated a Japanese food café in the Harbor Town Shopping precinct in Perth, Western Australia, trading as “Shimizu Harbour Town” (the Café).
The Second Respondent is the First Respondent’s sole director.
Mr Robert Garcia (“Mr Garcia”) and Ms Helen Curnow (“Ms Curnow”) were employed at the Café on a casual basis.
On 7 December 2020, the Applicant filed an application in this Court claiming that the Respondents had contravened various provisions of the Fair Work Act 2009 (Cth) (the “FW Act”). The contraventions included the making and providing of false and misleading time and wage records which concealed that Mr Garcia and Ms Curnow had not been paid their entitlements under the FW Act.
On 8 November 2021, the parties filed a Statement of Agreed Facts (the “SOAF”) in this Court in which the Respondents agreed to various contraventions of the FW Act.
On 12 November 2021, having reviewed the SOAF, this Court made declarations by consent, as follows:
1.The First Respondent contravened the FW Act as follows:
(a)s 535(4) of the FW Act, by making and keeping a Payment Activity Summary for the pay period ending 22 July 2018 (the “Payment Summary”), knowing it to be false or misleading;
(b)s 535(4) of the FW Act, by making and keeping payroll advices for the First Respondent’s employees, including Ms Curnow and Mr Garcia (together, the “Employees”), for the period from the commencement of each employee’s employment to 2 September 2018 (the “Payroll Records”) knowing them to be false or misleading;
(c)s 535(4) of the FW Act, by making and keeping time records for the First Respondent’s employees, including the Employees for the period commencing from 26 June 2017 to 19 August 2018 (the “Time Records”) knowing them to be false or misleading;
(d)s 536(2) of the FW Act, by failing to give pay slips to each of the Employees which contained all of the information required by reg 3.46 of the Fair Work Regulations 2009 (Cth) (the “FW Regulations”);
(e)s 536(3) of the FW Act, by giving the Employees pay slips knowing them to be false or misleading;
(f) s 718A of the FW Act, by producing:
(i) the Payment Summary; and
(ii)pay slips for eight of the First Respondent’s employees including the Employees for the period 9 to 22 July 2018 (the “July Pay Slips”),
to a Fair Work Inspector on 2 August 2018 being reckless as to whether each of the documents was false or misleading; and
(g) s 718A of the FW Act, by producing:
(i) the Payroll Records; and
(ii) the Time Records,
to a Fair Work Inspector 18 September 2018 being reckless as to whether each of the documents was false or misleading.
2. The Second Respondent:
(a) contravened s 718A of the of the FW Act, by producing:
(i) the Payment Summary; and
(ii) the July Pay Slips,
to a Fair Work Inspector Harris on 2 August 2018, being reckless as to whether each of the documents was false or misleading; and the Second Respondent was involved , within the meaning of s 550(2)(c) of the FW Act, in the First Respondent’s contraventions at paragraphs 1(a), 1(b), 1(c) and 1(e) above.
(b)was involved , within the meaning of s 550(2)(c) of the FW Act, in the First Respondent's contraventions at paragraphs 1(a), 1(b), 1(c) and 1(e) above.
The sole issue before this Court, and the subject of this judgment, is what penalty should be imposed on each of the Respondents for their respective contraventions of the FW Act.
materials before the court
On 12 November 2021, and with the consent of the parties, the Court made the following procedural orders:
1.The name of the First Respondent be amended on the court file to ‘QUICKPOINT PTY LTD (ACN 163 962 098)’.
2.The Applicant is to file and serve any evidence in respect of penalty by 12 November 2021.
3.The Respondent is to file and serve any evidence in respect of penalty by 1 December 2021.
4.The Applicant is to file and serve any reply evidence and penalty submissions by 15 December 2021.
5.The Respondent is to file and serve any penalty submissions by 14 January 2022.
6. The Applicant is to file and serve any reply submissions by 28 January 2022.
7.The matter be listed for penalty hearing of not more than one day on 7 June 2022 at 10.00am (AWST).
8.The Parties have liberty to apply.
On 15 August 2022, the parties asked that the final hearing listed for this matter be vacated and that the matter be determined on the papers. The Court agreed to that approach and written submissions were ultimately filed by the parties.
Having reviewed the parties’ written submissions, the Court determined that further information and guidance from the parties was required.
On 21 October 2022, the parties’ legal representatives appeared before the Court (by video link) and made oral submissions addressing the calculation of penalties. The Court thanks Ms Walker of Counsel (for the Applicant) and Mr Dasey (for the Respondents) for their considerable assistance in this regard.
Having now heard from the parties, the Court relies on the following materials for the purposes of this judgment:
(a)the SOAF dated 8 November 2021;
(b)the Affidavit of Ms Jacqualine McArthur affirmed on 12 November 2021 and filed on 15 November 2021;
(c)the Affidavit of Ms Helen Curnow sworn and filed on 18 November 2021 and filed on 19 November 2021;
(d)the Affidavit of the Second Respondent deposed on 6 December 2021 and filed on 18 July 2022;
(e)the Applicant’s Written Submissions on Penalty filed on 21 February 2022;
(f)the Respondents’ Written Submissions on Penalty filed on 18 July 2022; and
(g)the Applicant’s Written Submissions in Reply filed on 5 August 2022.
The Court has also reviewed and relied on the transcript of the parties’ oral submissions to the Court at the directions hearing held on 21 October 2022.
Background
The SOAF filed by the parties offers a detailed overview of the background facts. The Court notes and adopts that overview, which, having admitted the contraventions outlined above at 6, provides as follows.
The Parties
The Applicant
The Applicant is:
(a)a statutory appointee of the Commonwealth appointed by the Governor-General by written instrument pursuant to s 687(1) of the FW Act;
(b)a Fair Work Inspector (“FWI”) pursuant to s 701 of the FW Act; and
(c)a person with standing to bring these proceedings and apply for orders in respect of contraventions of civil remedy provisions under s 539(2) of the FW Act.
The First Respondent
The First Respondent is, and was at all material times:
(a)a company incorporated under the Corporations Act 2001 (Cth) and registered since 27 May 2013;
(b)a “constitutional corporation” within the meaning of s 12 of the FW Act;
(c)a “national system employer” within the meaning of s 14 of the FW Act;
(d)the entity that operated the Café; and
(e)during the period 30 November 2015 to 11 November 2018 (the “Employment Period”), or part thereof, the employer of the Employees.
The Second Respondent
The Second Respondent, is and was at all material times:
(a)a natural person capable of being sued;
(b)also known as “Lawrence”;
(c)the sole director of the First Respondent;
(d)a person responsible for ensuring that the First Respondent complied with its duties under the FW Act;
(e)a person who during the Employment Period was responsible for:
(i)setting and adjusting rates of pay and determining wages paid to the First Respondent’s employees;
(ii)making and/or keeping time and wage records for the First Respondent’s employees;
(iii)preparing and issuing pay slips to the employees of the First Respondent, including the Employees;
(iv)from time to time, supervising the Employees in the performance of their duties.
(f)during the Employment Period, the person:
(i)authorised to operate the bank account from which electronic funds transfer (“EFT”) payments were made to employees of the First Respondent, including the Employees;
(ii)who calculated and made payments to the First Respondent’s employees, including the Employees, in both cash payments and by EFT;
(g)received an email each day containing a record of the hours worked each day by employees of the First Respondent;
(h)formerly a director of Golden Maple Pty Ltd and Cityteam Pty Ltd, which operated Japanese restaurants trading as ‘Shimizu’ in Perth; and
(i)an officer, employee or agent of the First Respondent for the purposes of s 793(1) of the FW Act, whose conduct and state of mind is taken to be the conduct and state of mind of the First Respondent by reason of ss 793(1) and 793(2) of the FW Act.
The Employees
During the Employment Period, the First Respondent employed:
(a)Ms Curnow from 30 November 2015 to 11 November 2018; and
(b)Mr Garcia from 22 November 2017 to 30 September 2018.
Ms Curnow:
(a)had no prior experience in the restaurant industry prior to her employment with the First Respondent; and
(b)at all relevant times during her employment, performed duties for the First Respondent which included:
(i)working as a cashier taking customers’ orders and receiving money;
(ii)serving food to tables; and
(iii)from in or about April 2018, in addition to the duties in subparagraphs 19(b)(i)-(ii) above, cooking and general cleaning duties in the kitchen.
Mr Garcia:
(a)had no prior cooking experience or qualifications prior to his employment with the First Respondent; and
(b)at all relevant times during his employment, performed duties for the First Respondent which included:
(i)kitchenhand duties; and
(ii)after an initial period of training, cooking duties including preparing lunches.
Employees’ hours of work and payment
Hours of Work
Each of the Employees:
(a)did not have a written agreement with the First Respondent of agreed hours to be worked during their employment, or any firm advanced commitment to continuing indefinite work according to an agreed pattern;
(b)during their employment, worked varying hours each week according to a roster provided to them by the First Respondent on a weekly basis; and
(c)were employed by the First Respondent on a casual basis.
Remuneration
The First Respondent paid Ms Curnow:
(a)on a fortnightly basis in a combination of cash payments and by EFT;
(b)from 30 November 2015 to 3 February 2018, a flat hourly rate of $15 per hour;
(c)from on or around 4 February 2018 to 11 November 2018, a flat hourly rate of $16 per hour; and
(d)the total fortnightly amounts set out in column 5 of Schedule 1 of the SOAF for the periods set out in column 1 of Schedule 1 of the SOAF, as follows:
Employment period Total Paid 10 July 2017 – 23 July 2017 $918.75 24 July 2017 – 8 August 2017 $765.00 7 August 2017 – 20 August 2017 $142.50 21 August 2017 – 3 September 2017 $637.50 13 November 2017 – 26 November 2017 $847.50 27 November 2017 – 10 December 2017 $847.50 25 December 2017 – 7 January 2018 $956.25 8 January 2018 – 21 January 2018 $1,001.25 22 January 2018 – 4 February 2018 $971.25 5 February 2018 – 18 February 2018 $1,016.00 19 February 2018 – 4 March 2018 $1,120.00 5 March 2018 – 18 March 2018 $1,104.00 19 March 2018 – 1 April 2018 $1,232.00 2 April 2018 – 15 April 2018 $1,184.00 16 April 2018 – 29 April 2018 $1,048.00 30 April 2018 – 13 May 2018 $1,128.00 14 May 2018 – 27 May 2018 $1,304.00 28 May 2018 – 10 June 2018 $1,144.00 25 June 2018 – 8 July 2018 $1,440.00 9 July 2018 – 22 July 2018 $1,504.00 23 July 2018 – 5 August 2018 $1,620.00 20 August 2018 – 2 September 2018 $1,488.00
The First Respondent paid Mr Garcia:
(a)on a fortnightly basis in a combination of cash payments and by EFT;
(b)for the period from 22 November 2017 to 24 June 2018, a flat hourly rate of $15 per hour;
(c)for the period from 25 June 2018 to 30 September 2018, a flat hourly rate of $16 per hour; and
(d)the total fortnightly amounts set out in column 5 of Schedule 2 of the SOAF for the periods set out in column 1 of Schedule 2 of the SOAF, as follows:
Employment period Total Paid 5 February 2018 – 18 February 2018 $562.50 19 February 2018 – 4 March 2018 $412.50 28 May 2018 – 10 June 2018 $945.00 11 June 2018 – 24 June 2018 $1,020.00 25 June 2018 – 8 July 2018 $1,480.00 9 July 2018 – 22 July 2018 $1,472.00 23 July 2018 – 5 August 2018 $1,360.00 Pay Slips
At the end of each pay period during their respective Employment Periods, the First Respondent gave each of the Employees a pay slip which contained the following information:
(a)the Employee’s name;
(b)the period for which the pay slip related;
(c)the total cumulative number of hours worked in that period; and
(d)the gross amount of the payment,
(the “Employee Pay Slips”).
Legislation and industrial instrument
At all material times, the First Respondent was bound by the FW Act in respect of the Employees’ employment.
At all material times, and by reason of the matters admitted (see paragraph 16(d) above), the Restaurant Industry Award 2010 (the “Restaurant Award”) covered and applied to the First Respondent in respect of the employment of the Employees.
Classification
By reason of the matters admitted (see above at paragraphs 19 and 20), Ms Curnow and Mr Garcia were classified under Schedule B of the Restaurant Award, as follows:
Employee Employment period Classification Ms Curnow 30 November 2015 to in or about April 2018 Food and Beverage Attendant Grade 1 In or about April 2018 to 11 November 2018 Food and Beverage Attendant Grade 1 and/or Kitchen Attendant Grade 1 Mr Garcia 22 November 2017 to 21 February 2018 Introductory level 22 February 2018 to 30 September 2018 Kitchen Attendant Grade 1 Minimum Rates of Pay
During their respective Employment Periods, pursuant to clause 20.1 of the Restaurant Award, the First Respondent was required to pay the Employees the following minimum rates (“Minimum Rates”) for ordinary hours worked on a Monday to Friday:
Employee Period Minimum Rate Ms Curnow 30 November 2015 – 30 June 2016 $17.79 1 July 2016 – 30 June 2017 $18.21 1 July 2017 – 30 June 2018 $18.81 1 July 2018 – 11 November 2018 $19.47 Mr Garcia 22 November 2017 – 21 February 2018 $18.29 22 February 2018 – 30 June 2018 $18.81 1 July 2018 – 30 September 2018 $19.47
Pursuant to clause 13.1 of the Restaurant Award, the First Respondent was required to pay each of the Employees, in addition to the Minimum Rate, a casual loading of 25 percent of their applicable Minimum Rate (“Casual Loading”) for all ordinary hours worked on a Monday to Friday.
Pursuant to clause 34.1 of the Restaurant Award, the First Respondent was required to pay the Employees 150 percent of their applicable Minimum Rate for ordinary hours worked on Saturdays and Sundays (the “Weekend Rates”).
Pursuant to clause 34.1 of the Restaurant Award, the First Respondent was required to pay the Employees 250 percent of their applicable Minimum Rate for ordinary hours worked on a Public Holiday (the “Public Holiday Rates”).
Conduct during the Applicant’s investigation
During the period from 31 July 2018 to on or about 2 October 2019, the Applicant carried out an investigation of the First Respondent to determine its compliance with the FW Act and the FW Regulations (the “Investigation”).
The following FWIs, each of whom was appointed under s 700(1)(a) of the FW Act, participated in the Investigation:
(a)FWI Anthony Harris (“FWI Harris”); and
(b)FWI Jacqualine McArthur (“FWI McArthur”).
On 31 July 2018 at or about 10am, FWI Harris spoke to the Second Respondent by telephone. During the course of that conversation:
(a)FWI Harris informed the Second Respondent that he would like to meet with him and discuss how employees were paid and to request records;
(b)FWI Harris requested to meet the Second Respondent the following day (1 August 2018);
(c)the Second Respondent informed FWI Harris that he was travelling overseas the following day and would return on 12 August 2018; and
(d)the Second Respondent informed FWI Harris that he would arrange for his accountant to provide FWI Harris with the records that were required.
Notice to produce and associated correspondence
On 31 July 2018, FWI Harris gave the First Respondent a notice to produce records or documents pursuant to s 712 of the FW Act seeking specified records or documents (the “Notice”).
The Notice was served by registered post to the registered office of the First Respondent and a copy sent by email to the Second Respondent at his designated email address.
The Notice required the First Respondent to produce, by 16 August 2018, various records or documents relating to all of its employees, including, but not limited to, documents and records that:
(a)relate to or record the payment of wages paid to employees and the dates of those payments, including pay slips and EFT records; and
(b)showed or detailed hours worked, including start and finish times and dates worked, including, but not limited to, time sheets or rosters.
On 2 August 2018, by way of an email from the Second Respondent, the First Respondent produced to FWI Harris, records and documents in response to the Notice which included, relevantly:
(a)the Payment Summary; and
(b)the July Pay Slips.
On 7 August 2018, the Second Respondent informed the Applicant by email that Graham Lilleyman of Employment Services & Solutions Australia (“ESSA”) was authorised to represent the First Respondent in respect of its dealings with the Applicant.
On 18 September 2018, by way of registered post from ESSA, the First Respondent produced, to FWI Harris, further records and documents in response to the Notice which included, relevantly:
(a)the Payroll Records; and
(b)the Time Records.
Payslips given to Ms Curnow and Mr Garcia
On or about 14 September 2018, the Second Respondent:
(a)handed 27 pay slips to Ms Curnow for the period 26 June 2017 to 22 July 2018 (the “Curnow Pay Slips”), each of which was in the same form as the July Pay Slips and, in respect of each relevant period, recorded the same purported information as the Payroll Records, being the information referred to below; and
(b)handed 18 pay slips to Mr Garcia for the periods 13 November 2017 to 22 July 2018, and 20 August to 2 September 2018 (the “Garcia Pay Slips”), each of which was in the same form as the July Pay Slips and, in respect of each relevant period, recorded the same purported information as the Payroll Records, being the information referred to in below.
Contraventions of the FW Act
Making and keeping false records in contravention of s 535(4)
Pursuant to s 535(4) of the FW Act, the First Respondent was required not to make or keep a record for the purpose of s 535 of the FW Act that the First Respondent knew was false or misleading.
Payment Summary
The Payment Summary referred to in paragraph 38(a) above:
(a)concerned the pay period ending 22 July 2018; and
(b)in respect of each of the Employees, set out the gross and net amounts purportedly paid to the Employees by the First Respondent.
The Payment Summary was a document:
(a)made by the First Respondent;
(b)made after 15 September 2017; and
(c)kept by the First Respondent between the time of being made and being produced by the First Respondent on 2 August 2018.
The Payment Summary was a record of a kind that the First Respondent was required to make and keep for the purposes of s 535 of the FW Act.
The Payment Summary was false or misleading because:
(a)the Payment Summary records that in the pay period ending 22 July 2018, Ms Curnow was paid the gross amount of $1,487.21 and the net amount of $1,301.21, when in fact Ms Curnow was paid the gross amount of $1,504, made up of a cash payment of $202.80 and an EFT of $1,301.21; and
(b)the Payment Summary records that in the period ending 22 July 2018, Mr Garcia was paid the gross amount of $1,401.79 and the net amount of $959.79, when in fact Mr Garcia was paid the gross amount of $1,472, made up of a cash payment of $512.21 and an EFT of $959.79.
The First Respondent knew that the Payment Summary was false or misleading because, at all material times, the Second Respondent:
(a)knew the gross fortnightly amounts actually paid to each of the Employees during the period ending 22 July 2018;
(b)knew the contents of the Payment Summary; and
(c)held the Payment Summary out to be a record of the First Respondent in respect of the amounts paid to the Employees,
and the Second Respondent's knowledge is taken to be that of the First Respondent, by reason of s 793 of the FW Act.
By reason of the matters admitted (see paragraphs 42 to 47 above), the First Respondent admits that it contravened s 535(4) of the FW Act by making and keeping the Payment Summary, knowing it to be false or misleading.
The Payroll Records
The Payroll Records referred to in paragraph 40(a) above:
(a)concerned the following pay periods:
(i)for Ms Curnow, from 30 November 2015 to 2 September 2018; and
(ii)for Mr Garcia, from 13 November 2017 to 2 September 2018;
(b)with respect to the each of the Employees and for each pay period, purported to set out:
(i)the hours and days worked by the Employee;
(ii)gross and net amounts paid to the Employee; and
(iii)that the Employees were paid hourly rates in accordance with the Restaurant Award as set out in paragraphs 28 to 31 above (including rates of at least $21.61 in respect of Ms Curnow and $23.51 in respect of Mr Garcia, and higher rates on Saturdays, Sundays and public holidays).
The Payroll Records were documents:
(a)made by the First Respondent;
(b)made after 15 September 2017; and
(c)kept by the First Respondent between the time of being made and being produced by the First Respondent on 18 September 2018.
The Payroll Records are records of a kind that the First Respondent was required to make and keep for the purposes of s 535 of the FW Act.
The Payroll Records were false or misleading because:
(a)the hours recorded as having been worked by each of the Employees were not the hours actually worked by the Employees in respect of the relevant pay period;
(b)the rates recorded as having been paid to Ms Curnow were not the rates actually paid to Ms Curnow, who was paid a flat rate of either $15 or $16 per hour, as admitted (see above at paragraph 22), with no increased rate for weekends or public holidays;
(c)the gross pay amounts recorded as having been paid to Ms Curnow were not the amounts actually paid to Ms Curnow, as reproduced in Schedule 1 (see extract reproduced at paragraph 22 above);
(d)the rates recorded as having been paid to Mr Garcia were not the rates actually paid to Mr Garcia, who was paid a flat rate of either $15 or $16 per hour, as admitted (see above at paragraph 23), with no increased rate for weekends or public holidays; and
(e)the gross pay amounts recorded as having been paid to Mr Garcia were not the amounts actually paid to Mr Garcia, as reproduced in Schedule 2 (see extract reproduced at paragraph 23 above).
The First Respondent knew that the Payroll Records were false or misleading because at all relevant times, the Second Respondent:
(a)knew the actual hours worked by the Employees;
(b)knew the hourly rates and the gross fortnightly amounts actually paid to each of the Employees;
(c)knew the content of the Payroll Records;
(d)held the Payroll Records out to be a record of the First Respondent in respect of the amounts and rates paid to the Employees,
and the Second Respondent's knowledge is taken to be that of the First Respondent, by reason of s 793 of the FW Act.
By reason of the matters admitted (see above at paragraphs 49 to 53), the First Respondent admits that it contravened s 535(4) of the FW Act by making and keeping the Payroll Records, knowing them to be false or misleading.
The Time Records
The Time Records referred to above at paragraph 40(b) set out the days and hours worked each fortnight by each of the Employees in respect of the period from 26 June 2017 to 19 August 2018.
The Time Records are records of a kind that the First Respondent was required to make and keep for the purposes of s 535 of the FW Act.
The Time Records were documents:
(a)made by the First Respondent;
(b)made after 15 September 2017; and
(c)kept by the First Respondent between the time of being made and being produced by the First Respondent on 2 August 2018.
The Time Records were false or misleading because they understated the hours actually worked each fortnight by each of Ms Curnow and Mr Garcia during their respective Employment Periods.
The First Respondent knew that the Time Records were false or misleading because at all relevant times, the Second Respondent:
(a)knew the hours actually worked each fortnight by the Employees;
(b)knew the content of the Time Records; and
(c)held the Time Records out to be records of the First Respondent in respect of the hours worked by the Employees,
and the Second Respondent's knowledge is taken to be that of the First Respondent, by reason of s 793 of the FW Act.
By reason of the matters admitted (see above at paragraphs 55 to 59), the First Respondent admits that it contravened s 535(4) of the FW Act by making and keeping the Time Records, knowing them to be false or misleading.
Failure to provide pay slips in contravention of s 536(2) of the FW Act
Pursuant to s 536(2) of the FW Act, at all material times, the First Respondent was required to give each of the Employees a pay slip that included information prescribed by the FW Regulations.
Pursuant to reg 3.46 of the FW Regulations, information the First Respondent was required to include in the pay slips given to the Employees included:
(a)the First Respondent’s name (reg 3.46(1)(a));
(b)the Employee’s name (reg 3.46(1)(b));
(c)the period to which the pay slip relates (reg 3.46(1 )(c));
(d)the date on which the payment to which the pay slip relates was made (reg 3.46(1)(d));
(e)the gross amount of the payment (reg 3.46(1)(e));
(f)the net amount of payment (reg 3.46(1)(f));
(g)the ABN of the First Respondent (reg 3.46(1)(h));
(h)because each Employee was paid an hourly rate, as admitted in paragraphs 22 and 23 above:
(i)the rate of pay for ordinary hours;
(ii)the number of hours in that period for which the employee was employed at that rate;
(iii)the amount of that payment made at that rate, (reg 3.46(3)); and
(iv)details of any superannuation contributions that the First Respondent was liable to make (reg 3.46(5)).
By reason of the matters admitted (see above at paragraphs 24 and 61), the First Respondent failed to include in the Employee Pay Slips the following information required by reg 3.46 of the FW Regulations:
(a)the First Respondent's name (reg 3.46(1)(a));
(b)the date on which the payment to which the pay slip relates was made (reg 3.46(1)(d));
(c)the net amount of payment (reg 3.46(1)(f));
(d)the ABN of the First Respondent (reg 3.46(1)(h));
(e)the rate of pay for ordinary hours (reg 3.46(3)); and
(f)details of superannuation contributions that the First Respondent was liable to make (reg 3.46(5)).
By reason of the matters admitted (see above at paragraph 63), the First Respondent admits that it contravened s 536(2) of the FW Act by failing to issue pay slips to the Employees that contained all required information.
Providing false or misleading pay slips in contravention of s 536(3) of the FW Act
Pursuant to s 536(3) of the FW Act, an employer must not give a pay slip for the purposes of s 536 of the FW Act that the employer knows to be false or misleading.
On or about 14 September 2018, by reason of the matters admitted in paragraph 41 above, the First Respondent issued the Curnow Pay Slips to Ms Curnow and the Garcia Pay Slips to Mr Garcia.
The Curnow Pay Slips and the Garcia Pay Slips were false or misleading because:
(a)the Curnow Pay Slips recorded that Ms Curnow was paid hourly rates in accordance with the Restaurant Award as set out in paragraphs 28 to 31 above (including hourly rates of at least $21.61, and higher rates on Saturdays, Sundays and public holidays) when in fact Ms Curnow was paid a flat rate of either $15 or $16 per hour, with no increased rate for weekends or public holidays;
(b)the Curnow Pay Slips recorded that Ms Curnow worked less hours than she actually worked;
(c)the Curnow Pay Slips do not record the amounts that Ms Curnow was paid in cash;
(d)the Garcia Pay Slips recorded that Mr Garcia was paid hourly rates in accordance with the Restaurant Award as set out in paragraphs 28 to 31 above (including hourly rates of at least $23.51, and higher rates on Saturdays, Sundays and public holidays) when in fact Mr Garcia was paid a flat rate of either $15 or $16 per hour, with no increased rate for weekends or public holidays;
(e)the Garcia Pay Slips record that Mr Garcia worked less hours than he actually worked; and
(f)the Garcia Pay Slips do not record the amounts that Mr Garcia was paid in cash.
The First Respondent knew that the Curnow Pay Slips and the Garcia Pay Slips were false or misleading because at all relevant times, the Second Respondent:
(a)knew the hourly rates and the gross weekly amounts actually paid to each of the Employees;
(b)knew the hours actually worked by the Employees; and
(c)knew the content of the Curnow Pay Slips and the Garcia Pay Slips,
and the Second Respondent’s knowledge is taken to be that of the First Respondent, by reason of s 793 of the FW Act.
By reason of the matters admitted (see above at paragraphs 65 to 68), the First Respondent admits that it contravened s 536(3) of the FW Act by giving the Curnow Pay Slips and the Garcia Pay Slips for the purposes of s 536 of the FW Act, knowing them to be false or misleading.
Providing false or misleading records in contravention of s 718A
At all material times from 15 September 2017, pursuant to s 718A of the FW Act, a person must not give information or produce a document to a FWI who is exercising powers or performing functions under, or in connection with, a law of the Commonwealth if the person knows, or is reckless as to whether, the information or document was false or misleading.
At the time the Notice was given to the First Respondent, FWI Harris took reasonable steps to inform the Respondents that they may be liable for a civil remedy under the FW Act if they produced false or misleading records in response to the Notice by including a warning to this effect in the Notice.
2 August 2018 Contravention
When the Second Respondent provided the Payment Summary and the July Pay Slips to FWI Harris on 2 August 2018, as admitted, the Second Respondent produced the documents to FWI Harris:
(a)in FWI Harris’ capacity as a FWI; and
(b)in the exercise of FWI Harris’ powers, and/or performance of his functions, under or in connection with a law of the Commonwealth.
By reason of the matters admitted (see above at paragraph 46), the Payment Summary was false or misleading.
By reason of the matters admitted (see above at paragraph 47), when the Second Respondent produced the Payment Summary to FWI Harris on 2 August 2018, the First Respondent was reckless as to whether the Payment Summary was false or misleading.
The July Pay Slips were false or misleading because they:
(a)recorded that for the period ending 22 July 2018, Ms Curnow was paid hourly rates in accordance with the Restaurant Award (including a weekday hourly rate of $24.34, and higher rates on Saturdays and Sundays) when in fact Ms Curnow was paid a flat rate of $16 per hour for all hours of work, with no increased rate for weekends;
(b)recorded that in the period ending 22 July 2018, Ms Curnow was paid the gross amount of $1,487.21 and the net amount of $1,301.21, when in fact Ms Curnow was paid the gross amount of $1,504, made up of a cash payment of $202.80 and an EFT of $1,301.21;
(c)recorded that Ms Curnow worked less hours than she actually worked in the period to which the pay slip related;
(d)did not record the amounts that Ms Curnow was paid in cash;
(e)recorded that for the period ending 22 July 2018, Mr Garcia was paid hourly rates in accordance with the Restaurant Award (including a weekday rate of $24.34 per hour, and higher rates on Saturdays and Sundays) when in fact Mr Garcia was paid a flat rate of $16 per hour for all hours of work, with no increased rate for weekends;
(f)recorded that in the period ending 22 July 2018, Mr Garcia was paid the gross amount of $1,401.79 and the net amount of $959.79, when in fact Mr Garcia was paid the gross amount of $1,472, made up of a cash payment of $512.21 and an EFT of $959.79;
(g)recorded that Mr Garcia worked less hours than he actually worked; and
(h)did not record the amounts that Mr Garcia was paid in cash.
When the Second Respondent produced the July Pay Slips to FWI Harris on 2 August 2018, the First Respondent was reckless as to whether the July Pay Slips were false or misleading because:
(a)the Second Respondent knew:
(i)the actual hours worked by the Employees;
(ii)the hourly rates and the gross fortnightly amounts actually paid to each of Ms Curnow and Mr Garcia; and
(iii)the content of the July Pay Slips,
(b)by reason of the matters in subparagraph (a) above, should have known that the July Pay Slips were false or misleading; and
(c)the Second Respondent's knowledge is taken to be that of the First Respondent, by reason of s 793 of the FW Act.
The Second Respondent’s email dated 2 August 2018, under which he produced the Payment Summary and the July Pay Slips on behalf of the First Respondent, did not include a written statement pursuant to s 718A(4) of the FW Act.
By reason of s 793(1) of the FW Act, the conduct of the Second Respondent admitted (see above at paragraphs 72, 74 and 76) is taken to be conduct of the First Respondent.
By reason of the matters admitted (see above at paragraphs 70 to 78), the First Respondent admits it contravened s 718A of the FW Act by producing the Payment Summary and the July Pay Slips to FWI Harris on 2 August 2018, being reckless as to whether the Payment Summary and the July Pay Slips were false or misleading.
18 September Contravention
When the First Respondent produced the Payroll Records and the Time Records to FWI Harris on 18 September 2018, as admitted (see above at paragraph 40), the First Respondent produced documents to FWI Harris:
(a)in his capacity as a FWI; and
(b)in the exercise of his powers, and/or performance of his functions, under or in connection with a law of the Commonwealth.
The Payroll Records and the Time Records were false or misleading by reason of the matters admitted to above (see above at paragraphs 52 and 58).
By reason of the matters admitted (see paragraphs 53 and 59 above), when the First Respondent produced the Payroll Records and the Time Records to FWI Harris on 18 September 2018, the First Respondent, was reckless as to whether the Payroll Records and the Time Records were false or misleading.
There was no written statement pursuant to s 718A(4) of the FW Act accompanying the Payroll Records and the Time Records when they were produced to FWI Harris by the First Respondent.
By reason of the matters outlined and as admitted (see above at paragraphs 80 to 83), the First Respondent admits that it contravened s 718A of the FW Act by producing the Payroll Records and Time Records to FWI Harris on 18 September 2018, being reckless as to whether the Payroll Records and Time Records were false or misleading.
Providing false or misleading records in contravention of s 718A: The Second Respondent
When the Second Respondent produced the Payment Summary and the July Pay Slips to FWI Harris on 2 August 2018 as admitted (see above at paragraphs 72, 74 and 76), the Second Respondent was reckless as to whether the Payment Summary and the July Pay Slips were false or misleading because:
(a)the Second Respondent knew:
(i)the hourly rates and the gross weekly amounts actually paid to each of Ms Curnow and Mr Garcia;
(ii)the actual hours worked by the Employees; and
(iii)the content of the Payment Summary and the July Pay Slips,
(b)by reason of the matters in subparagraph (a) above, should have known that the Payment Summary and the July Pay Slips were false or misleading.
By reason of the matters admitted (see above at paragraph 85), the Second Respondent contravened s 718A of the FW Act by providing the Payment Summary and the July Pay Slips to FWI Harris on 2 August 2018, being reckless as to whether the Payment Summary and the July Pay Slips were false or misleading.
Accessorial liability
By reason of the matters admitted (see above at paragraph 17), at all material times during the Employment Period, the Second Respondent knew:
(a)the hours worked by the Employees for the First Respondent;
(b)the actual rates and amounts paid to the Employees by the First Respondent; and
(c)that the First Respondent made and kept the Payment Summary, the Payroll Records and the Time Records.
By reason of the matters admitted (see above at paragraph 41), the Second Respondent knew that the Curnow Pay Slips and the Garcia Pay Slips had been issued to Ms Curnow and Mr Garcia on or about 14 September 2018.
At all material times during the Employment Period, the Second Respondent knew:
(a)by reason of the matters admitted (see above at paragraphs 47, 53 and 59), that each of the Payment Summary, Payroll Records and Time Records were false or misleading; and
(b)by reason of the matters admitted (see above at paragraph 68), that the Curnow Pay Slips and the Garcia Pay Slips were false or misleading.
At all relevant times the Second Respondent:
(a)was the initial contact point with the Applicant regarding the Investigation, and was the person who responded to correspondence from the Applicant either directly, or through the instruction of ESSA as the First Respondent’s representative; and
(b)knew that an award-based system existed and applied in the restaurant industry.
Despite the matters admitted (see above at paragraphs 87 to 90), the Second Respondent caused the First Respondent to:
(a)make and keep the Payment Summary, the Payroll Records and the Time Records, knowing that they were not accurate records of the hours worked and amounts paid to the Employees;
(b)give the Curnow Pay Slips to Ms Curnow despite knowing that they were false or misleading; and
(c)give the Garcia Pay Slips to Mr Garcia despite knowing that they were false or misleading.
By reason of the matters admitted (see above at paragraphs 87 to 91), the Second Respondent:
(a)was involved in, within the meaning of s 550(2)(c) of the FW Act; and
(b)therefore, is taken to have contravened himself, by reason of s 550(1) of the FW Act,
the contraventions of the First Respondent of ss 535(4) and 536(3) of the FW Act admitted to (see above at paragraphs 48, 54, 60 and 69).
submissions as to penalty
The parties have agreed that there are six contraventions for which the Court is asked to impose a pecuniary penalty in respect of the First Respondent. These are as follows:
(1)s 535(4) of the FW Act - making and keeping false records – Payment Summary;
(2)s 535(4) of the FW Act - making and keeping false records – Payroll Records & Time Records;
(3)s 536(2) of the FW Act – failure to give pay slips that contained all information required by reg 3.46 of FW Regulations;
(4)s 536(3) of the FW Act – giving the Employees payslips knowing them to be false or misleading;
(5)s 718A of the FW Act – producing documents to FWI and being reckless as to whether they were false or misleading – Payment Summary and July Pay Slips; and
(6)s 718A of the FW Act – producing documents to FWI and being reckless as to whether they were false or misleading – Payroll Records and the Time Records.
The parties agree that the maximum penalty for each of those contraventions is $63,000. This means that the First Respondent is liable to pay a maximum penalty of $378,000.
It is also agreed that there are four contraventions for which the Second Respondent is liable to a pecuniary penalty. These contraventions are as follows:
(1)s 535(4) of the FW Act – making and keeping false records – Payment Summary;
(2)s 535(4) of the FW Act – making and keeping false records – Payroll records and Time Records;
(3)s 536(3) of the FW Act – giving the Employees payslips knowing them to be false or misleading; and
(4)s 718A of the FW Act – producing documents to FWI and being reckless as to whether they were false or misleading – Payment Summary and July Pay Slips.
The parties again agree that each of these contraventions has a maximum penalty of $12,600 such that the Second Respondent is thus liable to pay a maximum penalty of $50,400.
The parties disagree, however, as to the amount that should actually be paid and why.
In this regard, the Court notes the parties’ written submissions as to penalty provide an approach to penalty that is arguably “mechanical” and “cumbersome”. The suggested approach is, however, adopted by both parties. In an effort to ensure clarity, the Court adopts the parties’ approach and notes the parties’ submissions as follows.
Applicant’s Written Submissions filed on 21 February 2022
Overall, the Applicant proposes the following approach to penalties for each of the above noted contraventions:
First Respondent
No. Contravention Maximum Penalty Maximum Penalty with 15% discount Lower Range Upper Range 1. s 535(4) of the FW Act - making and keeping false records – Payment Summary $63,000 $53,550 $21,420 (40%) $26,775 (50%) 2. s 535(4) of the FW Act - making and keeping false records – Payroll Records & Time Records $63,000 $53,550 $37,485 (70%) $42,840 (80%) 3. s 536(2) of the FW Act - failure to give pay slips that contained all information required by reg 3.46 of FW Regulations $63,000 $53,550 $10,710 (20%) $16,065 (30%) 4. s 536(3) of the FW Act – giving the Employees payslips knowing them to be false or misleading $63,000 $53,550 $37,485 (70%) $42,840 (80%) 5. s 718A of the FW Act – producing documents to FWI and being reckless as to whether they were false or misleading – Payment Summary and July Pay Slips $63,000 $53,550 $37,485 (70%) $42,840 (80%) 6. s 718A of the FW Act – producing documents to FWI and being reckless as to whether they were false or misleading – Payroll Records and the Time Records $63,000 $53,550 $37,485 (70%) $42,840 (80%) TOTALS: $378,000 $321,300 $182,070 $214,200 REDUCTION FOR TOTALITY (15%) $154,760 $182,070 Second Respondent
No. Contravention Maximum Penalty Maximum Penalty with 15% discount Lower Range Upper Range 1. s 535(4) of the FW Act - making and keeping false records – Payment Summary $12,600 $10,710 $4,824 (40%) $5,355 (50%) 2. s 535(4) of the FW Act - making and keeping false records – Payroll records and Time Records $12,600 $10,710 $7,497 (70%) $8,568 (80%) 3. s 536(3) of the FW Act – giving the Employees payslips knowing them to be false or misleading $12,600 $10,710 $7,497 (70%) $8,568 (80%) 4. s 718A of the FW Act – producing documents to FWI and being reckless as to whether they were false or misleading – Payment Summary and July Pay Slips $12,600 $10,710 $7,497 (70%) $8,568 (80%) TOTALS: $50,400 $42,840 $26,775 $31,059 REDUCTION FOR TOTALITY (15%) $22,759 $26,400
In relation to the above, the Court notes that the Applicant’s written submissions relevantly provide as follows:
·The admitted contraventions of the FW Act include making and providing false and misleading time and wage records which concealed the fact that two employees had not been paid their entitlements under the FW Act.
·The particular circumstances of this case, including the calculated nature of the conduct, as evidenced by the content of communications from the Second Respondent to the relevant employees during the course of the Applicant’s investigation and the impact that the production or false and misleading records has on the carrying out of the Applicant’s statutory functions, warrant a significant pecuniary penalty being imposed on each of the Respondents.
·Appropriate penalties are in the range $154,760 to $182,070 for the First Respondent and in the range $22,759 to $26,400 for the Second Respondent.
·The primary purpose of the imposition of civil penalties is to promote the public interest in compliance. This is achieved by putting a price on contraventions that is sufficiently high to act as a deterrent, both to the contravener before the Court and to others who may be tempted to contravene the relevant legislation before the Court.
·It is appropriate for the Court to consider the maximum penalties that could be imposed on each of the Respondents, as an indication of the legislature’s view of the conduct and as part of the comparative exercise of determining where the contraventions sit as against the maximum “yardstick”.
·The FW Act prescribes the maximum penalties that may be imposed by this Court for contraventions of civil penalty provisions by reference to penalty units (see, for example, ss 539(2) and 546(2) of the FW Act). At the relevant time, contraventions of ss 535, 536 and 718A of the FW Act were subject to 60 penalty units (300 for a company). The value of a penalty unit is fixed by s 4AA of the Crimes Act 1914 (Cth) (the “Crimes Act”) and at the relevant times was valued at $210.
·The maximum penalties available thus total:
(a)$378,000 for the First Respondent (being 6 x $63,000); and
(b)$50,400 for the Second Respondent (being 4 x $12,600).
·A non-exhaustive list of factors relevant to the determination of the appropriate penalty to achieve the principal object of deterrence (both specific and general) was summarised and endorsed by the Federal Court in Kelly v Fitzpatrick [2007] FCA 1080 (“Kelly”) at [14].
·The particular factors which the Applicant submits are material to this matter and support the penalties proposed are as follows.
Nature, extent and circumstances of the contravening conduct
Failure to give compliant pay slips
·Throughout the entirety of their employment periods, the First Respondent gave the Employees pay slips that failed to include information required by the FW Act and the FW Regulations. Failing to provide compliant pay slips is more than an administrative failure. Compliant pay slips allow employees to verify that they are being paid correctly and to pursue their legal entitlements. Omitting required information limits that ability. This is particularly significant in the context of two employees who were being underpaid and whose employer later engaged in conduct to obscure that fact.
False or misleading records and record keeping contraventions
·The Respondents paid the Employees at rates well below their minimum Restaurant Award entitlements. They then created false records and pay slips which concealed this and, upon being investigated by the Applicant, produced those false records to Fair Work Inspectors (the First Respondent on two occasions, the Second Respondent once). The Respondents showed a blatant and serious disregard for their record keeping obligations and the need to engage honestly with the Applicant.
·The records created by the Respondents contained false or misleading information regarding the Employees’ hours of work and how much they were paid. The combined effect of the documents was to:
(a)falsely record that the Employees had been paid in accordance with the Restaurant Award rates;
(b)falsely record that the First Respondent had deducted taxation and paid superannuation; and
(c)under-record the hours actually worked by the Employees during their employment.
·On two occasions during the Applicant’s Investigation and in response to the Notice, the First Respondent produced false records to the FWI.
·The Respondents also attempted to conceal the amounts they actually paid to the Employees by issuing them with false or misleading payslips. The Second Respondent provided these false documents to the Employees with instructions to provide them to the Applicant when interviewed.
Communications with the Employees
·The creation of false or misleading records and the provision to the Employees of false or misleading pay slips was part of a concerted attempt to stymie the Applicant’s Investigation and avoid the First Respondent’s underpayment of the Employees being detected.
·From the Second Respondent’s discussion with FWI Harris on 31 July 2018 and the receipt of the Notice the same day, the Respondents knew that the Applicant was investigating what the First Respondent paid its employees and that the Applicant required production of employment records.
·Two days later on 2 August 2018, when the Respondents were well aware of the Applicant’s Investigation, the Payment Summary document was generated and provided to the Applicant, and thereafter on 14 September 2018, the Respondents issued the false or misleading pay slips to the Employees and the Second Respondent gave them the instruction referred to above. On 18 September 2018, the First Respondent produced further false or misleading records to the Applicant.
·Each of the false or misleading records made in contravention of s 535(4) of the FW Act contained information that went to the heart of the Applicant’s Investigation and was subsequently produced to the FWI in contravention of s 536(3).
·This conduct occurred to a backdrop of the Second Respondent involving the Employees in the Applicant’s Investigation, requesting that they support him, providing instructions on what to say to the Applicant and suggesting that non-compliance would result in closure of the business and loss of jobs.
·This included:
(a)advising Ms Curnow’s husband on 13 August 2018 that Ms Curnow should ‘not say anything’ and ‘if thing goes bad there may not be a shop to work in’; and
(b)warning Mr Garcia on or about 3 September 2018 ‘..this way we can remain friends. Don’t sell me out. Please respond ASAP before its too late…”.
(c)giving the Employees a letter on or about 9 September 2018 (“September Letter”) with instructions on what to relay to the Applicant if questioned;
(d)threatening Mr Garcia and Ms Curnow via the September Letter that “this is a very serious … if you say the wrong thing we all will be out of a job” and “anything you say about me or the company about not paying according to award wage can lead to a heavy fine and closing of this business”; and
(e)telling Mr Garcia on or about 9 September 2018 words to the effect of, ‘this is what you are going to say’.
·The Second Respondent asked for ‘loyalty’ and ‘support’ from the Employees in their discussions with the Applicant. In exchange, in addition to his threats about their employment, the Second Respondent offered to help the Employees “if need be with my influence in the market place”.
·This context makes it plain that the breaches of ss 535(4) and 536(3) of the FW Act were calculated and serious.
·This is also the context in which the Respondents produced the false or misleading documents to the Applicant. The Respondents’ have admitted to doing so recklessly. They knew the information in those documents was not true and yet they produced them anyway. They have provided the Court with no explanation for the production of that material. In the absence of an explanation, the Court is able to and should find that their conduct was a result of their gross disregard for the Applicant’s role as a regulator and of their legal obligations arising from the Notice to which they were responding and a willingness to undermine the effectiveness of the statutory safety-net that the FW Act provides for employees.
·Each of the Respondents’ breaches of s 718A of the FW Act was serious.
Compliance with minimum standards
·One of the considerations for penalty is the need to ensure compliance with minimum standards by provision of an effective means for investigation and enforcement of employee entitlements. This is because one of the principal objects of the FW Act is the preservation of effective enforcement mechanisms. The maintenance of such enforcement mechanisms is of particular importance in a competitive service industry, such as the hospitality industry, where the underpayment of wages can provide a competitive advantage over employers who do not meet lawful wage costs.
·The Respondents have admitted to making and keeping false records. Proper record- keeping “is the bedrock of compliance”. Inadequate record keeping undermines the Applicant’s effectiveness and, consequently, the effectiveness of the statutory safety-net for employees.
·By providing the FWI with false or misleading documents, including false pay slips, the Respondents misled the Applicant and forced the Applicant to spend time and resources reviewing and determining the authenticity of the records. This is time and public resources that could and should have been devoted to pursuing the objectives of the FW Act rather than trying to deconstruct the false or misleading documents the Respondents chose to provide.
·Such conduct also impacts the role of the FWI, in that there is a risk that the false information may result in the FWI either not understanding the true scope and nature of the breaches of Commonwealth laws, or being delayed in doing so.
·The nature of such conduct interferes with the Applicant’s effectiveness, and by consequence interferes with the effectiveness of the statutory safety-net for employees.
Size and financial circumstances of the business
·Financial circumstances may be a relevant consideration in determining the appropriate penalty where appropriate evidence is put forward. However, the size of the business or its capacity to pay a penalty is of less relevance to the objective of general deterrence as that objective is not centred on whether the penalties imposed can be paid. Rather, it is focused on imposing a penalty that will deter other companies from similar contravening conduct in the future.
·The Respondents have elected not to put on evidence regarding their current financial positions, such as financial reports or bank statements, or about the current business activities of either of the Respondents. The Applicant nonetheless submits that it is relevant that the First Respondent is no longer operating the Café and that the Second Respondent is 68 years old and at or nearing the age of retirement.
General and Specific Deterrence
·The principal object of imposing a pecuniary penalty in civil proceedings is deterrence (both specific and general). The penalty should make it clear to the contravener and others that the cost of courting risk cannot be regarded as an acceptable cost of doing business. This is particularly the case where contraventions go to the very ability of the Applicant to monitor and enforce minimum standards of employment.
Specific deterrence
·Specific deterrence is directed at ensuring that a contravener is not prepared to embark upon the risk of engaging in the same contravening conduct in the future. Specific deterrence is particularly important where the contravening conduct was deliberate.
·The First Respondent is no longer operating the Café but remains registered and may operate other businesses in the future.
·The Second Respondent has a history of non-compliance with workplace laws, having been found in 2009 to have contravened the Workplace Relations Act 1996 (Cth) in respect of a previous business.
·A penalty should leave the Respondents in no doubt of the consequences that would flow from repeating similar conduct. The penalty should be fixed at a level that ensures that the Respondents appreciate the gravity of their offending.
General deterrence
·In order to be useful as a general deterrent, a penalty “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”.
·Complete and accurate records are essential to the effectiveness of the safety-net established by the FW Act and of the Applicant as a regulator. The penalties in this case should leave other employers in no doubt that serious consequences will flow if they create or produce false records that may undermine the effectiveness of the FW Act or the Applicant.
·It is particularly important that the penalties serve as a deterrent to others in the hospitality industry as it is an industry notorious for underpayment to staff, as borne out by the data collected by the Applicant.
·As set out in the Applicant’s Industry Profile for the hospitality industry for the period July 2017 to June 2021:
(a)the dispute rate for café and restaurant industry is classified as ‘high’, with 51 disputes per 1000 businesses in the year 2020 to 2021; and
(b)the café and restaurant industry accounted for a significant proportion of the following enforcement actions taken by the Applicant: 21.3 percent of all compliance notices issued, 24.6 percent of all infringement notices issued and 19.8 percent of all formal cautions issued.
·There is a need to send a message to all employers in the hospitality industry that contraventions relating to false or misleading records and pay slips are serious and unacceptable, particularly when they are calculated to conceal underpayments to employees from the Applicant.
Cooperation, corrective action and contrition (discount on penalty)
·There are circumstances where admissions of contraventions will give rise to a discount on penalty. 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 to course of justice.”
·The Respondents have admitted the contraventions and thereby avoided the need for a contested liability hearing. The admissions were made nearly 12 months after the commencement of proceedings, after a defence was filed and a Court-assisted mediation had been held.
·The Respondents’ admissions demonstrate the appropriate acceptance of wrongdoing and warrant a discount on penalty.
·There is no evidence, however, that the Respondents have expressed remorse or apologised to the Employees. This is of particular relevance in light of the content and context of communications to the Employees (as set out above).
·The nature of the contraventions and the closure of the Café also means that there is no corrective action available to the Respondents.
·The Applicant submits that a discount of 15 percent of the maximum penalties for each Respondent is appropriate in the circumstances.
·This discount is included in the proposed penalties set out in the chart (at paragraph 99) above.
·That chart sets out the Applicant’s recommended penalties with respect to each admitted contravention.
·The penalties proposed by the Applicant vary based on the nature and circumstances of each contravention and are proportionate in the circumstances.
Totality
·Once it has fixed an appropriate penalty for each contravention, the Court should consider the aggregate penalty to determine whether it is an appropriate response to the conduct that led to the breaches. Whilst the penalty imposed must not be oppressive, it must be commensurate with the seriousness of the conduct.
·It would be appropriate to apply a totality reduction of 15 percent for each of the Respondents.
Aggregate penalties
Applying the above, and as per the chart provided (at paragraph 99) above, the appropriate penalties to be imposed, in all the circumstances, would be in the range of:
(a)First Respondent: $154,760 to $182,070; and
(b)Second Respondent: $22,759 to $26,400.
Respondents’ Written Submissions filed on 18 July 2022
The Respondents propose the following approach to penalties for each of the agree upon contraventions:
First Respondent
No. Contravention Maximum Penalty Maximum Penalty with 25% discount Lower Range Upper Range 1. s 535(4) of the FW Act - making and keeping false records – Payment Summary $63,000 $47,250 $9,450 (20%) $23,625 (50%) 2. s 535(4) of the FW Act - making and keeping false records – Payroll Records & Time Records $63,000 $47,250 $9,450 (20%) $23,625 (50%) 3. s 536(2) of the FW Act - failure to give pay slips that contained all information required by reg 3.46 of FW Regulations $63,000 $47,250 $4,725 (10%) $14,175 (30%) 4. s 536(3) of the FW Act – giving the Employees payslips knowing them to be false or misleading $63,000 $47,250 $23,625 (50%) $33,075 (70%) 5. s 718A of the FW Act – producing documents to FWI and being reckless as to whether they were false or misleading – Payment Summary and July Pay Slips $63,000 $47,250 $23,625 (50%) $33,075 (70%) 6. s 718A of the FW Act – producing documents to FWI and being reckless as to whether they were false or misleading – Payroll Records and the Time Records $63,000 $47,250 $11,813 (25%) $16,538 (35%) TOTALS: $378,000 $283,500 $82,688 $144,113 REDUCTION FOR TOTALITY (15%) $70,285 $122,496 Second Respondent
No. Contravention Maximum Penalty Maximum Penalty with 25% discount Lower Range Upper Range 1. s 535(4) of the FW Act - making and keeping false records – Payment Summary $12,600 $9,450 $1,418 (15%) $2,835 (30%) 2. s 535(4) of the FW Act - making and keeping false records – Payroll records and Time Records $12,600 $9,450 $2,835 (30%) $5,670 (60%) 3. s 536(3) of the FW Act – giving the Employees payslips knowing them to be false or misleading $12,600 $9,450 $2,835 (30%) $5,670 (60%) 4. s 718A of the FW Act – producing documents to FWI and being reckless as to whether they were false or misleading – Payment Summary and July Pay Slips $12,600 $9,450 $1,418 (15%) $2,835 (30%) TOTALS: $50,400 $37,800 $8,506 $17,010 REDUCTION FOR TOTALITY (15%) $7,230 $14,486
In relation to the above, the Court notes that the Respondents’ written submissions relevantly provide as follows:
·The Respondents’ actions in contravening the FW Act were serious and it is appropriate for penalties to be imposed by the Court.
·The discount for cooperation, corrective action and contrition should be 25 percent of the maximum penalty.
·The lower range of penalties should be lower in each instance that submitted by the Applicant.
·The lower and upper ranges of penalties applicable to him should be lower in each instance than proposed by the Applicant.
·The chart (at paragraph 102) above is a reworking of the tables from the Applicant’s submission, adjusted to reflect the points above. This shows a range of penalties from $70,285 to $122,496 for the First Respondent and $7,230 to $14,486 for the Second Respondent.
The Respondents’ contrition
·The Respondents have shown contrition for their actions.
·The First Respondent made payment to employees of the amounts the Applicant calculated were due to those employees. It is common ground that this matter comes before the Court with no underpayments owing to any employee.
·The Respondents have admitted to the contraventions as set out in the SOAF, saving the time and costs of both the Court and the Applicant that would have been incurred if those matters were subject to contested hearing.
·The admission of the contraventions can be properly characterised as a genuine acknowledgement of wrongdoing.
·In his affidavit filed in this matter, the Second Respondent expresses his apology for his actions.
·The Respondents submit that a discount of 25 percent of the maximum penalties is more appropriate in the circumstances, as opposed to the 15 percent submitted by the Applicant.
General deterrence
·The Respondents accept that the hospitality industry is an area of compliance concern for the Applicant. The adoption of the Applicant’s percentages for lower and upper range for penalties in regard to the First Respondent reflects this acceptance.
Specific deterrence – the Second Respondent’s situation
·The Second Respondent’s age, medical situation and financial circumstances are such that penalties imposed by the Court will have a significant impact on him. The necessary penalties to achieve specific deterrence of future contraventions do not have to be as large as they would be if the First Respondent was in a better personal situation.
·It is acknowledged by the Applicant that the First Respondent’s business has closed and that the Second Respondent has given evidence that he intends to retire and that he will not start another restaurant due to his “health, age and financial situation”. Any further contraventions by the Second Respondent are therefore very unlikely.
·As the Second Respondent is the sole director of the First Respondent, it is open to the Court to conclude that the First Respondent is unlikely to commit any future contraventions which arise from any future actions by the Second Respondent.
·On this basis the Second Respondent submits that lower figures reflecting an upper and lower penalty range should apply to him.
The Applicant’s evidence
·The Respondents have admitted to the contraventions, and the pattern of facts as described in the SOAF. The Applicant’s evidence does not disclose to the Court any matters going to whether a contravention occurred, that are not already covered in the SOAF.
·The Respondents have not admitted any facts beyond those in the SOAF, which are, with respect, sufficient for the findings of contravention already made by the Court, and a basis for making decisions on penalty.
·There is no contravention that relates to communication with employees either during or after the admitted contraventions occurred. We submit that the additional information in the evidence for the Applicant, as it relates to communication with employees, is irrelevant to the decision on penalty.
Applicant’s Submissions in Reply filed on 5 August 2022
In written submissions in reply, the Applicant relevantly contends as follows:
The Respondents’ contrition
·The Respondents submit that a 25 percent discount on penalty should be applied as a consequence of the Respondents’ contrition and cooperation.
·The Applicant acknowledges that in his affidavit filed on 18 July 2022, the Second Respondent has apologised for the contraventions. That apology should be given limited weight in circumstances where it has only been offered some four years after the contraventions occurred, where there is no evidence of any apology being directed to the Employees themselves and where the evidence is entirely silent as to the underlying conduct. The Respondents have elected not to explain why they engaged in their calculated and serious conduct with respect to the making and production of false and misleading records and the Second Respondent’s apology must be viewed in that context.
·The Applicant otherwise relies on its Primary Submissions and maintains that a 15 percent discount is appropriate.
Specific deterrence – the Second Respondent’s situation
·The Respondents appear to submit that the penalty ranges proposed by the Applicant are too high, including because the Second Respondent’s age, poor health and financial circumstances make it very unlikely he will commit any further contraventions.
·A reduction in penalty based on financial circumstances must be based on evidence. The Applicant submits that the Respondents have not produced any meaningful evidence to the Court in relation to the Respondents’ capacity to pay a penalty.
·The Second Respondent asserts that the Café was losing money every month. However, it is also his evidence that rent, and outgoings were $24,000 per month and sales were between $14,000 and $16,000 per week. On this basis, the Café was returning a monthly profit before wages and supplies of between $32,000 and $40,000. The Second Respondent says that the business was “out of funds” but also that it sold the equipment for $16,000. The First Respondent has chosen not to provide any evidence by way of bank statements or a balance sheet. In particular, there is no evidence of the Respondents’ financial position as at the time of the contraventions (in particular during 2018 when the false and misleading records were made and produced to the Applicant), which pre-dated the COVID-19 pandemic.
·The Second Respondent’s evidence is that he has been unemployed since October 2020 and has been struggling to pay his debts and to support his living costs. The Court is not informed as to his overall financial position, including what debts he holds, his costs of living, how he supports himself or whether he holds any assets. The Second Respondent has chosen not to provide any bank or credit card statements.
·The Court cannot be satisfied on the evidence (in respect of either Respondent) that their financial position requires a reduction in the penalty that would otherwise be appropriate.
·The Applicant has already taken into account in its penalty recommendation the fact that the Café is no long trading and the Second Respondent’s age. These matters should be balanced against the deliberateness of the conduct and the Second Respondent’s prior history of non-compliance with Commonwealth workplace laws.
·The penalty ranges outlined in the Applicant’s Primary Submissions strike “a reasonable balance between deterrence and oppressive severity”.
The Applicant’s evidence
·The Respondents submit that evidence of the Second Respondent’s communication with the Employees is irrelevant.
·The Second Respondent’s communications with the Employees place the contraventions in context. That context makes plain the deliberateness of the contraventions and demonstrate that the Second Respondent’s purpose in creating and producing false records was to conceal the below-Award rates paid to the Employees and to stymie the Applicant’s investigation.
·The context of the contraventions and in particular the Second Respondent’s communications with the Employee’s is relevant to both general and specific deterrence. The Respondents’ submission to the contrary is not sustainable.
Oral Submissions dated 21 October 2022
Applicant’s oral submissions
As noted above, the parties appeared before the Court to give oral submissions (at the Court’s request) on 21 October 2022.
Ms Walker explained that the ranges proposed in the Applicant’s penalty charts seek to identify the “seriousness of those particular contraventions”. Applying the language of the High Court in Australian Building and Construction Commissioner v Pattinson [2022] HCA 13 (“Pattinson”), Ms Walker explained that the Applicant’s “percentage breakdowns” are what the Applicant believes in an “appropriate balance between the obligations of deterrence (or the principles of deterrence) and oppressive severity”. Essentially, Ms Walker explained that the Applicant has taken into account the circumstances, the actual conduct and any mitigating factors advanced by the Second Respondent and sought to strike an “appropriate balance”.
Ms Walker then explained the Applicant’s reasoning in relation to each of the six contraventions in respect of the First Respondent, as follows.
First Contravention: s 535(4) of the FW Act - making and keeping false records – Payment Summary
In relation to the first contravention, Ms Walker explained:
(a)this contravention related to the making and keeping of a false payment summary;
(b)it has been allocated a “40 to 50 percent range” because, whilst it was a false record (which recorded false gross and net amounts that were paid), it related to only a single pay period (being the fortnight ending 22 July 2018) and related to only two employees;
(c)this is a less serious scenario than some of the later contraventions (in which there were multiple records relating to longer time periods);
(d)the impact on the Applicant’s investigation was limited and the contravention was far less involved;
(e)there has been no relevant explanation provided by the Respondents and, because the First Respondent is still trading, there is an element of specific deterrence (albeit in a limited way) which is still warranted; and
(f)on balance, a more moderate penalty is warranted in relation to this contravention.
Second contravention: s 535(4) of the FW Act - making and keeping false records – Payroll Records & Time Records
In relation to the second contravention, Ms Walker explained:
(a)this contravention also relates to the making and keeping of false records. However, there are two types of payroll records spanning over significant periods of time (in relation to Ms Curnow, almost three years and in relation to Mr Garcia, almost one year – both on a fortnightly basis);
(b)paragraphs 38 and 41 of the SOAF (paragraphs 49 and 52 above) detail the misleading elements in those payroll records (for example, rates, hours worked and gross amounts paid). Further, the time records were fortnightly over a 14 month period. There were two types of records, for long periods of time, which were false in relation to minimum hourly rates and penalty rates paid, gross amounts paid and hours worked. That type of information had a much more significant impact on the Applicant’s investigation and this contravention is much more serious than the first contravention;
(c)again, no explanation has been given by the Respondents. However, while the conduct is very serious, it is mitigated to some degree because the underpayments were rectified and this negated the need for the Applicant to “run an underpayment case”;
(d)because of the seriousness, general deterrence plays a big role and there is “a small amount of specific deterrence”; and
(e)on balance, the appropriate weighing between deterrence and oppressive severity “sits between 70 to 80 percent”.
Third Contravention: s 536(2) of the FW Act – failure to give pay slips that contained all information required by reg 3.46 of FW Regulations
In relation to the third contravention, Ms Walker explained:
(a)payslips were given which included four key pieces of information (see paragraph 13 of the SOAF and paragraph 24 above) but were “fairly rudimentary”. What was missing (as required by the FW Regulations) is detailed at paragraph 52 of the SOAF and paragraph 62 above;
(b)this was not a case where there was no information provided;
(c)general deterrence still must be considered, however, the conduct is at the “lower end of the scale”; and
(d)on balance, “20 to 30 percent” is thus appropriate.
Fourth Contravention: s 536(3) of the FW Act – giving the Employees payslips knowing them to be false or misleading
In relation to the fourth contravention, Ms Walker explained:
(a)the fourth contravention relates to giving pay slips to employees (27 payslips to Ms Curnow and 18 to Mr Garcia), knowing them to be false and misleading (as detailed at paragraph 56 of the SOAF and paragraph 67 above);
(b)those payslips were provided during the course of the Applicant’s investigation, with instructions to provide them to the Applicant if they were interviewed (instead of the actual payslips the employees received);
(c)there were other “pressured communications about what employees should do if contacted by the Applicant (as set out in the Applicant’s affidavits and as noted above);
(d)the Applicant considers the conduct here to be deliberate and egregious and very significant general deterrence considerations are required;
(e)again, no explanation has been provided;
(f)a degree of mitigation is present because, ultimately, it was not necessary to dispute underpayments;
(g)on balance, the fourth contravention sits at “70 to 80 percent in terms of seriousness”.
Fifth and Sixth Contraventions: s 718A of the FW Act – producing documents to FWI and being reckless as to whether they were false or misleading – Payment Summary and July Pay Slips and Payroll Records and the Time Records
In relation to the fifth and sixth contraventions, Ms Walker explained:
(a)these were both contraventions in which documents were provided to the Applicant in response to the Notice (being a single payment summary the subject of the First Contravention and payslips for one pay period for eight employees for the Fifth Contravention and payroll and time records for the Sixth Contravention);
(b)these are documents that make it seem as though the employees were being paid correct rates of pay when, in fact, they were being paid flat rates of pay (with incorrect hours worked, gross amounts paid etc);
(c)the contraventions have a high degree of seriousness and significant weight should be given to general deterrence; and
(d)on balance, the fifth and sixth contraventions “sits at 70 to 80 percent in terms of seriousness”.
Ms Walker concluded by explaining that the percentages referenced the “theoretical maximum penalty” amounts, taking into account the discounts already included in the table (set out at paragraph 99 above) to take into account the cooperation of the Respondents in avoiding a lengthy trial.
Ms Walker also explained that while she had not addressed the table relating to the Second Respondent (also set out at paragraph 99 above), the ranges were the same and the same principles applied. She also noted that the maximum penalties were addressed in paragraphs 31 to 33 of the Applicant’s submissions (reproduced at paragraph 100 above) and the penalty units at the relevant time were 60 penalty units for an individual and 300 for a company, with the penalty unit at the time being $210.
Ms Walker further explained that the Applicant had applied the discount for cooperation “at the top” to reduce the maximum penalty and, in the Applicant’s submission, that was an appropriate starting point (rather than applying any such discount at the end), before the totality principle.
Respondents’ oral submissions
Mr Dasey, in response, explained that the Respondents had admitted the contraventions through the SOAF and that they accept/anticipate that the penalties will be “substantial”. Further, for the most part, the range of penalties put forward by the Applicant are accepted by the Respondents – with two variations, as follows.
Firstly, in relation to the disparity between the ranges for contravention one and two, they should be treated the same (and the Respondents have done so in their submissions) on the basis that they are contraventions of the same section of the Act.
Secondly, in relation to the two breaches of s 718A of the Act, Mr Dasey submitted that whilst they did not involve the same course of action, they are similar actions that are “linked” and it would therefore be appropriate for the second item to be discounted.
Otherwise, Mr Dasey explained that the figures put forward in response by the Respondents are based on the Court accepting what the Respondents had outlined in their written submissions. Specifically, Mr Dasey referenced the weight which should be given to the surrounding circumstances, the level of the Respondents’ contrition and the question of specific deterrence (given the Second Respondent’s “situation”).
Mr Dasey further explained that, on that basis, the Respondents considered that the maximum ranges suggested by the Applicant should be reduced by 10 or 20 percent to allow for the circumstances explained above. Mr Dasey told the Court that, other than the points outlined above, the Respondents did not otherwise contest the relative seriousness. Further, if the Court did not accept the Respondents’ submissions, the Respondents conceded that the ranges put forward by the Applicant would otherwise be considered reasonable.
consideration
Assessment of Pecuniary Penalties
The Court’s power to impose pecuniary penalties for breaches of civil remedy provisions is found in s 546 of the Act. It is agreed that ss 535, 536 and 718A of the Act are civil remedy provisions.
The purpose of imposing a penalty for a contravention of the Act is “protective in nature”: Trade Practices Commission v CSR Ltd [1990] FCA 521. It is not so much that the imposition of a penalty is intended to provide a retributive or rehabilitative function. Rather, it serves to educate against and deter any conduct that breaches the Act: Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union [2017] FCAFC 113.
As explained by the High Court in Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union [2018] HCA 3, said (at [116]):
As has been observed, the principal object of an order that a person pay a pecuniary penalty under s 546 is deterrence: specific deterrence of the contravener and, by his or her example, general deterrence of other would-be contraveners. According to orthodox sentencing conceptions as they apply to the imposition of civil pecuniary penalties, specific deterrence inheres in the sting or burden which the penalty imposes on the contravener. Other things being equal, it is assumed that the greater the sting or burden of the penalty, the more likely it will be that the contravener will seek to avoid the risk of subjection to further penalties and thus the more likely it will be that the contravener is deterred from further contraventions; likewise, the more potent will be the example that the penalty sets for other would-be contraveners and therefore the greater the penalty's general deterrent effect. Conversely, the less the sting or burden that a penalty imposes on a contravener, the less likely it will be that the contravener is deterred from further contraventions and the less the general deterrent effect of the penalty. Ultimately, if a penalty is devoid of sting or burden, it may not have much, if any, specific or general deterrent effect, and so it will be unlikely, or at least less likely, to achieve the specific and general deterrent effects that are the raison d'être of its imposition.
The High Court reaffirmed the above principles most recently in Pattinson, wherein the High Court explained:
46It is important to recall that an “appropriate” penalty is one that strikes a reasonable balance between oppressive severity and the need for deterrence in respect of the particular case. …
47The penalty that is appropriate to protect the public interest by deterring future contraventions of the Act may also be moderated by taking into account other factors … where those responsible for a contravention of the Act express genuine remorse for the contravention, it might be considered appropriate to impose only a moderate penalty because no more would be necessary to incentivise the contravenors to remain mindful of their remorse and their public expressions of that remorse to the court. Similarly, where the occasion in which a contravention occurred is unlikely to arise in the future because of changes in the membership of an industrial organisation, a modest penalty may be appropriate having regard to the reduced risk of future contraventions.
48It is not necessary to multiply examples further. It is sufficient to say that a court empowered by section 546 to impose an “appropriate” penalty must act fairly and reasonably for the purpose of protecting the public interest by deterring future contraventions of the Act.
Parliament has, by ss 539(2) and 546(2) of the Act, determined the “maximum” price of deterrence for contraventions of the Act. However, the “maximum penalty” should be reserved for the most serious cases. Further, the Court should use the maximum penalty as a “yardstick” to determine the appropriate penalty in this case: Mornington Inn v Jordan [2008] FCAFC 70 at [41]-[46] (“Mornington Inn No. 2”).
The parties agree that, at the relevant time, contraventions of ss 535, 536 and 718A of the FW Act were subject to 60 penalty units (300 for a company). The value of a penalty unit is fixed by s 4AA of the Crimes Act. At the relevant time that was $210.
Hence, the maximum penalty which can be imposed:
(a)on the First Respondent, is $378,000 (being 6 x $63,000); and
(b)on the Second Respondent, is $50,400 (being 4 x $12,600).
The maximum penalty should be reserved for “the most serious cases”. To assist the Court in determining whether the facts of this case are “serious” or whether it is appropriate to reduce the penalty and by how much, the Court may have regard to a variety of factors and circumstances: Mason v Harrington Corporation Proprietary Limited t/as Pangaea Restaurant & Bar [2007] FMCA 7; Kelly.
While there are no “fixed” factors, the parties in this matter agree (and the Court accepts) that the following factors are relevant to the Court’s task:
(a)nature, extent and circumstances of the contravening conduct;
(b)compliance with minimum standards;
(c)size and financial circumstances of the business;
(d)the need for specific and general deterrence; and
(e)cooperation, corrective action and contrition.
The Court must approach its task objectively. That task is inherently specific to the factual circumstances of each particular matter. The Court will consider the factors described above and assess what weight should be given to them. The Court will then determine what penalty should be imposed and “take one final look” at that penalty to determine whether, in totality, it is an appropriate response to the contravention in this case.
Nature, extent and circumstances of the contravening conduct
Context matters and to characterise the conduct relevant to the contraventions in this matter as being “serious” is, frankly, an understatement given the relevant context here.
It is clear that both Respondents knew that they had an obligation to ensure that their employees were paid appropriately under the Restaurant Award. Despite that, rather than actually paying them according to the Restaurant Award, they instead paid them a flat rate which deprived them of their right to be properly remunerated (particularly when it came to penalty rates).
The Respondents then sought to “cover this up”. In effect, the approximate amount that the Employees were paid was “reverse engineered” – with false hours so that the amount the Employees were paid would appear to be legitimate. In other words, the Respondents contrived to record a reduced number of hours worked by their employees so that a calculation of those hours as against the Award rates would equal the amount of money that was actually paid to the employees.
This is not a straight forward task. It requires a fair degree of deception. It meant that the calculations made only approximated the amounts that were actually paid. This has led to the contravention regarding the making and keeping a false records in relation to the payment summary. The making and keeping of false records, with regard to the payroll records and time records, is a far more dastardly contravention. The latter contravention is extremely dishonest conduct whereas the former contravention is an attempt to cover up this dishonest conduct when records had to be produced. Overall, in that context, the Respondents’ conduct is reprehensible.
The failure to give payslips meant that the conduct of the Respondents was not easily identifiable by the employees. When the payslips were produced to the Employees, they contained false and misleading information which made it more difficult for them to discover how their rights had been treated in such a cavalier fashion by the Respondents.
This conduct is bad enough. However, on two separate occasions, the Respondents then provided this false information to FWIs. This only compounded a systemic pattern of dishonest conduct.
Relevantly, and in context, all of this occurred against the backdrop of what the Court interprets as a blatant attempt by the Respondents to manipulate or threaten their employees with their jobs should they not support the Respondents and support a concerted attempt to deceive the Applicant. As detailed above (at paragraph 100) and repeated here to highlight the seriousness of this conduct, this included:
(a)advising Ms Curnow’s husband on 13 August 2018 that Ms Curnow should ‘not say anything’ and “if thing goes bad there may not be a shop to work in” (Curnow Affidavit at [13]);
(b)warning Mr Garcia on or about 3 September 2018 as follows; “this way we can remain friends. Don’t sell me out. Please respond ASAP before its too late…” (McArthur Affidavit, Annexure JFM-9 at 42);
(c)giving the Employees the September Letter with instructions on what to relay to the Applicant if questioned (Curnow Affidavit at [15], Annexure HAC-06; McArthur Affidavit at [20]-[21], Annexure JFM-15).
(d)threatening Mr Garcia and Ms Curnow via the September Letter that “this is a very serious … if you say the wrong thing we all will be out of a job” and “anything you say about me or the company about not paying according to award wage can lead to a heavy fine and closing of this business” (Curnow Affidavit, Annexure HAC-06 p 17; McArthur Affidavit Annexure JFM-16 at 75-79).
(e)telling Mr Garcia on or about 9 September 2018 words to the effect of “this is what you are going to say” (McArthur Affidavit at [20]-[21], Annexure JFM-16 at78).
The Second Respondent also asked for ‘loyalty’ and ‘support’ from Mr Garcia and Ms Curnow in relation to any discussions they had with the Applicant (Curnow Affidavit, HAC-03 at 12) and, for that support, promised to help Mr Garcia and Ms Curnow “if need be with [his] my influence in the market place” (Curnow Affidavit, HAC-03 at 12).
These actions, contextually, make it clear that the breaches of FW Act the subject this proceeding were calculated and very serious. Further, the Respondents have provided no explanation for why they did what they did. This indicates a blatant disregard for the Applicant’s role as a regulator and of their own legal obligations.
Compliance with minimum standards
As correctly outlined by the Applicant, a core consideration when assessing penalty is the need to ensure compliance with minimum standards via the provision of an effective means for investigation and enforcement of employee entitlements. Indeed, one of the main objects of the FW Act is the preservation of effective enforcement mechanisms: as per s 3 of the FW Act.
Here, the Respondents admit to making and keeping false records. As stressed by the Applicant, proper record-keeping “is the bedrock of compliance”: Fair Work Ombudsman v Dosanjh [2016] FCCA 923, [46] per Altobelli J; Fair Work Ombudsman v ACN 052 182 180 Pty Ltd & Anor [2013] FCCA 688, [20]; Fair Work Ombudsman v Soleimani & Anor [2014] CA 2380 at [55]. Inadequate record keeping undermines the Applicant’s effectiveness and, consequently, the effectiveness of the statutory safety-net for employees: Fair Work Ombudsman v Han Investments Pty Ltd [2017] FCA 623. Relevantly, Barker J stated (at [114]):
… record keeping obligations are directed at ensuring the creation and retention of records as a critical tool in the assessment of compliance with workplace laws. Unless an employer complies with the law, and makes and keeps employment records, an effective safety net for employees is difficult to maintain. The result is that employees are more vulnerable to exploitation. The job of the FW Ombudsman, as regulator, in detecting and protecting employees’ workplace entitlements is reduced in effectiveness.
Here, as detailed above, the Respondents’ conduct in this regard was particularly troubling. Any statutory safety-net designed for the Respondents’ employees was effectively undermined by a course of conduct knowingly designed to strip them of their fundamental right to a fair work environment that was free of intimidation.
Size and financial circumstances of the business
The size of a business does not excuse it from its statutory obligations: Kelly at [30]. However, a business’s financial circumstances, and its capacity to pay a penalty, may have some weight in determining whether to mitigate penalty. Such a consideration does not, however, negate the need and importance for deterrence: Jordan v Mornington Inn Pty Ltd [2007] FCA 1384 (“Mornington Inn No. 1”).
In this regard, the Court notes the contents of the Second Respondent’s Affidavit filed in this Court on 18 July 2022, as follows:
7.The rent for the premises and other outgoings was around $24,000 per month, while our sales were around $14,000 to $16,000 per week.
8. We were losing money every month.
…
13.Finally we came to the end of the lease and the new management FAR EAST reduced the rental to $7000 per month, but by then we were exhausted and out of funds and I was feeling too tired and old to carry on and sold the business for next to nothing. The proceeds were based on selling the equipment for about $16,000.00 in total.
…
18. Since we sold the business in October 2020 I have been unemployed.
…
21. I am struggling to pay my debt to the bank and to support my living costs.
The Court also notes the Applicant’s assessment of the above in written submissions in reply filed in this Court on 5 August 2022 as follows:
13.The Second Respondent asserts that the Café was losing money every month. However, it is also his evidence that rent, and outgoings were $24,000 per month and sales were between $14,000 to $16,000 per week. On this basis, the Café was returning a monthly profit before wages and supplies of between $32,000 and $40,000. The Second Respondent says that the business was “out of funds” but also that it sold the equipment for $16,000. The First Respondent has chosen not to provide any evidence by way of bank statements or a balance sheet. In particular, there is no evidence of the financial position as at the time of the contraventions (in particular during 2018 when the false and misleading records were made and produced to the [Applicant]), which pre-dated the Covid-19 pandemic.
14The Second Respondent’s evidence is that he has been unemployed since October 2020 and has been struggling to pay his debts and to support his living costs. The Court is not informed as to his overall financial position, including what debts he holds, his costs of living, how he supports himself or whether he holds any assets. He has chosen not to provide any bank or credit card statements.
The Applicant argues that the Court cannot be satisfied on the evidence in respect of either Respondent that their financial position requires a reduction in the penalty that would otherwise be appropriate.
The Respondents’ evidence as to financial capacity is less than forensic.
It has been conceded that the Second Respondent was guiding mind of the First Respondent. According to the Second Respondent’s affidavit, he has problems with his memory because of a car accident. A medical report from the family physician confirms that the Second Respondent had the motor vehicle accident on 30 August 2020 and he suffered a subarachnoid haemorrhage, intracerebral haematoma and bilateral rib fractures. The report also confirms that the Second Respondent has had retrograde amnesia from the time of the accident. Further, the Second Respondent closed the business because of a downturn in trading during COVID and because of his medical condition will never again be in a position to employ people.
The need for specific and general deterrence
As outlined by this Court in Fair Work Ombudsman v Tac Pham Pty Ltd & Anor [2020] FCCA 3036 (“Pham”), the purpose of imposing civil penalties is protective in nature. As the Full Court in ABCC explained:
98. Whereas criminal penalties import notions of retribution and rehabilitation, the purpose of a civil penalty is primarily, if not wholly, protective in promoting the public interest in compliance: Trade Practices Commission v CSR Ltd [1990] FCA 521; (1991) ATPR 41-076 at 52,152 [42]; Commonwealth v Director, FWBII at [55] (per French CJ, Kiefel, Bell, Nettle and Gordon JJ). The principal object of a pecuniary penalty 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; both specific and general deterrence are important: Chemeq at [90]; Ponzio at [93]. A pecuniary penalty for a contravention of the law must be fixed with a view to ensuring that the penalty is not to be regarded by the offender or others as an acceptable cost of doing business: Australian Competition and Consumer Commission v TPG Internet Pty Ltd (2013) 250 CLR 640 at 659 [66]; Singtel Optus Pty Ltd v Australian Competition and Consumer Commission [2012] FCAFC 20; (2012) 287 ALR 249 at 265 [62]-[63]…
Specific Deterrence
In Plancor Pty Ltd v Liquor, Hospitality & Miscellaneous Union [2008] FCAFC 170, the Full Court of the Federal Court emphasised that the Court’s focus when considering specific deterrence is on whether the party the subject of the penalty (here, the Second Respondent) might engage in a similar breach in the future.
In this regard, the Court notes, as it did in Pham, that Mr Garcia and Ms Curnow (were like many in the hospitality industry) vulnerable. Contextually, raising concerns about wages or other matters would have been very difficult for them as relatively disempowered employees. Any risk of exploitation in this context is particularly serious.
However, the Court also repeats its findings above (at paragraph 148) in relation to the Second Respondent’s health issues.
Overall, because of his medical condition, it is unlikely Second Respondent will again be in a position to employ people or repeat contraventions of the sort seen here.
General Deterrence
In Ponzio v B & P Caelli Constructions Pty Ltd and Ors [2007] FCAFC 65 at [93], the importance of general deterrence was explained as follows:
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.
As explained by this Court in Pham, contraventions of the FW Act in the hospitality industry are all too common. More recently, this Court described the hospitality industry as “notorious for underpayment of employees, and non-compliance with other industrial obligations”: Fair Work Ombudsman v Malevi Pty Ltd & Ors [2020] FCCA 2875. Further, in Fair Work Ombudsman v NSH North Pty Ltd trading as New Shanghai Charlestown [2017] FCA 1301, it was emphasised that it was a matter of “common sense reasoning” that the hospitality industry is notorious for non-compliance with standards imposed by industrial laws and is an industry in which enforcement of those standards has proved very difficult.
This matter is a case in point. The contraventions seen here undermine the core purpose of the FW Act and conduct of this sort inhibits FWIs and the Applicant from carrying out their roles to enforce the FW Act. Were the Court to ignore or seek to justify this conduct, it would undermine the role of the Applicant and the purpose of the relevant statutory provisions.
Overall, the need for general deterrence in this matter is high. Employers must be deterred from engaging in similar conduct.
Cooperation, corrective action and contrition
It is accepted by both parties that admissions of contraventions can give rise to a discount on penalty. However, 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 to course of justice: Mornington Inn No. 2 at [76] (per Stone and Buchanan JJ).
The Second Respondent deposes to the fact that he is sorry that he contravened the FW Act and, on behalf of the First Respondent, extends their apologies. He also deposed to having now paid all of his employees all monies to which they were entitled.
It is also noted in this regard that the parties ultimately agreed to the SOAF filed in this Court, reducing the need for protracted litigation
With this in mind, the Respondents seek an initial 25 percent discount on the overall penalty because of their contrition and cooperation.
The Applicant, while accepting that contrition has been shown, emphasise that an apology was only given some four years after the contraventions occurred and 12 months after the start of legal proceedings. Further, there is no evidence that any apology of any sort was ever given to the Employees themselves. Nor have the Respondents explained in any real or meaningful way why they did what they did.
In the circumstances, the Applicant submits that an initial discount of 15 percent of the maximum penalties for each respondent is appropriate.
The Court agrees with the Applicant in this regard. A discount of 15 percent acknowledges that some remorse has been demonstrated, while not detracting from the fact that that apology was late coming and was not specifically directed at otherwise disempowered employees who, as outlined by the Court above, were (in effect) told that they would lose their jobs if they did not help the Respondents “mask” very serious contraventions of the FW Act.
Totality
The final task for the Court is to examine “one final time” whether the penalty arrived at “appears to be wrong” and ensure that it is “not oppressive”: Mornington Inn No. 1.
In Mornington Inn No. 1, the Federal Court stated:
42… the application of the totality principle which is a final check to be applied to ensure that a final, total or aggregate, penalty is not unjust or out of proportion to the circumstances of the case.
43. The totality principle was described by the High Court in Mill v R (1988) 166 CLR 59 (‘Mill’) at 62 – 63 as follows:
‘The totality principle is a recognized principle of sentencing formulated to assist a court when sentencing an offender for a number of offences. It is described succinctly in Thomas, Principles of Sentencing, 2nd ed (1979), pp 56-57, as follows (omitting references):
“The effect of the totality principle is to require a sentencer who has passed a series of sentences, each properly calculated in relation to the offence for which it is imposed and each properly made consecutive in accordance with the principles governing consecutive sentences, to review the aggregate sentence and consider whether the aggregate is ‘just and appropriate’. The principle has been stated many times in various forms: ‘when a number of offences are being dealt with and specific punishments in respect of them are being totted up to make a total, it is always necessary for the court to take a last look at the total just to see whether it looks wrong[‘]; ‘when ... cases of multiplicity of offences come before the court, the court must not content itself by doing the arithmetic and passing the sentence which the arithmetic produces. It must look at the totality of the criminal behaviour and ask itself what is the appropriate sentence for all the offences’.”
See also Ruby, Sentencing, 3rd ed (1987), pp 38-41. Where the principle falls to be applied in relation to sentences of imprisonment imposed by a single sentencing court, an appropriate result may be achieved either by making sentences wholly or partially concurrent or by lowering the individual sentences below what would otherwise be appropriate in order to reflect the fact that a number of sentences are being imposed. Where practicable, the former is to be preferred.’
The Applicant accepts that this is a matter where the totality principle applies. The Applicant proposes that a 15 percent reduction be made on the basis of totality. The Respondents accept that this is appropriate.
The Court has considered whether any further reduction is necessary. It does not consider any further reduction to be necessary. When one has regard to the contraventions in context, this requires a sum that stands as an effective deterrent.
On the basis of the material discussed above, the Court finds that a 15 percent reduction is thus appropriate. As pressed by the Applicant, this reduction takes into account the conduct as a whole, a degree of inter-relatedness between the false or misleading records contraventions not already grouped, the closure of the Café and the Second Respondent’s age.
Having reviewed the parties’ submissions in detail, the Court accepts the penalty ranges for each contravention proposed by the Applicant. Adopting the Applicant’s submissions as to the appropriate range of penalty for each contravention, the Court finds as follows in this regard:
First Contravention: s 535(4) of the FW Act - making and keeping false records – Payment Summary
(a)this contravention relates to the making and keeping of a false payment summary;
(b)it should be allocated a “40 to 50 percent range” because, whilst it was a false record (which recorded false gross and net amounts that were paid), it related to only a single pay period (being the fortnight ending 22 July 2018) and related to only two employees;
(c)this is a less serious scenario than some of the later contraventions (in which there were multiple records relating to longer time periods);
(d)the impact on the Applicant’s investigation was limited and the contravention was far less involved;
(e)there has been no relevant explanation provided by the Respondents and, because the First Respondent is still trading, there is an element of specific deterrence (albeit in a limited way) which is still warranted; and
(f)on balance, a more moderate penalty is warranted in relation to this contravention.
Second contravention: s 535(4) of the FW Act - making and keeping false records – Payroll Records & Time Records
(a)on balance, the appropriate weighing between deterrence and oppressive severity “sits between 70 to 80 percent”;
(b)this contravention also relates to the making and keeping of false records. However, there are two types of payroll records spanning over significant periods of time (in relation to Ms Curnow, almost three years and in relation to Mr Garcia, almost one year – both on a fortnightly basis);
(c)the misleading elements in those payroll records relate to rates, hours worked and gross amounts paid. Further, the time records were fortnightly over a 14 month period. There were two types of records, for long periods of time, which were false in relation to minimum hourly rates and penalty rates paid, gross amounts paid and hours worked. That type of information had a much more significant impact on the Applicant’s investigation and this contravention is much more serious than the first contravention;
(d)no explanation has been given by the Respondents. However, while the conduct is very serious, it is mitigated to some degree because the underpayments were rectified and this negated the need for the Applicant to “run an underpayment case”; and
(e)because of the seriousness, general deterrence plays a big role and there is “a small amount of specific deterrence”.
Third Contravention: s 536(2) of the FW Act – failure to give pay slips that contained all information required by reg 3.46 of FW Regulations
(a)on balance, 20 to 30 percent is appropriate;
(b)payslips were given which included four key pieces of information but were “fairly rudimentary”. What was missing was information specifically required by the FW Regulations;
(c)this was not a case where there was no information provided; and
(d)general deterrence still must be considered, however, the conduct is at the “lower end of the scale”.
Fourth Contravention: s 536(3) of the FW Act – giving the Employees payslips knowing them to be false or misleading
(a)the fourth contravention sits at “70 to 80 percent in terms of seriousness”;
(b)the fourth contravention relates to giving pay slips to employees (27 payslips to Ms Curnow and 18 to Mr Garcia), knowing them to be false and misleading;
(c)those payslips were provided during the course of the Applicant’s investigation, with instructions to provide them to the Applicant if they were interviewed (instead of the actual payslips the employees received);
(d)there were other “pressured communications about what employees should do if contacted by the Applicant;
(e)the conduct here is egregious and very significant general deterrence considerations are required;
(f)no explanation has been provided; and
(g)a degree of mitigation is present because, ultimately, it was not necessary to dispute underpayments.
Fifth and Sixth Contraventions: s 718A of the FW Act – producing documents to FWI and being reckless as to whether they were false or misleading – Payment Summary and July Pay Slips and Payroll Records and the Time Records
(a)on balance, the fifth and sixth contraventions “sit at 70 to 80 percent in terms of seriousness”;
(b)these were both contraventions in which documents were provided to the Applicant in response to the Notice (being a single payment summary the subject of the First Contravention and payslips for one pay period for eight employees for the Fifth Contravention and payroll and time records for the Sixth Contravention);
(c)these are documents that make it seem as though the employees were being paid correct rates of pay when, in fact, they were being paid flat rates of pay (with incorrect hours worked, gross amounts paid etc); and
(d)the contraventions have a high degree of seriousness and significant weight should be given to general deterrence.
In relation to penalties for contraventions by the Second Respondent, the Court also accepts the percentage range proposed by the Applicant. As argued, the same principles apply and the Court cannot see any reason to reject the approach advocated by the Applicant. Nor, given the analysis above, does the Court accept the alternative percentage breakdowns proposed by the Respondents.
In the circumstances, Court determines that an appropriate penalty in this matter is as follows:
First Respondent
No. Contravention Maximum Penalty Maximum Penalty with 15% discount Lower Range Upper Range Court’s Final Determination 1. s 535(4) of the FW Act - making and keeping false records – Payment Summary $63,000 $53,550 $21,420 (40%) $26,775 (50%) $24,097.50 (45%) 2. s 535(4) of the FW Act - making and keeping false records – Payroll Records & Time Records $63,000 $53,550 $37,485 (70%) $42,840 (80%) $40,162.50 (75%) 3. s 536(2) of the FW Act - failure to give pay slips that contained all information required by reg 3.46 of FW Regulations $63,000 $53,550 $10,710 (20%) $16,065 (30%) $13,387.50 (25%) 4. s 536(3) of the FW Act – giving the Employees payslips knowing them to be false or misleading $63,000 $53,550 $37,485 (70%) $42,840 (80%) $40,162.50 (75%) 5. s 718A of the FW Act – producing documents to FWI and being reckless as to whether they were false or misleading – Payment Summary and July Pay Slips $63,000 $53,550 $37,485 (70%) $42,840 (80%) $40,162.50 (75%) 6. s 718A of the FW Act – producing documents to FWI and being reckless as to whether they were false or misleading – Payroll Records and the Time Records $63,000 $53,550 $37,485 (70%) $42,840 (80%) $40,162.50 (75%) TOTALS: $378,000 $321,300 $182,070 $214,200 $198,135 REDUCTION FOR TOTALITY (15%) $154,760 $182,070 $168,415 Second Respondent
No. Contravention Maximum Penalty Maximum Penalty with 15% discount Lower Range Upper Range Court’s Final Determination 1. s 535(4) of the FW Act - making and keeping false records – Payment Summary $12,600 $10,710 $4,824 (40%) $5,355 (50%) $4,819.50 (45%) 2. s 535(4) of the FW Act - making and keeping false records – Payroll records and Time Records $12,600 $10,710 $7,497 (70%) $8,568 (80%) $8,032.50 (75%) 3. s 536(3) of the FW Act – giving the Employees payslips knowing them to be false or misleading $12,600 $10,710 $7,497 (70%) $8,568 (80%) $8,032.50 (75%) 4. s 718A of the FW Act – producing documents to FWI and being reckless as to whether they were false or misleading – Payment Summary and July Pay Slips $12,600 $10,710 $7,497 (70%) $8,568 (80%) $8,032.50 (75%) TOTALS: $50,400 $42,840 $26,775 $31,059 $28,917 REDUCTION FOR TOTALITY (15%) $22,759 $26,400 $24,580
The Court has taken into account all of the matters emphasised by the Respondents in their written submissions and in the affidavit of the second respondent. However, contraventions of this sort must obviously be deterred. While it may be that specific deterrence is of little use to a business that is no longer operating and a “guiding mind” who will never be in the position to employ persons again, the Court stresses that the matter of general deterrence is paramount here.
The above penalties will, in the Court’s view, have the necessary deterrent effect. The overall sum is not unjust or disproportionate to the circumstances of this case.
In the circumstances, the Court determines that the following pecuniary penalties for the First Respondent are appropriate in relation to each contravention:
(a)contravention one - $24,097.50;
(b)contravention two - $40,162.50;
(c)contravention three - $13,387.50;
(d)contravention four - $40,162.50;
(e)contravention five - $40,162.50; and
(f)contravention six - $40,162.50.
As outlined above, the parties agreed that a further reduction of 15 percent ought to be made to those amounts on the basis of totality.
The total penalty in relation to the First Respondent is thus $168,415.
With respect to the Second Respondent, the Court determines that the following pecuniary penalties are appropriate:
(a)contravention one - $4,819.50;
(b)contravention two - $8,032.50;
(c)contravention three - $8,032.50; and
(d)contravention four - $8,032.50.
As noted above, a further reduction to those amounts of 15 percent on the basis of totality will also be applied.
The total penalty in relation to the Second Respondent is thus $24,580.
The Court will make orders accordingly.
I certify that the preceding one hundred and eighty-one (181) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kendall. Associate:
Dated: 29 November 2022
0
18
0