Fair Work Ombudsman v Saveway Store Pty Ltd
[2020] FCCA 3042
•12 November 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
FAIR WORK OMBUDSMAN v SAVEWAY STORE PTY LTD & ANOR [2020] FCCA 3042
Catchwords:
INDUSTRIAL LAW – Penalty hearing – failure to abide by compliance notice under the Fair Work Act 2009 (Cth) – involvement of second respondent in contraventions – appropriate penalty.
Legislation:
Evidence Act 1995 (Cth), s.191,
Fair Work Act 2009 (Cth), ss. 45, 536, 539, 545, 546, 550, 716
Fair Work Regulations 2009 (Cth), r.3.46
Cases cited:
Kelly v Fitzpatrick [2007] FCA 1080
Fair Work Ombudsman v HSCC Pty Ltd [2020] FCA 655
Fair Work Ombudsman v Scott Redmond trading as Cleaning Excellence [2019] FCCA 3697
Fair Work Ombudsman v Absynthe Restaurant Pty Ltd & Anor [2015] FCCA 58
BlueScope Steel Limited v The Australian Worker’s Union [2019] FCA 182
Fair Work Ombudsman v HSCC Pty Ltd [2020] FCA 655
Ponzio v B & P Caeli Constructions Pty Ltd [2007] FCAFC 65
Applicant: FAIR WORK OMBUDSMAN
First Respondent: SAVEWAY STORE PTY LTD
(ACN 149 194 329)
Second Respondent: SON THANH NGUYEN
File Number: MLG 4476 of 2019
Judgment of: Judge O'Sullivan
Hearing date: On the papers
Date of Last Submission: 3 November 2020
Delivered at: Melbourne
Delivered on: 12 November 2020 REPRESENTATION
Solicitors for the Applicant: Fair Work Ombudsman
Solicitors for the First and Second Respondents: R B Legal Barristers & Solicitors
ORDERS
THE COURT DECLARES THAT:
(1) The first respondent, Saveway contravened:
(a)section 716(5) of the Fair Work Act 2009 (Cth) (FW Act), by failing to comply with the Compliance Notice issued on 17 July 2019; and
(b)section 536(2) of the FW Act, by failing to give pay slips which included information prescribed by regulation 3.46(5) of the Fair Work Regulations 2009 (Cth).
(collectively, the Contraventions)
(2)The Second Respondent, Son Thanh Nguyen, pursuant to s.550 of the FW Act, was involved in the First Respondent’s contravention of s.716(5).
THE COURT ORDERS THAT:
(3)The First Respondent take the steps that were required by the Compliance Notice by:
(a)within 28 days calculating the outstanding entitlements it was required to pay the Employees, including superannuation;
(b)within 60 days paying the outstanding entitlements it was required to pay the Employees referred to in order 3(a) above, to the Commonwealth Consolidated Revenue Fund (on behalf of the Employees);
(c)within 60 days calculating and paying superannuation into the Employees’ nominated superannuation fund for additional superannuation contributions it was required to pay on the outstanding entitlements referred to in order 3(b) above (as required by clause 30.2 of the Restaurant Industry Award 2020); and
(d)within 60 days preparing and producing to the Applicant, a schedule outlining its calculation of the outstanding entitlements it was required to pay the Employees referred to in order 3(a) above, and providing proof that the outstanding entitlements were rectified as set out in orders 3(b) and 3(c);
(4)The First Respondent pay interest on the amounts owed to the Employees pursuant to order 3(b) above, to the Commonwealth Consolidated Revenue Fund within 60 days of this order, pursuant to section 547(2) of the FW Act.
(5)The Applicant distribute to the Employees the amounts paid pursuant to orders 3(b) and 4 above within 180 days of the payment being made, or in the event that the Employees cannot be located within this timeframe, these amounts be retained by the Commonwealth of Australia pursuant to section 559 of the FW Act;
(6)The First Respondent pay penalties of $24,097.50 pursuant to section 546(1) of the FW Act for committing the Contraventions.
(7)The Second Respondent pay penalties of $3,685.50 pursuant to s.546(1) of the FW Act for his involvement in the contravention of s.716(5).
(8)Pursuant to section 546(1) of the FW Act, the pecuniary penalties imposed by:
(a)order 6 be paid within 6 months; and
(b)order 7 be paid within 3 months
into the Commonwealth Consolidated Revenue Fund.
(9)The applicant have liberty to apply on seven days’ notice in the event that any of the proceeding orders are not complied with.
FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNEMLG 4476 of 2019
FAIR WORK OMBUDSMAN Applicant
And
SAVEWAY STORE PTY LTD (ACN 149 194 329) First Respondent
SON THANH NGUYEN Second Respondent
REASONS FOR JUDGMENT
Introduction
1.This case illustrates once again that there are consequences for failing to comply with a compliance notice, because if the warning they contain had been heeded in the first place the recipient would have been able to escape any penalty or Court finding.
2.By application and statement of claim filed 17 December 2019 the Fair Work Ombudsman (“the applicant”) commenced proceedings against Saveway Store Pty Ltd (“the first respondent”) and Son Thanh Nguyen (“the second respondent”) because they did not heed that warning.
3.The applicant alleged that the first respondent, who operated two French Baguette Café outlets in Footscray and Richmond Victoria, breached provisions of the Fair Work Act 2009 (Cth) (the FW Act) along with the Restaurant Industry Award 2010 (“the Award”) and that the second respondent (as the director of the first respondent) was involved in those breaches and was as a result accessorily liable for breaches of the FW Act.
4.The applicant commenced an investigation into the first respondent’s business in October 2018 which continued until August 2019. As a result of that investigation the applicant issued the first respondent with a compliance notice (“the Notice”) (which conformed with the requirements of s.716 of the FW Act) giving the first respondent an opportunity to make good the breaches identified therein.
5.When evidence of the first respondent’s compliance was not forthcoming the application commenced these proceedings to ensure the respondents were held to account for their unlawful conduct (which also included alleged breaches of the Fair Work Regulations 2009 (Cth) (“FW Regulations”) for not issuing or correctly providing pay slips).
6.After an initial directions hearing the respondents filed a defence in which full admissions were made to the allegations contained in the statement of claim, the parties filed a Statement of Agreed Facts (“SOAF”) and the matter was listed for a penalty hearing.
7.The parties then filed further material, including written submissions in support of their respective contentions as to the appropriate penalties that should be imposed for the agreed contraventions. As will become clear presently those submissions produced broad agreement between the parties as to the appropriate penalty range/s (save for one issue).
8.This resulted in the parties agreeing, and in the face of that agreement the Court ordering on 2 November 2020, that the penalty hearing proceed on the papers.
Material relied on
9.The applicant relied upon the following documents:
(a) statement of claim filed on 17 December 2019;
(b) SOAF filed on 26 June 2020; and
(c) affidavit of Rachel Vicki Abela filed 17 September 2020.
(d) applicant’s submissions filed on 16 October 2020;
(e) applicant’s supplementary submissions filed on 20 October 2020;
(f) applicant’s submission in reply filed on 3 November 2020.
10.The respondents relied upon the following documents:
(a) respondent’s submissions filed on 26 October 2020.
Agreed Facts
11.The SOAF was made by the applicant and the respondents, dated 26 June 2020, and filed in the proceedings. For the sake of brevity the content won’t be rehearsed save where necessary for the purpose of these reasons. Given s.191 of the Evidence Act (Cth) 1995 the content thereof forms the agreed background facts to these proceedings and on that basis the Court can consider the appropriate penalties for the agreed contravening conduct.
12.Before doing so however it is timely to set out the relevant provisions of the FW Act.
Relevant provisions of FW Act
13.The contraventions of the first and second respondents, by virtue of the second respondent admitting that he was involved in the contraventions within the meaning of sub-s.550(2) of the FW Act, was a failure to comply with a compliance notice and thus a breach of s.716(5) of the FW Act.
14.s.716 of the FW Act provides:
“716 Compliance notices
Application of this section
(1) This section applies if an inspector reasonably believes that a person has contravened one or more of the following:
(a)a provision of the National Employment Standards;
(b) a term of a modern award;
…
Giving a notice
(2) The inspector may, except as provided by subsection (4), give the person a notice requiring the person to do either or both of the following within such reasonable time as is specified in the notice:
(a) take specified action to remedy the direct effects of the contravention referred to in subsection (1);
(b) produce reasonable evidence of the person’s compliance with the notice.
(3) The notice must also:
(a) set out the name of the person to whom the notice is given; and
(b) set out the name of the inspector who gave the notice; and
(c) set out brief details of the contravention; and
(d) explain that a failure to comply with the notice may contravene a civil remedy provision; and
(e) explain that the person may apply to the Federal Court, the Federal Circuit Court or an eligible State or Territory Court for a review of the notice on either or both of the following grounds:
(i) the person has not committed a contravention set out in the notice;
(ii) the notice does not comply with subsection (2) or this subsection; and
(f) set out any other matters prescribed by the regulations.
…
Relationship with civil remedy provisions
(4A) An inspector must not apply for an order under Division 2 of Part 4‑1 in relation to a contravention of a civil remedy provision by a person if:
(a) the inspector has given the person a notice in relation to the contravention; and
(b) either of the following subparagraphs applies:
(i) the notice has not been withdrawn, and the person has complied with the notice;
(ii) the person has made an application under section 717 in relation to the notice that has not been completely dealt with.
Note: A person other than an inspector who is otherwise entitled to apply for an order in relation to the contravention may do so.
(4B) A person who complies with a notice in relation to a contravention of a civil remedy provision is not taken:
(a) to have admitted to contravening the provision; or
(b) to have been found to have contravened the provision.
Person must not fail to comply with notice
(5) A person must not fail to comply with a notice given under this section.
Note: This subsection is a civil remedy provision (see Part 4‑1).
(6) Subsection (5) does not apply if the person has a reasonable excuse.”
15.The issuing of compliance notices is a power given to Fair Work Inspectors which is designed to be a method by which non-compliance with obligations imposed by the FW Act can be enforced as an alternative to court proceedings. The failure to comply with a compliance notice given under s.716 of the FW Act is a civil remedy provision. “Civil remedy provision” is defined in s.539(1) to mean the provisions referred to in column 1 of an item in the table in s.539(2) of the FW Act.
16.Section 45 of the FW Act is included as an item in that table and, therefore, is also a “civil remedy provision”. Section 45 of the FW Act provides that a “person must not contravene a term of a modern award”. In this case the relevant “modern award” is the Award.
17.The consequences of a person contravening a modern award, and hence s.45, are provided for in Part 4-1 of the FW Act. Relevant to the case before the Court is s.546(1) of the FW Act which provides that this Court (among others) may “on application, order a person to pay a pecuniary penalty that the court considers is appropriate if the court is satisfied that the person has contravened a civil remedy provision”.
18.It is not only the person who has contravened a civil remedy provision who may be liable to an order for the payment of a pecuniary penalty as s.550 of the FW Act provides that:
“Involvement in contravention treated in same way as actual contravention
(1) A person who is involved in a contravention of a civil remedy provision is taken to have contravened that provision.
(2) A person is involved in a contravention of a civil remedy provision if, and only if, the person:
(a) has aided, abetted, counselled or procured the contravention; or
(b) has induced the contravention, whether by threats or promises or otherwise; or
(c) has been in any way, by act or omission, directly or indirectly, knowingly concerned in or party to the contravention; or
(d) has conspired with others to effect the contravention.”
19.Finally, s.536 of the FW Act provides:
(1)An employer must give a pay slip to each of its employees within one working day of paying an amount to the employee in relation to the performance of work.
(2)The pay slip must:
(a) if a form is prescribed by the regulations—be in that form; and
(b) include any information prescribed by the regulations.
20.The information that must be included in pay slips has been prescribed by reg.3.46 of the FW Regulations and for the purposes of these proceedings so far as is presently relevant in relation to regulation 3.46(5) the detail that must be provided includes the amount of the superannuation contribution, the name and number of the fund to which it was made.
Approach to penalty proceedings
21.The applicant’s standing to commence these proceedings was not in dispute. The power for the Court to order the imposition of a penalty for contraventions of the FW Act arises under s.546 FW Act.
22.The approach of the Court in determining penalties involves the following steps:
a)the Court is to identify the separate contraventions involved. For the purposes of s.539(2), each contravention of an obligation located in the FW Act constitutes a separate contravention of a civil remedy provision of the FW Act;
b)the Court should consider whether any of the breaches taken together constitute a single course of conduct pursuant to s.557(1) such that multiple contraventions should be treated as a single contravention;
c)to the extent that two or more contraventions have common elements, this should be taken into account in considering what an appropriate penalty is in all the circumstances for each contravention. The respondents should not be penalised more than once for the same conduct. The penalties imposed by the Court should be an appropriate response to the respondents’ actions. Importantly, this third task is distinct from, and in addition to, the final application of the “totality principle”;
d)the Court will consider an appropriate penalty to impose in respect of each contravention, whether a single contravention, a course of conduct, or group of contraventions, having regard to all of the circumstances of the case; and
e)having fixed an appropriate penalty for each contravention, the Court should then review the aggregate penalty so as to determine whether it is an appropriate response to the contravening conduct. In doing so, the Court should apply an “instinctive synthesis” in making this assessment. This final step is commonly known as the “totality principle”.[1]
[1] See Fair Work Ombudsman v HSCC Pty Ltd [2020] FCA 655.
23.The process set out above is facilitated by addressing the non-exhaustive considerations Tracey J identified in Kelly v Fitzpatrick [2007] FCA 1080, which were as follows:
a)the nature and extent of the conduct which led to the breaches;
b)the circumstances in which that conduct took place;
c)the nature and extent of any loss or damage sustained as a result of the breaches;
d)whether there had been similar previous conduct by the respondents;
e)whether the breaches were properly distinct or arose out of the one course of conduct;
f)the size of the business enterprise involved;
g)whether or not the breaches were deliberate;
h)whether senior management was involved in the breaches;
i)whether the party committing the breach had exhibited contrition;
j)whether the party committing the breach had taken corrective action;
k)whether the party committing the breach had co-operated with the enforcement authorities;
l)the need to ensure compliance with minimum standards by provision of an effective means for investigation and enforcement of employee entitlements; and
m)the need for specific and general deterrence.
Consideration
24.I have considered the parties submissions in relation to each of the relevant factors for determining the appropriate penalty in this case. The applicant’s submissions, which the respondents agreed with, set out the approach to determining the appropriate penalties, suggested grouping of and maximum penalties for the contraventions in this matter.[2]
[2] See applicant’s submissions – 17-22 and respondent’s submissions – 3.
The nature, extent and circumstances of the conduct which led to the breaches
25.The applicant’s written submissions filed on 16 October 2020 addressed this consideration at paragraphs [23] to [37] and the respondents’ written submissions filed on 26 October 2020 addressed this consideration at paragraphs [5] to [17].
26.The applicant in her written submission set out the respondents’ contravention of s.716(5) of the FW Act. As a result of the applicant issuing the Notice and the respondents’ failure to comply with that Notice, without providing any reasonable excuse to the applicant for non-compliance, led to the applicant issuing proceedings against the respondents.
27.The respondents’ in their written submissions admit to only partial compliance with the Notice and accept that an order should be made by the Court to fully comply with the Notice.
28.The applicant in her written submissions also addressed the respondents’ contravention of s.536(2) of the FW Act by failing to provide pay slips with the name and number of the superannuation fund to which the employees contributions were made, as required by regulation 3.46(5) of the FW Regulations. The respondents submitted the contravention related to only 12 pay slips, that the name of the superannuation fund had been omitted and it was inadvertent.
The nature and extent of any loss or damage sustained as a result of the breaches
29.The applicant’s written submissions filed on 16 October 2020 addressed this consideration at paragraphs [43] to [46]. The respondents addressed this consideration at paragraphs [21] to [23] in their written submissions filed on 26 October 2020.
30.The applicant submitted that it was difficult to ascertain the exact amount of loss suffered by the employees as the respondents did not comply with the Notice by not providing complete calculations to the applicant that would show the total amount of underpayments. The respondents state in their written submissions that they accept this did not occur.
31.The applicant also submitted that the employees concerned are still awaiting payment of their entitlements over twelve months after rectification was due. However, the respondents’ written submissions contend that payments to address this have been made.
Whether there has been similar previous conduct by the respondents
32.The applicant’s written submissions filed on 16 October 2020 addressed this consideration at paragraph [52] and acknowledged that the respondents have had no known prior conduct of breaches of the FW Act.
33.The respondent’s written submissions filed on 26 October 2020 address this issue at paragraph [26] and also submit that they have had no prior findings of breaches of the FW Act.
The size of the business enterprise involved
34.The applicant addressed this issue at paragraphs [47] to [50] of their written submissions filed on 16 October 2020 and the respondents in their written submissions filed on 26 October 2020 address this issue at paragraph [24].
35.The applicant submitted that the first respondent is a small business and the penalty ranges the applicant has proposed takes this into account, but also ensures that the penalty amounts proposed will act as a deterrent.
36.The respondents in their submissions accept the submissions of the applicant in relation to this consideration.
Whether or not the breaches were deliberate
37.The applicant addressed this issue at paragraphs [38] to [42] of their submissions and the respondents address this issue at paragraphs [18] to [20] of their submissions.
38.The applicant submitted that the respondents’ non compliance with the Notice was intentional, that any attempts to comply with the Notice were inadequate and that steps were not taken until the last minute. It was also submitted that the respondents’ conduct in not providing information on employees payslips was “reckless”.
39.The respondents admit that the first respondent has been “negligent in not fully complying with the… Notice” however, they did not agree that their non compliance was intentional and submitted that there had been attempts by the respondents to comply with the Notice.
40.The respondents submitted that the failure to provide information on employees payslips as “careless” as they were unaware of the full requirements of Reg. 3.46(5). The respondents submit that they will now comply with this requirement.
Whether senior management was involved in the breaches
41.The applicant’s written submissions filed on 16 October 2020 addressed this consideration at paragraph [51] and the respondents address this consideration at paragraph [52] of their written submissions filed on 26 October 2020.
42.The applicant submitted that the second respondent, who is the sole director of the first respondent, was directly involved in the conduct of this matter. The second respondent was personally served with the Notice and delayed taking action in rectifying the matters set out therein. The respondents’ submissions record they accept the submission of the applicant in relation to this consideration.
Contrition, corrective action and co-operation
43.The applicant’s written submissions filed on 16 October 2020 addressed this consideration at paragraphs [53] to [57]. The respondents addressed this consideration at paragraph [27] of their written submissions filed on 26 October 2020.
44.The applicant acknowledges that the respondents have admitted the contraventions in the SOAF which enabled the proceedings to progress quickly to a penalty hearing, and in doing so has saved the Court’s time and expense with a liability hearing.
45.However, the applicant submitted that the respondents have still failed to fully comply with the Notice which has meant the applicant has had to bring these proceedings to Court, and therefore there had not been a meaningful expression of contrition.[3]
[3] See applicant’s supplementary submissions of 20 October 2020.
46.The applicant therefore submitted that a discount for the respondents’ cooperation should be no more than 10%.
47.The respondents submit that they have at all times been cooperative, taken corrective action and made admissions early, and therefore saved the Court time and money. They submit that there should be a 10% discount on penalty for cooperation.
The need to ensure compliance with minimum standards
48.The applicant’s written submissions filed on 16 October 2020 addressed this consideration at paragraphs [58] to [61] and the respondents address this issue at paragraph [28] of their written submissions filed on 26 October 2020.
49.The applicant set out in her submissions that the need to promote compliance was relevant to this matter, including the importance of providing a safety net for employees to ensure that their correct entitlements are provided, which also includes providing correct pay slips to the employees.
50.The applicant also submitted that the importance of compliance notices being issued and the remedy available pursuant to the FW Act of court proceedings being instituted in the event of non compliance should be taken into account.
51.The respondents accepted the applicant’s submissions in relation to this consideration. However, they also submitted that by not providing all required information on payslips this was a contravention that was at the “lower [end of the] scale” of breaches of s.536(2).
52.One of the principal objects of the FW Act is to provide a guaranteed safety net of fair, relevant and enforceable minimum terms and conditions for all employees. A compliance notice is intended to act as a means of ensuring compliance with the FW Act without the need to go to Court. Where a person does not comply with a compliance notice they undermine that purpose and can be seen as undermining the FW Act’s enforcement framework and the safety net of entitlements it is designed to protect.[4] This should be taken into account.
[4] See Fair Work Ombudsman v Scott Redmond trading as Cleaning Excellence [2019] FCCA 3697 at [21].
The need for specific and general deterrence
53.The applicant’s written submissions filed on 16 October 2020 addressed this consideration at paragraphs [62] to [72]. The respondents addressed this consideration at paragraph [29] to [30] of their written submissions filed on 26 October 2020.
54.In her submissions, the applicant submitted that the civil penalties imposed on the respondents must be set at an amount to act as a deterrent to future contraventions occurring and also to serve as a deterrent to others tempted to contravene the FW Act.
55.The respondents submitted that they generally accepted the applicant’s submissions in relation to this consideration with the exception that higher penalties should not be imposed on them because of the actions of other employers in the same and/or in other industries. The respondents’ position was that they should not be punished for the conduct of others. This of course ignores the role of general deterrence in fixing appropriate penalties.
Appropriate penalties
56.The applicant submitted (and the respondents agreed (save in relation to the penalty range for item 2 in subparagraph (a)) the following penalty ranges were appropriate:
a) for the first respondent:
| Contravention | Maximum Penalty per contravention | FWO proposed % range (lower) | FWO proposed % range (higher) | FWO proposed penalty (lower range) | FWO proposed penalty (higher range) | FWO proposed penalty after 10% (lower range) | FWO proposed penalty after 10% (higher range) |
| 1. s.716(1) – failure to comply with Compliance Notice | $31,500 | 60% | 70% | $18,900 | $22,050 | $17,010 | $19,845 |
| 2. s.536(2) – failure to include info on pay slips | $63,000 | 10% | 20% | $6,300 | $12,600 | $5,670 | $11,340 |
| Total | $94,500 | $25,200 | $34,650 | $22,680 | $31,185 |
b) for the second respondent:
| Contravention | Maximum Penalty per contravention | FWO proposed % range (lower) | FWO proposed % range (higher) | FWO proposed penalty (lower range) | FWO proposed penalty (higher range) | FWO proposed penalty after 10% (lower range) | FWO proposed penalty after 10% (higher range) |
| s.716(1) – failure to comply | $6,300 | 60% | 70% | $3,780 | $4,410` | $3,402 | $3,969 |
| $6,300 | $3,780 | $4,410 | $3,402 | $3,969 | |||
57.In their submissions the parties agreed on the appropriate penalty range for the breach of s.716 by both respondents. Where they differed was on the appropriate penalty range for the breach of s.536(2) by the first respondent. The applicant argued for a range of between 10% and 20% while the respondents contended it should be between 5% and 10%.
58.The Court’s role when dealing with a civil penalty case, where the parties have agreed on the pecuniary penalty, is not to simply “rubber stamp” that agreed penalty.[5] That said, subject to the Court being satisfied that the proposed penalty is appropriate[6], it is accepted that it is “highly desirable in practice” for the Court to impose the proposed penalty[7]. The declaratory relief sought, which is agreed, is appropriate if it is to mark disapproval of the conduct or realise some broader educative or deterrent effect.
[5] BlueScope Steel Limited v The Australian Worker’s Union [2019] FCA 182 at [3]
[6] See Commonwealth of Australia v Director Fair Work Building Industry Inspectorate (2015) 258 CLR 482 of [47] to [48].
[7] See Commonwealth of Australia v Director, Fair Work Building Industry Inspectorate (2015) 258 CLR 482 at [58].
59.The proposed penalty will be consistent with these principles if it falls within the range of penalties that the Court could, in the exercise of its discretion, impose having regard to the facts and circumstances of the contraventions and the legal principles that apply to the fixing of penalties for civil penalty provisions.[8] When considering the appropriateness of the agreed penalties it is important to note the maximum penalty remains a “yardstick” against which the process of assessment is to proceed and the primary purpose of any imposition of penalty is deterrence.
[8] See Fair Work Ombudsman v HSCC Pty Ltd [2020] FCA 655 at [26] and [28].
60.In relation to the agreed contraventions of s.716 it is important to note:
“The compliance notice mechanism in s.716(2) of the Act is an efficient and effective means of ensuring compliance in a timely and cost effective way. The use of the administrative compliance notice procedure in straightforward contraventions such as those the subject of the notice in this case, avoids the cost to the public purse associated with prosecuting proceedings through courts.”[9]
[9] See Fair Work Ombudsman v Absynthe Restaurant Pty Ltd & Anor [2015] FCCA 58.
61.In relation to the agreed contravention of s.536(2) failure to comply with those provisions undermines one of the statutory purposes of the FW Act as it makes it difficult for an employee to determine they are being properly paid.
62.In relation to both contraventions specific and general deterrence form part of the factors relevant to the imposition of a penalty under the FW Act.[10]
[10] See Ponzio v B & P Caeli Constructions Pty Ltd [2007] FCAFC 65.
63.The parties’ submissions debated in some considerable detail the minutiae of their separate perspectives on the extent of compliance with the Notice and the level of culpability that ought attach to the breaches of s.536. In the circumstances, given the parties’ submissions, the appropriate penalty for the contravention of s.716 for the first respondent is $18,427.50 whilst for the second respondent it is $3,685.50.
64.In relation to the contravention of s.536(2) by the first respondent, mindful of the above matters, a penalty of $5,670 reflects the particular circumstances of the offending conduct in this matter.
65.Therefore this results in a total penalty for the first respondent of $24,097.50 and $3,685.50 for the second respondent.
66.Finally the parties were also agreed on the necessary declarations and form of orders save that the respondents sought time be extended to enable them to comply with the orders to rectify the underpayments, satisfy the Notice and pay the penalties imposed. Balancing the matters referred to in the submissions, in the circumstances 6 months is an appropriate time period to complete all those steps.
Conclusion
67.The failure to comply with the Notice properly issued by the applicant in the course of its investigation and the discharge of its statutory functions is serious.
68.Therefore, as the Court:
a)is directed by the relevant authorities to consider what is appropriate in all the circumstances of this case; and
b)in its discretion in relation to penalty is not fettered by a checklist of mandatory criteria; and
c)notes the parties have filed the S.O.A.F., and agreed on the appropriate penalty ranges for the contravening conduct save where set out above; and
d)is satisfied in the light of the above consideration that the penalties set out above are just and appropriate;
there will be orders as set out in the beginning of these reasons for decision.
I certify that the preceding sixty eight (68) paragraphs are a true copy of the reasons for judgment of Judge O'Sullivan
Associate:
Date: 12 November 2020
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