Fair Work Ombudsman v Shri Krishna Guru Pty Ltd
[2021] FCCA 1808
•6 August 2021
Federal Circuit Court of Australia
Fair Work Ombudsman v Shri Krishna Guru Pty Ltd [2021] FCCA 1808
File number(s): MLG 2476 of 2020 Judgment of: JUDGE BLAKE Date of judgment: 6 August 2021 Catchwords: INDUSTRIAL LAW – Fair Work Act 2009 (Cth) – Court to consider appropriate pecuniary penalties to impose on Respondents – Respondents admitted to liability for range of contraventions of Fair Work Act 2009 (Cth) and Fast Food Industry Award 2010 (Cth) – non-compliance of minimum conditions of awards – contravention of minimum entitlements of employees – failure to give and keep proper employment records – whether contraventions should be treated as a single contravention.
Effect of COVID-19 pandemic assessed when Court considers size and financial resources of the business – consideration of effect of lockdown on individual business – whether an employer is entitled to any discount on penalty as a result of being affected by COVID-19 lockdown – whether evidence shows that any lockdowns have had an impact on size and resources such that a discount is warranted –– evidence to be placed before the Court when employer seeking to make submission as to penalty discount – evidence of pre-and post-pandemic profit – evidence of impact on profitability of business – evidence of any reduction in size of business – evidence of receipt of government assistance.
Respondents receive significant reduction in penalties having regard to size and financial resources of the business – application of totality principle requires 50% reduction on total penalties payable – liability admitted – affected employees compensated – penalties be made payable to the Commonwealth of Australia.
Legislation: Fair Work Act 2009 (Cth), ss 44(1), 45, 99, 116, 535(1), 536(1), 536(2), 546(1), 557(1)
Fast Food Industry Award 2010 (Cth), cl 12.2, 13.2, 13.4, 17, 18, 25.5(a)(ii), 25.5(b)(ii), 25.5(c), 26.1(a), 26.1(b), 28.3, 30.3, 30.4
Cases cited: ACCC v Leahy Petroleum Pty Ltd (No 2) [2005] FCA 254; 215 ALR 281
AMIEU v Meneling Station Pty Ltd [1987] FCA 2; (1987) 16 IR 245
Commonwealth v Director, Fair Work Building Industry Inspectorate [2015] HCA 46
Construction, Forestry, Mining and Energy Union v Cahill [2010] FCAFC 39; (2010) 269 ALR 1
Fair Work Ombudsman v Construction, Forestry, Maritime, Mining and Energy Union (the Hutchison Ports Appeal) [2019] FCAFC 69
Fair Work Ombudsman v NSH North Pty Ltd t/a New Shanghai Charlestown [2017] FCA 1301
FWO v Austop Natural Therapy and Supplies Pty Ltd and Ors [2020] FCCA 2920
FWO v Corporation Sun Pty Ltd and Anor [2020] FCCA 2849
FWO v Malevi & Others [2020] FCCA 2875
FWO v Sun Sea Equity Pty Ltd [2021] FCCA 104
Jordan v Mornington Inn Pty Ltd (2007) 166 IR 33
Mason v Harrington Corporation Pty Ltd t/as Pangea Restaurant and Bar [2007] FMCA 7
Mill v R (1988) 166 CLR 59
Mornington Inn Pty Ltd v Jordan [2008] FCAFC 70
Parker v ABCC [2019] FCAFC 56 [269]
Rocky Holdings v FWO [2014] FCAFC 62; 221 FCR 153
Number of paragraphs: 68 Date of hearing: 14 May 2021 Place: Melbourne Counsel for the Applicant: Mr Tueno Solicitor for the Applicant: Office of the Fair Work Ombudsman Counsel for the Respondent: Mr Crocker Solicitor for the Respondent: Rosendorff Lawyers ORDERS
MLG 2476 of 2020 BETWEEN: FAIR WORK OMBUDSMAN
Applicant
AND: SHRI KRISHNA GURU PTY LTD
First Respondent
SHREYANSH DHARMESH SHAH
Second Respondent
order made by:
JUDGE BLAKE
DATE OF ORDER:
6 August 2021
THE COURT DECLARES THAT:
1.The First Respondent contravened the following civil remedy provisions of the Fair Work Act 2009 (‘FW Act’):
(a)section 44(1) of the FW Act, by contravening the following provisions of the National Employment Standard by failing to:
(i)pay personal leave entitlements to Bianca Rose Vicari pursuant to section 99 of the FW Act;
(ii)pay 7 of its employees for their absence on Public Holidays pursuant to section 116 of the FW Act;
(b)section 45 of the FW Act, by contravening the following terms of the Fast Food Industry Award 2010 (‘Award’), namely by failing to:
(i)pay minimum adult wages to 14 of its employees pursuant to clause 17 of the Award;
(ii)pay minimum junior wages to Irene Felicia, Josephine Laufer and Gene Marcel du Vergier pursuant to clause 18 of the Award;
(iii)pay casual loading to 23 of its employees pursuant to clause 13.2 of the Award;
(iv)provide Carlotta Graham and Hyerim (Rachel) Kim with the minimum casual daily engagement, pursuant to clause 13.4 of the Award;
(v)pay Early Morning Penalty Rates to Lee Dongin (Dongmin), pursuant to clause 25.5(a)(ii) of the Award;
(vi)pay Saturday Penalty Rates to 9 of its employees pursuant to clause 25.5(b)(ii) of the Award;
(vii)pay Sunday Penalty Rates to 9 of its employees pursuant to clause 25.5(c) of the Award;
(viii)pay Public Holiday Penalty Rates to Carlotta Graham and Irene Felicia pursuant to clause 30.4 of the Award;
(ix)pay Full-Time Overtime Rates to 6 of its employees pursuant to clause 26.1(a) of the Award;
(x)pay Casual Overtime Rates to 9 of its employees pursuant to clause 26.1(b) of the Award;
(xi)pay Annual Leave Loading to Seongdong (SD) Kim and Minji Yang pursuant to clause 28.3 of the Award;
(xii)to make a Part-Time Agreement in writing with Luisa Obanda Mejia pursuant to clause 12.2 of the Award;
(c)section 535(1) of the FW Act, by failing to make and keep employee records as required by regulations 3.33(1 ), 3.33(2), 3.33(3) and 3.36 of the Fair Work Regulations 2009 (Cth) (FW Regulations);
(d)section 536(1) of the FW Act, by failing to give Danbi Lim, Ahyoon (Irene) Kim, Dongmin (Peter) Cheon, Sangna (Chloe) Lee and Soomin (Suzie) Kim a pay slip within one working day of receiving an amount in relation to the performance of work, or at all.
2.The Second Respondent was involved, pursuant to section 550 of the FW Act, in each of the contraventions set out in order 1 above.
the court orders that:
1.Pursuant to section 546(1) of the Act, the First Respondent pay the following pecuniary penalties:
(a)$9,450 in respect of its contravention of section 45 of the Act as a result of failing to pay the minimum adult rate pursuant to clause 17 of the Fast Food Industry Award 2010 ('Award');
(b)$3,150 in respect of its contravention of section 45 of the Act as a result of failing to pay casual loading pursuant to clause 13.2 of the Award;
(c)$3,150 in respect of its contravention of section 45 of the Act as a result of failing to pay early morning Monday to Friday penalties pursuant to clause 25.5(a)(ii) of the Award;
(d)$1,575 in respect of its contravention of section 45 of the Act as a result of failing to pay public holiday penalties pursuant to clause 30.3 of the Award;
(e)$3,150 in respect of its contravention of section 45 of the Act as a result of failing to pay overtime to full time employees pursuant to clause 26.1(a) of the Award;
(f)$1,575 in respect of its contravention of section 45 of the Act as a result of failing to pay annual leave loading penalties pursuant to clause 28.3 of the Award;
(g)$3,150 in respect of its contravention of section 44 of the Act as a result of failing to pay for absence on public holiday pursuant to section 116 of the Act;
(h)$630 in respect of its contravention of section 45 of the Act as a result of failing to make a part time agreement in writing pursuant to clause 12.2 of the Award;
(i)$9,450 in respect of its contravention of section 535(1) of the Act as a result of failing to make and keep records;
(j)$3,150 in respect of its contravention of section 536(1) of the Act as a result of failing to give payslips to employees;
(k)$3,150 in respect of its contravention of section 536(2) of the Act as a result of failing to include required information on payslips.
2.Pursuant to section 546(1) of the Act, the Second Respondent pay the following pecuniary penalties:
(a)$1,890 in respect of his contravention of section 45 of the Act as a result of failing to pay minimum adult hourly rates of pay pursuant to clause 17 of the Award;
(b)$630 in respect of his contravention of section 45 of the Act as a result of failing to pay casual loading pursuant to clause 13.2 of the Award;
(c)$630 in respect of its contravention of section 45 of the Act as a result of failing to pay early morning Monday to Friday penalties pursuant to clause 25.5(a)(ii) of the Award;
(d)$315 in respect of his contravention of section 45 of the Act as a result of failing to pay public holiday penalties pursuant to clause 30.3 of the Award;
(e)$630 in respect of his contravention of section 45 of the Act as a result of failing to pay overtime to full time employees pursuant to clause 26.1(a) of the Award;
(f)$315 in respect of his contravention of section 45 of the Act as a result of failing to pay annual leave loading penalties pursuant to clause 28.3 of the Award;
(g)$630 in respect of his contravention of section 44 of the Act as a result of failing to pay for absence on public holiday pursuant to section 116 of the Act;
(h)$126 in respect of his contravention of section 45 of the Act as a result of failing to make a part time agreement in writing pursuant to clause 12.2 of the Award;
(i)$1,890 in respect of his contravention of section 535(1) of the Act as a result of failing to make and keep records;
(j)$630 in respect of his contravention of section 536(1) of the Act as a result of failing to give payslips to employees;
(k)$630 in respect of his contravention of section 536(2) of the Act as a result of failing to include required information on payslips.
3.The penalties ordered be paid to the Commonwealth of Australia Consolidated Revenue Fund within 28 days of the Courts orders.
4.The Applicant have liberty to apply on seven days’ notice in the event that any of the preceding orders are not complied with.
REASONS FOR JUDGMENT
JUDGE BLAKE:
introduction
In this matter, the Fair Work Ombudsman (‘Applicant’) seeks the imposition of pecuniary penalties against Shri Krishna Guru Pty Ltd (‘First Respondent’) and Shreyansh Dharmesh Shah (‘Second Respondent’) (collectively ‘the Respondents’).
The matter proceeded before me as follows. The parties reached agreement on a Statement of Facts. An Amended Statement of Agreed Facts (‘Statement’) was filed with the Court. In the Statement, among other things, the Respondents admitted liability for a range of contraventions of the Fair Work Act 2009 (‘Act’) and the Fast Food Industry Award 2010 (‘Award’).
In light of the Statement, the parties submitted jointly that the Court should make a range of declarations in relation to the liability of the Respondents. Having reviewed the proposed relief, the Statement the Court Book materials, and having heard from the parties, the Court regards it as appropriate to make the Declarations sought.
All that remains for the Court is to consider submissions as to the appropriate pecuniary penalties the Court should impose on the Respondents for the contraventions. A Court Book was filed. The parties filed affidavits in relation to the question of penalty from Shreyansh Dharmesh Shah (two affidavits), Jaimie Max Adam, Jospehine Emma Laufer, Ahyoon Kim and Karan Punjabi. Pursuant to an agreement between them, the parties agreed not to conduct cross examination of the witnesses. The parties also filed written submissions prior to my hearing from the parties orally.
Factual background and contraventions
The background facts to the matter are set out in the Statement. Attached as Annexure A to these reasons is a copy of the Statement.
The contraventions which have been found, and in respect of which the Court must consider the imposition of penalties, are as follows:
1.The First Respondent, contravened the following civil remedy provisions of the Fair Work Act 2009 (‘FW Act’):
(a)section 44(1) of the FW Act, by contravening the following provisions of the National Employment Standard by failing to:
(i)pay personal leave entitlements to Bianca Rose Vicari pursuant to section 99 of the FW Act;
(ii)pay seven of its Employees for their absence on Public Holidays pursuant to section 116 of the FW Act;.
(b)section 45 of the FW Act, by contravening the following terms of the Fast Food Industry Award 2010 (‘Award’), namely by failing to:
(i)pay minimum adult wages to 14 of its employees pursuant to clause 17 of the Award;
(ii)pay minimum junior wages to Irene Felicia, Josephine Laufer and Gene Marcel du Vergier pursuant to clause 18 of the Award;
(iii)pay casual loading to 23 of its employees pursuant to clause 13.2 of the Award;
(iv) provide Carlotta Graham and Hyerim (Rachel) Kim with the minimum casual daily engagement, pursuant to clause 13.4 of the Award;
(v)pay Early Morning Penalty Rates to Lee Dongin (Dongmin), pursuant to clause 25.5(a)(ii) of the Award;
(vi)pay Saturday Penalty Rates to 9 of its employees pursuant to clause 25.5(b)(ii) of the Award;
(vii)pay Sunday Penalty Rates to 9 of its employees pursuant to clause 25.5(c) of the Award;
(viii)pay Public Holiday Penalty Rates to Carlotta Graham and Irene Felicia pursuant to clause 30.4 of the Award;
(ix)pay Full-Time Overtime Rates to 6 of its six employees pursuant to clause 26.1(a) of the Award;
(x)pay Casual Overtime Rates to 9 of its employees pursuant to clause 26.1(b) of the Award;
(xi)pay Annual Leave Loading to Seongdong (SD) Kim and Minji Yang pursuant to clause 28.3 of the Award;
(xii)to make a Part-Time Agreement in writing with Luisa Obanda Mejia pursuant to clause 12.2 of the Award;
(c)section 535(1) of the FW Act, by failing to make and keep employee records as required by regulations 3.33(1 ), 3.33(2), 3.33(3) and 3.36 of the Fair Work Regulations 2009 (Cth) (FW Regulations);
(d)section 536(1) of the FW Act, by failing to give Danbi Lim, Ahyoon (Irene) Kim, Dongmin (Peter) Cheon, Sangna (Chloe) Lee and Soomin (Suzie) Kim a pay slip within one working day of receiving an amount in relation to the performance of work, or at all.
2.The Second Respondent, was involved, pursuant to section 550 of the FW Act, in each of the contraventions set out in order 1 above.
Approach to penalty and applicable principles
The approach to determine penalties is well established. In Fair Work Ombudsman v NSH North Pty Ltd t/a New Shanghai Charlestown [2017] FCA 1301 (‘NSH North’), Browmich J described a five step process as follows:
(1)Identify the separate contraventions, with each breach of each obligation being a separate contravention, and each breach of a term of the Award being a separate contravention.
(2)Consider whether each separate contravention should be dealt with independently or with some degree of aggregation for those contraventions arising out of a course of conduct, noting that s 557 of the FW Act provides that two or more contraventions of a given civil remedy provision are to be taken to be a single contravention if committed by the same person and arising out of a course of conduct by that person.
(3)Consider whether there should be further adjustment to ensure that, to the extent of any overlap between groups of separate aggregated contraventions, there is no double penalty imposed, and that the penalty is an appropriate response to what each respondent did.
(4)Consider the appropriate penalty in respect of each final individual group of contraventions, taken in isolation.
(5)Consider the overall penalties arrived at, including by reference to those which may be proposed by the FWO (as permitted by Commonwealth v Director, Fair Work Building Industry Inspectorate [2015] HCA 46; 258 CLR 482 (CFMEU Civil Penalties Case) at [64]) and what is proposed by the respondents, and apply the totality principle, to ensure that the penalties for each respondent are appropriate and proportionate to the conduct viewed as a whole, making such adjustments as are necessary: see Kelly v Fitzpatrick [2007] FCA 1080; 166 IR 14 at [30]; Australian Ophthalmic Supplies Pty Ltd v McAlary-Smith [2008] FCAFC 8; 165 FCR 560 at [23]. [71] and [102].
I intend to adopt the approach set out above.
The considerations relating to the assessment of penalty are also well-known and were identified in Mason v Harrington Corporation Pty Ltd t/as Pangea Restaurant and Bar [2007] FMCA 7 as follows:
(a)the nature and extent of the conduct which led to the contraventions;
(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 contraventions;
(d)whether there had been similar previous conduct by the defendant;
(e)whether the contraventions 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 contraventions were deliberate;
(h)whether senior management was involved in the contraventions;
(i)whether the party committing the contravention had exhibited contrition;
(j)whether the party committing the contravention had taken corrective action;
(k)whether the party committing the contravention had cooperated with the enforcement authorities;
(l)the need to ensure compliance with minimum standards by provision of an effective means for investigation and enforcement of employee entitlements; and
(m)the need for specific and general deterrence.
the position of the parties
The Applicant filed detailed written submissions in relation to the penalties that it sought be imposed for each contravention. Those submissions, among other things, identified each contravention, the range of outcomes in which a penalty should fall, and the amount of any discount. The Applicant submitted that when each of the penalties were aggregated, the following aggregate penalties were appropriate. For the First Respondent, total penalties in the range of $126,630-$172,462.50. For the Second Respondent, total penalties in the range of $25,326-$34,492.50. The specific penalties sought by the Applicant and its reasons for seeking them are set out in their written submissions.
The Respondents submitted that the penalties and penalty range identified by the Applicant was excessive. The Respondents submitted that any penalty imposed ought to fall at the lower end of the range with appropriate reductions.
It is now appropriate to consider the application of the relevant principles to the facts before me.
Consideration of penalty
Grouping of Contraventions
Section 557(1) of the Act relevantly provides that two or more contraventions of a term of the same civil remedy provision will be treated as a single contravention where the contravention was committed by the same person and arose from the same course of conduct. In such circumstances, the Court is required to impose one penalty for multiple contraventions: Rocky Holdings v FWO [2014] FCAFC 62; 221 FCR 153 at [10]-[18]. A respondent seeking to rely on section 557 bears the onus of establishing the application of this section to the breaches: AMIEU v Meneling Station Pty Ltd [1987] FCA 2; (1987) 16 IR 245 at [45].
Quite apart from section 557 of the Act, the common law operates to ensure that multiple contraventions of different obligations may be treated as arising out of a single course of conduct if they have a ‘common element’ in the decision or action which led to the contraventions. There is a broad discretion in the Court to ensure penalties are appropriate to the conduct in a given case and to ensure that a respondent is not penalised twice for the same or substantially similar conduct: Construction, Forestry, Mining and Energy Union v Cahill [2010] FCAFC 39; (2010) 269 ALR 1 at [39], cited in Parker v ABCC [2019] FCAFC 56 [269].
In Fair Work Ombudsman v Construction, Forestry, Maritime, Mining and Energy Union (the Hutchison Ports Appeal) [2019] FCAFC 69, Ross J explained the difference between the operation of section 557 of the Act and the common law principles as follows:
89.First, the submission proceeds, wrongly, on the premise that s 557 represents a codification of the common law course of conduct principle. The course of conduct principle at common law operates quite differently to s 557. In respect of s 557, if the multiple contraventions arise out of the same course of conduct, then s 557(1) mandates that the contraventions are to be taken to constitute a single contravention and therefore only a single penalty may be imposed.
90.In contrast, at common law, even if a Court concludes that a number of contraventions arise out of the one course of conduct, it is not bound to only impose one penalty. The Court may impose more than one penalty in order to ensure that the wrongdoing involved is adequately punished and the objects for fixing penalty have been adequately met: Construction, Forestry, Mining and Energy Union v Cahill (2010) 269 ALR 1 (Cahill) at [48].
Having regard to the principles above, the Applicant accepted:
(a)Section 557(1) of the Act applied in respect of repeated contraventions over time of distinct obligations under section 535(1), 536(1) and 536(2) of the Act that affected multiple employees;
(b)the contraventions of failing to pay minimum adult rates under clause 17 of the Award should be grouped together with the contraventions of failing to pay junior employees the minimum rate of pay under clause 18 of the Award in accordance with the applicable common law principles; and
(c)the failure to pay overtime to full-time and casual employees should be grouped together in accordance with the applicable common law principles.
A question arises as to whether the Court should also group together the following contraventions. First, those contraventions of clause 13 of the Award, being the failure to pay casual loading and the failure to roster employees for a minimum of three hours per day. Second, those contraventions of clause 25 of the Award being the failure to pay early morning Monday to Friday penalties, the failure to pay loading for all hours of work on a Saturday and the failure to pay a loading for all hours of work on a Sunday. The Respondents contended there was a common element to each of contraventions of clause 13 and clause 25 of the Award respectively. Further, it was contended that those contraventions arose because of a genuine misunderstanding by the Respondents as to the classification of the employees as casual employees. It was submitted that the Respondents genuinely held the belief that the employees were engaged on a part-time basis, that the distinction between casual employment and part-time employment is not always a simple matter and that in those circumstances, it is appropriate to group the contraventions.
I am satisfied that I should exercise my discretion to group together the contraventions of clause 13 of the Award, and the contraventions of clause 25 of the Award. I regard that as appropriate in the circumstances. There is a common element to the contraventions. The contraventions arose because of what I consider to be a genuine misunderstanding by the Respondents as to whether the employees were engaged on a casual basis. It was that misunderstanding that led to the multiple contraventions in question.
Nature and extent of contravening conduct, the nature and extent of loss and compliance with minimum standards
The failure to pay employees what they are owed is a significant blight on the economy. Industrial awards set the minimum pay and conditions for employees, along with the National Employment Standards in the Act. The minimum conditions in Awards, particularly those relating to pay, are the subject of careful consideration by the Fair Work Commission to ensure an appropriate safety net. It is important that those conditions be adhered to in all cases, particularly because they establish the minima and are designed to protect employees who are most vulnerable.
Failure to ensure compliance with minimum standards can result in ‘defacto punishment’ for employers that do right thing. As Bromwich J observed in NSH North at [113]:
The point made about an even playing field is an important one. It should be observed that a failure to ensure compliance by way of detection, investigation, litigation and sanction, may result in a de facto punishment for those who do the right thing and are required to compete in a market against those who do not. For this reason, amongst others, the FWO submitted that penalties needed to be imposed at a meaningful level for the Court to denounce the respondents' conduct, to encourage compliance, and to create a financial incentive to change from non-compliance practices…”
In this matter, there have been sustained breaches of minimum employment conditions, including in relation to pay. The failure to comply with minimum conditions is to be regarded as a matter of the utmost seriousness.
The total amount of the underpayments in this matter is $57,179.69. This is a considerable sum given the nature of the work performed by these employees and notwithstanding that some of the individual payments to the employees were small. Further, the group of affected employees included junior employees. This is a vulnerable group of persons at risk of exploitation in their employment. In all the circumstances, the nature and extent of the breaches, and the amount of loss sustained by the employees given their position, is significant.
There is one matter which I regard as aggravating. The contraventions are not limited to contraventions of minimum entitlements of employees, but extend to a failure to give and keep proper employment records including payslips. That is of some significance because the failure to keep or give proper records including payslips undermines the role of the Applicant in ensuring compliance with workplace laws. Indeed, it has undermined the role of the Applicant in this case with the Applicant being unable to determine whether there were further underpayments during the period it assessed compliance.
The Respondents submitted that the failure to pay casual loading to 23 employees as required by clause 13.2 of the Award was responsible for nearly half of the total underpayment amount. The Respondents submitted that error arose because of their belief that the 23 employees were genuinely part-time employees, rather than casual employees. The Respondent submitted that whether employees are properly classified as casuals is a matter of some complexity, and point to various decisions currently before the Courts (including the High Court) to make good that submission.
I accept that nearly half of the total of the underpayment amounts derived from a failure to pay the casual loading. I am also prepared to accept that the Respondents genuinely held the belief that they had engaged the employees as part-time employees. I observe, however, that the Respondents had received queries from employees about their status as casual employees. There is not one occasion that the Respondents either sought advice at the time of engaging the employees as to what their proper status was, and nor is there any evidence which indicates that the Respondent sought advice on the proper classification of their employees once issues were raised with them. Accordingly, while the matters raised by the Respondents are matters I take account of, they do not detract significantly from what I regard as the seriousness of the contraventions. Ultimately, ignorance of the employment conditions, especially after questions are asked of an employer, is no excuse.
When these matters are considered, the nature and extent of the contravening conduct and the extent of the loss suffered weighs in favour of the imposition of the higher penalties sought by the Applicant.
Deliberateness of the conduct and involvement of senior management
On any view, this is a matter in which senior management of the business were involved in the contraventions. So much is apparent from the Second Respondent’s admissions as to liability under section 550 of the Act. In addition to that fact, the Second Respondent interviewed at least two of the employees, Ms Kim and Ms Laufer, for a role and informed them of their rates of pay. Finally, it is apparent from the affidavit material that the employees continually raised concerns about their pay with the Second Respondent. Annexed to Ms Laufer’s affidavit, by way of example, are numerous text messages in which she queries the amount of her pay, or information in her payslips. The Second Respondent’s response on a number of occasions when these complaints were raised was to the effect that he would look into it. These matters, in my view, point not only to the involvement of the Second Respondent in the contraventions but also in some ways to the deliberate nature of the contraventions, given the issues being raised by Ms Laufer, and the Second Respondent’s lack of action in response to Ms Laufer’s questions.
In her affidavit, Ms Kim states that the Second Respondent instructed her to lie to the Applicant’s inspectors about her pay once the investigation by the Applicant had commenced. That allegation, if found to be true, would, in my view, elevate the deliberate nature of the breaches, the Second Respondent’s involvement in those breaches and the seriousness of the matter. The Second Respondent in his affidavit denied that the conduct ever occurred, and is supported in those denials by Karan Panjabi.
Pursuant to the agreement between the parties, no witnesses were cross examined. It is therefore difficult to make a finding in relation to this issue. Ultimately, I am not persuaded that the Second Respondent instructed Ms Kim or anyone else to lie to the Applicant’s inspectors. The Second Respondent’s evidence is supported to by the evidence of Karan Panjabi. Further, in circumstances where I have not observed the parties in the witness box, I consider that the evidence before me does not reach the level that enables me to be satisfied on the balance of probabilities that the conduct occurred, particularly when one has regard to the gravity of the alleged conduct.
In summary, the contraventions were deliberate and the Second Respondent was involved in them. Both of these factors point towards the imposition of a penalty at the higher end of the range as sought by the Applicant.
Size and financial resources of the business
The burden of complying with the obligations set out in the Act falls equally on large and small businesses. The fact that a particular employer may not be large does not excuse conduct which contravenes the Act. Having said that, however, the size and financial circumstances of a respondent may be a relevant consideration in determining the appropriate penalty where evidence is put forward, although if it is, it is a factor that may be less relevant: see Bromwich J in NSH North at [105]-[106], quoting ACCC v Leahy Petroleum Pty Ltd (No 2) [2005] FCA 254; 215 ALR 281 at [9]. See also Heery J in Jordan v Mornington Inn Pty Ltd (2007) 166 IR 33 at [99]. I am required to apply the principles emanating from the authorities I have cited above.
The First Respondent at all relevant times was a small business. At the time of the contraventions, the business employed 35 employees. By November 2020 that number had dropped to the extent that the First Respondent employed only 7 employees.
In FWO v Austop Natural Therapy and Supplies Pty Ltd and Ors [2020] FCCA 2920 (‘Austop’), Judge McNab of this Court considered how the Court should balance the considerations involved when applying a penalty to a small business. In Austop, the amount of the underpayments was $13,521.68 which His Honour found was of great significance to the employees concerned. His Honour noted that at the time of the penalty hearing, the amount had largely been repaid. His Honour also noted that there had been a total of 50 contraventions identified. Faced with the submissions from the Fair Work Ombudsman that the size and circumstances of the business does not exculpate conduct by employers, His Honour while noting the correctness of the authorities on that point, also made the following observation:
The contraventions involved did involve a small business. I note the cases cited by the Applicant at [61] above are to the effect that being a small business does not provide an excuse for failing to comply with minimum standards. I accept that to be the case, but I also accept that in fixing an appropriate penalty the size of business and the revenue generated may affect the business’ capacity to pay a penalty, and what may be a modest penalty for a large business may be a devastating penalty for a small business.
In my view, His Honour’s comments in Austop are apposite in a matter such as the present where the business is a small business, and the amounts have been quickly repaid. The First Respondent’s sales for the January to March quarter of 2019 (prior to the impact of the pandemic) was $443,900. The January to March quarter sales for 2021 were $155,193. Placing to one side the effect of the pandemic, the quantum of the fines sought by the Applicant in this case would be a significant impost on this business, even if it had been trading at pre pandemic levels.
An issue in this case is the extent to which the business of the First Respondent has been affected by the COVID 19 pandemic (‘the pandemic’) and associated lockdowns, and whether that should be taken into account. The Respondents contended that the effect of the various lockdowns that occurred in Melbourne as a result of the pandemic should be taken into account. Indeed, they submitted that the effect of the pandemic lockdowns was relevant when the Court comes to consider the size and financial resources of the business, as well as when the Court comes to consider the application of the totality principle. The Applicant accepted that a reduction in penalty may be appropriate because of the effect of the pandemic and submitted that any such assessment should take place at the same time that the Court considers the application of the totality principle.
In my view, any consideration of the effect of the pandemic in this matter ought to be assessed when the Court comes to consider the size and financial resources of the business, rather than when the Court considers the application of the totality principle. I am of this view for the following reasons. It is well accepted that while many businesses have suffered during the pandemic, others have thrived. The effect of any lockdown on an individual business and the consequences for that business is what is important. Considering the effect of the pandemic at the same time as the Court considers the application of the totality principle may lead the Court into error. The question of considering whether any discount should be attached to the pandemic and associated lockdowns is not whether at a general level any penalties imposed are set at too high a level because a business has endured a lockdown. Rather, the better question is whether the evidence shows that any lockdowns have had an impact on the size and resources of the business such that a discount is warranted. Relevant to that question is also the question of whether the business was the recipient of government assistance (such as Job Keeper) during any lockdown. That element too directs attention to the individual circumstances of the business rather than the matter being considered at a global level later on.
The question of whether an employer is entitled to any discount on penalty as a result of being affected by any lockdown is a matter that has received limited attention by the Court. It is appropriate to briefly revisit the existing case law.
In FWO v Malevi & Others [2020] FCCA 2875, Judge Riley considered whether to impose penalties on a café located in the inner city Melbourne suburb of Northcote. The Respondents sought a reduced penalty, or no penalty, because of the financial impact of the pandemic. The FWO conceded that a reduction in penalty of around 20% to 30% would be appropriate. It was not disputed that the café had been temporarily closed since March 2020 (noting that Judge Riley conducted the penalty hearing on 31 August 2020, and delivered her reasons on 22 October 2020). Judge Riley at [154] – [155] observed that the reduction in penalty of around 20% to 30% conceded by the FWO seemed reasonable in circumstances where the Respondents had not disclosed their actual financial circumstances or the impact of the Job Keeper wage subsidy.
In FWO v Corporation Sun Pty Ltd and Anor [2020] FCCA 2849, Judge Kendall noted in a decision handed down on 21 October 2020 that while the Court was sympathetic to the current situation caused by the pandemic, the court would not place significant weight on those matters insofar as they are advanced to mitigate any penalty owed. Judge Kendall stated that the material before him provided only a brief snapshot of the First Respondent’s financial circumstances, failed to indicate year-to-date profit and loss and noted that there was nothing which suggested an incapacity to pay a fine or that the corporate respondent would cease trading.
Finally, in FWO v Sun Sea Equity Pty Ltd [2021] FCCA 104, Judge Jarrett considered a submission in respect of penalty that the First Respondent in that matter was in a poor financial position made worse by the pandemic. Judge Jarrett at [28] considered that the pandemic was not relevant because the failure to comply with the relevant award predated the pandemic as did the issue of the compliance notice in that case.
It is, in my view, appropriate for the Court to take into account the effect of the pandemic in assessing penalty. The pandemic and its associated lockdowns have been rightly described as a once in a generation event. The economic impact and turmoil unleashed has had a devastating impact on some businesses and individuals. It is proper that any impact of the pandemic and associated lockdowns are taken into account where relevant and I did not understand the Applicant to suggest otherwise in the circumstances of this case.
As a matter of principle, the effects of the pandemic should be taken into account in considering the size and financial resources of the business. What follows then, are questions as to how this is best done.
As I have observed, the effects of the pandemic and associated lockdowns have not been felt equally by all employers. Nor have they been felt equally around all parts of the country. During 2020, following an initial period of restricted activity, much of the country was able to avoid any significant or prolonged lockdown. That was not true of Victoria, and in particular Melbourne, which endured an extended lockdown for much of the second half of the year. The position in Melbourne was again different to that in regional Victoria, with regional Victoria enjoying comparatively relatively fewer restrictions than Melbourne. The position in the Melbourne CBD area was very different to suburban areas in circumstances where most Victorian citizens were confined to a 5km radius of their residential homes for a substantial period of time. In contrast, the Melbourne CBD was virtually deserted for much of the second lockdown. If the effects of the pandemic are to be taken into account, then specific consideration needs to be given to the location or locations of the businesses concerned. Regard may need to be had to the specific public service health directions that existed in any one State or area. These will likely have differed depending on the threat of the spread of the virus.
In considering these matters, in my view, it will not be sufficient for an employer to simply point to the pandemic and contend, without more, that the Court should impose a lesser penalty because of the effects of the pandemic and associated lockdowns. It has been widely documented that while some businesses have suffered, others have thrived or operated as normal. An employer seeking to rely on the financial or other impacts of the pandemic to seek a reduction in penalty will need to provide the Court with evidence about the impact that the pandemic and the lockdowns have had on its business. The Court should not infer lightly that a business has suffered simply because an assertion is made to that effect.
It is not possible to set out comprehensively the type of evidence an employer should place before the Court in order to demonstrate that it has been affected by the pandemic and associated lockdowns in a manner that warrants a discount to pecuniary penalties sought to be imposed. Without being exhaustive my own view is that an employer seeking to make a submission as to discount should place before the Court, among other things, the following:
(a)evidence of pre-and post-pandemic profit and loss figures to enable the Court to assess the effect on profitability;
(b)evidence that any impact on profitability has in fact been caused by the pandemic and associated lockdowns and is not attributable to some other reason; and
(c)evidence of any reduction in size of the business (which may be evidence of reduction in sales, reduction in staff numbers, reduction in business locations and the like).
It is also important that an employer place before the Court evidence as to whether it has received government assistance throughout the period (for example, Job Keeper payments) and if so, the amount of that assistance, the period over which it was received and how it has affected either positively or negatively, the profitability of the business.
In this matter, the Respondents have placed before the Court the following evidence:
(a)The First Respondent operated three cupcake shops in the Melbourne CBD area. Those three shops closed in March 2020 due to the pandemic. One shop located in Queen Street is now closed permanently. The other shops were still closed as at November 2020, but have since re-opened.
(b)The number of employees employed in the business has reduced from 35 prior to the pandemic to 7.
(c)Before the pandemic, the three stores operated by the First Respondent served roughly 350 to 450 customers every day. Currently, the two remaining stores serve under 100 customers a day. The fixed costs associated with these stores, however, remain unchanged.
(d)Business Activity Statements (‘BAS’) tendered show a significant reduction in sales activity. By way of example, total sales in the January to March quarter for 2019 were $443,900. Total sales for the January to March quarter for 2020 were $349,150. Total sales for the January to March quarter for 2021 were $155,193. These demonstrate at least two things. First, the dramatic effect of the lockdowns in the Melbourne CBD on the business. Second, the difficulty that this business (and it seems many other businesses in the CBD) are having in attracting customers back into the city, given the apparent reluctance of employees to return to the Melbourne CBD and the apparent willingness of employers to permit more flexible working arrangements.
(e)The Job Keeper wage subsidy was paid to the First Respondent. A total of $21,000 was paid to 6 employees of the First Respondent in April 2020. No further information is available, but I infer that a similar amount was received by the First Respondent in the months that followed. I observe that two employees were not eligible for Job Keeper and the Second Respondent paid them from his own savings in the period 23 March to 5 April 2020.
(f)As at November 2020, the First Respondent owed certain creditors $45,000. This debt relates to perishable produce that had to be disposed of when the lockdown was implemented on short notice.
(g)As at February 2021, the Company has outstanding amounts of rent due on its now closed Queen Street store in the amount of $27,141. Also attached are outstanding invoices to suppliers in the amount of $156,399.22.
The evidence set out above from the Respondents was not challenged by the Applicant and I accept it. The Applicant also accepted that a discount on penalty may be given to the Respondents in light of the effect that the lockdowns have had on the business.
In Malevi, the discount given to the Respondents on account of the pandemic was 20%-30%. The Applicant emphasised that the difference between Malevi and this case was that in Malevi, the relevant café business never re-opened, whereas in this matter, the business continues to operate. I accept the distinction that the Applicant has drawn to my attention. However, there are other distinctions which are also relevant. There was a paucity of financial information provided by the Respondents in Malevi. While the Respondents in this matter could not be said to have provided full disclosure, they have clearly provided far more information about their financial position than what was provided by the respondents in Malevi. That information set out above discloses the difficulties the business has faced because of the lockdowns in Melbourne, the very significant drop in sales activity, the reduction in the size of the business and the not insignificant debts accumulated due to the lockdowns. In this context, it is important for the Court to consider whether any penalty might be oppressive given the current financial circumstances of the First Respondent’s business.
I have closely considered the evidence of the Respondents in relation to the lockdowns and I will give it weight. I have been, however, unable to ascertain from the evidence the nature or extent of the current and ongoing profitability of the business. Nor am I able to ascertain with any specificity the extent to which Job Keeper payments received have offset losses or contributed to the ongoing profitability of the business. It is regrettable for the Respondents that this information was not placed before the Court. Had it been placed before me, it may have enabled the Court to consider the matter more favourably for the Respondents.
In my view, when all of these matters are considered, they point towards the Respondents receiving a significant reduction to penalties having regard to the size and financial resources of the business, including the effects of the Melbourne lockdowns. Further, when these matters are weighed, the size and financial resourcing of the business tend towards the imposition of a penalty at the lower end of the scale.
Similar previous conduct
There is no evidence before me of any similar previous contraventions by the Respondents.
Contrition, Co-operation and Corrective Action
It is accepted by the parties that the evidence before the Court is that the Respondents have cooperated throughout the proceeding. They engaged with the enquiries of the Applicant. They produced documents sought under Notices to Produce. All underpayments were rectified by 28 February 2020 in circumstances where the Applicant had issued a letter of findings on 29 January 2020. Rectification therefore occurred promptly. Further, the Respondents negotiated and agreed to the content of the Statement and the admitted contraventions, thereby avoiding the need for a hearing on liability with all of its attendant costs, including on the public purse and the resources of the Court.
Further to the above, the evidence before the Court is that the Respondents have taken action to ensure that the prospect of any further contraventions in the future is minimised. The Second Respondent, in his affidavit, deposes to the fact that the Respondents have engaged a human resources company to assist with recruitment and rates of pay. He also deposes to the First Respondent using a software program called ‘Square’ to accurately monitor the start and finish times of employees. These are not insignificant steps taken by a small business.
The Second Respondent is contrite and has expressed remorse for his actions. He has done so in each of the affidavits he has filed. Further, he deposes to having repaid amounts owing to Mr Kim and Ms Yang directly from his own savings. I accept that the contrition of the Respondents is genuine. I observe that genuine contrition is the basis for the awarding of a discount: see Stone and Buchanan JJ at [74] in Mornington Inn Pty Ltd v Jordan [2008] FCAFC 70.
The Applicant contended that to the extent the Court was minded to give the Respondents a discount when considering their cooperation and contrition, that discount should not exceed 25%. The Respondents, in contrast, submitted that any discount for cooperation and contrition should be at least 30%.
In my view, this is a case where the discount in respect of this factor should exceed 25%. The Respondents have done everything asked of them to resolve this matter as quickly as possible and have ensured that all of the employees have been fully repaid. They come before the Court with genuine expressions of regret, and having taken genuine action to fix the problem in the future. They appeared in Court before me and, to put it colloquially, were prepared to face the music and the consequences of their actions. That is conduct that the Courts should encourage. Failing to appropriately recognise that conduct has other consequences. Those consequences include respondents shutting down businesses, and fleeing the jurisdiction to avoid both orders that compensate employees, as well as penalise employers. Such consequences are highly undesirable. They leave employees out-of-pocket and the Applicant has to expend public monies chasing the recalcitrant. One way such consequences can be avoided is by giving due and proper recognition to people who express genuine remorse for their actions and back that up with real action to compensate employees as well as put in place steps to ensure no future contraventions. The Applicant’s submissions fail to give proper weight to these matters. I regard this case as one in which the Respondents are deserving of a significant discount for the manner in which they dealt with the issues that confronted them.
Deterrence
The purpose of civil penalties is to promote public interest in compliance and to attempt to put a price on a contravention that is sufficiently high to deter repetition by the contravener and by others who might be tempted to contravene the same legislation: Commonwealth v Director, Fair Work Building Industry Inspectorate [2015] HCA 46 at [55].
The Applicant submitted that there was a need for both general and specific deterrence in this case. Insofar as specific deterrence is concerned, the Applicant submitted that the Second Respondent continues to be a director of the First Respondent and will continue to have a responsibility for employing employees.
I accept on the material before me that the Respondents appear intent on continuing their business, and that the Second Respondent will continue to be a director and the person responsible for overall direction and control and management of the business. This is a matter, however, in which the Respondents have expressed genuine remorse. They have backed that up with concrete action to promptly rectify past mistakes, and put in place safeguards for the future. Further, this is not a case where the Respondents have prior contraventions. Further, the Respondents have experienced personal hardship as a result of what has occurred. When those matters are properly taken into account and given weight, I am of the view that specific deterrence has no role to play in this case.
On the issue of general deterrence, the Applicant submitted that it was an important factor in these proceedings. In particular, the Applicant submitted that there was a need to send a message to employers generally in the takeaway food services industry that contravention of workplace laws will be taken seriously. Further, it was submitted that general deterrence was necessary in this case given the fact that the employees affected included employees who were vulnerable on the basis of their young age and on the basis of their casual engagement. Finally it was submitted that there was a need to send a message to employers that contraventions of the payslip regulations will be taken seriously.
The Respondents submitted that the need for general deterrence was reduced because, among other things, the Respondents had sustained damage to shop fronts and a loss of corporate clients. I have considered this submission closely but reject it. While the evidence is that a shopfront was damaged and that corporate clients have deserted the Respondents, there is no evidence linking any of those events to these proceedings or the publicity surrounding the proceedings.
I accept that this is a case in which a penalty must be set having regard to general deterrence. Plainly, having regard to the affidavit of Ms Adam and the industry profile report annexed to it, there is significant non-compliance by employers in the takeaway food services industry and there is a need to deter non-compliance with workplace laws in that industry. This is particularly the case given the margins in that industry are notoriously tight and employers might be tempted to not comply with workplace laws in order to improve financial outcomes. Further, the cohort of affected employees included employees who were young and vulnerable. Finally, the contraventions included contraventions of the record-keeping and payslip provisions of the Act which have compromised to the Applicant’s ability to ensure with certainty that all underpayments have been rectified. These matters, in my view, require a penalty that takes into account the need to deter general non-compliance with workplace obligations. In taking these matters into account however, the penalty must not be so high so as to deter others from engaging in active cooperation with the Applicant, as occurred in this case.
Totality Principle and Disposition
I have set out in the tables that follow the penalties that I would impose in respect of each of the contraventions when regard is had to the matters I have discussed above. It is then necessary to consider the application of the totality principle. The totality principle has been described by the High Court in Mill v R (1988) 166 CLR 59 as follows (approving the passage from Thomas, Principles of Sentencing, 2nd Ed (1979):
The [totality] principle has been stated many times in various forms: ‘when a number of [contraventions] are being dealt with and specific [penalties] 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 seek whether it looks wrong’; ‘when … cases of multiplicity of [contraventions] 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 [contravening] behaviour and ask itself what is the appropriate [penalty] for all the [contraventions].
The principle has been applied in this jurisdiction: see, for example, Mornington Inn Pty Ltd v Jordan [2008] FCAFC 70. The application of the principle does not necessarily require a discount.
In this matter, I am concerned that when the penalties for all of the contraventions are totalled, the arithmetic produces a result that is not appropriate in the circumstances of this case. The penalties sought by the Applicant are, in my view, cumulatively far too high. A number of the contraventions arose because of the misclassification of the employees as casual employees. That, I have found, was a genuine mistake of the Respondents. Further, the contrition and corrective action of the Respondents, coupled with the genuine remorse, is deserving of a penalty that while recognising their unlawful behaviour, permits them to continue to operate the business in a continuing difficult and uncertain environment caused by the pandemic. When these matters are considered, I am of the view that the application of the totality principle in this case requires a 50% reduction on the total penalties payable.
The penalties I therefore impose for each of the contraventions by the First Respondent are as follows:
Provision
Contravention
Maximum Penalty
Penalties (pre totality principle)
Penalties payable (totality principle applied at 50%)
1.
Section 45
Failing to pay minimum adult rate pay pursuant to clause 17 of the Award.
$63,000
30% of maximum
$18,900
$9,450
2.
Section 45 of the Act
Failing to pay to pay junior employees minimum rate pursuant to clause 18 of the Award.
$63,000
Nil. Grouped with item 1 above.
3.
Section 45 of the Act
Failing to pay casual loading pursuant to clause 13.2 of the Award.
$63,000
10% of maximum
$6,300
$3,150
4.
Section 45 of the Act
Failing to roster minimum three hours per day pursuant to clause 13.4 of the Award.
63,000
Nil. Grouped with item 3 above.
5.
Section 45 of the Act
Failing to pay early morning penalty Monday to Friday penalties pursuant to clause 25.5(a)(ii) of the Award.
$63,000
10% of maximum
$6,300
$3,150
6.
Section 45 of the Act
Failing to pay loading for all hours of work on a Saturday pursuant to clause 25.5 (b)(ii) of the Award.
$63,000
Nil. Grouped with item 5 above.
7.
Section 45 of the Act
Failing to pay loading for all hours of work on a Sunday pursuant to clause 25.5(c) of the Award.
$63,000
Nil. Grouped with items 5 and 6 above.
8.
Section 45 of the Act
Failing to pay public holiday penalties pursuant to clause 30.3 of the Award.
$63,000
5% of maximum
$3,150
$1,575
9.
Section 45 of the Act.
Failing to pay overtime to full-time employees pursuant to clause 26.1 (a) of the Award.
$63,000
10% of maximum
$6,300
$3,150
10.
Section 45 of the Act.
Failing to pay overtime to casual employees as required by clause 26.1 (b) of the Award.
$63,000
Nil. Grouped with item 9 above.
11.
Section 45 of the Act
Failing to pay annual leave loading penalties pursuant to clause 28.3 of the Award.
$63,000
5% of maximum
$3,150
$1,575
12.
Section 45 of the Act
Failing to pay personal leave pursuant to section 99 of the Act.
$63,000
Nil. Penalties not sought by the Applicant.
13.
Section 44 of the Act
Failing to pay for absence on public holiday pursuant to section 116 of the Act.
$63,000
10% of maximum
$6,300
$3,150
14.
Section 45 of the Act.
Failing to make a part-time agreement in writing.
$63,000
2 % of maximum
$1,260
$630
15.
Section 535(1) of the Act
Failing to make and keep records.
$63,000
30% of maximum
$18,900
$9,450
16.
Section 536(1) of the Act
Failing to give payslips.
$63,000
10% of maximum
$6,300
$3,150
17.
Section 536(2) of the Act
Failing to include required information on payslips.
$63,000
10% of maximum
$6,300
$3,150
TOTAL PAYABLE
$41, 580
The penalties I impose for each of the contraventions on the Second Respondent are as follows:
Provision
Contravention
Maximum Penalty
Penalties (pre totality principle)
Penalties payable (totality principle applied)
1.
Section 45
Failing to pay minimum adult rate pay pursuant to clause 17 of the Award.
$12,600
30% of maximum
$3780
$1,890
2.
Section 45 of the Act
Failing to pay to pay junior employees minimum rate pursuant to clause 18 of the Award.
$12,600
Nil. Grouped with item 1 above.
3.
Section 45 of the Act
Failing to pay casual loading pursuant to clause 13.2 of the Award.
$12,600
10% of maximum
$1260
$630
4.
Section 45 of the Act
Failing to roster minimum three hours per day pursuant to clause 13.4 of the Award.
$12,600
Nil. Grouped with item 3 above.
5.
Section 45 of the Act
Failing to pay early morning penalty Monday to Friday penalties pursuant to clause 25.5(a)(ii) of the Award.
$12,600
10% of maximum
$1260
$630
6.
Section 45 of the Act
Failing to pay loading for all hours of work on a Saturday pursuant to clause 25.5 (b)(ii) of the Award.
$12,600
Nil. Grouped with item 5 above.
7.
Section 45 of the Act
Failing to pay loading for all hours of work on a Sunday pursuant to clause 25.5(c) of the Award.
$12,600
Nil. Grouped with items 5 and 6 above.
8.
Section 45 of the Act
Failing to pay public holiday penalties pursuant to clause 30.3 of the Award.
$12,600
5% of maximum
$630
$315
9.
Section 45 of the Act.
Failing to pay overtime to full-time employees pursuant to clause 26.1 (a) of the Award.
$12,600
10% of maximum
$1260
$630
10.
Section 45 of the Act.
Failing to pay overtime to casual employees as required by clause 26.1 (b) of the Award.
$12,600
Nil. Grouped with item 9 above.
11.
Section 45 of the Act
Failing to pay annual leave loading penalties pursuant to clause 28.3 of the Award.
$12,600
5% of maximum
$630
$315
12.
Section 45 of the Act
Failing to pay personal leave pursuant to section 99 of the Act.
$12,600
Penalties not sought by the Applicant.
13.
Section 44 of the Act
Failing to pay for absence on public holiday pursuant to section 116 of the Act.
$12,600
10% of maximum
$1260
$630
14.
Section 45 of the Act.
Failing to make a part-time agreement in writing.
$12,600
2% of maximum
$252
$126
15.
Section 535(1) of the Act
Failing to make and keep records.
$12,600
30% of maximum
$3780
$1890
16.
Section 536(1) of the Act
Failing to give payslips.
$12,600
10% of maximum
$1260
$630
17.
Section 536(2) of the Act
Failing to include required information on payslips.
$12,600
10% of maximum
$1260
$630
TOTAL PAYABLE
$8,316
In this case, it is the Applicant in its capacity as workplace regulator that has pursued the penalties. The affected employees have been compensated for their losses. In those circumstances, it is appropriate that the penalties be made payable to the Commonwealth of Australia.
I certify that the preceding sixty-eight (68) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Blake. Associate:
Dated: 6 August 2021
ANNEXURE A
This Statement of Agreed Facts is made by the parties in these proceedings for the purposes of section 191 of the Evidence Act 1995 (Cth).
A. ADMITTED CONTRAVENTIONS
1.On the basis of the facts agreed below, the First Respondent, Shri Krishna Guru Pty Ltd (ACN 600 014 284) (Little Cupcakes) admits that it contravened the following civil remedy provisions of the Fair Work Act 2009 (Cth) (FW Act):
(a)section 44(1) of the FW Act, by contravening the following provisions of the National Employment Standard by failing to:
(i)pay personal leave entitlements to Bianca Rose Vicari pursuant to section 99 of the FW Act;
(ii)pay seven Employees for their absence on Public Holidays pursuant to section 116 of the FW Act;
(b)section 45 of the FW Act, by contravening the following terms of the Fast Food Industry Award 2010 (Award), namely by failing to:
(i)pay minimum adult wages to 14 Employees pursuant to clause 17 of the Award;
(ii)pay minimum junior wages to Irene Felicia, Josephine Laufer and Gene Marcel du Vergier pursuant to clause 18 of the Award;
(iii)pay casual loading to 23 Employees pursuant to clause 13.2 of the Award;
(iv)pay provide Carlotta Graham and Hyerim (Rachel) Kim with the minimum casual daily engagement, pursuant to clause 13.4 of the Award;
(v)pay Early Morning Penalty Rates to Lee Dongin (Dongmin), pursuant to clause 25.5(a)(ii) of the Award;
(vi)pay Saturday Penalty Rates to nine Employees pursuant to clause 25.5(b)(ii) of the Award;
(vii)pay Sunday Penalty Rates to nine Employees pursuant to clause 25.5(c) of the Award;
(viii)pay Public Holiday Penalty Rates to Carlotta Graham and Irene Felicia pursuant to clause 30.4 of the Award;
(ix)pay Full-Time Overtime Rates to six Employees pursuant to clause 26.1(a) of the Award;
(x)pay Casual Overtime Rates to nine Employees pursuant to clause 26.1(b) of the Award;
(xi)pay Annual Leave Loading to Seongdong (SD) Kim and Minji Yang pursuant to clause 28.3 of the Award;
(xii)to make a Part-Time Agreement in writing with Luisa Obanda Mejia pursuant to clause 12.2 of the Award;
(c)section 535(1) of the FW Act, by failing to make and keep employee records as required by regulations 3.33(1), 3.33(2), 3.33(3) and 3.36 of the Fair Work Regulations 2009 (Cth) (FW Regulations);
(d)section 536(1) of the FW Act, by failing to give Danbi Lim, Ahyoon (Irene) Kim, Dongmin (Peter) Cheon, Sangna (Chloe) Lee and Soomin (Suzie) Kim a pay slip within one working day of receiving an amount in relation to the performance of work, or at all;
(e)section 536(2) of the FW Act, by failing to include, on the pay slips given to Avindrini Gooneratne, Bianca Rose Vicari, Diana Paola Paez Lozano, Eunjin (Sally) Lee, Franziska Paege, Gene Marcel du Vergier, Ha Ha, Haxuyen Nguyen, Hyerim (Rachel) Kim, Irene Felicia, Jane KW, Josephine Laufer, Kaja Kopczynska, Minji Yang, Mya Jane Nipperess, Nela Adams Jacka, Priyanka Patel, Rochelle Erwin, Soomin (Suzie) Kim, Yeongmin Im and Zoe Z, information prescribed by regulation 3.46(5) of the FW Regulations.
(together, the Admitted Contraventions)
2.The Second Respondent, Shreyansh Dharmesh Shah (Mr Shah) admits that he was involved in each of the Admitted Contraventions pursuant to section 550 of the FW Act.
B.THE PARTIES
The Applicant
3.The Applicant, the Fair Work Ombudsman (FWO) is and was at all material times:
(a)a statutory appointee of the Commonwealth appointed by the Governor-General by written instrument pursuant to subsection 687(1) of the FW Act.
(b)a Fair Work Inspector (FWI) pursuant to section 701 of the FW Act; and
(c)a person with standing under subsection 539(2) of the FW Act to apply for orders in respect of contraventions of civil remedy provisions under the FW Act.
The First Respondent
4.Little Cupcakes is and was at all material times:
(a)a company incorporated under the Corporations Act 2001 (Cth) and registered since 10 June 2014;
(b)capable of being sued in its corporate name;
(c) a "constitutional corporation" within the meaning of section 12 of the FW Act;
(d) a "national system employer'' within the meaning of section 14(1)(a) of the FW Act;
(e) the trustee for the Shri Krishna Guru Unit Trust (ABN 52 797 322 959) (Trust);
(f)in its capacity as trustee for the Trust, the operator of a business taking orders for, preparing and selling cupcakes, cakes and other food, predominantly to be consumed away from the business, trading as "Little Cupcakes" (Business), and located at the following locations in the State of Victoria:
(i)4/118-126 Queen Street, Melbourne;
(ii)Shop 7, Degraves St, Melbourne;
(iii)TG06, 181 William St, Melbourne; and
(iv)6/1111 High Street, Armadale (which is a baking facility); and
(g)for at least the periods of time set out at Column C of Schedule 1 (Assessed Employment Periods), the employer of the 35 persons set out in Column A of Schedule 1 (together, the Employees).
The Second Respondent
5. Mr Shah is and was at all material times:
(a) a natural person capable of being sued;
(b) one of two directors of Little Cupcakes;
(c) the company secretary of Little Cupcakes;
(d) a shareholder of Little Cupcakes, holding 126 out of 180 shares;
(e) the person responsible for the overall direction, control, management and supervision of Little Cupcakes' operations in relation to the Business;
(f) the person who, in relation to the employment of Little Cupcakes' employees:(i) had control over the hiring of employees by the Business;
(ii) had control over the Business through controlling funds paid to employees, visiting its various stores, knowledge of and involvement in its record keeping as well as paying employee wages;
(iii) was aware of the total amount paid to the Employees;
(iv) was involved in determining the Employees' rates of pay;
(g) a person responsible for ensuring that Little Cupcakes complied with its legal obligations under the FW Act;
(h) by reason of subsection 793(1) of the FW Act, a person whose conduct, when engaged in on behalf of Little Cupcakes and within the scope of his actual or apparent authority, was conduct engaged in by Little Cupcakes; and
(i) by reason of subsection 793(2) of the FW Act, a person whose state of mind was the state of mind of Little Cupcakes, for conduct engaged in within the scope of his actual or apparent authority.
C. INVESTIGATION AND INSTITUION OF PROCEEDINGS
6. Little Cupcakes was audited by the FWO in December 2018 at part of the Melbourne Food Precincts 2 - Degraves & Hardware Campaign.
7. On 11 December 2018, FWI Jaimie Adam (FWI Adam) conducted a site visit of the Degraves Street store in Melbourne.
8.During the site visit, the FWI Adam spoke to employee Ms Ahyoon Kim (Ms Kim) who was a manager. Ms Kim told FWI Adam that when she began working for Little Cupcakes, she was took part in 2 weeks of training and was paid $15 an hour. She also told FWI Adam that after her training was concluded, she was paid $16 an hour for both weekday and weekend work and that she never received a contract of employment.
9. On the same day, FWI Adam issued a Notice to Produce Records or Documents under section 712(2) of the FW Act (First NTP), by serving it in person on Mr Shah.
10. On 20 December 2018, Little Cupcakes complied with the First NTP, by Mr Shah sending an email to FWI Adam, attaching a letter and employee records, pay slips, timesheets and leave balances.
11. On 7 March 2019, FWI Adam issued a second NTP under section 712 of the FW Act (Second NTP) seeking records for the periods from 1 January 2018 to 4 November 2018 and from 3 December 2018 to 28 February 2019.
12. On 20 March 2019, Little Cupcakes, through Mr Shah, sought a 3 week extension in answering the Second NTP.
13. On 22 March 2019, Little Cupcakes partially complied with the Second NTP, by Mr Shah sending an email to FWI Adam enclosing a letter and employee records pay slips and time sheets for the period from 3 December 2018 to 28 February 2019.
14. On 28 March 2019, Little Cupcakes fully complied with the Second NTP by providing the remainder of the documents sought, by Mr Shah sending an email to FWI Adam, which enclosed a letter, employee records, pay slips, timesheets and annual leave workings in respect of some of the employees, for the period 1 January 2018 to 4 November 2018. In the letter Mr Shah admitted that 5 employees, namely Danbi Lim, Ms Kim, Dongmin Cheon, Sangna Lee and Soomin Kim, had been paid in cash and therefore never received pay slips. The letter also attached a working out of underpayments, showing what Mr Shah believed was owed to each employee.
15. On 24 June 2019, FWI Adam made an offer to Mr Shah to participate in a recorded interview. This offer was declined by Mr Shah on the basis that he had health problems. On 10 October 2019, FWI Adam again offered to interview Mr Shah. This offer was again declined by Mr Shah on the basis that he was in India to care for his father while he was undergoing valve replacement surgery.
16. On 29 January 2020, FWI Adam issued a Findings of Contravention Letter (Findings Letter) to Little Cupcakes, which outlined the alleged underpayments of staff. On 14 February 2020, FWI Adam received an email from Mr Shah attaching a letter in which Mr Shah claimed that Little Cupcakes agreed with the majority of the findings and that it wanted to comply with the law. Mr Shah, however, disputed the funding that the
employees were casual workers and insisted that they were employed on a part-time basis.17. On 28 February 2020, FWI Adam received copies of pay slips showing back pay and calculations for the employees.
D. BACKGROUND AND ASSESSMENT PERIOD
The Employees, employment status and duties18.During the Assessed Employment Periods, Little Cupcakes employed the Employees to work at the Business.
19. At all material times, each of the Employees was a "national system employee" within the meaning of section 13 of the FW Act.
20.Ten of the Employees (Junior Employees) were 18 or 19 years old during the Assessed Employment Periods (as set out in Column D of Schedule 1).
21.Save for the Junior Employees, each of the remaining 17 Employees (Adult Employees) was older than 20 years of age during the Assessed Employment Periods.
22.At least 19 of the Employees were foreign nationals resident in Australia on visas during the Assessed Employment Periods (as set out in Column E of Schedule 1).
23. During their respective Assessed Employment Periods:
(a)each of Ahyoon (Irene) Kim, Bianca Rose Vicari (in the period from 12 February 2018 to 24 February 2019), Danbi Lim, Haxuyen Nguyen (in the period from 3 December 2018 to 24 February 2019), Minji Yang (in the period from 2 October 2018 to 24 February 2019), Nari Seo, Nela Adams Jacka, Seondong (SD) Kim, and Yeongmin Im (in the period from 3 December 2018 to 24 February 2019) (together, Full-Time Employees):
(i)was engaged by Little Cupcakes to work an average of 38 hours per week; and
(ii)had reasonably predicted hours of work;
(b) Luisa Obanda Meija worked less than 38 hours per week for Little Cupcakes, and had reasonably predictable hours of work; and
(c) each of Alexandra Garrett, Avindrini Gooneratne, Bianca Rose Vicari (in the period from 16 July 2018 to 4 November 2018), Carlotta Graham, Diana Paola Paez Lozano, Eunjin (Sally) Lee, Franziska Paege, Gene Marcel du Vergier,Ha Ha, Haxuyen Nguyen (in the period from 25 September 2018 to 2 December 2018), Hyerim (Rachel) Kim, Irene Felicia, Jane KW, Jian Kim, Jie Ru (Jessy) Ding, Josephine Laufer, Kaja Kopczynska, Lamis Husseini, Lee Dongin (Dongmin), Minji Yang (in the period from 1 January 2018 to 21 October 2018), Mya Jane Nipperess, Priyanka Patel, Rochelle Erwin, Soomin (Suzie) Kim, Vina Pranata, Yeongmin Im (in the period from 30 July 2018 to 2 December 2018), and Zoe Z (together, Casual Employees):
(i) did not work an average of 38 hours per week for Little Cupcakes; and
(ii) did not work reasonably predictable hours of work.
24. During their respective Assessed Employment Periods:
(a) each of Minji Yang and Seondong (SD) Kim held a Certificate Ill and IV in Patisserie, and performed duties in their employment at the Business which required them to use their trade skills in preparing, receiving orders for, and baking cakes and cupcakes; and
(b) the remaining 25 Employees performed some or all of the following duties in their duties in their employment at the Business:
(i) taking orders;
(ii) preparing food items;
(iii) operating a cash register; and
(iv) serving customers and delivering food items to them.
Rates paid to the Employees
25. During the Assessed Employment Periods, Little Cupcakes paid the Employees at the rates set out in Column G of Schedule 1.
Relevant legislation and industrial instrument
26. At all material times, Little Cupcakes was bound by the FW Act and the FW Regulations in respect of the employment of the Employees.
27. At all material times during the Assessed Employment Periods, by reason of the matters admitted in paragraphs 4(f) and 24 above, the Award covered and applied to Little Cupcakes in respect of the employment of the Employees.
28. At all material times during the Assessed Employment Periods:
(a) by reason of matters admitted in paragraph 23(a) above, Little Cupcakes employed each of the Full Time Employees under the Award on a full- time basis, pursuant to clause 11 of the Award.
(b) by reason of matters admitted in paragraph 23(b) above, Little Cupcakes employed Luisa Obanda Meija under the Award on a part-time basis, pursuant to clause 12.1 of the Award; and
(c) by reason of matters admitted in paragraph 23(c) above, Little Cupcakes employed each of the Casual Employees under the Award on a casual basis, pursuant to clauses 12.6 and 13 of the Award.
29. By reason of the matters admitted in paragraph 24 above, at all material times during the Assessed Employment Periods:
(a) when each of Minji Yang and Seondong (SD) Kim performed work for Little Cupcakes, they were properly classified as a "Fast Food Employee Level 2" under the Award (Level 2); and
(b) when each of the remaining Employees performed work for Little Cupcakes, they were properly classified as a "Fast Food Employee Level 1" under the Award (Level 1).
E. ADMITTED CONTRAVENTIONS
Failure to pay minimum adult hourly rate of pay
30. At all times during the Employees' respective Assessed Employment Periods, Little Cupcakes was required, pursuant to clause 17 of the Award, to pay each of the Adult Employees no less than the following minimum hourly wage rates for each ordinary hour of work:
31.During their respective Assessed Employment Periods, each of the Adult Employees in Table 1, Column 1 below:
(a)worked the ordinary hours set out in Table 1, Column 2;
(b) was entitled to be paid the amounts by Little Cupcakes for ordinary hours, set out in Table 1, Column 3;
(c) by reason of the matters admitted in paragraph 25 above, was paid the amounts attributable to ordinary hours, as set out in Table 1, Column 4; and
(d) was underpaid by Little Cupcakes the total amounts set out in Table 1, Column 5 in respect of minimum hourly rate of pay.
32. By reason of the matters admitted in paragraphs 30 to 31 above, Little Cupcakes paid the Adult Employees in Table 1 amounts that were insufficient to meet their minimum hourly rates entitlements pursuant to clause 17 of the Award, causing the Adult Employees in Table 1 to be underpaid.
33. By reason of the matters admitted in paragraphs 30 to 32 above, Little Cupcakes contravened section 45 of the FW Act, by contravening clause 17 of the Award in respect of the Adult Employees in Table 1.
Failure to pay minimum junior hourly rate of pay34. At all times during the Employees' respective Assessed Employment Periods, Little Cupcakes was required, pursuant to clause 18 of the Award, to pay each of the Junior Employees (all of whom were Level 1 Employees) no less than the following minimum hourly wage rates for each ordinary hour of work:
35. During their respective Assessed Employment Periods, each of the Junior Employees in Table 2, Column 1 below:
(a) worked the hours set out in Table 2, Column 2;(b) was entitled to be paid the amounts by Little Cupcakes for ordinary hours, set out in Table 2, Column 3;
(c) by reason of the matters admitted in paragraph 25 above, was paid the amounts attributable to ordinary hours, as set out in Table 2, Column 4; and
(d) was underpaid by Little Cupcakes the total amounts set out in Table 2, Column 5 in respect of minimum hourly rates of pay.
36. By reason of the matters admitted in paragraphs 34 to 35 above, Little Cupcakes paid the Junior Employees in Table 2 amounts that were insufficient to meet their minimum hourly rates entitlements pursuant to clause 18 of the Award, causing the Junior Employees in Table 2 to be underpaid.
37. By reason of the matters admitted in paragraphs 34 to 36 above, Little Cupcakes contravened section 45 of the FW Act, by contravening clause 17 of the Award in respect of the Junior Employees in Table 2.
Failure to pay casual loading
38. At all times during their respective Assessed Employment Periods, by reason of the mattes admitted in paragraph 28(c) above, Little Cupcakes was required, pursuant to clause 13.2 of the Award, to pay the Casual Employees a casual loading of 25% in addition to the ordinary hourly rate.
39. During their respective Assessed Employment Periods, each of the Casual Employees in Table 3, Column 1 below:
(a) worked the ordinary hours set out in Table 3, Column 2;
(b) was entitled to be paid the amounts by Little Cupcakes set out in Table 3, Column 3 in respect of casual loading;
(c) by reason of the matters admitted in paragraph 25 above, was paid the amounts attributable to casual loading as set out in Table 3, Column 4; and
(d) was underpaid by Little Cupcakes the total amounts set out in Table 3, Column 5 in respect of casual loading.
40. By reason of the matters admitted in paragraphs 38 to 39 above, Little Cupcakes paid the Casual Employees in Table 3 amounts that were insufficient to meet their minimum casual loading entitlements pursuant to clause 13.2 of the Award, causing the Employees in Table 2 to be underpaid.
41. By reason of the matters admitted in paragraphs 38 to 40 above, Little Cupcakes contravened section 45 of the FW Act, by contravening clause 13.2 of the Award.
Failure to provide casual Employees with minimum engagement42. At all times during the Employees' respective Assessed Employment Periods, Little Cupcakes was required, pursuant to clause 13.4 of the Award, to engage the Casual Employees for a minimum daily engagement of three hours.
43. During their respective Assessed Employment Periods, each of the Employees in Table 4, Column 1 below:
(a) worked the hours set out in Table 4, Column 2;
(b) was entitled to be paid the amounts by Little Cupcakes set out in Table 4, Column 3 in respect of the minimum daily engagement;
(c) was not paid any amounts in respect of the minimum daily engagement, as set out in Table 4, Column 3; and
(d) was underpaid by Little Cupcakes the total amounts set out in Table 4, Column 5 in respect of the minimum daily engagement.44. By reason of the matters admitted in paragraphs 42 to 43 above, Little Cupcakes paid Carlotta Graham and Hyerim (Rachel) Kim amounts that were insufficient to meet their minimum daily engagement entitlements pursuant to clause 13.4 of the Award, causing Carlotta Graham and Hyerim (Rachel) Kim to be underpaid.
45. By reason of the matters admitted in paragraphs 42 to 44 above, Little Cupcakes contravened section 45 of the FW Act, by contravening clause 13.4 of the Award.
Failure to pay early morning penalty rates
46. At all times during the Employees' respective Assessed Employment Periods, Little Cupcakes was required, pursuant to clause 25.5(a)(ii) of the Award, to pay a 15% loading for ordinary hours of work on Monday to Friday between midnight to 6am, in addition to their casual loading (Early Morning Penalty Rate).
47. During their respective Assessed Employment Periods, Lee Dongin (Dongmin):
(a) worked 101.75 ordinary hours on Monday to Friday between midnight and 6am;
(b) was entitled to be paid $253.45 by Little Cupcakes in respect of Early Morning Penalty Rates;
(c) by reason of the matters admitted in paragraph 25 above, was paid $29.90 attributable to Early Morning Penalty Rates; and
(d) was underpaid by Little Cupcakes a total of $223.55 in respect of Early Morning Penalty Rates.48. By reason of the matters admitted in paragraphs 46 to 47 above, Little Cupcakes paid the Lee Dongin (Dongmin) amounts that were insufficient to meet his minimum Early Morning Penalty Rate entitlement pursuant to clause 25.5(a)(ii) of the Award, causing Lee Dongin (Dongmin) to be underpaid.
49. By reason of the matters admitted in paragraphs 46 to 48 above, Little Cupcakes contravened section 45 of the FW Act, by contravening clause 25.5(a)(ii) of the Award.
Failure to pay Saturday penalty rates
50.At all times during the Employees' respective Assessed Employment Periods, Little Cupcakes was required, pursuant to clause 25.5(b)(ii) of the Award, to pay a loading of 50% for all hours of work on a Saturday for casual Employees, inclusive of the casual loading (Saturday Penalty Rate).
51. During their respective Assessed Employment Periods, each Adult Employee in Table 5, Column 1 below:
(a) worked the hours on a Saturday as set out in Table 5, Column 2;
(b) was entitled to be paid the amounts by Little Cupcakes in respect of Saturday Penalty Rates, as set out in Table 5, Column 3;
(c) by reason of the matters admitted in paragraph 25 above, was paid the amounts attributable to Saturday Penalty Rates, as set out in Table 5, Column 4; and
(d) was underpaid by Little Cupcakes the total amounts set out in Table 5, Column 5 in respect of Saturday Penalty Rates.52. By reason of the matters admitted in paragraphs 50 to 51 above, Little Cupcakes paid the Employees in Table 5 amounts that were insufficient to meet their minimum Saturday Penalty Rate entitlements pursuant to clause 25.5(b)(ii) of the Award, causing the Employees in Table 5 to be underpaid.
53. By reason of the matters admitted in paragraphs 50 to 52 above, Little Cupcakes contravened section 45 of the FW Act, by contravening clause 25.5(b)(ii) of the Award.
Failure to pay Sunday penalty rates54. At all times during the Employees' respective Assessed Employment Periods, Little Cupcakes was required, pursuant to clause 25.5(c) of the Award, to pay the Casual Employees a loading for all hours worked on a Sunday, as follows (Sunday Penalty
Rate):
(a) from 1 July 2017 to 30 June 2018, a 70% loading for casual Level 1 Employees (inclusive of the casual loading).(b) from 1 July 2018 to 30 June 2019, a 60% loading for casual Level 1 Employees (inclusive of the casual loading),
55. During their respective Assessed Employment Periods, each of the Employees in Table 6, Column 1 below:
(a) worked the hours on a Sunday as set out in Table 6, Column 2;
(b) was entitled to be paid the amounts by Little Cupcakes in respect of Sunday Penalty Rates, as set out in Table 6, Column 3;
(c) by reason of the matters admitted in paragraph 25 above, was paid the amounts attributable to Sunday Penalty Rates, as set out in Table 6, Column 4; and
(d) was underpaid by Little Cupcakes the total amounts set out in Table 6, Column 5 in respect of Sunday Penalty Rates.56. By reason of the matters admitted in paragraphs 54 to 55 above, Little Cupcakes paid the Employees in Table 6 amounts that were insufficient to meet their minimum Sunday Penalty Rate entitlements pursuant to clause 25.5(c) of the Award, causing the Employees in Table 6 to be underpaid.
57. By reason of the matters admitted in paragraphs 54 to 56 above, Little Cupcakes contravened section 45 of the FW Act, by contravening clause 25.5(c) of the Award.
Failure to pay public holiday penalty rates
58. At all times during the Employees' respective Assessed Employment Periods, Little Cupcakes was required, pursuant to clause 30.3 of the Award, to pay Casual Employees, for working hours on a public holiday, at a rate of 250% of the ordinary hourly rate (Public Holiday Penalty Rate).
59. During their respective Assessed Employment Periods, Carlotta Graham worked 8 hours on 26 January 2018 (Australia Day), 8 hours on 30 March 2018 (Good Friday), 8 hours on 2 April 2018 (Easter Monday), and Irene Felicia worked 8 hours on 1 April 2018 (Easter Sunday).
60. Each of the Employees in Table 7, Column 1 below:
(a) worked the hours on a public holiday as set out in Table 7, Column 2;
(b) was entitled to be paid the amounts by Little Cupcakes in respect of Public Holiday Penalty Rates, as set out in Table 7, Column 3;
(c) by reason of the matters admitted in paragraph 25 above, was paid the amounts attributable to Public Holiday Penalty Rates, as set out in Table 7, Column 4; and
(d) was underpaid by Little Cupcakes the total amounts set out in Table 7, Column 5 in respect of Public Holiday Penalty Rates.61. By reason of the matters admitted in paragraphs 58 to 59 above, Little Cupcakes paid the Employees in Table 7 amounts that were insufficient to meet their minimum Public Holiday Penalty Rate entitlements pursuant to clause 34.4 of the Award, causing the Employees in Table 7 to be underpaid.
62. By reason of the matters admitted in paragraphs 58 to 61 above, Little Cupcakes contravened section 45 of the FW Act, by contravening clause 34.4 of the Award.
Failure to pay overtime to Full-Time Employees63. At all times during the Employees' respective Assessed Employment Periods, Little Cupcakes was required, pursuant to clause 26.1(a) of the Award, to pay the Full-Time Employees overtime rates for hours worked in excess of:
(a) 38 hours per week or an average of 38 hours per week averaged over a four week period;
(b) five days per week; or
(c) 11 hours on any one day.64. Little Cupcakes was required to pay the Full-Time Employees overtime rates at:
(a) on Monday to Saturday, time and a half for the first two hours each day and double time thereafter;
(b) on Sunday, double time; and
(c) on a public holidays, double time and a half,
as set out below (Full-Time Overtime Rates):65. During their respective Assessed Employment Periods, each of the Full-Time Employees in Table 8, Column 1 below:
(a) worked the overtime hours as set out in Table 8, Column 2;
(b) was entitled to be paid the amounts by Little Cupcakes in respect of Full-Time Overtime Rates, as set out in Table 8, Column 3;
(c) by reason of the matters admitted in paragraph 25 above, was paid the amounts attributable to Full-Time Overtime Rates, as set out in Table 8, Column 4; and
(d) was underpaid by Little Cupcakes the total amounts set out in Table 8, Column 5 in respect of Full-Time Overtime Rates.66. By reason of the matters admitted in paragraphs 63 to 65 above, Little Cupcakes paid the Full-Time Employees in Table 8 amounts that were insufficient to meet their minimum Full-Time Overtime Rate entitlements pursuant to clause 26.1(a) of the Award, causing the Full-Time Employees in Table 8 to be underpaid.
67. By reason of the matters admitted in paragraphs 63 to 66 above, Little Cupcakes contravened section 45 of the FW Act, by contravening clause 26.1(a) of the Award.
Failure to pay overtime to Casual Employees68. At all times during the Employees' respective Assessed Employment Periods, Little Cupcakes was required, pursuant to clause 26.1(b) of the Award, to pay the Casual Employees overtime rates for hours worked in excess of:
(a) 38 hours per week, or an average of 38 hours per week averaged over the Casual Employee's roster cycle; or
(b) 11 hours on any one day.69. Little Cupcakes was required to pay the Casual Employees overtime rates (inclusive of the casual loading) at:
(a) on Monday to Saturday, 175% for the first two hours each day and 225% thereafter;
(b) on Sunday, 225%; and
(c) on a public holidays, 275%,as set out below (Casual Overtime Rates):
70. During their respective Assessed Employment Periods, each of the Casual Employees in Table 9, Column 1 below:
(a) worked the overtime hours as set out in Table 9, Column 2;
(b) was entitled to be paid the amounts by Little Cupcakes in respect of Casual Overtime Rates, as set out in Table 9, Column 3;
(c) by reason of the matters admitted in paragraph 25 above, was paid the amounts attributable to Casual Overtime Rates, as set out in Table 9, Column 4; and
(d) was underpaid by Little Cupcakes the total amounts set out in Table 9, Column 5 in respect of Casual Overtime Rates.71. By reason of the matters admitted in paragraphs 68 to 70 above, Little Cupcakes paid the Employees in Table 9 amounts that were insufficient to meet their minimum Casual Overtime Rate entitlements pursuant to clause 26.1(b) of the Award, causing the Employees in Table 9 to be underpaid.
72. By reason of the matters admitted in paragraphs 68 to 71 above, Little Cupcakes contravened section 45 of the FW Act, by contravening clause 26.1(b) of the Award.
Failure to pay annual leave loading73. At all times during the Employees' respective Assessed Employment Periods, pursuant to clause 28.3 of the Award, during a period of annual leave Little Cupcakes was required to pay to the full-time and part-time Employees a loading calculated as follows (Annual Leave Loading):
(a) 17.5% of the minimum weekly wage; or
(b) the relevant weekend penalty rate, whichever is the greater but not both.74. During their respective Assessed Employment Periods, each of the Employees in Table 10, Column 1 below:
(a) took hours of annual leave as set out in Table 10, Column 2;
(b) was entitled to be paid the amounts by Little Cupcakes in respect of Annual Leave Loading, as set out in Table 10, Column 3;
(c) by reason of the matters admitted in paragraph 25 above, was paid the amounts attributable to Annual Leave Loading, as set out in Table 10, Column 4; and(d) was underpaid by Little Cupcakes the total amounts set out in Table 10, Column 5 in respect of Annual Leave Loading.
75.By reason of the matters admitted in paragraphs 73 to 74 above, Little Cupcakes paid the Employees in Table 10 amounts that were insufficient to meet their Annual Leave Loading entitlements pursuant to clause 28.3 of the Award causing the Employees in Table 1Oto be underpaid.
76. By reason of the matters admitted in paragraphs 73 to 75 above, Little Cupcakes contravened section 45 of the FW Act, by contravening clause 28.3 of the Award.
Failure to pay personal leave entitlements
77. At all times during the Employees' respective Assessed Employment Periods, Little Cupcakes was required, pursuant to section 99 of the FW Act, when an Employee took a period of paid personal or carer's leave, to pay the Employee at their base rate of pay for their ordinary hours of work in the period.
78. During the respective Assessment Employment Periods, Bianca Rose Vicari:
(a) took 21 hours of personal leave;
(b) was entitled to be paid $421.68 by Little Cupcakes in respect of paid personal leave;
(c) by reason of the matters admitted in paragraph 25 above, was paid $384.68 attributable to paid personal leave; and
(d) was underpaid by Little Cupcakes a total of $37 in respect of paid personal carer's leave.79. By reason of the matters admitted in paragraphs 77 to 78 above, Little Cupcakes paid Bianca Rose Vicari amounts that were insufficient to meet her entitlement to paid personal leave pursuant to section 99 of the FW Act, causing her to be underpaid.
80. By reason of the matters admitted in paragraphs 77 to 79 above, Little Cupcakes contravened section 44(1) of the FW Act, by contravening section 99 of the FW Act.
Failure to pay for absence on public holidays81.During the Employees' respective Assessed Employment Periods, pursuant to section 116 of the FW Act, Little Cupcakes was required to pay full-time and parttime Employees who were absent from work on a day or part-day that was a public holiday, at their base rate of pay for the Employee's ordinary hours of work on the day or part day.
82.During their respective Assessed Employment Periods:
(a)Ahyoon (Irene) Kim was absent on 28 January 2019 (substituted public holiday for Australia Day);
(b) Bianca Rose Vicari was absent on 12 March 2018 (Labour Day), 30 March 2018 (Good Friday), 2 April 2018 (Easter Monday), 25 April 2018 (Anzac Day) and 11 June 2018 (Queen's Birthday);
(c)Danbi Kim was absent on 11 June 2018 (Queen's Birthday);
(d) Haxuyen Nguyen was absent on 28 January 2019 (substituted public holiday for Australia Day);
(e)Minji Yang was absent on 6 November 2018 (Melbourne Cup Day), 25 December 2018 (Christmas Day), 26 December 2018 (Boxing Day) and 28 January 2019 (substituted public holiday for Australia Day);
(f)Nari Seo was absent on 26 January 2018 {Australia Day), 30 March 2018 (Good Friday), 31 March 2018 (Saturday before Easter Sunday), 25 April 2018 (Anzac Day) and 28 September 2019 (Friday before AFL Grand Final);
(g)Nela Adams Jacka was absent on 26 January 2018 {Australia Day), 30 March 2018 (Good Friday), 2 April 2018 (Easter Monday), 11 June 2018 (Queen's Birthday); and
(h)Yeongmin Im was absent on 25 December 2018 (Christmas Day), 26 December 2018 (Boxing Day), 1 January 2019 (New Year's Day) and 28 January 2019 (substituted public holiday for Australia Day).
83.Each of the Employees in Table 11, Column 1 below:
(a) was absent on one or more public holidays;
(b) had ordinary hours of work on the days they were absent as set out in Table,Column 2;
(c) was entitled to be paid the amounts in Table 11, Column 3 for their absence on a public holiday;
(d) by reason of the matters admitted in paragraph 25 above, was paid the amounts set out in Table 11, Column 4 attributable to their absence on a public holiday; and
(e) was underpaid by Little Cupcakes the total amounts set out in Table 11, Column 5 in respect of absence on a public holiday.
84. By reason of the matters admitted in paragraphs 81 to 81 above, Little Cupcakes paid the Employees in Table 11 amounts that were insufficient to meet their entitlement to pay for absence on a public holiday pursuant to section 116 of the FW Act, causing them to be underpaid.
85. By reason of the matters admitted in paragraphs 81 to 84 above, Little Cupcakes contravened section 44(1) of the FW Act, by contravening section 116 of the FW Act.
F. TOTAL UNDERPAYMENT AND RECTIFICATION
Total underpayments and rectification86. By reason of the contraventions admitted in paragraphs 30 to 85 above, Little Cupcakes underpaid the Employees a total of $57,179.69 (Total Underpayment).
87. Underpayments for Dongmin (Peter) Cheon and Sangna (Chloe) Lee could not be calculated because Little Cupcakes failed to make and keep pay records in respect of them, or give pay slips to them (see paragraphs 92 to 100 below).
88. The Total Underpayment was repaid in full by 28 February 2020.
G. NON MONETARY CONTRAVENTIONS
Failure to make a pat-time agreement in writing89. Little Cupcakes was required, pursuant to clause 12.2 of the Award, at the time of engagement of a part-time employee, to make a part-time agreement in writing agreeing on a regular pattern of work, specifying at least the hours worked each day, which days of the week the employee will work and their starting and finishing times (Part-Time Agreement).
90. Little Cupcakes did not make a Part-Time Agreement in writing with Luisa Obanda Mejia when she began her employment with Little Cupcakes.
91. By reason of the matters admitted in paragraph 89 to 90 above, Little Cupcakes:
(a)failed to make a part-time agreement with Luisa Obanda Mejia in contravention of clause 12.2 of the Award; and
(b) thereby contravened section 45 of the FW Act.
Failure to make and keep records
92. Pursuant to section 535(1) of the FW Act, at all material times Little Cupcakes was required to make, and keep for seven years, employee records of the kind prescribed by the FW Regulations in relation to each of the Employees.
93. Employee records of the kind which Little Cupcakes was required to make and keep under the FW Regulations included:
(a) records of the rate of remuneration, the gross and net amounts and any deductions made from the gross amounts paid to Employees (regulation 3.33(1));
(b) records of all hours worked by Casual Employees (regulation 3.33(2));
(c) records of details of any entitlement payable to an Employee that was a bonus, loading, allowance, penalty rate, incentive based payment or other separately identifiable entitlement (regulation 3.33(3)); and
(d) records of any leave taken by an Employee, and the balance (if any) of the Employee's entitlement to that leave from time to time (regulation 3.36).94. During the Employees' respective Assessed Employment Periods, Little Cupcakes failed to make and keep for seven years the following records:
(a) records of the kind described in paragraph 93(a) above in relation to Danbi Lim, Ahyoon (Irene) Kim, Dongmin (Peter) Cheon, Sangna (Chloe) Lee, Haxuyen Nguyen and Soomin (Suzie) Kim, during the period from 1 January 2018 to 4 November 2018;
(b) records of the kind described in paragraph 93(b) above in relation to Ha Ha during the period from 1 January 2018 to 8 April 2018;
(c) records of the kind described in paragraph 93(c) above, in relation to the following Employees during the period from 1 January 2018 to 26 February 2019:(i) in relation to casual loading as admitted in paragraph 38 above, all Casual Employees;
(ii) in relation to Early Morning Penalty Rates as admitted in paragraph 46 above, Lee Dongin (Dongmin);
(iii) in relation to Saturday Penalty Rates as admitted in paragraph 50 above, Carlotta Graham, Irene Felicia and Mya Jane Nipperess;
(iv) in relation to Sunday Penalty Rates as admitted in paragraph 54 above, Carlotta Graham and Soomin (Suzie) Kim;
(v) in relation to Public Holiday Penalty Rates as admitted in paragraph 58 above, Carlotta Graham and Irene Felicia;
(vi) in relation to Full Time Overtime Rates and Casual Overtime Rates as admitted in paragraphs 63 and 68 above, Avindrini Gooneratne, Bianca Rose Vicari, Diana Paola Paez Lozano, Haxuyen Nguyen, Hyerim (Rachel) Kim, Jian Kim, Jie Ru (Jessy) Ding, Lamis Husseini, Nari Seo, Nela Adams Jacka and Yeongmin Im; and
(vii) in relation to Annual Leave Loading as admitted in paragraph 73 above, Minji Yang and Seondong (SD) Kim; and
(d) records of the kind described in paragraph 93(c) above in relation to Dongmin (Peter) Cheon during the period from 1 January 2018 to 17 June 2018.
95. By reason of the matters admitted in paragraph 92 to 77 above, Little Cupcakes:
(a) failed to make, and keep for seven years, records in regards to its Employees as prescribed by regulations 3.33(1), 3.33(2), 3.33(3) and 3.36 of the FW Regulations; and
(b) hereby contravened section 535(1) of the FW Act.Failure to give pay slips
96. Pursuant to section 536(1) of the FW Act, at all material times Little Cupcakes was required to give each Employee a pay slip as prescribed by the FW Regulations within one working day of making a payment to the Employee in relation to the performance of work.
97. By reason of the matters admitted in paragraphs 31, 39, 47, 55, 59, 65, 70 and 81 above, Danbi Lim, Ahyoon (Irene) Kim, Dongmin (Peter) Cheon, Sangna (Chloe) Lee and Soomin (Suzie) Kim performed work for Little Cupcakes.
98. Little Cupcakes failed to give Danbi Lim, Ahyoon (Irene) Kim, Dongmin (Peter) Cheon, Sangna (Chloe) Lee and Soomin (Suzie) Kim pay slips within one working day of making a payment to them in relation to the performance of work, or at all.
99. By reason of the matters admitted in paragraph 96 to 98 above, Little Cupcakes contravened section 536(1) of the FW Act.
Failure to include required information on pay slips as prescribed by the FW Regulations
100. Pursuant to section 536(2) of the FW Act, at all material times Little Cupcakes was required to give each Employee a pay slip that included the information prescribed by the FW Regulations within one working day of making a payment to the Employee in relation to the performance of work.
101. Pursuant to regulation 3.46(5) of the FW Regulations, Little Cupcakes was required to provide each of the Employees with pay slips that included the name, or the name and number, of the Employee's superannuation fund to which a contribution was made.
102. During the period from 1 January 2018 to 24 February 2019, Little Cupcakes gave each of Avindrini Gooneratne, Bianca Rose Vicari, Diana Paola Paez Lozano, Eunjin (Sally) Lee, Franziska Paege, Gene Marcel du Vergier, Ha Ha, Haxuyen Nguyen, Hyerim (Rachel) Kim, Irene Felicia, Jane KW, Josephine Laufer, Kaja Kopczynska, Minji Yang, Mya Jane Nipperess, Nela Adams Jacka, Priyanka Patel, Rochelle Erwin, Yeongmin Im and Zoe Z pay slips that did not include the name, or the name and number of the superannuation fund to which Little Cupcakes made a superannuation contribution to the Employee.
103. By reason of the matters admitted in paragraph 101 to 103 above, Little Cupcakes failed to include on pay slips for Avindrini Gooneratne, Bianca Rose Vicari, Diana Paola Paez Lozano, Eunjin (Sally) Lee, Franziska Paege, Gene Marcel du Vergier, Ha Ha, Haxuyen Nguyen, Hyerim (Rachel) Kim, Irene Felicia, Jane KW, Josephine Laufer, Kaja Kopczynska, Minji Yang, Mya Jane Nipperess, Nela Adams Jacka, Priyanka Patel, Rochelle Erwin, Soomin (Suzie) Kim, Yeongmin Im and Zoe Z the required information prescribed by regulation 3.46(5) of the FW Regulations, and thereby contravened section 536(2) of the FW Act.
H. ACCESSORIAL LIABILITY OF MR SHAH104. The parties repeat and rely on paragraph 5 above.
105. At all material times, Mr Shah knew of the employment conditions applicable to Employees of the Business, including that the Award applied to Little Cupcakes and its Employees who worked as part of the Business.
106. At all material times, Mr Shah knew that Little Cupcakes, by making payments to the Employees as described in paragraph 25 above, did not pay the Employees' wages accordance with the FW Act;
107. At all relevant times during the Employees' respective Assessed Employment Periods, Mr Shah had actual knowledge that Little Cupcakes did not maintain records or keep pay slips in accordance with the FW Act;
108. By reason of the matters admitted in paragraphs 3 and 104 to 107 above, at all material times during the Employees' respective Assessed Employment Periods, Mr Shah had actual knowledge:
(a) that Little Cupcakes employed the Employees;
(b) the operating hours of the Business, including that the Employees regularly worked on weekends and public holidays;
(c) the rates of pay paid to the Employees by Little Cupcakes;
(d) that Little Cupcakes did not make or keep records for all its Employees;
(e) that Little Cupcakes did not always give pay slips to the Employees within one working day of receiving an amount in relation to the performance of work; and
(f) that the pay slips provided by Little Cupcakes did not contain all the required information as prescribed by the FW Regulations.109. By reason of the matters admitted in paragraphs 104 to 108 above, Mr Shah:
(a) had actual knowledge of; and
(b) was an intentional participant in,
the factual matters which comprise the contraventions admitted against Little Cupcakes as set out in paragraphs 30 to 85 and 89 to 103 above.110. By reason of the matters admitted in paragraphs 104 to 109 above, Mr Shah:
(a) aided, abetted, counselled or procured; and/or
(b) was, by his acts or omissions, directly or indirectly, knowingly concerned in or a party to;
the admitted contraventions set out in paragraphs 30 to 85 and 89 to 103 above.111. By reason of the matters admitted in paragraphs 104 to 110 above, Mr Shah was involved in, within the meaning of section 550(2) of the FW Act, the contraventions by Little Cupcakes of the provisions of the FW Act admitted in paragraphs 30 to 85 and 89 to 103 above, and is therefore to be treated as having personally contravened the provisions.
Schedule 1
Ahyoon (Irene) Kim Full time
25/05/2018
20/02/2019
Level 1
Student
$24.00
(weekday hours)
$30.00
(Saturday hours)
$32.40
(Sunday hours)
$36.00
(overtime
Hours
Alexandra Garrett Casual 3/12/2018 17/12/2018 Level 1 NIA $20.90 Avindrini Gooneratne Casual 22/01/2018 24/05/2018 Level 1 Student $16.80 Bianca Rose Vicari
Full time 12/02/2018 24/06/2018 Level 1 NIA
$17.80
(until 11/03/2018)
$20.00
(from 12/03/2018
Casual
16/07/2018
4/11/2018
Level 1
Carlotta Graham
Casual
2/01/2018
20/10/2018
Level 1
NIA
$17.80
(until 15/07/2018)
$20.00
(from 16/07/2018)
$25.00
(public
holida hrs
Danbi Lim
Full time
12/02/2018
23/02/2019
Level 1
$24.00
(weekday hours)
$30.00
(Saturday hours)
$32.40
(Sunday hours)
$36.00
(overtime hours
Dongmin (Peter) Cheon
Casual
2/01/2018
15/06/2018
Level 1
Working Holiday
NIA (Little Cupcakes did not keep pay
records
Diana Paola Paez Lozano
Casual
1/02/2018
26/07/2018
Level 1
Student
$20.08
(until 03/06/2018)
$20.79
(from 18/06/2018
Eunjin (Sally) Lee
Casual
26/04/2018
1/11/2018
Level 1
Working Holiday
$18.08
(until 17/06/2018)
$18.00
From
18/06/2018)
$24.30
(Sunday hours)
Franziska Paege Casual 17/12/2018 24/02/2019 Level 1 (18
vearsl
$16.70
Gene Marcel du Vergier
Casual
24/01/2018
25/01/2018
· Level 1 (19 vearsl
NIA
$15.50
Ha Ha
Casual
7/01/2018
8/04/2018
Level 1 (18 years)
Student
$14.06
(weekday hours)
$17.58
(Saturday hours)
$20.39
(Sunday hours)
Haxuyen Nguyen
Casual 25/09/2018 2/12/2018 Level 1 Working Holiday
$16.63
(until 21/10/2018)
$16.80
(from 22/10/2018)
$17.90
(from 03/12/2018)
Full time
3/12/2018
24/02/2019
Level 1
Hyerim (Rachel) Kim
Casual
23/10/2018
22/02/2019
Level 1
Working
Holidav
$21.00
Irene Felicia
Casual
1/01/2018
11/05/2018
Level 1 (18 years)
Student
$15.50
(until 14/01/2018)
$16.80
(from 15/01/2018)
$15.50
(from 29/01/2018)
$16.80
(from 12/03/2018)
Jane KW
Casual
8/01/2018
22/02/2018
Level 1 (18 vearsl
Working
Holidav
$21.00
Jian Kim Casual 17/12/2018 22/02/2019 Level 1 $20.80 Jie Ru (Jessy) Ding
Casual
5/12/2018
27/01/2019
Level 1
$20.00
(until 16/12/2018)
$21.00
(from 17/12/2018)
$26.25
(Saturday hours)
$28.35
(Sunday hours)
Josephine Laufer
Casual
13/06/2018
17/02/2019
Level 1 (19 years)
NIA
$16.50
(until 21/10/2018)
$17.00
(from 22/10/2018)
$10.82
(from
31/12/2018)
$17.00
(from 14/01/2019)
$21.25
(Saturday hours)
$25.50
(Sunday hours)
Kaja Kopczynska
Casual
12/07/2018
17/10/2018
Level 1
Student
$17.00
(weekday hours)
$21.25
(Saturday hours)
$22.95
(Sunday hours)
Lamis Husseini
Casual
19/11/2018
19/02/2019
Level 1 (18 vears\
$15.80
Lee Dongin (Dongmin)
Casual
30/07/2018
2/11/2018
Level 1 (19 years)
Working Holiday
$19.55
(until 21/10/2018)
$24.00
(from
22/10/2018
Luisa Obanda Meiia Part time 22/10/2018 15/11/2018 Level 1 $20.00 Minji Yang
Casual 1/01/2018 21/10/2018 Level2
Temporary Graduate
$34.00
(until 21/10/2018)
$53,900
salary (from 22/10/2018)
Full time
22/10/2018
24/02/2019
Mya Jane Nipperess
Casual
29/01/2018
25/02/2018
Level 1 (19
vears\
NIA
$17.00
Nari Seo
Full time
2/01/2018
19/10/2018
Level 1
NIA
$53,900
salary (until 26/08/2018)
$21.50
(from 27/08/2018)
Nela Adams Jacka
Full time
8/01/2018
9/09/2018
Level 1
NIA
$17.00
Priyanka Patel
Casual
3/01/2018
30/01/2019
Level 1
Student
$20.00
(until 17/06/2018)
$29.00
(from 03/12/2018)
Rochelle Erwin
Casual
15/04/2018
3/06/2018
Level 1 (19 years)
NIA
$18.08
(weekday hours)
$22.60
(Saturday hours)
$26.62
(Sunday hours)
Sangna (Chloe) Lee
Casual
8/01/2018
15/03/2018
Level 1
Working Holiday
NIA (Little Cupcakes did not keep pay records
Seondong (SD) Kim Full Time
2/01/2018
24/02/2019
Level2
Temporary Work
/Skilled)
$55,000
Salary
Soomin (Suzie) Kim
Casual
7/05/2018
16/12/2018
Level 1
Working Holiday
$18.00
(until 21/10/2018)
$21.00
(from 22110/2018)
$26.25
(Saturday hours)
$28.33
(Sunday hours
Vina Pranata
Casual
15/01/2018
25/03/2018
Level 1
Partner
$20.08
(weekday hours)
$25.10
(Saturday hours until 25103/2018)
$29.12
(Sunday hours until 25/03/2018)
$26.25
(Saturday hours from 03/12/2018)
$28.35
(Sunday hours from 03/12/2018)
Yeongmin Im
Casual 30/07/2018 2/12/2018 Level 1
Student
$34.00
(until 07/10/2018)
$34.03
(from 08/10/2018)
$34.01
(from 22/10/2018)
$22.50
(from 03/12/2018)
$22.51
(from
11/02/2019)
Full time
3/12/2018
24/02/2019
ZoeZ Casual 27/03/2018 27/03/2018 Level 1 NIA" $20.08
1