Fair Work Ombudsman v Something Aussie Pty Ltd
[2017] FCCA 186
•6 February 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| FAIR WORK OMBUDSMAN v SOMETHING AUSSIE PTY LTD & ANOR | [2017] FCCA 186 |
| Catchwords: INDUSTRIAL LAW – Penalty – contraventions of modern award relating to remuneration – failure to provide meal breaks – failure to employ for a minimum of three hours per day – liability conceded – appropriate penalties to be imposed – relevant considerations. |
| Legislation: Crimes Act 1914 (Cth) s.4AA |
| Cases cited: Australian Ophthalmic Supplies Pty Ltd v McAlary-Smith (2008) 165 FCR 560 Fair Work Ombudsman v Amritsaria Four Pty Ltd [2016] FCCA 968. Fair Work Ombudsman v Garfield Berry Farm Pty Ltd & Anor [2010] FMCA 103. Gibbs v Mayor, Councillors and Citizens of the City of Altona (1992) 37 FCR 216 Kelly v Fitzpatrick [2007] FCA 1080 Mason v Harrington Corporation Pty Ltd t/as Pangaea Restaurant & Bar [2007] FMCA 7 Mclver v Healey [2008] FCA 425 Mornington Inn Pty Ltd v Jordan (2008) 168 FCR 383 Ponzio v B & P Caelli Constructions Pty Ltd [2007] FCAFC 65. Rocky Holdings Pty Ltd v Fair Work Ombudsman (2014) 221 FCR 153 Seymour v Stawell Timber Industries Pty Ltd [1985] FCA 236 |
| Applicant: | FAIR WORK OMBUDSMAN |
| First Respondent: | SOMETHING AUSSIE PTY LTD (ACN 136956351) |
| Second Respondent: | KUAN KOK KAN |
| File Number: | MLG 2825 of 2015 |
| Judgment of: | Judge Hartnett |
| Hearing date: | 28 October 2016 |
| Delivered at: | Melbourne |
| Delivered on: | 6 February 2017 |
REPRESENTATION
| Counsel for the Applicant: | Mr Fetter |
| Solicitors for the Applicant: | The Office of the Fair Work Ombudsman |
| Counsel for the Respondents: | Mr Solomon-Bridge |
| Solicitors for the Respondents: | Holding Redlich |
THE COURT DECLARES THAT:
The First Respondent contravened the following civil remedy provisions:-
(a)section 45 of the Fair Work Act 2009 (Cth) (‘the FW Act’), by failing to pay its Employees, Ms Hoan-Lien Vuu, Ms Jaruvadee Vattanarom, and Ms Kittitara Saenyamas (‘the Employees’), the minimum rates of pay prescribed by cl.17 of the General Retail Industry Award 2010 (‘the Modern Award’);
(b)section 45 of the FW Act, by failing to pay each of its Employees casual loading (for Monday to Saturday) prescribed by cl.13.2 of the Modern Award and cls.A.6.3 and A.6.4 of sch.A to the Modern Award;
(c)section 45 of the FW Act, by failing to pay each of its Employees casual loading (for Sunday) prescribed by cls.A.6.3 and A.6A of sch.A to the Modern Award;
(d)section 45 of the FW Act, by failing to pay each of its Employees Saturday penalty rates prescribed by sub-cl.29.4(b) of the Modern Award and cl.A.7.3 of sch.A to the Modern Award;
(e)section 45 of the FW Act, by failing to pay each of its Employees Sunday penalty rates prescribed by sub-cl.29.4(c) of the Modern Award and A.7.3 of sch.A to the Modern Award;
(f)section 45 of the FW Act, by failing to pay each of its Employees public holiday penalty rates prescribed by sub-cls.29.4(d) of the Modern Award and cl.A.7.3 of sch.A to the Modern Award;
(g)section 45 of the FW Act, by failing to engage its Employees for a minimum of three hours per day in contravention of cl.13.4 of the Modern Award;
(h)section 45 of the FW Act, by failing to provide meal breaks of at least 30 minutes after five hours work before 23 August 2013 and after more than five hours work from 23 August 2013 in contravention of cl.31.1 of the Modern Award; and
(i)section 44 and sub-s.90(2) of the FW Act, by failing to pay untaken paid annual leave and annual leave loading to Ms Vuu on termination of her employment.
The Second Respondent was involved, pursuant to s.550(2) of the FW Act, in each of the contraventions admitted by the First Respondent, as set out in declaration (1).
THE COURT ORDERS THAT:
The First Respondent pay a penalty pursuant to subsection 546(1) of the FW Act fixed in the amount of $101,400.00.
The Second Respondent pay a penalty pursuant to subsection 546(1) of the FW Act in respect of his involvement in the First Respondent’s contraventions fixed in the sum of $20,280.00.
Pursuant to subsection 546(3)(a) of the FW Act the First Respondent and Second Respondent pay their respective penalty amounts to the Consolidated Revenue Fund of the Commonwealth.
The First Respondent pay the amount ordered in penalty to the Consolidated Revenue Fund of the Commonwealth within 28 days of these orders.
The Second Respondent pay the amount ordered in penalty to the Consolidated Revenue Fund of the Commonwealth within 84 days of these orders.
The Applicant have liberty to apply in the event that any of the preceding orders are not complied with.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 2825 of 2015
| FAIR WORK OMBUDSMAN |
Applicant
And
| SOMETHING AUSSIE PTY LTD (ACN 136956351) |
First Respondent
| KUAN KOK KAN |
Second Respondent
REASONS FOR JUDGMENT
The Applicant seeks the imposition of pecuniary penalties on the First and Second Respondents in relation to admitted contraventions of various civil remedy provisions of the Fair Work Act 2009 (Cth) (‘the FW Act’).
The First Respondent operates a small retail business (‘Something Aussie’) in North Melbourne, selling Australian-themed gifts and souvenirs, food, and beauty products, mostly to foreign tourists. The Second Respondent, Mr Kan, is the sole director and shareholder of the First Respondent and is responsible for the day to day and overall management of the First Respondent’s business. The business has operated for approximately 19 years and is open seven days a week. The Second Respondent generally works every day in some capacity. He draws a salary from the business of less than $20,000.00 gross per annum and has superannuation contributions made by his employer.
The First Respondent employs eight people mostly as shop assistants. Most of those persons are bi-lingual and able to speak the language of the customers of the business the First Respondent operates. The First Respondent has never registered with the Australian government as a visa sponsor, nor employed any one from overseas to work in Australia under a Temporary Work (Skilled) visa (subclass 457) or similar visa program. Otherwise, the First Respondent employs a bookkeeper, a store manager and the Second Respondent.
A Statement of Agreed Facts was filed by the parties on 18 April 2016 and tendered at the hearing. That statement is annexed to, and forms part of these reasons (‘Annexure A’). Pursuant to s.191 of the Evidence Act 1995 (Cth) the matters agreed to in this document are taken not to be in dispute.
The Applicant otherwise relied upon the following material:-
a)application and statement of claim filed 18 December 2015;
b)affidavit of Katherine Goonan, Fair Work Inspector, employed by the Office of the Fair Work Ombudsman, affirmed 13 May 2016;
c)affidavit of Kuan Kok Kan affirmed 16 June 2016;
d)affidavit of David William Partington affirmed 16 June 2016;
e)supplementary affidavit of Katherine Goonan, Fair Work Inspector, employed by the Office of the Fair Work Ombudsman, affirmed 8 July 2016; and
f)submissions on penalty filed 12 August 2016 and 6 October 2016.
The Respondents otherwise relied upon the following material:-
a)response filed 18 February 2016;
b)defence filed 18 February 2016;
c)amended defence filed 18 March 2016;
d)affidavit of Kuan Kok Kan affirmed 16 June 2016
e)affidavit of David William Partington affirmed 16 June 2016;
f)affidavit of Evan Stanley Willis, Solicitor affirmed 16 June 2016;
g)supplementary affidavit of Kuan Kok Kan affirmed 13 September 2016; and
h)submissions on penalty filed 14 September 2016.
Section 45 of the FW Act applies to these contraventions. It is as follows:-
“A person must not contravene a term of a modern award.”
A note to the section indicates that this is a ‘civil remedy provision’. So too is s.44 of the FW Act.
Section 546(1) of the FW Act provides:-
“(1) The Federal Court, the Federal Magistrates Court or an eligible State or Territory court may, on application, order a person to pay a pecuniary penalty that the court considers is appropriate if the court is satisfied that the person has contravened a civil remedy provision.
Note: Pecuniary penalty orders cannot be made in relation to conduct that contravenes a term of a modern award, a national minimum wage order or an enterprise agreement only because of the retrospective effect of a determination (see subsections 167(3) and 298(2)).”
Subsection 546(2) of the FW Act prescribes the maximum penalties which may be imposed by the Court in respect of the declared contraventions. Maximum penalties are fixed by reference to penalty units.
Section 12 of the FW Act provides that a "penalty unit" has the meaning given by s.4AA of the Crimes Act 1914 (Cth). Prior to 28 December 2012 s.4AA of the Crimes Act defined "penalty unit" to be $110.00 This increased to $170.00 from 28 December 2012 and to $180.00 from 31 July 2015, this last increment being a date after the relevant periods of employment. The relevant maximum penalty in this proceeding for all but one of the award contraventions is thus $51,000.00 for the First Respondent being a corporation, and $10,200.00 for the Second Respondent, being an individual. The contravention concerning ‘annual leave’ as described hereafter has a maximum penalty of $33,000.00 for the First Respondent and $6,600.00 for the Second Respondent.
Subsection 546(3) of the FW Act allows the pecuniary penalty to be paid to the Commonwealth.
The maximum penalties that could be imposed are:-
a)$390,000.00 for the First Respondent; and
b)$78,000.00 for the Second Respondent.
The Applicant submits that the appropriate range of penalties in terms of percentage of the maximum is:-
a)for the First Respondent from $102,521.25 to $149,580.00 which in percentage is 26.29% to 38.35%; and
b)for the Second Respondent from $27,015.72 to $35,176.23 which in percentage is 31.64% to 45.10%.
The Respondents submit that the appropriate range of penalties for the Respondents is substantially less than the lower end of the range as sought by the Applicant and does not otherwise particularise that range.
For the reasons which follow the Court determines the appropriate aggregate penalties are equal to 26% of the maximum penalty being:-
a)$101,400.00 for the First Respondent; and
b)$20,280.00 for the Second Respondent.
Contraventions
The admitted contraventions concern three employees, Ms Hoan-Lien Vuu, Ms Jaruvadee Vattanarom, and Ms Kittitara Saenyamas (‘the Employees’). The contraventions are:-
a)failure to pay the Employees the minimum rates of pay prescribed by cl.17 of the General Retail Industry Award 2010 (‘the Modern Award’) (thereby breaching s.45 of the FW Act);
b)failure to pay the Employees casual loading (for Monday to Saturday and Sunday) prescribed by cl.13.2 of the Modern Award and cls.A.6.3 and A.6.4 of schedule A to the Modern Award (thereby breaching s.45 of the FW Act);
c)failure to pay the Employees Saturday penalty rates prescribed by cl.29.4(b) of the Modern Award and cl.A.7.3 of schedule A to the Modern Award (thereby breaching s.45 of the FW Act);
d)failure to pay the Employees Sunday penalty rates prescribed by cl.29.4(c) of the Modern Award and cl.A.7.3 of schedule A to the Modern Award (thereby breaching s.45 of the FW Act);
e)failure to pay the Employees public holiday penalty rates prescribed by cl.29.4(d) of the Modern Award and cl.A.7.3 of schedule A to the Modern Award (thereby breaching s.45 of the FW Act);
f)failure to engage the Employees for a minimum of three hours per day in contravention of cl.13.4 of the Modern Award (thereby breaching s.45 of the FW Act) (the minimum engagement contravention);
g)failure to provide meal breaks of at least 30 minutes after five hours work before 23 August 2013 and after more than five hours work from 23 August 2013 in contravention of cl.31.1 of the Modern Award (thereby breaching s 45 of the FW Act) (the meal breaks contravention); and
h)failure to pay untaken paid annual leave and annual leave loading to Ms Vuu on termination of her employment (thereby breaching ss.44 and 90(2) of the FW Act) (the untaken accrued leave contravention).
I note the relevant period when this occurred was in March 2010. It is at that time when the course of conduct ended that the maximum penalty crystallises. The maximum penalty unit was $110, and hence the maximum penalty for the First Respondent in respect of that breach is $33,000.00 and the maximum penalty for the Second Respondent is $6,600.00.
I also note here that a lower penalty applied for a not insignificant part of the contravening course of conduct which I take into account as a factor in mitigation of penalty.[1]
[1] Fair Work Ombudsman v Amritsaria Four Pty Ltd [2016] FCCA 968, 45-52.
These contraventions resulted in the Employees being underpaid a total of $91,238.64 over the following employment periods:
a)Ms Vuu from:-
i)1 February 2010 to 28 March 2010; and
ii)26 April 2010 to 22 April 2015;
b)Ms Vattanarom from 8 June 2011 to 23 April 2015; and
c)Ms Saenyamas from 1 June 2012 to 22 April 2015.
Ms Vuu was underpaid the sum of $30,495.59. Ms Vattanarom was underpaid the sum of $30,091.86. Ms Saenyamas was underpaid the sum of $30,651.19.
During the period of time to which these proceedings relate, the Employees remuneration was based on a flat hourly rate for all hours worked which increased from time to time. However at all relevant times the remuneration received by the Employees was lower than the wages payable for ordinary hours under the Modern Award by a total sum, over the approximately five year period, of $6,809.41. No additional payments were made for work performed on Saturdays, Sundays and public holidays. No additional payments for casual loading (where applicable) were paid. It is in these categories of additional payments that there was a considerable underpayment of the Employees.
Upon resignation of her employment on 28 March 2010, the First Respondent failed to pay Ms Vuu her accrued and untaken annual leave and annual leave loading on termination of her employment, in the sum of $423.13.
The evidence and admitted facts in the proceedings establish that the Second Respondent had actual knowledge of the factual matters which comprise the contraventions admitted by the First Respondent. He is, pursuant to sub-s.550(1) of the FW Act treated as having himself contravened each of the provisions of the FW Act and the Modern Award.
Grouping
The approach of the Court in determining penalties is well established by the authorities as follows:-
a)the first step is for the Court to identify the separate contraventions involved. Each contravention of an obligation found in the FW Act is a separate contravention of a civil remedy provision for the purposes of s.539(2) of the FW Act[2];
[2] Gibbs v The Mayor, Councillors and Citizens of City of Altona (1992) 37 FCR, 223; McIver v Healey [2008] FCA 425, 16 (unreported, Federal Court of Australia; 7 April 2008, Marshall J).
b)secondly, the Court should consider whether any of the breaches taken together constitute a single course of conduct such that multiple contraventions should be treated as a single contravention. Section 557 of the FW Act relevantly provides that two or more contraventions of s.45 of that Act (which provides that a person must not contravene a term of a Modern Award) are taken to constitute a single contravention if the contraventions are committed by the same person and the contraventions arose out of a course of conduct by the person. The Full Court of the Federal Court held in Rocky Holdings Pty Ltd v Fair Work Ombudsman[3] that a respondent may not take the benefit of s.557 where the breaches of s.45 constitute breaches of separate obligations of an award. The question to be asked is whether the breaches arose out of separate acts or decisions of the Respondents, or out of a single act or decision. The latter constitutes a course of conduct, the former does not.[4]
[3] (2014) 221 FCR 153, 10-27.
[4] Seymour v Stawell Timber Industries Pty Ltd [1985] FCA 236, 266-267 per Gray J (within whom Northrop J agreed, 245).
c)thirdly, to the extent that two or more contraventions have common elements, this should be taken into account in considering what an appropriate penalty is in all the circumstances for each contravention. The Respondents should not be penalised more than once for the same conduct. The penalties imposed by the Court should be an appropriate response to the Respondents’ actions.[5] This task is distinct from, and in addition to, the final application of the "totality principle"[6];
[5] Australian Ophthalmic Supplies Pty Ltd v McAlary-Smith (2008) 165 FCR 560, 71 (Graham J).
[6] Mornington Inn Pty Ltd v Jordan (2008) 168 FCR 383, 41-46 per Stone and Buchanan JJ.
d)fourthly, the Court will consider an appropriate penalty to impose in respect of each contravention, whether a single contravention, a course of conduct, or group of contraventions, having regard to all of the circumstances of the case; and
e)finally, having fixed an appropriate penalty for each contravention, the Court should take a final look at the aggregate penalty to determine whether it is an appropriate response to the contravening conduct. The Court should apply an "instinctive synthesis" in making this assessment.[7] This is known as the "totality principle".
[7] Ibid, 27 (Gray J) and 55 and 78 (Graham J).
The Applicant submits and the Respondents agree, that various contraventions should be grouped. The Applicant proposed eight groups of contraventions of the legislation and regulations.
The Applicant submits that the contraventions identified in paragraph 15(b) of these reasons should be grouped together (Casual Loading Group) on the basis that the contraventions contain substantially similar elements.
The Applicant submits the remaining seven Contraventions, set out in paragraph 15 of these reasons, do not share common elements. The Applicant submits that it would be inappropriate to further group the contraventions as they do not share any factual or legal basis and as a result any such grouping would be artificial.
The Respondents submit that there should be a grouping of contraventions to result in four such groups. The Respondents agree with the Applicant that the minimum engagement contravention; the meal breaks contravention; and the untaken accrued leave contravention are breaches of three separate obligations of the award. But the Respondents otherwise assert that the total underpayment of the Employees related to the same course of conduct, payment of a flat hourly rate, and therefore one penalty should be imposed on the remaining four (with the casual loading contraventions being grouped by the Applicant and agreed to by the Respondents) contraventions. The Respondents submit that “there is no principled distinction to be drawn between the two sets of contraventions” being the failure to pay the casual loading and the failure to pay penalty rates. It was argued that the underpayment contraventions “substantially overlap”.[8]
[8] Gibbs v Mayor, Councillors and Citizens of the City of Altona (1992) 37 FCR 216, 223; McIver v Healey [2008] FCA 425, 29.
The Court prefers the approach of the Applicant to the matter of ‘grouping’ of contraventions, and shall adopt the eight grouping of contraventions as proposed. This gives separate recognition to each of the forms of obligation owed by the Respondents to the Employees.
As to the Respondents argument that the payment of a ‘flat rate’ by the Respondents resulted in the various breaches and should be treated as one contravention, the Court refers to the decision of Riley FM (as she then was) in Fair Work Ombudsman v Garfield Berry Farm Pty Ltd & Anor[9] wherein her Honour said:-
[9] [2010] FMCA 103, 28.
“On one view, the decision to pay Mr McKay a flat and extremely low hourly rate could be regarded as a single course of conduct. However, that is to see the situation only from the second respondent's point of view and not from the industrial umpire's point of view. For a very long time in this country, industrial instruments have provided for wages to be calculated by reference to a variety of entitlements, including whether the hours worked were ordinary time, whether the employee was a casual and whether the employee had taken annual leave to which he or she was entitled. Each of those entitlements gives rise to a separate and distinct obligation on the part of the employer. A failure to comply with any of them exposes an employer to the risk of penalty. It would be fundamentally at odds with our system of workplace entitlement to treat a breach of several obligations as if it were a breach of only one.”
The position in Fair Work Ombudsman v Garfield Berry Farm Pty Ltd & Anor[10] (that a respondent's decision to pay flat rates of pay does not warrant grouping of separate contraventions), has been adopted by this Court in many decisions. The First Respondent’s conduct in paying the Employees flat rates of pay, in which the Second Respondent was involved, resulted in more than mere technical contraventions. The Employees were deprived of a range of distinct monetary entitlements (being minimum rates of pay, casual loading, Saturday penalty rates, Sunday penalty rates and public holiday penalty rates (underpayment contraventions)) which were collectively intended to comprise a minimum safety net for the Employees. To treat the underpayment contraventions as one is to condone the deprivation of minimum entitlements to the Employees.
[10] Ibid.
A non-exhaustive list of factors relevant to the imposition of a penalty was usefully summarised by Mowbray FM (as he was then) in Mason v Harrington Corporation Pty Ltd t/as Pangaea Restaurant & Bar (‘Pangaea’).[11] The factors include:-
[11] [2007] FMCA 7, 26-59.
a)the nature and extent of the conduct which led to the breaches;
b)the circumstances in which that conduct took place;
c)the nature and extent of any loss or damage sustained as a result of the breaches;
d)whether there had been similar previous conduct by the respondent;
e)whether the breaches were properly distinct or arose out of the one course of conduct;
f)the size of the business enterprise involved;
g)whether or not the breaches were deliberate;
h)whether the party committing the breach had exhibited contrition, taken corrective action and cooperated with the enforcement authorities;
i)the need to ensure compliance with minimum standards by provision of effective means for investigation; and
j)the need for specific and general deterrence.
This summary was adopted by Tracey J in Kelly v Fitzpatrick [2007] FCA 1080, 30. While the summary is a convenient checklist, it does not prescribe or restrict the matters which may be taken into account in the exercise of the Court’s discretion.
Admission and Cooperation
By the Respondents admissions, a significant amount of Court time and public expenditure has been saved. The Respondents cooperated extensively with the Applicant during the investigative process and in particular between 12 May 2015 and 4 December 2015, including providing all documents and records as requested. The Employees were recompensed in full and immediately upon final quantification by the Applicant of the amount of the total underpayment. On 15 December 2015, the Applicant sent to Holding Redlich, solicitors for the Respondents, an email indicating final quantification of the amount of the underpayment, being $91,238.64, and provided the Employees respective banking details. On that same day the Second Respondent rectified in full the underpayments set out in the Applicant's email dated 15 December 2015 and also made superannuation contributions to each of the Employees superannuation funds. On 17 December 2015, Holding Redlich sent the Applicant an email providing the Applicant with evidence of the rectification payments having been made in full on 15 December 2015.
In my view, the Respondents are entitled to a significant discount on the penalty as a consequence of their admissions and cooperation.
Nature and Extent of the Conduct
This is not a case where I find the Respondents have exploited the vulnerability of the Employees as argued by the Applicant. They were not highly vulnerable workers in the sense sought to be established by the Applicant. However the breaches are not trivial and continued over a considerable period of time. Whilst it is a first offence, the Respondents have had some history of dealing with the Applicant:-
a)Mr Kan had dealings with the Department of Employment and Workplace Relations in 2004 in relation to a complaint from a former employee, and with the Applicant in relation to a complaint from a former employee in July 2012. These matters were resolved. On 26 June 2012, Mr Kan had been provided by the Applicant with an education pack to assist him; and to gain a greater understanding of workplace laws; and
b)the complaints with respect to the Employees in these proceedings were received by the Applicant on 24 April 2015 and 27 April 2015. Prior thereto, and on 25 February 2015, the Applicant received workplace complaint forms from two other employees of the First Respondent. On 11 March 2015 Mr Kan was advised of those complaints. Between approximately 13 March 2015 and 20 March 2015, Ms Goonan facilitated the negotiation of a settlement between Mr Kan, on behalf of the First Respondent, and the former employees. On 9 April 2015 Ms Goonan provided Mr Kan with a General Retail Industry Award 2010 Fair Work Ombudsman pay guide and extracts from the General Retail Industry Award 2010.
Size of the Business
The business is a small business. The evidence before the Court is that it employs eight people and pays the Second Respondent a small wage. The Second Respondent’s financial position as put before the Court is limited. He is the sole registered proprietor of an apartment in South Yarra with no registered encumbrance. There is no evidence as to the profits of the business.
Deliberateness of the Breaches
The sums owed to the Employees are significant. The Respondents should have known that the Employees were not being provided with their minimum entitlements. The Respondents had received relevant information from the Applicant and the Second Respondent was a member of the Australian Retail Association (ARA) from about 12 July 2013 and before that the Victorian Chamber of Commerce and Industry (VECCI). Thus, information was readily available to the Respondents, in particular that provided by the Applicant, should the Second Respondent have chosen to read it. The Second Respondent’s evidence is that he had not read such material and was unaware of his obligations. I accept his evidence in that I do not find his conduct deliberate. It was reckless or careless. I accept the Second Respondent’s regret at not being more proactive in understanding his obligations.
Contrition
The Respondents cooperated fully with the Applicant and importantly engaged an external consultant to ensure that the First Respondent’s employment practices were, and continue to be, compliant with applicable industrial legislation. Mr Partington was engaged by the Second Respondent to assist the First Respondent on about 16 April 2015 at a time before litigation was envisaged as he understood it. Mr Partington is a Human Resources and Change Management Consultant. He was engaged to ensure that the First Respondent complied with workplace laws and to that end his engagement included instructions to:-
“a) prepare documents to all staff on new employment contracts that complied with all relevant common-law and statutory requirements;
b) create position descriptions for employees;
c) create a HR Policy manual;
d) train the workforce in a number of areas; and
e) create a better workplace culture that values diversity.”
These tasks have been undertaken and Mr Partington had ongoing involvement with the business until December 2016 at least. This was a substantial commitment made by the Respondents. Mr Kan has expressed regret in the affidavit material sworn by him and I accept that he is contrite.
General Deterrence
One of the central purposes of imposing a civil penalty, in proceedings such as these, is to deter other employers from embarking on a similar course of conduct to that engaged upon by the transgressing employer. Landen J said in Ponzio v B & P Caelli Constructions Pty Ltd[12]:
[12] [2007] FCAFC 65.
“(93)…In regard to personal deterrence, an assessment must be made of the risk of re-offending. In regard to general deterrence, it is assumed that an appropriate penalty will act as a deterrent to others who might be likely to offend: Yardley v Betts (1979) 22 SASR 108. The penalty therefore should be of a kind that it would be likely to act as a deterrent in preventing similar contraventions by likeminded persons or organisations. If the penalty does not demonstrate an appropriate assessment of the seriousness of the offending, the penalty will not operate to deter others from contravening the section. However, the penalty should not be such as to crush the person upon whom the penalty is imposed or used to make that person a scapegoat. In some cases, general deterrence will be the paramount factor in fixing the penalty: R v Thompson (1975) 11 SASR 21.”
There is clearly a need for general deterrence in this case in the sense that other employers do not adopt a flat hourly rate of pay in the retail industry.
Specific Deterrence
In these proceedings, given the timely payment to the Employees of the underpayment amount and the corrective action taken by the Respondents, in particular the employment of Mr Partington, there is not an overwhelming need for specific deterrence. Mr Kan has shown a genuine commitment to change.
Conclusion
I consider that a penalty of 26% of the maximum is appropriate for each of the contraventions as grouped. I consider the aggregate of those amounts is appropriate for the total contravening conduct and is not oppressive or crushing to the Respondents.
First Respondent
Grouping
Contravention
Maximum Penalty
26%
Minimum rates of pay
Failure to pay required minimum rates of pay for ordinary house worked.
(s.45 FW Act, cl.17 Modern Award).
$51,000.00
$13,260.00
Casual loading
Failure to pay casual loading (Monday to Saturday) s.45 FW Act, cl.A.6.3 & A.6.4 of Schedule A to the Modern Award.
$51,000.00
$13,260.00
Saturday penalty rates
Failure to pay Saturday penalty rates. (s.45 FW Act, subcl.29.4(b) Modern Award & A.7.3 of Schedule A to the Modern Award.
$51,000.00
$13,260.00
Sunday penalty rates
Failure to pay Sunday penalty rates. (s.45 FW Act, sub-cl 29.4(c) Modern Award & A.7.3 of Schedule A to the Modern Award)
$51,000.00
$13,260.00
Public holiday penalty rates
Failure to pay public holiday penalty rates. (s.45 FW Act, subcl.29.4(d) Modern Award & A.7.3 of Schedule A to the Modern Award)
$51,000.00
$13,260.00
Minimum hours
Failure to engage the Employees for a minimum of three hours per day. (s.45 FW Act, cl.13.4 Modern Award)
$51,000.00
$13,260.00
Meal breaks
Failure to provide adequate meal breaks (s.45FW Act, clause 31.1 Modern Award)
$51,000.00
$13,260.00
Untaken accrued annual leave
Failure to pay untaken accrued annual leave on termination of employment (s.44 FW, subsection 90(2) FW Act)
$33,000.00
$8,580.00
Total:
$390,000.00
$101,400.00
Second Respondent
Grouping
Contravention
Maximum Penalty
26%
Minimum rates of pay
Failure to pay required minimum rates of pay for ordinary house worked.
(s.45 FW Act, cl.17 Modern Award).
$10,200.00
$2,652.00
Casual loading
Failure to pay casual loading (Monday to Saturday) s.45 FW Act, cl.A.6.3 & A.6.4 of Schedule A to the Modern Award.
$10,200.00
$2,652.00
Saturday penalty rates
Failure to pay Saturday penalty rates. (s.45 FW Act, subcl.29.4(b) Modern Award & A.7.3 of Schedule A to the Modern Award.
$10,200.00
$2,652.00
Sunday penalty rates
Failure to pay Sunday penalty rates. (s.45 FW Act, sub-cl 29.4(c) Modern Award & A.7.3 of Schedule A to the Modern Award)
$10,200.00
$2,652.00
Public holiday penalty rates
Failure to pay public holiday penalty rates. (s.45 FW Act, subcl.29.4(d) Modern Award & A.7.3 of Schedule A to the Modern Award)
$10,200.00
$2,652.00
Minimum hours
Failure to engage the Employees for a minimum of three hours per day. (s.45 FW Act, cl.13.4 Modern Award)
$10,200.00
$2,652.00
Meal breaks
Failure to provide adequate meal breaks (s.45FW Act, clause 31.1 Modern Award)
$10,200.00
$2,652.00
Untaken accrued annual leave
Failure to pay untaken accrued annual leave on termination of employment (s.44 FW, subsection 90(2) FW Act)
$6,600.00
$1,716.00
Total:
$78,000
$20,280
For these reasons, I make the orders set out at commencement.
I certify that the preceding forty (40) paragraphs are a true copy of the reasons for judgment of Judge Hartnett
Date: 6 February 2017
‘Annexure A’
IN THE FEDERAL CIRCUIT COURT File number: MLG2825/2015
OF AUSTRALIA
MELBOURNE REGISTRY
FAIR WORK DIVISION
FAIR WORK OMBUDSMAN
Applicant
SOMETHING AUSSIE PTY LTD
(ACN 136 956 351)
First Respondent
KUAN KOK KAN
Second Respondent
STATEMENT OF AGREED FACTS
This Statement of Agreed Facts (SOAF) is an agreed document of the Applicant and the First and Second Respondents (collectively, the Respondents) made in these proceedings for the purposes of section 191 of the Evidence Act 1995 (Cth).
APPLICATION
On 18 December 2015, the Applicant filed an Application and Statement of Claim in this Court against the Respondents, in respect of underpayments amounting to $91,238.64 (Underpayment) by the First Respondent of the following employees:
(a)Ms Hoan-Lien Vuu, also known as ‘Julie’ (Ms Vuu);
(b)Ms Jaruvadee Vattanarom, also known as ‘Tam’ (Ms Vattanarom); and
(c)Ms Kittitara Saenyamas, also known as ‘Kitty’ (Ms Saenyamas),
(collectively, the Employees).
ADMITTED CONTRAVENTIONS
The First Respondent admits that it contravened the following civil remedy provisions:
(a)section 45 of the FW Act, by failing to pay the Employees the minimum rates of pay prescribed by clause 17 of the General Retail Industry Award 2010 (Modern Award);
| Filed on behalf of | The Parties | |||||||||||||||
| Prepared by | Lyndal Ablett | Lawyer’s code | ||||||||||||||
| Name of law firm | Office of the Fair Work Ombudsman | |||||||||||||||
| Address for service in Australia | Level 5, 414 La Trobe Street | |||||||||||||||
| MELBOURNE | State | VIC | Postcode | 3000 | ||||||||||||
| [email protected] | DX | |||||||||||||||
| Tel | (03) 9954 2963 | Fax | Attention | Lyndal Ablett | ||||||||||||
(b)section 45 of the FW Act, by failing to pay each of the Employees casual loading (for Monday to Saturday) prescribed by clause 13.2 of the Modern Award and clauses A.6.3 and A.6.4 of Schedule A to the Modern Award;
(c)section 45 of the FW Act, by failing to pay each of the Employees casual loading (for Sunday) prescribed by clauses A.6.3 and A.6.4 of Schedule A to the Modern Award;
(d)section 45 of the FW Act, by failing to pay each of the Employees Saturday penalty rates prescribed by subclause 29.4(b) of the Modern Award and clause A.7.3 of Schedule A to the Modern Award;
(e)section 45 of the FW Act, by failing to pay each of the Employees Sunday penalty rates prescribed by subclause 29.4(c) of the Modern Award and A.7.3 of Schedule A to the Modern Award;
(f)section 45 of the FW Act, by failing to pay each of the Employees public holiday penalty rates prescribed by subclause 29.4(d) of the Modern Award and clause A.7.3 of Schedule A to the Modern Award;
(g)section 45 of the FW Act, by failing to engage the Employees for a minimum of three hours per day in contravention of clause 13.4 of the Modern Award;
(h)section 45 of the FW Act, by failing to provide meal breaks of at least 30 minutes after five hours’ work before 23 August 2013 and after more than five hours work from 23 August 2013 in contravention of clause 31.1 of the Modern Award; and
(i)subsection 90(2) of the FW Act, by failing to pay untaken paid annual leave and annual leave loading to Ms Vuu on termination of her employment.
(collectively, the Admitted Contraventions).
The Second Respondent admits that he was involved, for the purposes of section 550 of the FW Act, in each of the Admitted Contraventions set out in paragraph 2 above.
The Respondents admit that the Admitted Contraventions resulted in the underpayment of $91,238.64 (Underpayment).
AGREED FACTS
The Applicant
The Applicant, the Fair Work Ombudsman, is and was at all material times:
(a)appointed by the Governor-General by written instrument to the office of Fair Work Ombudsman pursuant to subsection 687(1) of the FW Act;
(b)a Fair Work Inspector 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
The First Respondent, Something Aussie Pty Ltd, is and was, at all material times:
(a)a body incorporated under the provisions of the Corporations Act 2001 (Cth);
(b)able to sue and be sued in its corporate name and style;
(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 of the FW Act;
(e)an entity operating a business as a retail shop in North Melbourne in the State of Victoria, trading as “Something Aussie” (Shop), selling Australian souvenirs, Aboriginal art and Australian beauty products; and
(f)the entity that employed each of the Employees.
The Second Respondent
The Second Respondent, Mr Kuan Kok Kan, is and was at all material times:
(a)a director of the First Respondent;
(b)the shareholder of the First Respondent, holding all of the shares;
(c)responsible for the overall direction, management and supervision of the First Respondent’s operations in relation to industrial instruments and arrangements, setting and adjusting pay rates, and determining wages and conditions of employment;
(d)the person who authorised decisions regarding the First Respondent’s operations including decisions regarding the employment of staff and employee entitlements;
(e)by reason of the matters pleaded in subparagraphs (c) and (d) above, a person responsible in a practical sense for ensuring that the First Respondent complied with its legal obligations to its employees under the FW Act;
(f)a person to whom each of the Employees ultimately reported during their respective periods of employment with the First Respondent;
(g)by reason of subsection 793(1) of the FW Act, a person whose conduct, when engaged in on behalf of the First Respondent, and within the scope of his actual or apparent authority, was conduct engaged in by the First Respondent; and
(h)by reason of subsection 793(2) of the FW Act, a person whose state of mind was the state of mind of the First Respondent, for conduct engaged in within the scope of his actual or apparent authority.
The Employees
The First Respondent employed the Employees during the following periods:
(a)Ms Vuu from 1 February 2010 to 28 March 2010 and from 26 April 2010 to 22 April 2015;
(b)Ms Vattanarom from 8 June 2011 to 23 April 2015; and
(c)Ms Saenyamas from 1 June 2012 to 22 April 2015,
(the Employment Periods).
Ms Vuu
At all times during her Employment Period, Ms Vuu:
(a)was a permanent resident of Australia;
(b)from 1 February 2010 to 28 March 2010:
(i) was employed by the First Respondent on a full-time basis;
(ii) was employed by the First Respondent as a shop assistant; and
(iii) performed duties including stock counting, stocking shelves and serving customers;
(c)from 26 April 2010 to 30 June 2012, Ms Vuu:
(i) was employed by the First Respondent on a casual basis;
(ii) was employed by the First Respondent as a shop assistant; and
(iii) performed duties including stock counting, stocking shelves and serving customers; and
(d)from 1 July 2012 to 22 April 2015, Ms Vuu;
(i) was employed by the First Respondent as a supervisor; and
(e)performed duties including supervising activities within the Shop, such as rostering staff, purchasing stock, opening and closing the Shop, cash handling and security of cash, under general supervision from the Second Respondent, as well as serving customers.
During her Employment Period, the First Respondent’s pay records set out that Ms Vuu was paid the following flat hourly rates:
(a)$16.50 from 1 February 2010 to 28 March 2010;
(b)$16.50 from 26 April 2010 to 20 June 2010;
(c)$16.67 from 21 June 2010 to 4 July 2010;
(d)$18.00 from 5 July 2010 to 17 July 2011;
(e)$22.47 from 18 July 2011 to 31 July 2011;
(f)$20.00 from 1 August 2011 to 26 August 2012;
(g)$37.66 from 27 August 2012 to 9 September 2012;
(h)$23.50 from 10 September 2012 to 20 October 2013;
(i)$24.21 from 21 October 2013 to 25 January 2015;
(j)$51.10 from 26 January 2015 to 8 February 2015; and
(k)$25.42 from 9 February 2015 to 22 April 2015.
During her Employment Period, the First Respondent did not pay Ms Vuu:
(a)any additional pay for work performed on Saturdays, Sundays and public holidays; and
(b)any additional amount for casual loading from 26 April 2010 to 22 April 2015.
Ms Vattanarom
Ms Vattanarom is from a non-English speaking background and spoke limited English throughout her Employment Period.
At all times during her Employment Period, Ms Vattanarom:
(a)held, at different times, a student visa or a partner visa;
(b)was employed by the First Respondent on a casual basis;
(c)was employed by the First Respondent as a shop assistant; and
(d)performed duties including retail sales to local and overseas customers and performed some advertising and marketing activities.
During her Employment Period, the First Respondent’s pay records set out that Ms Vattanarom was paid the following flat hourly rates:
(a)$17.00 from 8 June 2011 to 26 August 2012;
(b)$19.11 from 27 August 2012 to 9 September 2012;
(c)$17.50 from 10 September 2012 to 20 October 2013;
(d)$18.38 from 21 October 2013 to 25 January 2015;
(e)$50.44 from 26 January 2015 to 22 February 2015;
(f)$19.30 from 23 February 2015 to 19 April 2015; and
(g)$23.15 from 20 April 2015 to 23 April 2015.
During her Employment Period, the First Respondent did not pay Ms Vattanarom:
(a)any additional pay for work performed on Saturdays, Sundays and public holidays; and
(b)any additional amount for casual loading.
Ms Saenyamas
Ms Saenyamas:
(a)is from a non-English speaking background and spoke limited English throughout her Employment Period;
(b)was subject to a partner visa when she commenced employment with the First Respondent and later became a permanent resident;
(c)was employed by the First Respondent on a casual basis; and
(d)was employed by the First Respondent as a shop assistant and performed duties including retail sales to local and overseas customers.
During her Employment Period, the First Respondent’s pay records set out that Ms Saenyamas was paid the following flat hourly rates:
(a)$16.00 from 1 June 2012 to 26 August 2012;
(b)$23.64 from 27 August 2012 to 9 September 2012;
(c)$17.50 from 10 September 2012 to 20 October 2013;
(d)$17.85 from 21 October 2013 to 25 January 2015;
(e)$30.20 from 26 January 2015 to 8 February 2015;
(f)$18.74 from 9 February 2015 to 19 April 2015; and
(g)$23.15 from 20 April 2015 to 22 April 2015.
During her Employment Period, the First Respondent did not pay Ms Saenyamas:
(a)any additional pay for work performed on Saturdays, Sundays and public holidays; and
(b)any additional amount for casual loading.
Relevant legislation
During the Employees’ respective Employment Periods, the First Respondent was bound in respect of each Employee by the FW Act and the Fair Work Regulations 2009 (Cth) (FW Regulations).
Relevant industrial instruments
The First Respondent was covered by the Modern Award with respect to the employment of the Employees.
| Employee name | Period | Classification |
| Ms Vuu | 1 February 2010 to 28 March 2010 | Retail Employee Level 1 |
| 26 April 2010 to 30 June 2012 | ||
| 1 July 2012 to 22 April 2015 | Retail Employee Level 3 | |
| Ms Vattanarom | 8 Jun 2011 to 23 April 2015 | Retail Employee Level 1 |
| Ms Saenyamas | 1 June 2010 to 22 April 2015 | Retail Employee Level 1 |
The Employees were properly classified in the following classifications during their respective Employment Periods:
For the purposes of phasing wage rates and penalties in accordance with Schedule A of the Modern Award, the Australian Pay and Classification Scale derived from the Shop, Distributive and Allied Employees Association – Victorian Shops Interim Award 2000 (Pay Scale) applied to the First Respondent.
CONTRAVENTIONS BY THE FIRST RESPONDENT
Failure to pay minimum rates of pay – contravention of clause 17 of the Modern Award
During the Employees’ respective Employment Periods, the First Respondent was required to pay the Employees the following minimum rates of pay in accordance with clause 17 of the Modern Award:
First full pay period on or after Minimum rate payable Retail Employee Level 1 1 January 2010 $15.86 1 July 2010 $16.47 1 July 2011 $17.03 1 July 2012 $17.53 1 July 2013 $17.98 1 July 2014 $18.52 Retail Employee Level 3 1 January 2010 $16.80 1 July 2010 $17.13 1 July 2011 $17.71 1 July 2012 $18.23 1 July 2013 $18.70 1 July 2014 $19.26
The ordinary hours worked, minimum entitlements, amounts paid and the underpayment amounts are set out in Table 1 of Schedule A.
By reason of the matters admitted in paragraphs 22 and 23 above, during the Employees’ respective Employment Periods, the wages paid to the Employees were insufficient to satisfy the Employees’ entitlement to minimum rates of pay for ordinary hours worked pursuant to clause 17 of the Modern Award.
Failure to pay casual loading (for Monday to Saturday) – contraventions of clause 13.2 of the Modern Award and clauses A.6.3 and A.6.4 of Schedule A to the Modern Award
The First Respondent was required to pay the Employees the following casual loading for ordinary hours of work performed Monday to Saturday, in accordance with clause 13.2 of the Modern Award and clauses A.6.3 and A.6.4 of Schedule A of the Modern Award:
First full pay period on or after Minimum rate payable Casual loading payable (ordinary weeks) (25%) Total rate including casual loading (ordinary weeks) Casual loading payable where 2 public holidays in one week Total rate including 2 public holiday casual loading Retail Employee Level 1 1 Jan 2010 $15.86 $3.97 $19.83 $7.93 (50%) $23.79 1 July 2010 $16.47 $4.12 $20.59 $7.41 (45%) $23.88 1 July 2011 $17.03 $4.26 $21.29 $6.81 (40%) $23.84 1 July 2012 $17.53 $4.43 $21.96 $6.14 (35%) $23.67 1 July 2013 $17.98 $4.55 $22.53 $5.39 (30%) $23.37 1 July 2014 $18.52 $4.63 $23.15 $4.63 (25%) $23.15 Retail Employee Level 3 1 Jan 2010 $16.80 $4.20 $21.00 $8.40 (50%) $25.40 1 July 2010 $17.13 $4.28 $21.41 $7.71 (45%) $24.84 1 July 2011 $17.71 $4.43 $22.14 $7.08 (40%) $24.79 1 July 2012 $18.23 $4.56 $22.79 $6.38 (35%) $24.61 1 July 2013 $18.70 $4.68 $23.38 $5.61 (30%) $24.31 1 July 2014 $19.26 $4.82 $24.08 $4.82 (25%) $24.08
The ordinary hours worked on Monday to Saturday where casual loading was payable, minimum entitlements, amounts paid and underpayment amounts are set out in Table 2 of Schedule A.
By reason of the matters admitted in paragraphs 25 and 26 above, the wages paid to the Employees were insufficient to satisfy the Employees’ entitlement to casual loading for ordinary hours worked on Monday to Saturday pursuant to clause 13.2 of the Modern Award and clauses A.6.3 and A.6.4 of Schedule A to the Modern Award.
Failure to pay casual loading (for Sunday) – contraventions of clauses A.6.3 and A.6.4 of Schedule A to the Modern Award
The First Respondent was required to pay the Employees the following transitional casual loading for ordinary hours of work performed on a Sunday, in accordance with clauses A.6.3 and A.6.4 of Schedule A to the Modern Award:
First full pay period on or after Minimum rate payable Sunday casual loading payable (ordinary weeks) Total rate including Sunday casual loading (ordinary weeks) Sunday casual loading payable where 2 public holidays in one week Total rate including 2 public holiday Sunday casual loading Retail Employee Level 1 1 Jan 2010 $15.86 $3.97 (25%) $19.83 $7.93 (50%) $23.79 1 July 2010 $16.47 $3.30 (20%) $19.77 $6.59 (40%) $23.06 1 July 2011 $17.03 $2.56 (15%) $19.59 $5.11 (30%) $22.14 1 July 2012 $17.53 $1.75 (10%) $19.28 $3.51 (20%) $21.04 1 July 2013 $17.98 $0.91 (5%) $18.89 $1.80 (10%) $19.78 1 July 2014 $18.52 N/A $18.52 N/A $18.52 Retail Employee Level 3 1 Jan 2010 $16.80 $4.20 (25%) $21.00 $8.40 (50%) $25.40 1 July 2010 $17.13 $3.43 (20%) $20.56 $6.85 (40%) $23.98 1 July 2011 $17.71 $2.66 (15%) $20.37 $5.31 (30%) $23.02 1 July 2012 $18.23 $1.82 (10%) $20.05 $3.65 (20%) $21.88 1 July 2013 $18.70 $0.94 (5%) $19.64 $1.87 (10%) $20.57 1 July 2014 $19.26 N/A $19.26 N/A $19.26
The ordinary hours worked on Sundays where casual loading was payable, minimum entitlements, amounts paid and underpayment amounts are set out in Table 3 of Schedule A.
By reason of the matters admitted in paragraphs 28 and 29 above, the wages paid to the Employees were insufficient to satisfy the Employees’ entitlement to casual loading for ordinary hours worked on Sundays pursuant to clauses A.3.6 and A.6.4 of Schedule A to the Modern Award.
Failure to pay Saturday penalty rates – contraventions of subclause 29.4(b) of the Modern Award and clause A.7.3 of Schedule A to the Modern Award
The First Respondent was required to pay the Employees the following penalty rates for ordinary hours of work performed on a Saturday, in accordance with subclause 29.4(b) of the Modern Award and clause A.7.3 of Schedule A to the Modern Award:
First full pay period on or after Additional Saturday amount payable Retail Employee Level 1 1 Jan 2010 N/A 1 July 2010 $0.33 (2%) 1 July 2011 $0.68 (4%) 1 July 2012 $1.05 (6%) 1 July 2013 $1.44 (8%) 1 July 2014 $1.85 (10%) Retail Employee Level 3 1 Jan 2010 N/A 1 July 2010 $0.34 (2%) 1 July 2011 $0.71 (4%) 1 July 2012 $1.10 (6%) 1 July 2013 $1.50 (8%) 1 July 2014 $1.93 (10%)
The hours worked on Saturdays where Saturday penalties were payable, minimum entitlements, amounts paid and underpayment amounts are set out in Table 4 of Schedule A.
By reason of the matters admitted in paragraphs 31 and 32 above, the wages paid to the Employees were insufficient to satisfy the Employees’ entitlement to Saturday penalty rates for ordinary hours worked on Saturdays pursuant to subclause 29.4(b) of the Modern Award and clause A.7.3 of Schedule A to the Modern Award.
Failure to pay Sunday penalty rates - contraventions of subclause 29.4(c) of the Modern Award and clause A.7.3 of Schedule A to the Modern Award
The First Respondent was required to pay the Employees the following penalty rates for ordinary hours of work performed on a Sunday (inclusive of casual loading), in accordance with subclause 29.4(c) of the Modern Award and clause A.7.3 of Schedule A to the Modern Award:
First full pay period on or after Additional Sunday amount payable Retail Employee Level 1 1 Jan 2010 N/A 1 July 2010 $3.29 (20%) 1 July 2011 $6.81 (40%) 1 July 2012 $10.52 (60%) 1 July 2013 $14.38 (80%) 1 July 2014 $18.52 (100%) Retail Employee Level 3 1 Jan 2010 N/A 1 July 2010 $3.43 (20%) 1 July 2011 $7.09 (40%) 1 July 2012 $10.93 (60%) 1 July 2013 $14.96 (80%) 1 July 2014 $19.26 (100%)
The hours worked on Sundays, minimum entitlements, amounts paid and underpayment amounts are set out at Table 5 of Schedule A.
By reason of the matters admitted in paragraphs 34 and 35 above, the wages paid to the Employees were insufficient to satisfy the Employees’ entitlement to Sunday penalty rates for ordinary hours worked on Sundays pursuant to subclause 29.4(c) of the Modern Award and clause A.7.3 of Schedule A to the Modern Award.
Failure to pay public holiday penalty rates – contravention of subclause 29.4(d) of the Modern Award and clause A.7.3 of Schedule A to the Modern Award
The First Respondent was required to pay the Employees the following penalty rates for ordinary hours of work performed on a public holiday, in accordance with subclause 39.4(d) of the Modern Award and clause A.7.3 of Schedule A of the Modern Award:
First full pay period on or after Additional public holiday amount payable Retail Employee Level 1 1 Jan 2010 N/A 1 July 2010 $4.94 (30%) 1 July 2011 $10.22 (60%) 1 July 2012 $15.78 (90%) 1 July 2013 $21.58 (120%) 1 July 2014 $27.78 (150%) Retail Employee Level 3 1 Jan 2010 N/A 1 July 2010 $5.14 (30%) 1 July 2011 $10.63 (60%) 1 July 2012 $16.41 (90%) 1 July 2013 $22.44 (120%) 1 July 2014 $28.89 (150%)
The hours worked on public holidays, minimum entitlements and amounts paid are set out at Table 6 of Schedule A.
By reason of the matters admitted at paragraphs 37 and 38 above, the wages paid to the Employees were insufficient to satisfy the Employees’ entitlement to public holiday penalty rates for ordinary hours worked on a public holiday pursuant to subclause 29.4(d) of the Modern Award and clause A.7.3 of Schedule A to the Modern Award.
Failure to engage the Employees for a minimum of three hours – contravention of clause 13.4 of the Modern Award
During the Employees’ respective Employment Periods and after 1 July 2010, the First Respondent was required to engage the Employees for a minimum of three hours per daily engagement, in accordance with clause 13.4 of the Modern Award.
During their Employment Periods, each of the Employees worked shifts of less than three hours on a number of occasions.
By reason of the matters admitted in paragraphs 40 and 41 above, the First Respondent failed to engage the Employees for shifts of a minimum of three hours per daily engagement pursuant to clause 13.4 of the Modern Award.
Failure to pay annual leave and annual leave loading on termination – contravention of subsection 90(2) of the FW Act
In accordance with subsection 90(2) of the FW Act, the First Respondent was required, when the employment of an employee ended and the employee had an amount of accrued annual and untaken annual leave, to pay the employee the amount that would have been payable to the employee had the employee taken that period of leave.
During the period from 1 February 2010 to 28 March 2010, Ms Vuu accrued paid annual leave.
Upon resignation of her employment on 28 March 2010, the First Respondent failed to pay Ms Vuu her accrued and untaken annual leave and annual leave loading on termination of her employment.
The annual leave accrued, minimum entitlements and the underpayment amount are outlined in Table 7 of schedule A.
By reason of the matters admitted in paragraphs 43 to 46 above, the First Respondent failed to pay Ms Vuu her accrued and untaken annual leave and annual leave loading on termination of her employment pursuant to subsection 90(2) of the FW Act.
Total Underpayment
By reason of the matters admitted in paragraphs 22 to 47 above, the First Respondent caused the Underpayment as set out in Table 8 of Schedule A.
Failure to provide meal breaks of at least 30 minutes – contravention of clause 31.1 of the Modern Award
The First Respondent was required by clause 31.1 of the Modern Award, to provide its employees with a meal break of at least 30 minutes and no more than 60 minutes:
(a)In the period before 23 August 2013, after five hours worked; and,
(b)In the period after 23 August 2013, after more than five hours worked.
During their respective Employment Periods, prior to 23 August 2013, the Employees worked shifts of at least five hours and were not given a break of at least 30 minutes on a number of occasions.
During their respective Employment Periods, from 23 August 2013, the Employees worked shifts of more than five hours and were not given a break of at least 30 minutes on a number of occasions.
By reason of the matters admitted at paragraphs 49 to 51 above, the First Respondent failed to provide the Employees with their full respective entitlements to a meal break of between 30 minutes and 60 minutes in contravention of clause 31.1 of the Modern Award.
ACCESSORIAL LIABILITY OF THE SECOND RESPONDENT
The Second Respondent’s liability for the underpayment contraventions
At all relevant times during the Employees’ respective Employment Periods and pursuant to the matters admitted at subparagraphs 7(a) to 7(f) above, the Second Respondent:
(a)knew the duties performed by each of the Employees as set out in subparagraphs 9(b)(iii),9(c)(iii), 9(e), 13(d) and 16(d) above;
(b)knew that Ms Vuu was employed as a full-time employee from 1 February 2010 to 28 March 2010;
(c)knew that the Employees were engaged on a casual basis during their respective Employment Periods, subject to subparagraph (b) above;
(d)knew that each of the Employees performed work:
(i) on Mondays to Fridays;
(ii) on Saturdays;
(iii) on Sundays;
(iv) on public holidays; and
(e)knew the amounts paid by the First Respondent to each of the Employees during their respective Employment Periods.
At all relevant times, the Second Respondent:
(a)knew, for the purposes of section 550 of the FW Act, that the First Respondent was bound in respect of each Employee by the FW Act and the FW Regulations during the Employees’ respective Employment Periods; and
(b)knew for the purposes of section 550 of the FW Act, during the Employees’ respective Employment Periods, that the First Respondent was covered by the Modern Award.
By reason of the matters admitted in paragraphs 7, 53 and 54 above, the Second Respondent was involved in each of the First Respondents contraventions as set out in paragraphs 24, 27, 30, 33, 36, 39 and 42 above, and admitted in paragraph 2 above.
The Second Respondent’s liability for the general contraventions of the Modern Award and the FW Act
The Second Respondent was aware that:
(a)between 1 February 2010 to 28 March 2010 Ms Vuu:
(i) was employed by the First Respondent as a full-time employee;
(ii) accrued paid annual leave; and
(iii) did not take any paid annual leave; and
(b)on resignation of her employment:
(i) Ms Vuu had accrued untaken annual leave; and
(ii) the First Respondent did not pay Ms Vuu her entitlement to her untaken accrued annual leave.
The Second Respondent was:
(i) the person responsible for authorising the creation of pay slips kept by the First Respondent;
(ii) aware that the pay slips issued to Ms Vuu during the period 3 February 2010 to 28 March 2010 recorded accruing annual leave; and
By reason of the matters admitted in paragraphs 56 and 57 above, the Second Respondent failed to ensure that Ms Vuu was paid her annual leave entitlements upon termination of her employment and was in involved in the First Respondent’s contravention of subsection 90(2) of the FW Act as set out in paragraph 47 above and admitted in paragraph 2 above.
The Second Respondent:
(a)permitted a system of work which failed to ensure the Employees’ entitlements to meal breaks; and
(b)was involved in the First Respondent's contravention of clause 31.1 of the Modern Award as set out in paragraph 52 above and admitted in paragraph 2 above.
RECTIFICATION OF UNDERPAYMENT
The First Respondent has rectified the Underpayment by paying the Employees the underpayment amounts outlined in Table 8 of Schedule A on 15 December 2015.
AGREED ORDERS
The Applicant and the Respondent agree to the following:
(a)Declarations that the First Respondent contravened the following civil remedy provisions:
(i) section 45 of the FW Act, by failing to pay the Employees the minimum rates of pay prescribed by clause 17 of the Modern Award;
(ii) section 45 of the FW Act, by failing to pay each of the Employees casual loading (for Monday to Saturday) prescribed by clause 13.2 of the Modern Award and clauses A.6.3 and A.6.4 of Schedule A to the Modern Award;
(iii) section 45 of the FW Act, by failing to pay each of the Employees casual loading (for Sunday) prescribed by clauses A.6.3 and A.6.4 of Schedule A to the Modern Award;
(iv) section 45 of the FW Act, by failing to pay each of the Employees Saturday penalty rates prescribed by subclause 29.4(b) of the Modern Award and clause A.7.3 of Schedule A to the Modern Award;
(v) section 45 of the FW Act, by failing to pay each of the Employees Sunday penalty rates prescribed by subclause 29.4(c) of the Modern Award and A.7.3 of Schedule A to the Modern Award;
(vi) section 45 of the FW Act, by failing to pay each of the Employees public holiday penalty rates prescribed by subclauses 29.4(d) of the Modern Award and clause A.7.3 of Schedule A to the Modern Award;
(vii) section 45 of the FW Act, by failing to engage the Employees for a minimum of three hours per day in contravention of clause 13.4 of the Modern Award;
(viii) section 45 of the FW Act, by failing to provide meal breaks of at least 30 minutes after five hours’ work before 23 August 2013 and after more than five hours work from 23 August 2013 in contravention of clause 31.1 of the Modern Award; and
(ix) subsection 90(2) of the FW Act, by failing to pay untaken paid annual leave and annual leave loading to Ms Vuu on termination of her employment.
(b)A declaration that the Second Respondent was involved, pursuant to section 550 of the FW Act, in each of the contraventions committed by the First Respondent, as set out in subparagraph (a) above.
(c)Orders that:
(i) the First Respondent pay penalties pursuant to subsection 546(1) of the FW Act for its contraventions set out in subparagraph (a) as the Court considers appropriate; and
(ii) the Second Respondent pay penalties pursuant to subsection 546(1) of the FW Act for his involvement in the contraventions set out in subparagraph (a) as the Court considers appropriate.
(d)Orders pursuant to subsection 546(3)(a) of the FW Act requiring the First Respondent and Second Respondent to pay their respective penalty amounts to the Consolidated Revenue Fund of the Commonwealth.
(e)Orders requiring the First Respondent to pay any amounts ordered in penalty to the Commonwealth within twenty-eight days of the order for payment.
(f)Orders requiring the Second Respondent to pay any amounts ordered in penalty to the Commonwealth within eighty four days of the order for payment.
(g)Such further or other orders as the Court deems fit.
| …………………………………………. Signed: Solicitor employed by the Office of the Fair Work Ombudsman, for the Applicant Date: | …………………………………………. Signed: Holding Redlich, Solicitors for the Respondent Date: |
SCHEDULE A
Table 1
Underpayment of minimum rates of pay for ordinary hours worked
| Column 1 | Column 2 | Column 3 | Column 4 | Column 5 | Column 6 | Column 7 |
| Employee | Pay Period from | Ordinary hours worked | Minimum Entitlement Rate | Total Entitlement | Amounts paid | Total Difference (Underpayment) |
| Ms Vuu | 1 January 2010 | 545.92 | $15.86 | $8,658.29 | $9,039.18 | ($2.92) |
| 1 July 2010 | 1720.70 | $16.47 | $28,339.93 | $24,458.28 | ($3,882.17) | |
| 1 July 2011 | 946.92 | $17.03 | $16,126.05 | $16,131.16 | $0.00 | |
| 1 January 2011 | 1039.49 | $17.71 | $18,409.37 | $18,405.12 | ($4.67) | |
| 1 July 2012 | 1713.25 | $18.23 | $31,232.55 | $31,233.04 | $0.00 | |
| 1 July 2013 | 1546.08 | $18.70 | $28,911.70 | $28,687.57 | ($224.40) | |
| 1 July 2014 | 1065.09 | $19.26 | $20,513.63 | $20,513.64 | ($0.01) | |
| SUBTOTAL | 8577.45 | $152,191.52 | $148,467.99 | ($4,114.17) | ||
| Ms Vattanarom | 1 July 2010 | 76.74 | $16.47 | $1,263.91 | $1,263.81 | $0.00 |
| 1 July 2011 | 742.56 | $17.03 | $12,645.80 | $12,488.33 | ($158.46) | |
| 1 July 2012 | 1132.06 | $17.53 | $19,845.01 | $19,361.36 | ($484.45) | |
| 1 July 2013 | 1793.39 | $17.98 | $32,245.15 | $31,230.29 | ($1,014.17) | |
| 1 July 2014 | 1328.01 | $18.52 | $24,594.75 | $24,593.12 | $0.00 | |
| SUBTOTAL | 5072.76 | $90,594.62 | $88,936.91 | ($1,657.08) | ||
| Ms Saenyamas | 1 July 2011 | 152.32 | $17.03 | $2,594.01 | $2,440.00 | ($154.00) |
| 1 July 2012 | 1257.45 | $17.53 | $22,043.10 | $21,690.77 | ($353.07) | |
| 1 July 2013 | 1661.17 | $17.98 | $29,867.84 | $29,370.68 | ($497.33) | |
| 1 July 2014 | 1368.20 | $18.52 | $25,339.06 | $25,304.72 | ($33.76) | |
| SUBTOTAL | 4439.14 | $79,844.01 | $78,806.17 | ($1,038.16) | ||
| Total | $322,630.15 | $316,211.07 | $6,809.41 |
Table 2
Underpayment of casual loading for Monday to Saturday
| Column 1 | Column 2 | Column 3 | Column 4 | Column 6 | Column 7 | Column 8 | Column 9 | |
| Employee | Pay Period from | Ordinary hours worked | Casual loading rate | Casual loading rate where employee worked in weeks where two or more public holidays fell | Total Entitlement | Amounts paid | Total Difference (Underpayment) | |
| Ms Vuu | 1 January 2010 | 243.17 | $3.97 | $3.97 | $965.38 | $167.71 | ($797.81) | |
| 1 July 2010 | 1552.02 | $4.12 | $7.41 | $6,662.19 | $2,492.82 | ($4,169.33) | ||
| 1 July 2011 | 755.42 | $4.26 | $6.81 | $3,309.69 | $2,762.95 | ($546.78) | ||
| 1 January 2011 | 853.99 | $4.43 | $7.08 | $3,866.65 | $2,347.46 | ($1,519.41) | ||
| 1 July 2012 | 1360.50 | $4.55 | $6.38 | $6,228.56 | $5,665.89 | ($586.35) | ||
| 1 July 2013 | 1181.59 | $4.68 | $5.61 | $5,586.34 | $5,530.16 | ($83.49) | ||
| 1 July 2014 | 768.25 | $4.82 | N/A | $3,702.97 | $3,711.08 | $0.00 | ||
| SUBTOTAL | 6714.94 | $30,321.78 | $22,678.07 | ($7,703.17) | ||||
| Ms Vattanarom | 1 July 2010 | 72.07 | $4.12 | $4.12 | $296.93 | $113.19 | ($183.73) | |
| 1 July 2011 | 676.90 | $4.26 | $6.81 | $2,938.83 | $142.67 | ($2,796.58) | ||
| 1 July 2012 | 862.31 | $4.38 | $6.14 | $3,873.72 | $535.51 | ($3,361.87) | ||
| 1 July 2013 | 1470.53 | $4.50 | $5.40 | $6,703.94 | $954.58 | ($5,749.46) | ||
| 1 July 2014 | 1299.26 | $4.63 | N/A | $6,015.57 | $1,532.46 | ($4,742.44) | ||
| SUBTOTAL | 4381.07 | $19,828.99 | $3,278.41 | ($16,834.08) | ||||
| Ms Saenyamas | 1 July 2011 | 137.24 | $4.26 | $4.26 | $584.64 | $0.00 | ($584.64) | |
| 1 July 2012 | 1129.78 | $4.38 | $6.14 | $5,035.26 | $250.48 | ($4,785.04) | ||
| 1 July 2013 | 1320.00 | $4.50 | $5.40 | $6,003.06 | $175.58 | ($5,827.74) | ||
| 1 July 2014 | 1114.94 | $4.63 | N/A | $5,162.17 | $677.81 | ($4,484.52) | ||
| SUBTOTAL | 3701.96 | $16,785.13 | $1,103.87 | ($15,681.94) | ||||
| Total | $66,935.90 | $27,060.35 | $40,219.19 | |||||
Table 3
Underpayment of casual loading for Sunday
| Column 1 | Column 2 | Column 3 | Column 4 | Column 6 | Column 7 | Column 8 | Column 9 | |
| Employee | Pay Period from | Ordinary hours worked | Casual loading rate | Casual loading rate where employee worked in weeks where two or more public holidays fell | Total Entitlement | Amounts paid | Total Difference (Underpayment) | |
| Ms Vuu | 1 January 2010 | 10.50 | $3.97 | $3.97 | $41.69 | $0.00 | ($41.69) | |
| 1 July 2010 | 168.68 | $3.30 | $6.59 | $616.69 | $70.13 | ($546.56) | ||
| 1 July 2011 | 191.50 | $2.56 | N/A | $490.24 | $38.40 | ($451.84) | ||
| 1 January 2011 | 185.50 | $2.66 | $5.31 | $535.17 | $0.00 | ($535.17) | ||
| 1 July 2012 | 352.75 | $1.82 | $3.65 | $655.73 | $536.99 | ($125.63) | ||
| 1 July 2013 | 364.49 | $0.94 | $1.87 | $364.71 | $364.78 | ($7.21) | ||
| SUBTOTAL | 1273.42 | $2,704.23 | $1,010.30 | ($1,708.07) | ||||
| Ms Vattanarom | 1 July 2010 | 4.67 | $3.30 | $3.30 | $15.41 | $0.00 | ($15.41) | |
| 1 July 2011 | 65.66 | $2.56 | $5.11 | $168.09 | $0.00 | ($168.09) | ||
| 1 July 2012 | 269.75 | $1.75 | $3.51 | $496.56 | $52.59 | ($444.10) | ||
| 1 July 2013 | 322.86 | $0.91 | $1.80 | $307.15 | $28.45 | ($278.81) | ||
| SUBTOTAL | 662.94 | $987.21 | $81.04 | ($906.41) | ||||
| Ms Saenyamas | 1 July 2011 | 15.08 | $2.56 | N/A | $38.60 | $0.00 | ($38.60) | |
| 1 July 2012 | 127.67 | $1.75 | $3.51 | $223.42 | $0.00 | ($223.42) | ||
| 1 July 2013 | 341.17 | $0.91 | $1.80 | $328.56 | $0.00 | ($328.56) | ||
| SUBTOTAL | 483.92 | $590.58 | $0.00 | ($590.58) | ||||
| Total | $4,282.02 | $1,091.34 | $3,205.06 | |||||
Table 4
Underpayment of Saturday penalties
| Column 1 | Column 2 | Column 3 | Column 4 | Column 5 | Column 6 | Column 7 | |
| Employee | Pay Period from | Saturday hours worked | Penalty Rate | Total Entitlement | Amounts paid | Total Difference (Underpayment) | |
| Ms Vuu | 1 July 2010 | 363.50 | $0.33 | $119.96 | $8.76 | ($111.40) | |
| 1 July 2011 | 187.75 | $0.68 | $127.67 | $10.88 | ($116.79) | ||
| 1 January 2011 | 162.41 | $0.71 | $115.31 | $0.00 | ($115.31) | ||
| 1 July 2012 | 318.50 | $1.10 | $350.35 | $282.70 | ($67.65) | ||
| 1 July 2013 | 252.50 | $1.49 | $376.23 | $376.33 | $0.00 | ||
| 1 July 2014 | 257.50 | $1.92 | $494.40 | $494.40 | $0.00 | ||
| SUBTOTAL | 1542.16 | $1,583.92 | $1,173.07 | ($411.15) | |||
| Ms Vattanarom | 1 July 2011 | 146.50 | $0.68 | $99.62 | $0.00 | ($104.38) | |
| 1 July 2012 | 164.83 | $1.05 | $173.07 | $25.73 | ($147.41) | ||
| 1 July 2013 | 90.51 | $1.44 | $130.33 | $12.48 | ($117.84) | ||
| 1 July 2014 | 21.01 | $1.85 | $38.87 | $0.00 | ($38.85) | ||
| SUBTOTAL | 422.85 | $441.89 | $38.21 | ($408.48) | |||
| Ms Saenyamas | 1 July 2011 | 15.00 | $0.68 | $10.20 | $0.00 | ($10.20) | |
| 1 July 2012 | 145.97 | $1.05 | $153.27 | $69.67 | ($145.47) | ||
| 1 July 2013 | 55.25 | $1.44 | $79.56 | $0.00 | ($79.56) | ||
| 1 July 2014 | 49.49 | $1.85 | $91.56 | $13.57 | ($78.02) | ||
| SUBTOTAL | 265.71 | $334.59 | $83.24 | ($313.25) | |||
| Total | $2,360.40 | $1,294.52 | $1,132.88 | ||||
Table 5
Underpayment of Sunday penalties
| Column 1 | Column 2 | Column 3 | Column 4 | Column 5 | Column 6 | Column 7 | |
| Employee | Pay Period from | Sunday hours worked | Penalty Rate | Total Entitlement | Amounts paid | Total Difference (Underpayment) | |
| Ms Vuu | 1 July 2010 | 168.68 | $3.29 | $554.96 | $69.92 | ($485.06) | |
| 1 July 2011 | 191.50 | $6.81 | $1,304.12 | $104.03 | ($1,202.02) | ||
| 1 January 2011 | 185.50 | $7.09 | $1,315.20 | $0.00 | ($1,315.20) | ||
| 1 July 2012 | 352.75 | $10.93 | $3,855.56 | $2,618.78 | ($2,318.62) | ||
| 1 July 2013 | 364.49 | $14.96 | $5,452.77 | $2,244.30 | ($3,468.77) | ||
| 1 July 2014 | 290.59 | $19.26 | $5,596.76 | $3,390.85 | ($3,135.38) | ||
| SUBTOTAL | 1553.51 | $18,079.37 | $8,427.88 | ($11,925.05) | |||
| Ms Vattanarom | 1 July 2010 | 4.67 | $3.29 | $15.36 | $0.00 | ($15.36) | |
| 1 July 2011 | 65.66 | $6.81 | $447.14 | $0.00 | ($447.14) | ||
| 1 July 2012 | 269.75 | $10.52 | $2,837.77 | $228.63 | ($2,609.14) | ||
| 1 July 2013 | 322.86 | $14.38 | $4,642.73 | $529.32 | ($4,233.05) | ||
| 1 July 2014 | 28.75 | $18.52 | $532.45 | $0.00 | ($532.45) | ||
| SUBTOTAL | 691.69 | $8,475.45 | $757.95 | ($7,837.14) | |||
| Ms Saenyamas | 1 July 2011 | 15.08 | $6.81 | $102.69 | $0.00 | ($102.69) | |
| 1 July 2012 | 127.67 | $10.52 | $1,343.09 | $0.00 | ($1,343.09) | ||
| 1 July 2013 | 341.17 | $14.38 | $4,906.02 | $0.00 | ($4,906.02) | ||
| 1 July 2014 | 248.01 | $18.52 | $4,593.15 | $229.02 | ($4,363.95) | ||
| SUBTOTAL | 731.93 | $10,944.95 | $229.02 | ($10,715.75) | |||
| Total | $37,499.77 | $9,414.85 | $30,477.94 | ||||
Table 6
Underpayment of public holiday penalties
| Column 1 | Column 2 | Column 3 | Column 4 | Column 5 | Column 6 | Column 7 | |
| Employee | Pay Period from | Public holiday hours worked | Penalty Rate | Total Entitlement | Amounts paid | Total Difference (Underpayment) | |
| Ms Vuu | 1 July 2010 | 60.25 | $4.94 | $297.64 | $5,517.59 | ($218.60) | |
| 1 July 2011 | 15.42 | $10.22 | $157.59 | $0.00 | ($157.59) | ||
| 1 January 2011 | 51.75 | $10.63 | $550.10 | $0.00 | ($550.10) | ||
| 1 July 2012 | 21.00 | $16.41 | $344.61 | $0.00 | ($344.61) | ||
| 1 July 2013 | 49.75 | $22.44 | $1,116.39 | $0.00 | ($1,116.39) | ||
| 1 July 2014 | 30.00 | $28.89 | $866.70 | $0.00 | ($866.70) | ||
| SUBTOTAL | 228.17 | $3,333.03 | $5,517.59 | ($3,253.99) | |||
| Ms Vattanarom | 1 July 2011 | 20.00 | $10.22 | $204.40 | $0.00 | ($204.40) | |
| 1 July 2012 | 37.25 | $15.78 | $587.81 | $310.61 | ($382.67) | ||
| 1 July 2013 | 40.92 | $21.58 | $883.05 | $0.00 | ($883.05) | ||
| 1 July 2014 | 30.42 | $27.78 | $845.07 | $159.74 | ($685.25) | ||
| SUBTOTAL | 128.59 | $2,520.33 | $470.35 | ($2,155.37) | |||
| Ms Saenyamas | 1 July 2011 | 6.50 | $10.22 | $66.43 | $0.00 | ($66.43) | |
| 1 July 2012 | 29.58 | $15.78 | $466.77 | $0.00 | ($466.77) | ||
| 1 July 2013 | 32.08 | $21.58 | $692.29 | $0.00 | ($692.29) | ||
| 1 July 2014 | 35.92 | $27.78 | $997.86 | $0.00 | ($997.86) | ||
| SUBTOTAL L | 104.08 | $2,223.35 | $0.00 | ($2,223.35) | |||
| Total | $8,076.71 | $5,987.94 | $7,632.71 | ||||
Table 7
Annual leave and annual leave loading calculations
| Column 1 | Column 2 | Column 3 | Column 4 | Column 5 | Column 6 | Column 7 |
| Employee | Accrued annual leave (hours) | Annual leave rate | Total Annual leave | Annual leave loading rate (17.5% of annual leave rate) | Total Annual leave loading | Total Difference (Underpayment) |
| Ms Vuu | 22.70 | $15.86 | $360.02 | $2.78 | $63.10 | $423.13 |
Table 8
Total Wages Underpayment
Column 1 Column 2 Employee Total Underpayment Ms Vuu $30,495.59 Ms Vattanarom $30,091.86 Ms Saenyamas $30,651.19 $91,238.64
4
9
5