Fair Work Ombudsman v Stepping Stones Child Care Centre (NSW) Pty Ltd

The Fair Work Ombudsman (FWO) brought proceedings against Stepping Stones Child Care Centre (NSW) Pty Ltd and its owner/operator, the second respondent (referred to as "the Business"), for contraventions of the *Fair Work Act 2009* (Cth). The dispute concerned the failure of Stepping Stones to comply with two compliance notices issued by a Fair Work Inspector, which required the payment of wages owed to two childcare workers for work performed in early and mid-2013. The proceedings were heard in the Federal Circuit Court of Australia.

The court was required to determine the appropriate pecuniary penalties to be imposed on the respondents for their admitted contraventions of section 716(5) of the FW Act, which prohibits failure to comply with a compliance notice. In doing so, the court needed to consider the approach to penalty as established by relevant authorities, including how to treat multiple contraventions, the application of the totality principle, and the specific factors relevant to the circumstances of the case. The court also had to consider whether the two contraventions could be grouped as a single course of conduct, and the maximum penalties available under the FW Act.

Emmett J applied the established principles for determining penalties, noting that each contravention of a separate obligation under the FW Act is a distinct contravention. The court found that the two contraventions of section 716(5) did not attract the operation of the course of conduct provisions in section 557(1) of the FW Act, as this section does not apply to contraventions of section 716(5). Furthermore, the court determined that the two compliance notices did not have common elements that would warrant grouping, as they related to different employees, different types of employment, and entitlements due over separate periods. The court considered the respondents' failure to comply, the context of extensive efforts to assist them, the fact that the amounts owing were only paid in full late in 2014, and the need for general and specific deterrence.

The court imposed aggregate penalties of $32,130 on Stepping Stones Child Care Centre (NSW) Pty Ltd and $6,426 on the second respondent. These penalties represented 70% of the maximum penalty for each respondent, with a further 10% discount applied in recognition of the admissions of liability made by the respondents.