Fair Work Ombudsman v Symes

[2013] FMCA 38

FEDERAL MAGISTRATES COURT OF AUSTRALIA

FAIR WORK OMBUDSMAN  v SYMES & ANOR [2013] FMCA 38

INDUSTRIAL LAW– Fair work – pecuniary penalties – breaches of award – underpayment of 44 employees – agreed statement of facts – breaches admitted – consideration of matters relevant to penalty.

Crimes Act 1914 (Cth), s.4AA(1)
Fair Work Act 2009 (Cth), ss. 12, 538, 539(2), 546(1)-(2), 557(1), 701
Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth), sch. 16
Workplace Relations Act 1996 (Cth) (as in force prior to 27 March 2006), ss. 178, 179A, 180, 356(a)
Workplace Relations Act 1996 (Cth), ss. 4(1), 719, 722, 726, 841(a)
Workplace Relations Amendment (Work Choices) Act 2005(Cth)

Transport Workers Award 1998 [transitional] [AT799474], cls. 15, 12.5.4, 34, 35, 36, 37.2, 38.7

Australian Ophthalmic Supplies Pty Ltd v McAlary-Smith (2008) 246 ALR 35
Gibbs v Mayor, Councillors and Citizens of City of Altona (1992) 37 FCR 216
Kelly v Fitzpatrick (2007) 166 IR 14
Mason v Harrington Corp Pty Ltd t/as Pangaea Restaurant & Bar [2007] FMCA 7
Mornington Inn Pty Ltd v Jordan (2008) 247 ALR 714
Sharp v Dogma Enterprises Pty Ltd [2007] FCA 1550

Applicant: FAIR WORK OMBUDSMAN

First Respondent: MICHAEL GREGORY SYMES

Second Respondent: JANICE MARY SYMES

File Number: MLG 1586 of 2011

Judgment of: Hartnett FM

Hearing date: 24 September 2012

Delivered at: Melbourne

Delivered on: 1 February 2013

REPRESENTATION

Counsel for the Applicant: Ms Nicholas

Solicitors for the Applicant: Office of the Fair Work Ombudsman

Counsel for the First Respondent: Mr Galbraith

Solicitors for the First Respondent: Petersen Westbrook Cameron Lawyers

Counsel for the Second Respondent: Mr Galbraith

Solicitors for the Second Respondent: Petersen Westbrook Cameron Lawyers

THE COURT DECLARES THAT:

1. The First and Second Respondents each contravened:

   (a)Clause 15 of the Transport Workers Award 1998 [transitional] AT799474] (‘the Award’) and item 15 of Schedule 16 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (‘the Transitional Act’), by failing to pay the applicable rate of pay for the employees classification for all hours worked;

   (b)Clause 34.9 of the Award and item 15 of Schedule 16 of the Transitional Act, by failing to pay the permanent afternoon shift workers the 17.5 per cent shift allowance;

   (c)Clause 35 of the Award and item 15 of Schedule 16 of the Transitional Act, by failing to pay double time for overtime worked on Sunday;

   (d)Clause 37.2 of the Award and item 15 of Schedule 16 of the Transitional Act, by failing to pay overtime rates for overtime worked on Monday to Saturday;

   (e)Clause 12.5.4 of the Award and item 15 of Schedule 16 of the Transitional Act, by failing to pay casual employees the 10 per cent loading for work performed outside of ordinary hours;

   (f)Clause 36.3.1 of the Award and item 15 of Schedule 16 of the Transitional Act, by failing to pay a meal allowance for employees working two or more hours of overtime; and

   (g)Clause 38.7 of the Award and item 15 of Schedule 16 of the Transitional Act, by failing to pay full time and part time employees the annual leave loading of 17.5 per cent.

THE COURT ORDERS THAT:

Penalties

1. The First Respondent pay an aggregate penalty pursuant to:

   (a)section 178(1) of the Workplace Relations Act 1996 (Cth) (as in force prior to 27 March 2006) (‘ the Pre-Reform WR Act’);

   (b)section 719(1) of the Workplace Relations Act 1996 (Cth) (as in force thereafter) (‘the WR Act’); and

   (c)section 546(1) of the Fair Work Act 2009 (Cth) (‘the FW Act’),

   for the contraventions of the Award and the Transitional Act referred to in the above declarations in the amount of $5,940.

2. The Second Respondent pay an aggregate penalty pursuant to:

   (a)section 178(1) of the Pre-Reform WR Act;

   (b)section 719(1) of the WR Act; and

   (c)section 546(1) of the FW Act,

   for the contraventions of the Award and the Transitional Act referred to in the above declarations in the amount of $5,940.

3. Pursuant to:

   (a)section 356(a) of the Pre-Reform WR Act;

   (b)section 841(a) of the WR Act; and

   (c)section 546(3)(a) of the FW Act,

   that the First and Second Respondents pay the penalties referred to in orders (1) and (2) above into the Consolidated Revenue Fund of the Commonwealth.

4. The penalties referred to in order (3) be paid within twelve months of the date of this order.

Underpayments

1. Pursuant to:

   (a)section 178(6) of the Pre-Reform WR Act;

   (b)section 719(6) of the WR Act; and

   (c)section 545(2)(b) of the FW Act;

   that the First and Second Respondents pay, on a joint and several basis, the total underpayment amount of $227,704.65, or any lesser amount which may remain outstanding as at the date of this order, to the employees named in Attachment A to these orders; such payments to be made in the amounts specified therein.

2. Pursuant to:

   (a)section 179A of the Pre-Reform WR Act;

   (b)section 722 of the WR Act; and

   (c)section 547(2) of the FW Act;

   that the First and Second Respondents pay, on a joint and several basis, interest pursuant to legislation on the underpayment amount referred to in the preceding order, to each of the employees named in Attachment A to these orders, in the amounts specified therein.

3. Payment to the employees of the underpayment and interest amounts referred to in orders (5) and (6) above be made within twelve months of the date of this order.

4. If at the expiration of the 12 month period provided in order (7) above, the First and Second Respondents are unable to locate any employee to make payment to them in accordance with orders (5) to (7) above, then within the following 14 days:

   (a)pursuant to section 180 of the Pre-Reform WR Act; section 726 of the WR Act; and section 559 of the FW Act, any underpayment or interest amounts owed to those employees in accordance with orders (5) and (6) above are to be paid into the Consolidated Revenue Fund of the Commonwealth; and

   (b)the First and Second Respondents are to advise the Applicant in writing of:

   (i)the names of the employees to whom payment has not been made; and

   (ii)the amount of underpayment and interest outstanding to each such employee.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT MELBOURNE

MLG 1586 of 2011

FAIR WORK OMBUDSMAN

Applicant

And

MICHAEL GREGORY SYMES

First Respondent

JANICE MARY SYMES

Second Respondent

REASONS FOR JUDGMENT

1. On 7 November 2011, the Applicant filed an Application and Statement of Claim in this Court against the First and Second Respondents for alleged underpayments in respect of 31 employees of the First Respondent.

2. On 19 December 2011, the Applicant filed an Application and Statement of Claim in this Court against the First and Second Respondents, which in addition to the allegations referred to in paragraph 1 above, alleged underpayments in relation to a further 13 employees. This increased the total number of underpaid employees to 44, with a total related underpayment in the amount of $251,942 as the quantum then stood. Attachment A to these reasons now describes the total underpayment in the sum of $227,704.65 and sets out the total underpayment in respect of each employee.

3. The Applicant is a Fair Work Inspector pursuant to s.701 of the Fair Work Act 2009 (Cth)(‘the FW Act’).

4. At all relevant times, the respondents were each:

   a)in a partnership and carrying on a transport business in Victoria under the trading name of Symes Transport (‘the business’). The business was the transporting of goods, wares, merchandise and materials;

   b)capable of being sued as individuals operating the business; and

   c)an employer within the meaning of Schedule 6 of the Workplace Relations Act 1996 (Cth) (‘the WR Act’).

5. During the period 9 November 2005 to 29 December 2009 or part thereof, the respondents employed 44 employees. They are listed in Attachment A to these reasons.  At various times during their employment the employees were employed to perform work loading trucks and/or driving rigid vehicles for the purpose of the transportation of goods for the respondents.

6. At all relevant times up to 26 March 2006, the respondents were bound by the Transport Workers Award 1998 [transitional] [AT799474] (‘the Award’).

7. At all relevant times the respondents were obliged by the Award, and from 27 March 2006 to 30 June 2009 by the Award and Schedule 6 of the WR Act, and from 1 July 2009 to 31 December 2009 (‘the bridging period’), the respondents were obliged by the award and item 15 of Schedule 16 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (‘the Transitional Act’).

8. The portion of the total underpayment arising pursuant to each clause of the Award at the time of the hearing was:

   a)clause 15 (minimum hourly rate) - $9,492.20;

   b)clause 37.2 (overtime, Monday to Saturday, time and a half) - $46,352.78;

   c)clause 37.2 (overtime, Monday to Saturday, double time) - $135,110.61;

   d)clause 35 (overtime, Sunday) - $3,854.55;

   e)clause 34 (shift allowance) - $2,572.86;

   f)clause 36.3 (meal allowance) - $54,206.98; and

   g)clause 38.7 (leave loading) - $362.60.

9. A summary of underpayments is set out in the Agreed Statement of Facts and is as follows:

   a)the contraventions of clause 15 of the Award relating to the minimum hourly rate of pay arose due to the failure by the business to pay the employees at the correct rate. The discrepancies in rates between the rates paid and the Award entitlements ranged between $0.09 and $3.20 per hour for the affected employees, but generally was less than $1.00 per hour;

   b)the contraventions of clause 37.2 of the Award relating to overtime arose due to;

   i)the failure of the business to pay overtime to casual employees;

   ii)the business incorrectly paying overtime at time and a half for the first three hours rather than the first two hours as required by the Award;

   c)the contraventions of clause 35 of the Award relating to Sunday overtime arouse due to the failure of the business to pay overtime to casual employees. Casual employees were paid a slightly higher hourly rate which was not sufficient to compensate for Sunday overtime worked;

   d)the contraventions of clause 34 of the Award in relation to shift allowance arose due to the failure of the business to pay shift allowance at all in respect of afternoon shift workers;

   e)the contraventions of clause 36.3 of the Award in relation to meal allowance arose due to;

   i)the failure of the business to pay meal allowance at all for most of the relevant periods. The business did commence to pay meal allowance to some full time employees in around June 2009; however paid it at an incorrect rate of $10.69, which was a rate from an outdated version of the Award;

   ii)the failure of the business to pay meal allowance at all to casual employees;

   f)the contravention of clause 38.7 of the Award in relation to leave loading arouse due to the payment by the business of annual leave at the incorrect minimum hourly rate of pay; which subsequently gave rise to an underpayment of annual leave loading when it was calculated at the rate of 17.5% of the minimum hourly rate.

10. The respondents have made admissions to the allegations, which are stated in the Agreed Statement of Facts dated 14 August 2012, which is in evidence. The parties agree to the making of declarations in the form that will be made. These reasons deal with the issue of penalty.

Maximum penalties

1. Section 178(4)(a) of the Workplace Relations Act 1996 (Cth) (as in force prior to 27 March 2006) (‘ the Pre-Reform WR Act’), s. 719(4)(a) of the Workplace Relations Act 1996 (Cth) (as in force thereafter) (‘the WR Act’) and s.539(2) (by virtue of s.546(2)) of the FW Act prescribe the maximum penalty that may be imposed by this Court for each contravention of the Pre-Reform WR Act, WR Act and the Transitional Act to be, in the case of an individual, 60 penalty units.

2. Section 4(1) of the WR Act and s.12 of the FW Act provide that “penalty unit” has the same meaning as in the Crimes Act 1914 (Cth) (‘the Crimes Act’). Section 4AA(1) of the Crimes Act defines “penalty unit” to be $110 dollars.

3. The maximum penalty that may be imposed by the Court for each breach of the Award and the Transitional Act is $6,600 for each contravention of an applicable provision or civil remedy provision by each respondent (as individuals).

Approach to determine penalty

1. The parties agree that the approach to determining penalty should be as follows:

   a)identify the separate contraventions involved. Each breach of each separate obligation found in the Award in relation to an employee is a separate contravention of a term of an applicable provision for the purposes of s.719 of the WR Act (previously s.178 of the Pre-Reform WR Act) (Gibbs v Mayor, Councillors and Citizens of City of Altona (1992) 37 FCR 216 at 223) . Likewise, each contravention of each separate obligation of the Transitional Act (including by virtue of each contravention of a term of the Award as a continuing Schedule 6 instrument) in relation to an employee is a separate contravention of a civil remedy provision for the purposes of s.538 of the FW Act. However, s.178(2) of the Pre-Reform WR Act, s.719(2) of the WR Act, and s.557(1) of the FW Act provide for treating multiple contraventions of the same provision involved in a course of conduct, as a single contravention;

   b)consider an appropriate penalty to impose in respect of each contravention (whether a single contravention or a course of conduct), having regard to all of the circumstances of the case;

   c)to the extent that two or more contraventions have common elements, this should be taken into account in considering what is an appropriate penalty in all the circumstances for each contravention – often referred to as “grouping”. Each respondent should not be penalised more than once for the same conduct. The penalties imposed by the Court should be an appropriate response to what each respondent did (Australian Ophthalmic Supplies Pty Ltd v McAlary-Smith (2008) 246 ALR 35 at paragraph 46). The task is distinct from and in addition to the final application of the “totality principle” (Mornington Inn Pty Ltd v Jordan (2008) 247 ALR 714 at paragraphs 41 to 46); and

   d)finally, having fixed an appropriate penalty for each group of contraventions or course of conduct, the Court should take a final look at the aggregate penalty to determine whether it is an appropriate response to the conduct which led to the breaches. The Court should apply an “instinctive synthesis” in making this assessment (Australian Ophthalmic Supplies Pty Ltd v McAlary-Smith (2008) 246 ALR 35 at paragraph 27 (Gray J) and paragraphs 55 and 78 (Graham J)). This is what is known as an application of the “totality principle”.

2. In total the First Respondent has admitted to 21 separate contraventions of the WR Act, the WR Regulations and the FW Act (encompassing the contraventions of the FW Regulations and the Modern Award).

3. It is appropriate to group contraventions in this matter and the Applicant submits that grouping should be such that there are seven groups of conduct each attracting a maximum penalty of $6,600 per group in respect of each respondent.

4. Thus, the maximum penalty for each respondent would be $46,200.

5. Those seven groups proposed are:

   a)failure to pay the base rate of pay;

   b)failure to pay afternoon shift allowance;

   c)failure to pay double time for Sunday overtime;

   d)failure to pay overtime rates for Monday to Saturday overtime;

   e)failure to pay casual loading;

   f)failure to pay meal allowance; and

   g)failure to pay annual leave loading.

6. The respondents agree with the grouping of contraventions in such manner.

7. A non-exhaustive list of factors potentially relevant to the imposition of a penalty under the WR Act has been summarised by Mowbray FM in Mason v Harrington Corp Pty Ltd t/as Pangaea Restaurant & Bar [2007] FMCA 7 at paragraphs 26 to 29, as follows:

   a)the nature and extent of the conduct which led to the breaches;

   b)the circumstance 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 property distinct or arose out of the one course of conduct;

   f)the size of the business enterprise involved;

   g)whether or not the breaches were deliberate;

   h)whether senior management was involved in the breaches;

   i)whether the party committing the breach had exhibited contrition;

   j)whether the party committing the breach had taken corrective action;

   k)whether the party committing the breach had 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. 

8. This summary was adopted by Tracey J in Kelly v Fitzpatrick (2007) 166 IR 14 at paragraph 14. 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 (Sharp v Dogma Enterprises Pty Ltd [2007] FCA 1550 at paragraph 11).

Consideration

1. The Applicant relies upon:

   a)the Agreed Statement of Facts filed 14 August 2012; and

   b)an Affidavit of Ms Aneka Winterburn filed 20 September 20120.

   The respondents rely upon:

   c)an Affidavit of Ms Janice Symes sworn 18 September 2012; and

   d)an Affidavit of Mr Michael Symes sworn 18 September 2012.

   Both parties filed written submissions as to penalty.

2. At all relevant times the First Respondent carried on a transport business (based in Bendigo Victoria) which provided transport of goods on behalf of clients by trucks. The business has been in operation since 1984. The First and Second Respondents are a married couple and have operated the business as a partnership. They have both worked tirelessly in the business. It has occasioned them stress, required them to work long hours, afforded them a modest financial return for those long hours and with the assistance of family members and some 12 employees it continues to operate.

3. The amount of the total underpayment and which remains outstanding is now $227,704.65. This can only be described as extremely large, in the context of matters which the Fair Work Ombudsman brings before this Court.  The employees who have been underpaid have been deprived of the benefit of these amounts for a lengthy period of time. That does not mean however, in this case, that the respondents have received an appreciable benefit from the underpayments, in particular, in circumstances where I accept their conduct was not deliberate, but rather the result of a basic misunderstanding of the applicable workplace relations legislation. They are legally liable for that misunderstanding, but I accept that over the years they have made efforts to secure up to date information regarding employee entitlements. However, their efforts have been inadequate. For example, they were unaware of their obligation to pay penalty rates to casual employees. They should have been so aware and had in place a system on which they could rely. In the respondents breach of clause 37.2 of the Award relating to overtime, they understood there was an obligation to pay overtime but calculated that obligation incorrectly.  In respect of the contraventions in respect of the meal allowance and annual leave loading there was ultimately a consideration and acceptance of the respondents’ obligations, but an incorrect application.

1. Looking to the contraventions themselves, I find there was a broad range of contraventions demonstrating the extent of both respondents non-compliance with work place laws, albeit not deliberately. Concerningly, the respondents have not still put in place a robust accounting or payroll system to ensure that there are no further contraventions. There is no evidence of this however, as likewise, the Applicant is not aware of any previous significant complaints or findings of breach of Commonwealth workplace laws by the respondents other than those referred to in the Agreed Facts.

2. There is not a lack of contrition, nor has there been a lack of cooperation on the part of the respondents. They have undertaken what corrective action they can fund, and I accept they are making a genuine attempt to reimburse the employees the amounts owed to them. The respondents do not have the financial ability to employ dedicated human resources personnel, with dedicated workplace relations expertise. In reality, the business is operated by six family members and twelve employees, some of whom form part of the 44 underpaid employees.  Drawings taken from the business by the husband and wife are $50,000 gross per annum each or less.

3. The respondents proposed a repayment plan over an extended period of time which is simply not appropriate in this matter, given the quantum of the underpaid amounts which remain outstanding. Nor am I satisfied it is capable of being sustained out of the drawings of the husband and wife, or with payments from the business.  There is already in place a repayment plan in respect of monies owed to the Australian Taxation Office.  The respondents’ financial position is that, otherwise, they have equity in real property in Castlemaine in the sum of approximately $300,000, a small shareholding and their interest in the transport business. The assets available to them are modest.

4. The need for specific deterrence is not high in this case. The respondents’ contraventions have not been deliberate. They have suffered embarrassment and distress as a result of the media attention the matter has received in the local Bendigo community. Whilst media coverage is sometimes necessary and not to be seen as a mitigating factor, it does have its impact, in particular, in not only embarrassing the employer, but in putting at risk the ongoing operations of the business which has been deposed to by the respondents in their affidavit material. As to general deterrence in the circumstances of this case a low level is required.

5. The Applicant recommended that in all the circumstances, and taking into account a proposed reduction of 20 per cent for the respondents’ admissions and cooperation, a penalty at the mid range of the scale would be an appropriate response to the respondents’ conduct. The Applicant submitted that in considering each of the groups of contraventions that the appropriate range may be varied to account for the commonality of some groups. On that basis, the Applicant recommended the following penalty ranges:

   a)base rate of pay, overtime, afternoon shift allowance, Sunday loading and meal allowance – 30 per cent to 50 per cent of the maximum; and

   b)casual loading and annual leave loading – 25 to 35 per cent of the maximum.

6. Based on the maximum penalty of $6,600 per group of contraventions, 20 per cent reduction and the ranges proposed, the Applicant submitted that in dollar terms, this would equate to:

   a)$1,584 to $2,640 for each of the five groups attracting the 30 to 50 per cent range; and

   b)$1,320 to $1,848 for each of the two groups attracting the 25 to 35 per cent range;

   for a total aggregate penalty range of $10,560 to $16,896 for each respondent.

7. On the hearing of the matter, respondents submitted that the appropriate penalty assessment was as follows: for the base rate of pay, overtime, afternoon shift allowance, Sunday loading and meal allowance, groups of contraventions, 10 per cent to 25 per cent of the maximum (not 30 per cent to 50 per cent); and for the casual loading and annual leave loading, that is the groups with the clearly common elements, that a penalty from zero per cent to 10 per cent (not 25 per cent to 30 per cent) of the maximum be imposed. 

8. Taking into consideration the matters contained in these reasons, I propose that a total aggregate penalty of $5,940 for each of the respondents is the appropriate response to the conduct which led to the breaches. That is calculated using a reduction figure of 25 per cent and applying a percentage of 20 per cent of the maximum to the grouping of the five contraventions, and a lesser percentage of 10 per cent of the maximum to the grouping of the two contraventions. The payment of the aggregate penalties and the underpayments by the respondents will require them to either sell assets or obtain significant borrowings or enter into some other arrangement. Mindful of this circumstance, in particular, I have provided for a period within which payment is to be made of 12 months whilst endeavouring to balance the very real needs and entitlements of the employees. 

I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of Hartnett FM

Date:  1 February 2013

Attachment A

Total Underpayments
Surname	First Name	Total Underpayment	Total Interest
Barron	Paul	$1,134.71	$100.00
Barron	Trevor	$950.77	$84.00
Bassett	Jayne	$322.05	$32.00
Beer	Graeme	$14,393.92	$1,413.00
Bonanno	Tony	$10,576.10	$932.00
Boyce	James	$82.54	$8.00
Butterworth	Adam	$6,435.80	$632.00
Butterworth	Kyle	$1,201.02	$106.00
Chislett	Chris	$8,379.68	$823.00
Dehne	Tom	$4,780.41	$469.00
Farmer	Greg	$1,676.11	$165.00
Fitness	Rebecca	$109.89	$11.00
Guzzardi	Brian	$1,290.05	$127.00
Hammond	Tristan	$815.95	$72.00
Hendra	Robert	$147.50	$14.00
Hull	Ben	$7,659.65	$675.00
Hull	Matt	$6,990.30	$686.00
Ingham	Lincoln	n/a	paid in full pre-decision
Jacka	Darren	n/a	paid in full pre-decision
Kipling	Scott	$967.66	$85.00
Lindrea	Jamie	$465.49	$46.00
Llewellyn	Chris	$1,209.12	$119.00
Marshall	Daryl	$6,823.01	$601.00
McLean	David	$1,385.32	$136.00
Middleton	Sharlene	$2,155.22	$212.00
Milne	Stewart	$1,444.31	$142.00
Morley	Gavin	$2,360.20	$208.00
Moser	David	$7,886.97	$774.00
Nagy	David	$131.45	$13.00
Nicholson	Robert	$17,879.47	$1,756.00
Ohman	Richard	$8,722.60	$857.00
Ransthorne	Anthony	$913.26	$80.00
Rasmussen	Wayne	$21,831.75	$1,924.00
Reardon	Daryl	$26,014.14	$2,555.00
Rees	Edward	$13,618.76	$1,337.00
Roser	James	$13,329.03	$1,309.00
Simpson	Chris	$789.07	$70.00
Stirling	John	$136.99	$13.00
Taylor	Dwayne	$70.81	$7.00
Trahair	Wayne	$1,008.04	$89.00
Trembath	Matthew	$4,149.18	$407.00
Tuckerman	Peter	$9,283.35	$912.00
Walters	Matthew	$14,535.69	$1,427.00
Wells	Glen	$3,647.34	$358.00
Totals	$227,704.65	$21,786.00
Items in bold have been amended in accordance with evidence of payments provided by the respondents.
Interest calculations performed in accordance with Federal Court Practice Note CM16
The period of calculation was commenced in accordance with the date of the filing of the Statement of Claim (7.11.11) or Amended Statement of Claim (19.12.11) respectively as applicable to each employee, up to 1 February 2012.