FEDERAL CIRCUIT COURT OF AUSTRALIA
| FAIR WORK OMBUDSMAN v TAC PHAM PTY LTD & ANOR | [2020] FCCA 3036 |
| Catchwords: INDUSTRIAL LAW – Penalty hearing – agreed contraventions – previous Court proceedings imposing penalties for same contraventions – contrition and cooperation demonstrated – penalties imposed. |
| Legislation: Crimes Act 1914 (Cth), s.4AA |
| Applicant: | FAIR WORK OMBUDSMAN |
| First Respondent: | TAC PHAM PTY LTD (ACN 135 782 768) |
| Second Respondent: | CUC THI THU PHAM |
| File Number: | PEG 498 of 2019 |
| Judgment of: | Judge Kendall |
| Hearing date: | 2 November 2020 |
| Date of Last Submission: | 2 November 2020 |
| Delivered at: | Perth |
| Delivered on: | 12 November 2020 |
REPRESENTATION
| Counsel for the Applicant: | Ms H Millar |
| Solicitors for the Applicant: | Fair Work Ombudsman |
| Counsel for the Respondents: | Mr R Tan |
| Solicitors for the Respondents: | Tan & Tan Lawyers |
ORDERS AND DECLARATIONS
THE COURT DECLARES THAT:
The first respondent, Tac Pham Pty Ltd, contravened:
(a)section 44(1) of the Fair Work Act 2009 (Cth) (the “Act”), by contravening a provision of the National Employment Standards, namely by failing to pay Aira Allarse and Chloe Sinderberry for absence on a public holiday pursuant to s.116 of the Act;
(b)section 45 of the Act, by contravening the following terms of the Restaurant Industry Award 2010 (the “Award”), namely by failing to:
(i)pay Aira Allarse, Ajay Sapoka, Ash Yen Ju, Chloe Sinderberry, Nguyen Thi Hai Ha and Ralph Jiao adult minimum wages, pursuant to clause 20.1;
(ii)pay Nguyen Pham Nhu Quynh, Pham Thi Mai Anh (Mai Anh) and Truong Pham Truong Vu junior minimum wages, pursuant to clause 20.3;
(iii)pay Ash Yen Ju and Pham Thi Mai Anh (Mai Anh) casual loading, pursuant to clause 13.1;
(iv)pay Aira Allarse,…
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- Case
- [2020] FCCA 3036
- Decision Date
CaseChat Overview and Summary
The court was required to determine the appropriate penalties for the admitted contraventions, including those deemed "serious contraventions" under section 557A of the Act. A key aspect of the proceedings was the respondents' prior contraventions and penalties imposed by the Federal Court in *Fair Work Ombudsman v Tac Pham Pty Ltd* [2018] FCA 120 for similar breaches occurring in an earlier period. The court also had to consider the respondents' submissions regarding their level of culpability, the impact of the second respondent's language proficiency, and the first respondent's financial position.
Judge Kendall found that the respondents had admitted to contraventions of the *Fair Work Act 2009* (Cth), including serious contraventions, and that these admissions were binding under section 191 of the *Evidence Act 1995* (Cth). Despite the respondents' attempt to resile from their admissions regarding the seriousness of the contraventions, the court rejected this argument. The court noted the respondents' previous contraventions and the imposition of penalties in prior proceedings, which indicated a pattern of non-compliance. However, the court also took into account factors such as the second respondent's demonstrated efforts to rectify payroll issues, her limited English proficiency, and the advice from an accountant that her conduct was not deliberate. The court applied principles of penalty assessment, considering the objective seriousness of the contraventions, the respondents' subjective culpability, and mitigating factors.
The court ordered the first respondent, TAC Pham Pty Ltd, to pay penalties totalling $191,646, and the second respondent, Ms Cuc Thi Thu Pham, to pay penalties of $38,394. These penalties were to be paid into the Consolidated Revenue Fund of the Commonwealth of Australia within 120 days. The applicant was granted liberty to apply to the court should these orders not be complied with.
Orders
Orders of the court
4.
The first respondent pay penalties of $191,646 pursuant to s.546(1) of the Act for committing the Contraventions and Serious Contraventions.
5.
The second respondent pay penalties of $38,394 pursuant to s.546(1) of the Act for her involvement in the Contraventions and Serious Contraventions.
6.
Pursuant to s.546(3)(a) of the Act, all pecuniary penalties imposed be paid into the Consolidated Revenue Fund of the Commonwealth of Australia within 120 days of the Court’s orders.
7.
The applicant has liberty to apply on seven days’ notice in the event that any of the preceding orders are not complied with.
FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PERTH
PEG 498 of 2019
FAIR WORK OMBUDSMAN
Applicant
And
TAC PHAM PTY LTD (ACN 135 782 768)
First Respondent
CUC THI THU PHAM
Second Respondent
REASONS FOR JUDGMENT
Introduction
1.
On 19 December 2019, the applicant (the Fair Work Ombudsman) filed an application in this Court claiming that the first respondent (Tac Pham Pty Ltd) had contravened ss.44, 45 and 536 of the Fair Work Act 2009 (Cth) (the “Act”). The applicant claimed that the second respondent (Ms Cuc Thi Thu Pham) was involved in the first respondent’s contraventions pursuant to s.550 of the Act. The applicant sought pecuniary penalties against the respondents.
2.
On 29 May 2020, the parties filed a statement of agreed facts in accordance with s.191 of the Evidence Act 1995 (Cth). In that statement of agreed facts, the respondents admitted the following contraventions:
A. ADMITTED CONTRAVENTIONS
1. On the basis of the facts agreed below, the First Respondent, Tac Pham Pty Ltd (ACN 135 782 768) (Han’s Cafe), admits that it contravened the following civil remedy provisions of the Fair Work Act 2009 (Cth) (FW Act) between 25 September 2017 and 8 April 2018:
(a) section 44(1) of the FW Act, by contravening a provision of the National Employment Standards, namely by failing to pay for absence on a public holiday pursuant to section 116 of the FW Act;
(b) section 45 of the FW Act, by contravening the following terms of the Restaurant Industry Award 2010 (Award), namely by failing to:
(i) pay Aira Allarse, Ajay Sapoka, Ash Yen Ju, Chloe Sinderberry, Nguyen Thi Hai Ha and Ralph Jiao adult minimum wages, pursuant to clause 20.1;
(ii) pay Nguyen Pham Nhu Quynh, Pham Thi Mai Anh (Mai Anh) and Truong Pham Truong Vu junior minimum wages, pursuant to clause 20.3;
(iii) pay Ash Yen Ju and Pham Thi Mai Anh (Mai Anh) casual loading, pursuant to clause 13.1;
(iv) pay Aira Allarse, Ajay Sapoka, Ash Yen Ju and Chloe Sinderberry Saturday penalty rates, pursuant to clause 34.1;
(v) pay Aira Allarse, Chloe Sinderberry and Pham Ngoc Phuong Thao (Tu Nhi) Sunday penalty rates, pursuant to clause 34.2;
(vi) pay Ash Yen Ju, Chloe Sinderberry, Nguyen Huu Tinh, Nguyen Pham Nhu Quynh, Nguyen Thi Hai Ha, Pham Ngoc Phuong Thao (Tu Nhi), Pham Thi Mai Anh (Mai Anh) and Ralph Jiao public holiday penalty rates, pursuant to clause 34.1;
(vii) pay Ajay Sapoka, Chloe Sinderberry, Nguyen Huu Tinh and Nguyen Thi Hai Ha late night penalty rates, pursuant to clause 34.2;
(viii) pay Aira Allarse, Ajay Sapoka, Chloe Sinderberry, Ralph Jiao and Truong Pham Truong Vu split shift allowance, pursuant to clause 24.2;
(ix) pay Chloe Sinderberry , who was not a casual employee, for a minimum of four hours for working on a public holiday, pursuant to clause 34.4(a);
(x) pay Pham Thi Mai Anh (Mai Anh), a casual employee, for a minimum of two hours for working on a public holiday, pursuant to clause 34.4(b);
(xi) pay Pham Ngoc Phuong Thao (Thu Nhi), a casual employee, for a minimum of two hours’ work, pursuant to clause 13.3;
(xii) provide part-time employees with a part time work agreement pursuant to clause 12.3;
(c) section 536(1) of the FW Act, by failing to give a pay slip within one working day of paying an amount in relation to the performance of work;
(d) section 536(2) of the FW Act, by failing to include, on pay slips given to employees, information prescribed by the Fair Work Regulations 2009 (Cth) (FW Regulations),
(together, the Admitted Contraventions).
2. Han’s Cafe further admits that the Admitted Contraventions set out at paragraphs 1 (b)(i), 1 (b)(ii) and 1 (d) above were serious contraventions within the meaning of section 557A of the FW Act (Serious Contraventions).
3. The Second Respondent, Ms Cuc Thi Thu Pham (Ms Pham), admits that she was involved in each of the Admitted Contraventions pursuant to section 550 of the FW Act.
4. Ms Pham further admits that she was involved, within the meaning of section 557A(5A) of the FW Act, in the Serious Contraventions.
3.
These reasons for judgment concern the penalty to be imposed for the above agreed contraventions.
Background
4.
This is not the first time that the applicant has brought litigation against the respondents.
5.
The first respondent began trading as Hans Café Rockingham in 2013. The second respondent was the General Manager of the first respondent and was at all times responsible for the direction, control, management and supervision of the first respondent’s business.
6.
Following an audit conducted by a Fair Work Inspector on
24 January 2017, the respondents were advised that the first respondent had underpaid 25 employees during the period of 22 December 2014 until 20 December 2015. The first respondent rectified these underpayments.
7.
On 6 June 2017, proceedings were commenced in the Federal Court in relation to the underpayments made in the 2014-2015 period (the “Federal Court proceedings”). The respondents filed a statement of agreed facts admitting liability and the matter proceeded straight to a penalty hearing.
8.
On 20 February 2018, Justice Siopis delivered judgment on the issue of penalty: Fair Work Ombudsman v Tac Pham Pty Ltd [2018] FCA 120 (“Tac Pham No.1”). His Honour’s orders and declarations were as follows:
THE COURT DECLARES THAT:
1. The first respondent contravened the following civil penalty provisions:
(a) section 45 of the Fair Work Act 2009 (Cth) (the FW Act), by contravening clause 20.1 of the Restaurant Industry Award 2010 (the Restaurant Award) by failing to provide the employees listed in paragraph 19 of the statement of agreed facts and admissions filed on 17 July 2017 (the SOAF) with the required minimum rate of pay under the Restaurant Award;
(b) section 45 of the FW Act, by contravening clause 20.3 of the Restaurant Award by failing to provide the junior employee listed in paragraph 25 of the SOAF with the required minimum rate of pay under the Restaurant Award;
(c) section 45 of the FW Act, by contravening clause 34.1 of the Restaurant Award by failing to provide the employees listed in paragraph 31 of the SOAF with the required Saturday penalty rates under the Restaurant Award;
(d) section 45 of the FW Act, by contravening clause 34.1 of the Restaurant Award by failing to provide the employees listed in paragraph 36 of the SOAF with the required Sunday penalty rates under the Restaurant Award;
(e) section 45 of the FW Act, by contravening clause 34.1 of the Restaurant Award by failing to provide the employees listed in paragraph 41 of the SOAF with the required public holiday penalty rates under the Restaurant Award;
(f) section 45 of the FW Act, by contravening clause 34.2 of the Restaurant Award by failing to provide the employees listed in paragraph 46 of the SOAF above with the required late night penalty rates under the Restaurant Award;
(g) section 45 of the FW Act, by contravening clause 24.2 of the Restaurant Award by failing to provide the employees listed in paragraph 52 of the SOAF with the required split shift allowance under the Restaurant Award;
(h) section 536(2) of the FW Act, by failing to give a pay slip to each of the employees which included the information required by regulation 3.46(1) of the Fair Work Regulations 2009 (Cth); and
(i) section 536(2) of the FW Act, by failing to give a pay slip to each of the employees which included the information required by regulation 3.46(5) of the Fair Work Regulations 2009 (Cth).
2. Pursuant to s 550 of the FW Act, the second respondent was involved in each of the contraventions set out in paragraph 1 above.
AND THE COURT ORDERS THAT:
3. Pursuant to s 546(1) of the FW Act, each respondent is to pay the following pecuniary penalty in respect of their contraventions of the FW Act:
(a) the first respondent - the sum of $37,500; and
(b) the second respondent - the sum of $7,500.
4. Pursuant to s 546(3)(a) of the FW Act, all pecuniary penalties imposed be paid into the Consolidated Revenue Fund of the Commonwealth of Australia within 28 days of the date of this order.
5. Pursuant to s 545(1) of the FW Act, all persons engaged by the first respondent who have managerial responsibility for decisions regarding wages and conditions are, at the expense of the first respondent, to engage a suitably qualified compliance professional or legal practitioner with expertise in workplace relations law to conduct training, either jointly or individually, to occur within three months of the date of this order, in relation to compliance with:
(a) wages and work-related entitlements under the Restaurant Award;
(b) accrual and payment of entitlements under the National Employment Standards contained in Part 2-2 of the FW Act; and
the first respondent is to notify the applicant in writing, within 7 days of the training, of the attendees and the name(s) of the person(s) who conducted the training.
6. The applicant has liberty to apply on 7 days’ notice in the event that any of the preceding orders are not complied with.
9.
On 20 May 2018, the second respondent and her husband (who is the director of the first respondent) attended the training required by Order 5 of His Honour Justice Siopis’ orders. The second respondent’s son assisted the second respondent at the training by providing interpretation assistance.
10.
On 30 May 2018, a Fair Work Inspector attended the first respondent’s business as a part of the National Compliance Monitoring Campaign. The respondents were issued, and subsequently complied with, a Notice to Produce documents. The second respondent instructed an accounting firm to assist with complying with the Notice to Produce and to conduct a payroll audit.
11.
The payroll audit by the accounting firm identified that the first respondent had underpaid 16 employees. The first respondent corrected the underpayments and the accounting firm conducted all future payroll for the first respondent until it closed in 2019.
12.
On 7 June 2019, the respondents were advised by the applicant that it had been found that the first respondent had underpaid 21 employees in the period of 1 October 2017 until 31 March 2018. On
18 September 2019, the applicant issued an Amended Findings of Contravention. The respondent paid the relevant employees on
25 September 2019.
13.
On 19 December 2019, the applicant commenced proceedings in this Court seeking pecuniary penalties for the underpayment of 11 employees during the period 25 September 2017 to 8 April 2018.
Proceedings in this Court
14.
The Court has referenced the following materials in writing this judgment:
a) the Statement of Agreed Facts signed 29 May 2020;
b) the affidavit of Viet Hai Dinh sworn 26 June 2020;
c) two affidavits of the second respondent. One sworn 25 June 2020 and another sworn 12 August 2020;
d)
the affidavit of Karen Mary Elizabeth Blackshaw affirmed
27 July 2020;
e)
outlines of written submissions filed by the applicant on
27 August 2020 and 22 October 2020; and
f)
an outline of submissions filed by the respondent on
17 September 2020.
15.
This matter was heard on 2 November 2020. Ms Millar appeared as Counsel for the applicant. Mr Tan appeared on behalf of the respondents.
Ms Blackshaw’s Affidavit
16.
Ms Blackshaw was the Fair Work Inspector responsible for the investigation of, and findings made in relation to, underpayments by the first respondent to its employees during the period 25 September 2017 to 8 April 2018 – the underpayments the subject of these proceedings.
17.
Ms Blackshaw’s affidavit largely comprises of annexures documenting the applicant’s involvement with the respondents. In particular, the affidavit annexes:
a) file notes;
b) documents provided to the applicant pursuant to the Notice to Produce;
c) a copy of the findings and amended findings of the investigation and the breakdown of how the figures were arrived at;
d) a transcript of an interview with the second respondent;
e) the affidavits filed by the second respondent and her husband (the director of the first respondent) in the Federal Court proceeding, the transcript of the Federal Court proceeding and a copy of Tac Pham No.1; and
f) an industry profile report undertaken by the applicant in relation to the Café and Restaurant industry.
18.
Most of Ms Blackshaw’s evidence provides contextual information and historical background.
Mr Dinh’s Affidavit
19.
Mr Dinh is a certified practicing accountant. He was first retained by the second respondent in June 2018 to assist with preparing the documents required by the Notice to Produce. Mr Dinh also conducted a full payroll audit and identified underpayments by the first respondent in relation to a number of employees.
20.
After he identified these underpayments, Mr Dinh became responsible for the first respondent’s payroll. He states that the second respondent was “very shocked and upset” when he advised her of the underpayments. Mr Dinh also says that, while he explained to the second respondent how the underpayments occurred, she did not seem to understand. He further explains that the second respondent was using a manual payroll system and that it is difficult for anyone to do so in the hospitality industry.
21.
Mr Dinh deposes:
27. In my professional opinion, Ms Pham’s conduct that leads to the contraventions of the FW Act was not deliberate. I have seen that Ms Pham has tried her best working with us to ensure her payroll system is correct and up to date by changing from manual records to software and computerised system.
28. Payroll is a complex area of employment law and it involves a good understanding of not only software system, but also employment contracts, and complex pay rates of the hospitality industry. Her effort to understand and implement her payroll system quickly is highly commended by us.
29. Throughout this matter, Ms Pham always instructed KDA to fully cooperate and assist the FWO with their investigation and enquiries.
22.
Mr Dinh appeared for brief cross-examination. He confirmed that he began doing the first respondent’s payroll in June 2018. He explained that he had a face-to-face meeting with the second respondent and explained to her how the underpayments had occurred. When asked by Counsel for the applicant whether, when conducting a payroll audit, he took into account “cash payments”, Mr Dinh confirmed that he “did so”.
23.
Mr Dinh’s evidence in cross-examination was forthright and he struck the Court as entirely credible.
The Second Respondent’s Affidavits
24.
The second respondent filed two affidavits in this matter: one dated 25 June 2020; another dated 12 August 2020. Paragraph [57] of the first affidavit dated 25 June 2020 was struck out by consent.
25.
The second respondent states that the first respondent is currently in the process of voluntary liquidation. Further, it is said that the first respondent has no assets and no financial capacity to pay a penalty. The second respondent attached various financial statements demonstrating that the first respondent had not made a profit in since the 2015/2016 financial year. She states that the first respondent is currently $798,254 in debt.
26.
The second respondent also makes reference to her lack of English language proficiency. She says that she was unaware of the correct rates of pay or any obligations surrounding payslips when the business opened and received only two weeks of training by the franchisor. She noted that, following the orders made by Justice Siopis, she attended “intense, technical and extremely difficult” training which she tried “very hard to understand” (but “could not”).
27.
The second respondent says that she was “very surprised” to hear about the investigation into the underpayments the subject of proceedings in this Court as, at that time, she had “recently paid the pecuniary penalties” and “had undertaken the training”. However, she explains that, upon learning of the underpayments she caused them to be rectified and, despite being unable to afford the cost, retained an accounting firm to tend to all bookkeeping.
28.
Through these proceedings, the second respondent became aware that her “manual approach” to record keeping (copying and pasting previous payslips) had resulted in a number of mistakes and inadvertent errors. This, she says, included overpayments which, she notes, the applicant had acknowledged. The second respondent confirmed that she had not taken any action in relation to those overpayments. She also stated that a number of underpayments were to family members and that she always paid those family members above what they were owed in cash.
29.
Finally, the second respondent states:
63. I accept responsibility for my wrongdoing. However, I did not deliberately underpay my employees. As soon as I became aware of any underpayment occurred, I endeavoured to take the corrective actions to identify the underpayments and to retified those underpayments to the underpaid employees with my own money.
64. I have no motivation or purpose of securing a personal gain from those underpayments. Upon the request of the FWO, I fully disclosed to the FWO a range of genuine records, including payroll summaries and activities, payment of superannuation records and pay slips.
65. I am hopeful hope that the Court takes into account the significant language handicap I have in dealing with the regulatory compliance concerning the remuneration of employees and related recordkeeping.
30.
The second respondent was cross-examined by Counsel for the applicant. She confirmed that she did not engage any consultant or accountant to assist with the payroll until June 2018. She explained, however, that she had tried to find a consultant and also tried to learn how to do the payroll herself after August 2017. She said that she wanted a consultant or accountant who spoke Vietnamese and, in June 2018, asked her lawyer to find a consultant or accountant for her.
31.
The second respondent’s evidence was vague. She sought to justify the fact that she did not engage a consultant in August 2017 (or until June 2018) because her English language skills “were not high”, the Federal Court proceedings were not finalised and she was trying to find a Vietnamese speaking consultant.
32.
The second respondent also stated that she would check the Restaurant Industry Award 2010 (the “Award”) rates “once or twice a year” if she was confused but found the details provided to be inadequate and did not really understand it.
33.
When re-examined, the second respondent indicated that (in addition to the Court ordered education course she undertook in May 2018), she undertook a “bookkeeping” course. This evidence had not been raised previously. It is not mentioned in the two affidavits filed by the second respondent. There is no corroborative evidence (like a certificate of completion) included in any of the materials before the Court. The Court gives little weight to this evidence.
The “Serious Contraventions”
34.
In the statement of agreed facts, the following is admitted:
2. Han’s Cafe further admits that the Admitted Contraventions set out at paragraphs 1 (b)(i), 1 (b)(ii) and 1 (d) above were serious contraventions within the meaning of section 557A of the FW Act (Serious Contraventions).
…
4. Ms Pham further admits that she was involved, within the meaning of section 557A(5A) of the FW Act, in the Serious Contraventions.
35.
The statement of agreed facts continues:
I. SERIOUS CONTRAVENTIONS
The serious contraventions of section 45 of the FW Act regarding failure to pay minimum hourly rates of pay
103. Han’s Cafe knew that at all times during the Employees’ respective Assessed Employment Periods:
(a) the Award applied to Han’s Cafe and the Employees;
(b) the Award contained mandatory rates of pay in respect of the Employees; and
(c) it was unlawful not to comply with the terms of an applicable award.
104. The Employer knew that Han’s Cafe paid the Employees rates of pay for work in the Business which were insufficient to meet the minimum rates of pay in the Award.
105. At all material times:
(a) Han’s Cafe failed or neglected to exercise due diligence to prevent the noncompliance with the minimum rates of pay in the Award, or authorised or permitted the non-compliance;
(b) a corporate culture thereby existed within Han’s Cafe that directed, encouraged, tolerated or led to non-compliance with the minimum rates of pay in the Award; and
(c) in the alternative to sub-paragraph (b) above, Han’s Cafe failed or neglected to create and maintain a corporate culture that required compliance with the minimum rates of pay in the Restaurant Award.
106. By reason of the matters agreed in paragraphs 103 to 105 above, Han’s Café expressly authorised the contraventions of section 45 of the FW Act (in respect of breaches of clauses 20.1 and 20.3 of the Award), as agreed in paragraphs 43 to 46 above and 49 to 50 above within the meaning of section 5578(1) of the FW Act and so knowingly contravened each provision within the meaning of section 557A(1)(a) of the FW Act.
107. Further and in the alternative to the matters agreed in paragraph 106 above, by reason of the matters agreed in paragraphs 103to 105above, Han’s Cafe implicitly or tacitly authorised the contraventions of section 45 of the FW Act (in respect of breaches of clauses 20.1 and 20.3 of the Award), as agreed in paragraphs 43to 46 above and 49to 50 above within the meaning of section 557B(1) of the FW Act and so knowingly contravened each provision within the meaning of section 557A(1)(a) of the FW Act. The conduct constituting each of the contraventions agreed in paragraphs 43 to 46 above and 48 to 50 above, namely failing to pay the Employees minimum rates of pay for their ordinary hours in accordance with the applicable classification in the Award, was part of a systematic pattern of conduct in that:
(a) Han’s Cafe:
(i) committed the contraventions multiple times on a regular basis during the Assessed Employment Periods;
(ii) committed the contraventions of section 45 of the FW Act (arising out of clause 20.1 of the Award) in respect of six of the Employees;
(iii) committed the contraventions of section 45 of the FW Act (arising out of clause 20.3 of the Award) in respect of three of the Employees;
(iv) committed 13 other types of contraventions, 10 of which were committed multiple times during the Assessed Employment Periods, as agreed in paragraphs 52, 58, 61, 66, 70, 7 4, 78, 82, 86, 89, 94, 98and 102above, (together, the Minimum Wage Relevant Contraventions);
(b) the period over which the Minimum Wage Relevant Contraventions occurred spans from 5 October 2017 to 8 April 2018;
(c) Han’s Cafe committed the Minimum Wage Relevant Contraventions in relation to 11 Employees;
(d) Han’s Cafe failed to give pay slips in accordance with section 536(1) of the FW Act, as agreed in paragraphs 95 to 98 above; and
(e) Han’s Cafe failed to include required information on pay slips in accordance with section 536(2) of the FW Act, as agreed in paragraphs 99 to 102 above.
108. By reason of the matters agreed in paragraphs 103 to 107 above, Han’s Cafe’s contraventions of section 45 of the FW Act for failing to pay minimum rates of pay the Employees under clauses 20.1 and 20.3 of the Award, were serious contraventions within the meaning of section 557A(1) of the FW Act.
The serious contraventions of section 536(2) of the FW Act regarding failure to include information in pay slips
109. At all times during the Employees’ respective Assessed Employment Periods, Han’s Cafe knew that:
(a) Han’s Cafe issued Employees with pay slips; and
(b) the pay slips did not include Han’s Cafe’s name; the date on which the payment, to which the pay slip related, was made; the Australian Business Number of Han’s Cafe; or the name and number of any fund to which a superannuation contribution was made.
110. Han’s Cafe knew that it was legally required to include information on pay slips and that failure to do so was unlawful.
111. At all material times:
(a) Han’s Cafe failed or neglected to exercise due diligence to prevent the noncompliance with the legal obligation to provide pay slips, or authorised or permitted such conduct taking place;
(b) a corporate culture thereby existed within Han’s Cafe that directed, encouraged, tolerated or led to non-compliance with the legal obligation to provide pay slips; and
(c) in the alternative to sub-paragraph (b) above, Han’s Cafe failed or neglected to create and maintain a corporate culture that required compliance with the legal obligation to provide payslips.
112. By reason of the matters agreed in paragraphs 109 to 111 above, Han’s Café expressly authorised the contraventions of section 536(2) of the FW Act, as agreed in paragraphs 99 to 102 above, within the meaning of section 557B(1) of the FW Act and so knowingly contravened that provision within the meaning of section 557A(1)(a) of the FW Act.
113. Further and in the alternative to the matters agreed in paragraph 112 above, by reason of the matters agreed in paragraphs 108 to 111 above, the Employer implicitly or tacitly authorised the contraventions of section 536(2) of the FW Act, as agreed in paragraphs 99to 102, within the meaning of section 557B(1) of the FW Act and so knowingly contravened that provision within the meaning of section 557A(1)(a) of the FW Act.
114. The conduct constituting the contraventions agreed in paragraphs 99 to 102, namely failing to include required information on pay slips, was part of a systematic pattern of conduct in that:
(a) the Employer:
(i) committed this contravention multiple times on a regular basis during the Assessed Employment Periods, in respect of each of the Employees;
(ii) committed 14 other types of contraventions, 11 of which were committed multiple times during the Assessed Employment Periods, as agreed in paragraphs 46, 50, 54, 58, 62, 66, 70, 74, 78, 82, 86, 89, 94 and 98 above, (together, the Pay Slip Relevant Contraventions);
(b) the period over which the Pay Slip Relevant Contraventions occurred spans from 5 October 2017 to 8 April 2018; and
(c) Han’s Cafe committed the Pay Slip Relevant Contraventions in relation to 11 Employees.
115. By reason of the matters agreed in paragraphs 109 to 114 above, Han’s Cafe’s contraventions of section 536(2) of the FW Act for failing to include required information in pay slips were serious contraventions within the meaning of section 557A(1) of the FW Act.
…
Ms Pham’s involvement in the serious contraventions
122. Ms Pham has committed serious contraventions of section 45 of the FW Act, for failing to pay minimum hourly rates of pay in accordance with clauses 20.1 and 20.3 of the Award, within the meaning of section 557 A(5A) of the FW Act, because:
(a) she was involved in Han’s Cafe’s contraventions of section 45 of the FW Act (by failing to comply with clauses 20.1 and 20.3 of the Award), by reason of the matters agreed in paragraph 121 above;
(b) Han’s Cafe’s contraventions of section 45 of the FW Act, for failing to pay minimum hourly rates of pay to the Employees in accordance with clauses 20.1 and 20.3 of the Award, were serious contraventions for the reasons agreed in paragraph 108 above;
(c) Ms Pham knew that Han’s Cafe’s contraventions of section 45 of the FW Act, for failing to pay minimum hourly rates of pay to the Employees in accordance with clauses 20.1 and 20.3 of the Award, were serious contraventions because she knew that:
(i) Han’s Cafe knowingly contravened section 45 of the FW Act, in that it expressly, tacitly or impliedly authorised the contraventions; and
(ii) Han’s Cafe’s conduct constituting the contraventions was part of a systematic pattern of conduct.
123. Ms Pham has committed serious contraventions of section 536(2) of the FW Act, within the meaning of section 557 A(5A) of the FW Act, because:
(a) she was involved in Han’s Cafe’s contraventions of section 536(2) of the FW Act, by reason of the matters agreed in paragraph 111 above;
(b) Han’s Cafe’s contraventions of section 536(2) of the FW Act, for failing to include the required information in pay slips, were serious contraventions for the reasons agreed in paragraph 115 above;
(c) Ms Pham knew that Han’s Cafe’s contraventions of section 536(2) of the FW Act, for failing to include the required information in pay slips, were serious contraventions because she knew that:
(i) Han’s Cafe knowingly contravened section 536(2) of the FW Act, in that it expressly, tacitly or impliedly authorised the contraventions; and
(ii) Han’s Cafe’s conduct constituting the contraventions was part of a systematic pattern of conduct.
36.
Section 557A of the Act came into effect on 15 September 2017. The contraventions all occurred after this date. Accordingly, s.557A was in effect and applies to this case.
37.
In the respondents’ written submissions filed on 17 September 2020, the respondents seem to resile from the statements they have agreed to above. The respondents submit that they are not appropriate parties upon whom to impose serious contravention penalties, that the contraventions were not deliberate and the contraventions do not fall within what is considered a “serious contravention”.
38.
The applicant submits that the respondents’ specious attempt to “re-characterise” the contraventions should not be allowed.
39.
The statement of agreed facts was filed in accordance with s.191 of the Evidence Act 1995 (Cth). The respondents have not sought leave to adduce any evidence to contradict the agreed fact as is required by s.191(2)(b) of the Evidence Act 1995 (Cth). On that basis, the respondents’ purported attempt in their written submissions to have the “serious contraventions” deemed “contraventions” (such that the maximum penalty is reduced) is rejected.
40.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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