Fair Work Ombudsman v Territory Tough Pty Ltd
[2024] FedCFamC2G 743
•16 August 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Fair Work Ombudsman v Territory Tough Pty Ltd [2024] FedCFamC2G 743
File number(s): DNG 4 of 2023 Judgment of: JUDGE LIVERIS Date of judgment: 16 August 2024 Catchwords: INDUSTRIAL LAW - FAIR WORK – FAILURE TO COMPLY WITH COMPLIANCE NOTICE – application for imposition of pecuniary penalties and other relief – apprentice entitlements – pecuniary penalty ordered Legislation: Fair Work Act 2009 (Cth) ss 545, 546, 716(1), 716(5) Cases cited: Australian Building and Construction Commissioner v CoreStaff WA Pty Ltd (No.2) [2020] FCA 893
Australian Building and Construction Commissioner v Pattinson 2022 [HCA] 13; (2022) 274 CLR 450
Australian Competition and Consumer Commission v TPG Internet Pty Ltd [2013] HCA 54
Fair Work Ombudsman v Cuts Only The Original Barber Pty Ltd & Ors. [2014] FCCA 2381
Fair Work Ombudsman v Powell [2022] FedCFamC2G 831
Fair Work Ombudsman v Red Lion Brewery [2022] FedCFamC2G 353
Fair Work Ombudsman v Soma Kitchen & Anor (No.2) [2020] FCCA 2583
NW Frozen Foods Pty Ltd v Australian Competition and Consumer Commission [1996] FCA 1134
Ponzio v B & P Caelli Constructions Pty Ltd [2007] FCAFC 65; (2007) 158 FCR 543
Sayed v Construction, Forestry, Mining and Energy Union [2016] FCAFC 4
Trade Practices Commission v CSR Ltd [1990] FCA 521
Division: Division 2 General Federal Law Number of paragraphs: 71 Date of last submission/s: 18 June 2024 Date of hearing: 21 May 2024 Place: Darwin Solicitor for the Applicant: Ms Anbar of the Fair Work Ombudsman Counsel for the Respondent: No appearance by the Respondent ORDERS
DNG 4 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: FAIR WORK OMBUDSMAN
Applicant
AND: TERRITORY TOUGH PTY LTD
Respondent
ORDER MADE BY:
JUDGE LIVERIS
DATE OF ORDER:
16 AUGUST 2024
THE COURT ORDERS THAT:
1.Pursuant to s 546(1) of the Fair WorkAct 2009 (Cth), the Respondent pay a pecuniary penalty of $21,645 to the Commonwealth for its contravention of s 716(5) of the Act declared on 5 February 2024, within 28 days;
2.Pursuant to s 546(3)(c) of the Act, from the penalty paid in accordance with Order 1, the Applicant is to distribute the amount of $6,118.88 to Mr Nathan Sellers, the former employee of the Respondent, within 28 days; and
3.The Applicant have liberty to apply on seven days notice in the event that the above orders are not complied with.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE LIVERIS
Territory Tough Pty Ltd operated a hamburger restaurant named Good Thanks at 33 Knuckey Street in Darwin. Good Thanks is no longer trading.
On 22 May 2019, Nathan Sellers commenced employment at Good Thanks. He was employed on a full-time basis, as a junior apprentice undertaking a Certificate III in commercial cookery. Mr Sellers was 17 years of age when he commenced his apprenticeship and was 20 years old when his employment with Good Thanks ended, on 26 June 2022.
On 6 June 2022, Mr Sellers made a request for assistance from the Office of the Fair Work Ombudsman, claiming that he had not been paid wages for time spent attending external training that he completed as part of his apprenticeship. In July 2022, the Office of the Fair Work Ombudsman commenced an investigation into Mr Sellers’ employment with Good Thanks.
As part of the investigation, on 13 July 2022, Fair Work Inspector Meg Dalkin spoke with Alexander James, one of the Directors of Territory Tough. Mr James acknowledged the underpayment, and said he wanted Territory Tough to repay Mr Sellers over time. No payments were made to Mr Sellers by Territory Tough during the investigation period.
During the investigation, Fair Work Inspector Dalkin formed a reasonable belief for the purposes of s 716(1) of the Fair Work Act 2009 (Cth) that Territory Tough had contravened:
(a)cl 20.2(a) and 14.11 of the Restaurant Industry Award 2010 between 22 May 2019 and 28 May 2020; and
(b)cl 18.3 and 12.7(b) of the Restaurant Industry Award 2020 between 29 May 2020 and 26 June 2022,
by failing to pay Mr Sellers the applicable minimum rate of pay in respect of time spent attending training associated with his training contract.
On 4 October 2022, Fair Work Inspector Dalkin gave Territory Tough a Compliance Notice that alleged it had contravened the relevant Award. The Compliance Notice required Territory Tough to calculate and rectify any underpayments owing to Mr Sellers by 1 November 2022, and to provide evidence of compliance by 8 November 2022.
Territory Tough did not comply with the Compliance Notice, nor provide any reasonable excuse for failing to do so.
These proceedings were commenced on 16 March 2023. Territory Tough’s involvement has been limited. Judge Vasta granted leave for Mr James to appear at a mention on 24 July 2023, but orders for Territory Tough to file a notice of address for service by 4 September 2023 were not complied with.
In September 2023, Fair Work Inspectors calculated the amount that Territory Tough would have paid to Mr Sellers had it complied with the Compliance Notice in the sum of $10,618.88, excluding any additional superannuation entitlements.
Territory Tough did not dispute the calculations. Rather, on 17 October 2023, Mr James proposed a repayment plan of an upfront payment of $2,000 to Mr Sellers and ongoing monthly instalments of $500 until the sum owing was paid in full. On the same day, the Office of the Fair Work Ombudsman accepted the proposal, on the condition that the initial payment was made in the same week. It was pointed out to Mr James that on the payment plan, repayment in full would take 18 months.
Territory Tough did not pay Mr Sellers the initial payment in the first week. Payments totalling $2,500 to were made to Mr Sellers in November and December 2023.
On 5 February 2024, Judge Vasta entered default judgement against Territory Tough, pursuant to rule 13.05(2) of the Federal Circuit and Family Court of Australia (Division 2) General Federal Law Rules 2021. As such, Territory Tough is taken to have admitted to contravening s 716(5) of the Act, by failing to comply with the Compliance Notice.
Mr James appeared on 5 March 2024 when procedural orders were made for the hearing of the determination of penalties. Orders were made extending the time for compliance with previous orders for Territory Tough to remedy the effect of the contravention and pay interest, but it did not do so. Territory Tough did not appear at the penalty hearing on 21 May 2024.
The Office of the Fair Work Ombudsman calculates that $6,118.88 remains owing to Mr Sellers, with additional superannuation entitlements and interest payments also outstanding.
The Office of the Fair Work Ombudsman seeks primary orders that:
(a)Pursuant to s 546(1) of the Act, Territory Tough pay a pecuniary penalty to the Commonwealth for its contravention of s 716(5) of the Act within 28 days; and
(b)Pursuant to s 546(3)(c) of the Act, the Fair Work Ombudsman distribute $6,118.88 of the penalty paid to the Commonwealth to Mr Sellers within 28 days.
Accordingly, the central issues for determination are the quantification of the pecuniary penalty and whether a portion of the pecuniary penalty paid to the Commonwealth should be paid to Mr Sellers.
WHAT IS THE APPROPRIATE QUANTUM OF THE PECUNIARY PENALTY?
In assessing the appropriate penalty, the Court has a broad discretion. The purpose of imposing civil penalties is “primarily, if not solely, the promotion of the public interest in compliance with the provisions of the Act, by the deterrence of further contraventions of the Act”.[1]
[1] Australian Building and Construction Commissioner v Pattinson [2022] HCA 13; (2022) 274 CLR 450 at [9].
The penalty should be one that the Court “considers fairly and reasonably to be appropriate to protect the public interest from future contraventions”.[2] The Court is required to assess the gravity and seriousness of the offending having regard to all relevant facts and circumstances.
[2] Pattinson at [71].
The Court is guided by the range of well-settled, non-exhaustive considerations that are relevant to the assessment of the appropriate penalty[3], so as to determine an outcome that is an instinctive synthesis of the various factors. These considerations include:
[3] Trade Practices Commission v CSR Ltd [1990] FCA 521; (1991) ATPR 41-076 at [42]; see also Pattinson at [18].
(a)the nature and extent of the conduct which led to the breach;
(b)the circumstances in which the conduct took place;
(c)the nature and extent of any loss or damage sustained as a result of the breach;
(d)whether there has been similar previous conduct by the respondent;
(e)whether the breach was properly distinct or arose out of one course of conduct;
(f)the size of the business enterprise involved;
(g)whether or not the breach was deliberate;
(h)the involvement of senior management in the breach;
(i)whether the party committing the breach has shown contrition;
(j)whether the party committing the breach has taken corrective action;
(k)whether the party committing the breach has cooperated with enforcement authorities;
(l)the need to ensure compliance with minimum standards by provision of an effective means for investigation and enforcement of employee entitlements; and
(m)the need for specific and general deterrence.
The list of considerations is not a checklist. There is no specific order in which the matters should be considered and the Court may take into consideration matters relevant to both the character of the contravening conduct and of contravener. The Court’s task is and remains the determination of the most appropriate penalty given all of the relevant circumstances of the case.[4]
[4] Pattinson at [18] - [19] and [68].
In submitting that the appropriate penalty is in the range of between 60% to 70% of the maximum penalty of $33,300, the Fair Work Ombudsman emphasised the relevant application of general deterrence, the vulnerability of Mr Sellers and the nature and extent of the loss and damage.
General and specific deterrence
The amount of a penalty imposed should be enough that it is not seen as “the cost of doing business”.[5]
[5] Australian Competition and Consumer Commission v TPG Internet Pty Ltd [2013] HCA 54; (2013) 250 CLR 640 at [66].
I accept the Fair Work Ombudsman’s submission that a failure to comply with a Compliance Notice undermines the utility of the notices as a mechanism for the efficient and cost-effective rectification of identified contraventions of the Act and the safety net of entitlements it is designed to protect.
In Pattinson, the High Court said, “The theory of s 546 of the Act is that the financial disincentive involved in the imposition of a pecuniary penalty will encourage compliance with the law by ensuring that contraventions are viewed by the contravenor and others as an economically irrational choice”.[6]
[6] At [66].
Accordingly, in order to satisfy the requirements of general deterrence, a penalty “should be of a kind that it would be likely to act as a deterrent in preventing similar contraventions by like-minded persons or organisations”.[7]
[7] Ponzio v B & P Caelli Constructions Pty Ltd (2007) 158 FCR 543; [2007] FCAFC 65 at [93].
I take into account that the fast food, restaurant and café industry has recorded high rates of non-compliance with workplace laws. The statistical evidence is that in the five years to 2019, the fast food, restaurants and café industry employs 5% of all employed people and accounted for 14% of all disputes received by the Office of the Fair Work Ombudsman. Further, in the same time period, 32% of all Compliance Notices issued by the Office of the Fair Work Ombudsman were issued in the sector, being five times more than the second highest ranked industry.
I accept that as Territory Tough was operating a business in the fast food, restaurant and café industry when the Compliance Notice was issued, the pecuniary penalty is required to act as a deterrent mechanism in preventing similar contraventions by people and organisations in the industry.
Good Thanks is no longer trading. Territory Tough is still registered with the Australian Securities and Investments Commission, however as at 8 April 2024, there was a strike-off action in progress against it. Despite this status, Territory Tough is registered, and it is unclear whether it may operate businesses or hire employees in the future.
Over the course of the investigation, the period after the Compliance Notice was issued, and the time since these proceedings were instituted, Territory Tough has displayed a disregard for its obligations under the Act. In these circumstances, I consider there is a need for the pecuniary penalty to have regard to specific deterrence, and for the pecuniary penalty to discourage Territory Tough from engaging in like conduct again.
The need to ensure compliance with minimum standards by provision of an effective means for investigation and enforcement of employee entitlements
It is an object of the Act to promote a guaranteed safety net of fair, relevant, and enforceable minimum terms and conditions for all employees.[8]
[8] See s 3(b).
Young and inexperienced people in the workforce are especially susceptible to unfair and unlawful workplace practices[9]. In Fair Work Ombudsman v Cuts Only The Original Barber Pty Ltd & Ors. [2014] FCCA 2381, Judge Riley considered a young apprentice to be a vulnerable employee. Her Honour said:
In my view, the combination of the applicant being an apprentice and being 21 years of age is sufficient to make her a vulnerable employee. Although technically she was an adult, she was a young adult and in a vulnerable position because of her need to finish her apprenticeship. Apprenticeships are qualitatively different from other jobs.
[9] Fair Work Ombudsman v Powell [2022] FedCFamC2G 831 at [73].
I consider that Mr Sellers, as a young adult and an apprentice who needed to complete his training, was a vulnerable employee. He was a minor at the start of his employment. At all times during his employment he was under the age of 21.
Despite his vulnerability, Mr Sellers was able to raise his concerns with Mr James in late 2021. On 19 November 2021, he sent Mr James a text message which explained that he had made some enquiries and had ascertained, “yeah I was meant to be getting paid to attend uni”.
On 5 December 2021, Mr James replied to Mr Sellers that he had “had a complete mind blank” and asked him “what did you say about the Uni issue the other day?” On 2 January 2022, Mr Sellers wrote to Mr James and said he had made enquiries again and received the same answer: that he was entitled to be paid to attend University. On 4 January 2022, Mr James replied to Mr Sellers telling him that he would “get it sorted” for him.
Mr Sellers renewed his enquiries with Mr James throughout January, February and March 2022. He asked about the back pay, said it had been a few months, and that he just wanted it to be “done and dusted”. He asked if there was anything he could do to help.
Mr Sellers did not receive any responses from Mr James until 17 March 2022, when he told him “yeah, just need to tally the days”. Correspondence continued in April and May 2022. On 17 May 2022, Mr Sellers supplied Mr James with the hours he claimed he had spent at University over periods in 2019, 2020 and 2021, and a total number of hours. On 23 May 2022, he asked Mr James to double-check the times claimed and to “work out the money please”.
Nothing was done. Mr Sellers sought assistance from the Office of the Fair Work Ombudsman. He also renewed his enquiries with Mr James in July 2022, to no avail.
The Awards required time spent by Mr Sellers attending training associated with his contract to be regarded as time worked for Territory Tough for the purposes of calculating his wages and determining employment conditions. In simple terms, as Mr Sellers put it to Mr James, he was entitled to be paid to attend University, as a minimum wage entitlement of a full-time apprentice.
The exploitation of vulnerable employees undermines the objects of the workplace relations system. I consider that Territory Tough’s failure to comply with the Compliance Notice in respect of Mr Sellers’ employment, as a young apprentice, is serious. The penalty to be imposed must be set at an amount that does not undermine the safety net set by the compliance notice scheme, requiring employers to calculate and pay minimum entitlements including where, as in this case, concerns have been raised and not been responded to.
The nature, circumstances and deliberateness of the conduct
Mr Sellers raised his concerns with Mr James over more than 6 months. Mr James made some acknowledgement, but very little was done. Amongst the last messages between them, on 8 July 2022 Mr James told Mr Sellers that he would call him. He did not. On 11 July 2022 Mr Sellers told Mr James to feel free to call him any time the following afternoon. Mr James did not do so. Mr Sellers made a request for assistance from the Office of the Fair Work Ombudsman after many months of patience and persistence.
Having not meaningfully engaged with Mr Sellers at any time after he raised his concerns, Territory Tough went on to fail to meaningfully engage with the Office of the Fair Work Ombudsman during the investigation. A Compliance Notice was required to be issued, and the failure of Territory Tough to comply with it necessitated the institution of these proceedings.
Territory Tough has failed to rectify the effects of non-compliance despite orders of the Court extending the time for it to do so. It committed to a repayment plan but failed to comply with that as well.
In my opinion these factors, going to the nature and circumstances of the conduct, need to be taken into account in determining the appropriate quantum of the pecuniary penalty to be imposed.
The nature and extent of loss or damage sustained as a result of the breach
In September 2023, nearly a year after the Compliance Notice was issued, Territory Tough asked the Office of the Fair Work Ombudsman to identify the amounts that it paid to Mr Sellers in respect of his entitlement to payment for time spent at training and the amount outstanding. Based upon the information obtained during the investigation, the Office of the Fair Work Ombudsman calculated the total amount to be $10,618.88, excluding superannuation.
Territory Tough has neither made any attempt to independently calculate the amounts, nor disputed the amounts that are owed to Mr Sellers as calculated by the Office of the Fair Work Ombudsman.
Territory Tough has made ad hoc repayments to Mr Sellers. $6,118.88 remains outstanding, excluding superannuation interest.
I also accept the Fair Work Ombudsman’s submission that there is a public loss occasioned by the failure to comply with a Compliance Notice.
In Fair Work Ombudsman v Soma Kitchen & Anor (No.2) [2020] FCCA 2583, Judge Kendall observed, “ … the purpose of s 716 is to provide an alternative to litigation. That is, it is designed to prevent litigation. Litigation is timely and expensive. It is also not controversial that Court resources are limited and this Court actively promotes alternative resolution methods in order to reduce unnecessary expenditure. Here, that purpose has been systematically undermined.” [10]
[10] At [39].
Territory Tough’s failure to comply defeats the purpose and benefits associated with the compliance notice regime, including the time and public funds spent by the Fair Work Ombudsman and the Court.
Corrective action, contrition and cooperation with enforcement authorities
Territory Tough’s response to its non-compliance with the Compliance Notice has been limited. I acknowledge that some payment of the total calculated amount has been paid to Mr Sellers, however a substantial portion remains outstanding. In addition to the payments totalling $2,500 made in late 2023, Territory Tough has made one further payment of $2,000 on 4 March 2024, after default judgement had been entered against it.
However, I am not able to find Territory Tough has acted in a way to display any significant contrition. I have considered:
(a)The irregular payments made to Mr Sellers against Mr James’ statements at the early stages of the investigation that he wanted to repay the amounts owing over time, but did not and the failure to comply with the repayment plan agreed in October 2023;
(b)Territory Tough was largely unresponsive with the Office of the Fair Work Ombudsman during the investigation and during the Compliance Notice period, despite numerous contact attempts made;
(c)The pattern of regularly not responding to communication, or making limited responses to the regulator was similar to Mr James’ interactions with Mr Sellers between late-2021 and mid-2022;
(d)Territory Tough continued to be largely disengaged after the expiry of the Compliance Notice period. On 16 November 2022, Senior Compliance Notice Officer Jonathan Whetlor was able to speak with Mr James on the telephone. He offered his assistance to Territory Tough, and notwithstanding that the Compliance Notice period had lapsed, he told Mr James that he would delay taking any further action for a week, giving Territory Tough a further opportunity to provide calculations, and any evidence of payment of the entitlements to Mr Sellers that it may wish to supply. Territory Tough did not submit any calculations within the week, or at all. Mr James did not make any further contact despite further emails on 22 and 24 November 2022 about his unresponsiveness, or the referral of the matter for litigation;
(e)There has been little co-operation by Territory Tough with the Office of the Fair Work Ombudsman, or in these proceedings. Despite being present when the matter was listed for a penalty hearing, Territory Tough failed to comply with orders for the filing and service of material and failed to attend the hearing. This has meant that the penalty hearing was required to take place against the background of default judgment being ordered, and without the benefit of any formal admissions, evidence or submissions made by the company.
Quantification of pecuniary penalty
The penalty must be proportionate, in that it must strike a “reasonable balance between deterrence and oppressive severity”.[11]
[11] Pattinson at [41]; see also NW Frozen Foods Pty Ltd v Australian Competition and Consumer Commission [1996] FCA 1134; (1996) 71 FCR 285 at 293.
I accept the Fair Work Ombudsman’s submissions that the primary factors that are relevant to determining the appropriate pecuniary penalty are general deterrence, the need to ensure compliance with minimum standards by the provision of an effective means for investigation and enforcement of employee entitlements and loss.
As a consequence of Territory Tough’s lack of engagement in the proceedings, there is no evidence about matters such as its financial circumstances. There is a limit to the Court’s ability to assess what the company may intend to do in the future, in relation to the fast food, restaurants and café industry, or engaging employees.
In my opinion, there are circumstances in this matter that require a penalty within the range submitted by the Fair Work Ombudsman.
I have found there is a need for general deterrence, as well as specific deterrence. I have found the conduct to be serious, including the facts and circumstances under which Mr Sellers raised his concerns with the directors of the company and received no satisfactory engagement. Over many months, Mr Sellers politely raised his concerns and patiently awaited some action. Ultimately, it appears that he was left with no choice but to seek assistance from the Office of the Fair Work Ombudsman.
I also take into account that there is no evidence of contrition, and very limited evidence of corrective action by Territory Tough. There is no evidence to explain why Territory Tough has been unable to maintain the repayment plan, nor any evidence or submissions going to its failure to comply with the Compliance Notice.
The period over which the Compliance Notice had effect was some three years, and applied to Mr Sellers, who at the time was aged between 17 and 20. The loss includes $10,618.88 that went unpaid to Mr Sellers, in addition to interest and superannuation. There is also the broader public loss that has been caused by Territory Tough’s conduct.
In my assessment a pecuniary penalty in the sum of $21,645 is appropriate to reflect the needs of deterrence, being 65% of the maximum penalty.
I will order the payment of the pecuniary penalty be made to the Commonwealth.
Should any part of the penalty be paid by the Commonwealth to Mr Sellers?
The Fair Work Ombudsman seeks an order that of the pecuniary penalty paid to the Commonwealth, $6,118.88 be distributed to Mr Sellers within 28 days. This is distinct from an application for the payment of a compensation order under s 545 directly to Mr Sellers.
Section 546(3)(c) of the Act enables the Court to order that the pecuniary penalty, or part of the penalty be paid to a particular person.
In this case, I am satisfied that the additional order sought by the Fair Work Ombudsman is appropriate.
In Sayed v Construction, Forestry, Mining and Energy Union [2016] FCAFC 4, the Full Court of the Federal Court of Australia emphasised that orders made pursuant to s 546(3)(c) are not compensatory in the way that orders under s 545 are.
The Court considered that depending on the factual circumstances of a particular case, a person for whose benefit, in effect, a contravention proceeding is brought may be the beneficiary of an order under s 546(3).[12] The Court observed that the example given in the explanatory memorandum to the Fair Work Bill 2008 is where an inspector brings penalty proceedings against the director of a company that has gone into liquidation and asks the court to pay any penalty to an employee, rather than the Commonwealth, in circumstances where the employee is out of pocket,[13] although the use of this term does not require a person to demonstrate or have incurred costs, not being legal costs.[14]
[12] At [102].
[13] At [74].
[14] At [103].
This Court has exercised the discretion in s 546(3) in cases other than where the respondent company is in liquidation. In Fair Work Ombudsman v Red Lion Brewery [2022] FedCFamC2G 353, default judgement was entered against the respondent and the outstanding entitlements owed to the affected employee was not able to be resolved with any precision as a result of the respondent’s non-compliance.
In that matter, Judge Mansini was satisfied that the Fair Work Ombudsman had initiated the proceedings as the regulator, but that it was appropriate for the penalty to be paid to the employee pursuant to s 546(3) of the Act, because the employee had been left financially disadvantaged for a considerable period of time and had sought the assistance of the Fair Work Ombudsman to rectify the position, without any success. The lapse of time of more than one year since the Compliance Notice issued, without any resolution, was regarded as too long.
In circumstances where the estimated loss to the employee exceeded $9,000, the Court ordered the whole of the pecuniary penalty sum of $2,640 to be paid to the employee.
In my opinion, the orders sought by the Fair Work Ombudsman in this case are appropriate because given the history of Territory Tough’s non-compliance at various stages, there is a high likelihood that the Fair Work Ombudsman will be unable to secure compliance with the orders made for Territory Tough to pay Mr Sellers the outstanding balance.
The orders sought are also appropriate because they acknowledge Mr Sellers as an innocent party in this matter, in the sense that was described in Australian Building and Construction Commissioner v CoreStaff WA Pty Ltd (No.2).[15] It has been more than 18 months since the Compliance Notice was issued, and there has not been any resolution of the contraventions. Mr Sellers has taken a number of steps, both with Territory Tough directly, and thereafter with the Office of the Fair Work Ombudsman, to resolve the complaint. Territory Tough has not disputed that amounts are owed to Mr Sellers, and nor has it disputed the calculations made by the Office of the Fair Work Ombudsman. Mr Sellers has been financially disadvantaged for a lengthy period of time, with the operative period of the Compliance Notice beginning on 22 May 2019.
[15] [2020] FCA 893.
I will make orders:
(a)Pursuant to s 546(1) of the Fair WorkAct 2009 (Cth), the Respondent pay a pecuniary penalty of $21,645 to the Commonwealth for its contravention of s 716(5) of the Act declared on 5 February 2024, within 28 days;
(b)Pursuant to s 546(3)(c) of the Act, from the penalty paid in accordance with Order 1, the Applicant is to distribute the amount of $6,118.88 to Mr Nathan Sellers, the former employee of the Respondent, within 28 days; and
(c)The Applicant have liberty to apply on seven days notice in the event that the above orders are not complied with.
I certify that the preceding seventy-one (71) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Liveris. Associate:
Dated: 16 August 2024
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