Fair Work Ombudsman v The Backup Bloke Pty Ltd
[2021] FedCFamC2G 320
•3 December 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Fair Work Ombudsman v The Backup Bloke Pty Ltd [2021] FedCFamC2G 320
File number(s): MLG 181 of 2021 Judgment of: JUDGE BLAKE Date of judgment: 3 December 2021 Catchwords: INDUSTRIAL LAW – Fair Work Act 2009 (Cth) (‘Act’) – First Respondent admitting to contravening section 716(5) of the Act by failing to comply with a compliance notice – Second Respondent admitting to being involved in the contravention by the First Respondent within the meaning of section 550(2) – Court asked to consider the appropriate pecuniary penalties imposed on the Respondents on the papers – Court invited to determine penalty within an agreed range – complainant and Respondent reaching agreement to defer wages to avoid termination of employment in circumstances where the business was struggling – agreement contrary to law – First Respondent a small business – Court finding imposition of penalty appropriate within the range submitted by the parties. Legislation: Fair Work Act 2009 (Cth), ss.12, 14, 90(2), 539(2), 546(1), 550, 687(1), 700, 701, 716(4B), 716(5), 793
Evidence Act 1995 (Cth), s.191Cases cited: Commonwealth v Fair Work Building Industry Inspectorate (2015) 258 CLR 482
Kelly v Fitzpatrick [2007] FCA 1080
Mornington Inn Pty Ltd v Jordan [2008] FCAFC 70Division: Division 2 General Federal Law Number of paragraphs: 28 Date of last submission/s: 3 September 2021 Date of hearing: N/A Date reserved: 10 November 2021 Solicitor for the Applicant: Fair Work Ombudsman Solicitor for the Respondents: HR Legal ORDERS
MLG 181 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: FAIR WORK OMBUDSMAN
Applicant
AND: THE BACKUP BLOKE PTY LTD
First Respondent
PAUL LOIACONO
Second Respondent
ORDER MADE BY:
JUDGE BLAKE
DATE OF ORDER:
3 DECEMBER 2021
THE COURT ORDERS THAT:
1.Pursuant to section 546(1) of the Fair Work Act 2009 (Cth) (‘Act’), the First Respondent pay a pecuniary penalty of $10,900 in respect of the contravention of section 716(5) of the Act.
2.Pursuant to section 546(1) of the Act, the Second Respondent pay a pecuniary penalty of $2,200 for his involvement within the meaning of section 550(2) of the Act in the contravention referred to in paragraph 1 above.
3.The penalties in Order 1 and 2 above be paid to the Commonwealth of Australia within 28 days of the date of this order.
4.The Applicant have liberty to apply on 7 days notice in the event that any of the preceding orders have not been 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 BLAKE:
In this matter, the Fair Work Ombudsman (‘Applicant’) seeks the imposition of pecuniary penalties against The Backup Bloke Pty Ltd (‘First Respondent’) and Paul Loiacono (‘Second Respondent’) (collectively ‘the Respondents’).
The matter proceeded before me as follows. The parties reached agreement on a Statement of Agreed Facts (‘Statement’) filed on 26 May 2021. In the Statement, among other things, the First Respondent admitted to contravening section 716(5) of the Fair Work Act 2009 (‘Act’) by failing to comply with a Compliance Notice issued on 15 September 2020. In the Statement, the Second Respondent admitted he was involved, within the meaning of section 550(2) of the Act, in the contravention by the First Respondent of section 716(5) of the Act and pursuant to section 550(1) of the Act, was taken to have contravened section 716(5) of the Act. A copy of the Statement is contained within Annexure A to these reasons. What follows is based upon the facts and matters set out in the Statement.
In light of the Statement, the parties submitted jointly that the Court should make a range of declarations in relation to the liability of the Respondents. The Court made those declarations on 20 October 2021.
All that remains for the Court to do is to consider the appropriate pecuniary penalties to be imposed on the Respondents for the contraventions. The parties agreed that the Court should determine the matter on the papers and without the need for oral submissions. The Court agreed to that course. The Applicant had filed an affidavit of Inspector Cooke on 3 August 2021 and written submissions on penalty on 3 September 2021. The Respondents had filed an affidavit of the Second Respondent on 1 July 2021, and elected not to file any written submissions. I have had regard to all of the material outlined above.
The parties also submitted a minute of orders in respect of the pecuniary penalty to be imposed on each of the Respondents. Within the minute of proposed orders, the parties set out an agreed range of penalties for each of the contraventions of the Respondents. The Court was invited to determine a penalty within the range specified by the parties. The range for the penalty on the First Respondent is $9,990-$12,487.50. The range for the penalty on the Second Respondent is $1,998 - $2,497.50. It is relevant to note that the maximum penalty the Court may impose in this matter is an amount of $33,300 on the First Respondent and an amount of $6,660 on the Second Respondent.
RELEVANT PRINCIPLES
The High Court of Australia has considered how Courts should approach a situation where the parties reach agreement on the range of civil penalties to be imposed. In Commonwealth v Fair Work Building Industry Inspectorate (2015) 258 CLR 482 (‘Civil Penalty Decision’), the High Court accepted that submissions as to agreed civil penalties may be received by a Court. The approach a Court should adopt was explained by the High Court at paragraphs [48], [49], [58], [61], [65] and [66] and may be summarised as follows. First, the Court must satisfy itself that the penalty is appropriate irrespective of the range submitted by the parties. Second, the Court should not depart from the range of penalty proposed by the parties merely because it may be disposed to select some other figure. Third, the Court should be sufficiently persuaded of the accuracy of the parties agreement as to the facts and that the penalty proposed is appropriate. Fourth, it is consistent with principle and desirable in practice for a Court to accept the proposal of the parties, subject to what is stated above.
The relevant principles the Court is to have regard to when determining a pecuniary penalty are well understood and were set out by the Federal Court of Australia in Kelly v Fitzpatrick [2007] FCA 1080 (‘Kelly’). In Kelly the Federal Court set out a list of non-exhaustive factors relevant to the imposition of penalties under the Act. I consider the present matter in light of the principles in Kelly.
THE NATURE AND EXTENT OF THE CONTRAVENTIONS
There are a number of considerations within the evidence and the Statement that are relevant to this factor.
The Applicant became aware of the underpayment as a result of a complaint by a former employee of the First Respondent, Mr Muratore. The material before the Court indicates that Mr Muratore had not been receiving his entitlements since July 2017. Further, the material indicates that Mr Muratore had attempted to resolve matters with the Respondents as far back as September 2019, without success. Rectification of the payments occurred ultimately some 19 months after Mr Muratore first asked to receive his outstanding entitlements. That is not an insignificant period of time and ought properly be regarded as too long. It also appears that for a significant period within that timeframe, the Applicant was consistently and unsuccessfully pursuing the Respondents for rectification.
The failure by the Respondents to rectify matters promptly has resulted in the Applicant having to commence these proceedings which has in turn consumed time and public resources. This has occurred in circumstances where the Respondents knew the Compliance Notice had been issued and knew they had an obligation to comply with it.
The evidence filed by the Respondents discloses that the underpayments arose in circumstances where the business of the First Respondent was struggling. The evidence is that the First Respondent was preparing to terminate the employment of Mr Muratore in July 2017. When Mr Muratore became aware of that, he subsequently reached an agreement with the First Respondent to defer the payment of his wages. There are two things to be noted about that evidence. First, the arrangement reached is contrary to law and the Court cannot condone it. Employees are entitled and indeed must be paid their entitlements on time. Second, ignorance of workplace laws (like other laws) is no excuse.
DELIBERATENESS OF THE CONDUCT
There is little doubt that the conduct was deliberate. The decision not to pay Mr Muratore what he was owed was taken intentionally at a time when the business was struggling. Furthermore, the conduct of the First Respondent, in the face of repeated interaction with officers of the Applicant, in failing to satisfy the Compliance Notice was also deliberate.
NATURE AND EXTENT OF LOSS
The amount of the underpayments totalled $65,450. It represents non-payment for around 107 weeks work. That is a significant amount of money owed to an individual employee over an extended period of time. In that context, the loss suffered by Mr Muratore must be regarded as significant.
The matter before the Court is the failure by the Respondents to comply with the Compliance Notice. The ability of the Applicant to issue a Compliance Notice under the Act provides it with an alternative to commencing litigation for each and every underlying contravention. The Courts have recognised that compliance notices provide a mechanism for the efficient and cost-effective rectification of underpayments. A failure to comply with a Compliance Notice undermines (particularly in circumstances where it is admitted that underpayments occurred) the objective of efficient compliance with the Act, and leads to costs to the public that ought properly to have been avoided.
SIZE AND FINANCIAL RESOURCES OF THE BUSINESS
The First Respondent is a small business. Turnover is between $300,000 and $500,000 per year. The two directors of the business of the First Respondent are the Second Respondent and his wife. The inference to be drawn is that the business is largely conducted by the two of them. The evidence before the Court, which I accept, is that Mr Muratore is the only employee they have engaged. No other employee has been engaged by the Respondents since.
The evidence of the Respondents which I accept is that they do not typically engage human resources or legal professionals to assist them. That is unsurprising given the size of the business. Had such professionals been engaged, the relevant underpayments may not have occurred, and further, the Respondents would have been alerted to the seriousness of failing to comply with the Compliance Notice.
There is not any evidence before the Court about the financial health of the First Respondent’s business or its capacity to pay the fines imposed.
PRIOR CONDUCT, CONTRITION AND CORRECTIVE ACTION
There is not any dispute that the contraventions were admitted early, that contrition was demonstrated through rectifying the underpayments and that the position taken by the Respondents in the litigation has enabled these proceedings to be brought to an end as quickly and efficiently as possible. While those matters point towards the Respondents being given a discount in penalty, it is important to weigh in the balance the comments of Stone and Buchanan JJ in Mornington Inn Pty Ltd v Jordan [2008] FCAFC 70 at [74] where it was stated that it is not a sufficient basis for a discount that the plea has saved the cost of a contested hearing.
This is a matter in which a discount for the relevant factors is warranted. The early plea should be seen as a willingness to facilitate the course of justice. I also consider the remorse of the Respondents to be genuine. The Applicant submitted that a discount of no more than 25% should be applied, and that the percentage discount has been reflected in the penalty ranges put before the Court. I accept that submission and regard the discount proposed by the Applicant as appropriate in the circumstances of this case.
COMPLIANCE WTH MINIMUM STANDARDS
An important consideration in this case and other cases involving underpayments to employees is the need to ensure compliance with minimum standards. The objects of the Act include the preservation of an effective safety net for employees which is achieved through compliance with, among other things, modern awards. Those objectives are supported by a penalty regime set out within the Act.
I have described earlier in general terms the purpose of the Compliance Notice provisions contained within the Act. Those provisions play an important role in achieving the object of securing swift and efficient compliance with minimum employment obligations. Had the First Respondent complied with the Compliance Notice, the Applicant would not have been able to commence these proceedings. Had the Compliance Notice been satisfied, the First Respondent would not have been taken to have admitted or contravened the underlying civil remedy provision (see section 716(4B) of the Act).
DETERRENCE
The purpose of civil penalties is to promote public interest in compliance and to attempt to put a price on contraventions that is sufficiently high to deter repetition by the contravenor and by others who might be tempted to contravene the same legislation: Civil Penalty Decision at [55].
In the present matter, the First Respondent remains registered as a business and the Second Respondent remains a director of that business. While there are not any current employees of the business, it is possible that the business may engage employees in the future. That matter needs to be balanced against the unchallenged evidence from the Second Respondent that he now appreciates what has occurred and that in the future, any Compliance Notices need to be followed strictly. When these matters are considered together, there is a need for a penalty to be imposed that has regard to specific deterrence.
The Applicant submitted that general deterrence was also a factor in this case. Evidence was placed before the Court obtained from the Applicant’s industry profiles. That evidence was not altogether that straightforward to follow in the absence of being able to query the Applicant about it during the hearing. I accept generally, that there is a need to send a message to employers large and small about the importance of meeting obligations owed to employees and the need to comply with Compliance notices. Quite frankly, recent history demonstrates that there are serious issues across many industries concerning underpayment of employees. Employers must understand the importance of paying employees correctly. There is a need therefore for any penalty to take account of general deterrence.
DISPOSITION
When all of the factors above are considered, I am satisfied that it is appropriate to impose a pecuniary penalty on the Respondents. I am also satisfied that the penalty range submitted by the parties is appropriate having regard to all of the evidence and the circumstances of this case.
The proposed penalty range in respect of the contravention by the First Respondent is $9,990-$12,487.50. Weighing the various competing factors which I have assessed above, I fix the penalty at $10,900 for the contravention by the First Respondent.
The proposed penalty range in respect of the contravention by the Second Respondent is $1,998-$2,497.50. Weighing the various competing factors which I have assessed above, I fix the penalty at $2,200 for the contravention by the Second Respondent.
In this case, while the parties did not address me on it, I observe that it is the Applicant in its capacity as workplace regulator that has pursued the penalties. Mr Muratore has been compensated for the underpayments. In those circumstances, it is appropriate that the penalties be paid to the Commonwealth of Australia.
I certify that the preceding twenty eight (28) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Blake. Dated: 3 December 2021
ANNEXURE “A”
STATEMENT OF AGREED FACTS
This Statement of Agreed Facts is made by the parties in these proceedings for the purposes of
section 191 of the Evidence Act 1995 (Cth).
A. THE PARTIES
The Applicant
1 The Applicant, the Fair Work Ombudsman, is and was at all relevant times:
(a)a statutory appointee of the Commonwealth appointed by the Governor-General by written instrument pursuant to s 687(1) of the Fair Work Act 2009 (Cth) (FW Act);
(b)a Fair Work Inspector (FWI) pursuant to s 701 of the FW Act; and
(c)a person with standing to bring these proceedings and to apply for orders for contraventions of civil remedy provisions pursuant to s 539(2) of the FW Act.
2FWI John Cooke (FWI Cooke) is and was at all relevant times a FWI appointed by the Applicant under s 700 of the FW Act.
The First Respondent
3The First Respondent, The Backup Bloke Pty Ltd (ACN 155 742 920) (The Backup Bloke), is and was at all relevant times:
(a)a company incorporated under the Corporations Act 2001 (Cth) and registered since 14 January 2019;
(b)a “constitutional corporation” within the meaning of s 12 of the FW Act;
(c)a “national system employer” within the meaning of s 14 of the FW Act;
(d)the operator of an online retail business selling IT products and support services, whose postal address was a post office box located in Moorabbin, in the State of Victoria (Business); and
(e)by reason of the matters pleaded in paragraphs 3(b) and 3(c), covered by the FW Act in respect of its employees.
The Second Respondent
4The Second Respondent, Paul Loiacono (Mr Loiacono), is and was at all relevant times:
(a)a natural person capable of being sued;
(b)one of two directors of The Backup Bloke;
(c)the company secretary of The Backup Bloke;
(d)together with the other director, responsible for the overall direction, control, management and supervision of The Backup Bloke’s operations in relation to the Business;
(e)together with the other director, responsible for ensuring The Backup Bloke complied with its legal obligations under the FW Act; and
(f)a person whose conduct (engaged in on behalf of The Backup Bloke and within the scope of his actual or apparent authority) is taken to be that of The Backup Bloke under s 793(1) of the FW Act.
B. INVESTIGATION AND INSTITUTION OF PROCEEDINGS
5.On 23 March 2020, the FWO received a confidential Request for Assistance (RFA) from a former employee of The Backup Bloke, Mark Muratore (Mr Muratore), alleging that The Backup Bloke owed him 107 weeks of wages, annual leave and superannuation (together, the Entitlements).
6.From 2 June 2020, FWI Cooke undertook an investigation into the employment of Mr Muratore by The Backup Bloke and its compliance with Commonwealth workplace laws (Investigation).
7.On 2 June 2020, Mr Muratore provided FWI Cooke with payment summaries, bank statements and copies of correspondence between himself and Mr Loiacono as to the Entitlements.
8.On 3 June 2020, FWI Cooke called Mr Loiacono to discuss Mr Muratore’s allegations. Mr Loiacono told FWI Cooke that he agreed with Mr Muratore’s allegations and intended to honour everything that Mr Muratore was requesting. Mr Loiacono confirmed that Mr Muratore worked weekdays between 8am and 4:30pm with a one-hour lunch break. Mr Loiacono informed FWI Cooke that he never provided Mr Muratore with a pay slip because it was never requested. Mr Loiacono told FWI Cooke that he intended to pay Mr Muratore by the end of the 2019/2020 financial year. Mr Loiacono stated that The Backup Bloke owed Mr Muratore around $85,000.
9.On the same day, FWI Cooke emailed Mr Loiacono a copy of the FWO Compliance and Enforcement Policy and asked Mr Loiacono to respond to the allegations by 8 June 2020.
10.On 9 June 2020, FWI Cooke called Mr Loiacono. During this conversation Mr Loiacono told FWI Cooke that he was in the process of obtaining finance to pay Mr Muratore’s Entitlements.
11.On the same day, FWI Cooke received an email from Mr Loiacono which stated that he did not object to the amount that Mr Muratore was owed and that he always intended to pay him.
12.On 10 June 2020 FWI Cooke gave The Backup Bloke a compliance notice (Initial Compliance Notice) by posting a copy to 82 Clarendon Street, Maryborough, in the State of Victoria, being the registered office of The Backup Bloke. FWI Cooke also emailed a copy of the Compliance Notice to the email address “[email protected]”, being the email address of Mr Loiacono. The Initial Compliance Notice required The Backup Bloke to rectify any underpayments from specified alleged contraventions and to provide proof to the FWO that this had occurred by 24 July 2020.
13.On 27 July 2020, FWI Cooke spoke to Mr Loiacono who stated that he was waiting on finance and was expecting this to be finalised by the end of the week.
14.On 31 July 2020, Mr Loiacono called FWI Cooke to inform him that he had been approved for finance by the ANZ bank and once he received the money, he would pay back Mr Muratore.
15.On 3 August 2020, FWI Cooke emailed Mr Loiacono, asking him for a timeframe as to when the funds would be available so that The Backup Bloke could comply with the Initial Compliance Notice.
16On the same day, Mr Loiacono emailed FWI Cooke stating that he only had verbal confirmation and not official confirmation that finance had been approved.
17.On 4 August 2020, FWI Cooke emailed Mr Loiacono, again asking for a timeframe as to when The Backup Bloke could comply with the Initial Compliance Notice.
18.On 7 August 2020, FWI Cooke called Mr Loiacono, asking for a timeframe as to when The Backup Bloke could comply with the Initial Compliance Notice. Mr Loiacono said he was not sure as to when the bank would provide the funds.
19.On the same day, Mr Loiacono emailed FWI Cooke to tell him that all documentation had been signed with the ANZ bank and that it wouldn’t be long until he received the money.
20.On 11 August 2020, FWI Cooke emailed Mr Loiacono, telling him that he had not provided the FWO with a specified date and that if The Backup Bloke did not rectify the underpayment by 12 August 2020, the matter would be referred to litigation.
21.On 12 August 2020, Mr Loiacono emailed FWI Cooke, stating that he estimated that approval for finance would take 2 to 3 weeks.
22.On 20 August 2020, FWI Cooke wrote to Mr Loiacono, allowing The Backup Bloke to propose a payment arrangement for the rectification of the Initial Compliance Notice, only if The Backup Bloke provided a detailed schedule which allowed for full rectification within a reasonable time and if The Backup Bloke provided evidence as to its financial position to support the granting of a payment arrangement.
23.The Backup Bloke never provided the FWO with evidence as to its financial position, nor a payment schedule which allowed full rectification within a reasonable time.
C.COMPLIANCE NOTICE AND CONTRAVENTION
24.Following the Investigation, FWI Cooke formed a belief that, at all relevant times between 1 July 2015 and 5 July 2019:
(a) Mr Muratore was employed by The Backup Bloke at the Business;
(b)the General Retail Industry Award 2010 (Award), a modern award under the FW Act, covered and applied to The Backup Bloke in respect of Mr Muratore;
(c)Mr Muratore was engaged as a full-time employee and accrued annual leave entitlements over the course of his employment;
(d)Mr Muratore was entitled to annual leave loading on annual leave accrued under clause 32.3 of the Award;
(e) during his employment, Mr Muratore had not been paid for all hours worked;
(f)at the time Mr Muratore’s employment ended in July 2019, he was owed a total of 107 weeks of unpaid wages;
(g)at the time Mr Muratore’s employment ended in July 2019, he had a total of 8 weeks of accrued but untaken annual leave; and
(h)The Backup Bloke did not pay Mr Muratore any amount with respect to accrued but untaken annual leave when his employment ended, or at any time thereafter.
25.By reason of the matters pleaded in paragraph 11 above, FWI Cooke formed a reasonable belief pursuant to section 716(1) of the FW Act that The Backup Bloke, between 1 July 2015 and 5 July 2019 (Contravention Period), contravened:
(a) clause 17 of the Award – failing to pay the full-time minimum wage;
(b)clause 32.3 of the Award – failing to pay annual leave loading on annual leave accrued; and
(c)section 90(2) of the FW Act – failing to pay accrued but untaken annual leave on termination of employment,
(together, the Contraventions).
The Compliance Notice
26.On 15 September 2020, FWI Cooke withdraw the Initial Compliance Notice and gave The Backup Bloke a compliance notice in respect of the Contraventions pursuant to section 716(2) of the FW Act (Compliance Notice) by posting a copy to 82 Clarendon Street, Maryborough, in the State of Victoria, being the registered office of The Backup Bloke. FWI Cooke also emailed a copy of the Compliance Notice to the email address “[email protected]”, being the email address of Mr Loiacono.
27.Pursuant to section 716(2) of the FW Act, the Compliance Notice required The Backup Bloke:
(a)to take the following action by 14 October 2020 to remedy the direct effects of the Contraventions:
(i)calculate the number of hours worked by Mr Muratore during the Contravention Period;
(ii)identify the amount Mr Muratore was paid during the Contravention Period in respect to the number of hours worked;
(iii)calculate the full amount Mr Muratore should have been paid for the number of hours worked during the Contravention Period;
(iv)calculate the full amount Mr Muratore should have been paid for accrued but untaken annual leave;
(v)calculate the full amount Mr Muratore should have been paid for annual loading pursuant, pursuant to clause 32.3 of the Award;
(vi) calculate additional superannuation contributions owed to Mr Muratore;
(vii) make full payment to Mr Muratore for the amounts owed; and
(viii)prepare a schedule of calculations and amounts paid to Mr Muratore to remedy any underpayment identified; and
(b)to produce reasonable evidence to the Applicant of its compliance with the Compliance Notice by 14 October 2020, by producing a copy of the schedule of calculations and payments, and evidence that the amounts owed had been paid to Mr Muratore.
28. The Compliance Notice met the requirements of section 716(3) of the FW Act.
29.On 15 September 2020, FWI Cooke spoke to Mr Loiacono about the Compliance Notice and Mr Loiacono told him that he wanted to pay $1,000 a month until the money from the bank was received and asked for Mr Muratore’s banking details. FWI Cooke asked Mr Loiacono to send his payment plan proposal in writing.
30.On 28 September 2020, Mr Loiacono emailed FWI Cooke and stated he would pay Mr
Muratore a minimum of $1000 a month until the bank loan was finalised.
31.On the same day, FWI Cooke emailed Mr Loiacono Mr Muratore’s bank account details.
32.On 9 October 2020, Mr Muratore received $1000 from The Backup Bloke.
33.By 14 October 2020, The Backup Bloke failed to:
(a) identify the hours worked by, and the amount paid to Mr Muratore;
(b)calculate the number of hours of annual leave that were accrued but untaken by Muratore when his employment ended;
(c) calculate the amount owing to Mr Muratore;
(d)calculate and rectify outstanding superannuation contributions owing to Mr Muratore;
(e)prepare a schedule of calculations and amounts paid to Mr Muratore to remedy any underpayment identified;
(f)produce reasonable evidence to FWI Cooke of its compliance with the Compliance Notice; and
(g)rectify the underpayment owed to Mr Muratore for the number of hours worked during the Contravention Period, and for accrued but untaken annual leave.
34. The FWO never accepted any payment plan proposed by Mr Loaicono [sic].
D. ADMITTED CONTRAVENTIONS
35.The Backup Bloke admits to contravening section 716(5) of the FW Act by failing to comply with the Compliance Notice issued on 15 September 2020.
36.By reason of the matters referred to in paragraph 33 above, The Backup Bloke contravened section 716(5) of the FW Act.
E. RECTIFICATION
37.Between 19 March 2021 and 26 April 2021, The Backup Bloke provided the FWO with evidence that Mr Muratore’s underpayment had been repaid, along with calculations showing how the underpayment amount had been determined.
38.On the basis of the matters referred to in paragraph 37 above, The Backup Bloke has now met the requirements of the Compliance Notice.
F.ACCESSORIAL LIABILITY OF MR LOIACONO FOR NON-COMPLIANCE WITH THE COMPLIANCE NOTICE
39.By reason of the matters admitted in paragraph 4, Mr Loiacono was responsible for ensuring that The Backup Bloke complied with the Compliance Notice.
40.By reason of the matters admitted in paragraphs 4, 26 and 39 above, Mr Loiacono:
(a)had actual knowledge of the Compliance Notice that was given to The Backup Bloke;
(b)had actual knowledge that The Backup Bloke failed to comply with the Compliance Notice; and
(c) was an intentional participant in The Backup Bloke’s failure to comply with the
Compliance Notice.
41.By reason of the matters admitted in paragraphs 39 to 40 above, Mr Loiacono was involved, within the meaning of section 550(2) of the FW Act, in the contravention by The Backup Bloke of section 716(5) of the FW Act and pursuant to section 550(1) of the FW Act, is taken to have contravened section 716(5) of the FW Act.
G.RELIEF SOUGHT
The Parties seeks the declarations and orders set out below:
42.A declaration that The Backup Bloke contravened section 716(5) of the FW Act by failing to comply with the Compliance Notice issued on 15 September 2020.
43.A declaration that Mr Loiacono was involved, within the meaning of section 550(2) of the FW Act, in the contravention by The Backup Bloke of section 716(5) of the FW Act in paragraph 42 above.
44.An order that pursuant to section 546(1) of the FW Act, that The Backup Bloke pay a pecuniary penalty to the Commonwealth for the contraventions set out in paragraphs 42 above within 28 days of this order.
45.An order that pursuant to section 546(1) of the FW Act, that Mr Loiacono pay a pecuniary penalty to the Commonwealth for his involvement (within the meaning of section 550(2) of the FW Act) in the contravention referred to in paragraph 43 above;
46.An order that the Applicant have liberty to apply on seven days’ notice in the event that any of the proceeding orders are not complied with.
47.Such further orders as the Court considers appropriate.
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