Fair Work Ombudsman v The Meatball and Wine Bar Pty Ltd

[2018] FCCA 2288

FEDERAL CIRCUIT COURT OF AUSTRALIA

FAIR WORK OMBUDSMAN v THE MEATBALL AND WINE BAR PTY LTD [2018] FCCA 2288

Catchwords:
INDUSTRIAL LAW – Failure to pay minimum standards – deliberateness of conduct – factors going to penalty – effect of publicity – adverse publicity – discount on penalty.

Legislation:

Fair Work Act 2009 (Cth), ss.45, 535(1), 557(1)

Fair Work Regulations 2009 (Cth), regs. 3.33, 3.34

Cases cited:

Construction, Forestry, Mining and Energy Union v Cahill [2010] FCAFC 39

Cousins v Merringtons Pty Ltd & Anor (No 2) [2008] VSC 340

Eva v Southern Motors Box Hill Pty Ltd [1977] FCA 35

Fair Work Ombudsman v MMP Management Services Pty Ltd & Anor [2012] FMCA 207

Gibbs v Mayor, Councillors and Citizens [1992] FCA 374 [18]

Mason v Harrington Corporation Pty Ltd [2007] FMCA 7

Seymour v Stawall Timber Industries [1985] FCA 386

Applicant: FAIR WORK OMBUDSMAN

Respondent: THE MEATBALL AND WINE BAR PTY LTD

File Number: MLG1741 of 2017

Judgment of: Judge McNab

Hearing date: 1 June 2018

Date of Last Submission: 1 June 2018

Delivered at: Melbourne

Delivered on: 21 August 2018

REPRESENTATION

Counsel for the Applicant: Ms. Kelly

Solicitors for the Applicant: Fair Work Ombudsman

Counsel for the Respondent: Ms. Symons

Solicitors for the Respondent: Sparke Helmore

ORDERS

THE COURT DECLARES THAT:

1. The Respondent contravened the following civil remedy provisions:

   (a)section 45 of the Fair Work Act 2009 (Cth) (Act), by failing to pay the minimum rates of pay to Nicholas Allan, Jesse Claringbold, Daniel Garcia, Ebony Harrison, Michael Malupa, Tyson Stephens and Mark Tronson as required by cl.20.1 of the Restaurant Industry Award 2010 (‘Restaurant Award’);

   (b)section 45 of the Act, by failing to pay Nicholas Allan, Lovato Altea Silvia, Christine Boucher Bouvrette, Jesse Claringbold, Stanislas Duverger-Nedellec, Thilina Ekanayake, Ryan Ensink, Jacqueline Fockler, William Gabriel, Daniel Garcia, Joseph Gargiulo, Dong Lee, Nora Momber, Hafiz Ghulam Muhi Ud Din, Yasmeen Nahoor, Monique Adelle Neumann, Jae Hyeon Park, Abbey Leigh Richmond, Erin Rush and Bhuvnesh Salhotra the casual loading as required by cl.13.1 of the Restaurant Award;

   (c)section 45 of the Act, by failing to pay Ryan Ensink, William Gabriel and Oliver Griffin-Danby the Saturday penalty rate as required by cl.34.1 of the Restaurant Award;

   (d)section 45 of the Act, by failing to pay Oliver Griffin-Danby the Sunday penalty rate as required by cl.34.1 of the Restaurant Award;

   (e)section 45 of the Act, by failing to pay Ryan Ensink, William Gabriel and Oliver Griffin-Danby the additional amount for work performed between 10 pm and midnight, Monday to Friday, as required by cl.34.2 of the Restaurant Award;

   (f)section 45 of the Act, by failing to pay Oliver Griffin-Danby an allowance where employees have a broken work day as required by cl.24.2 of the Restaurant Award;

   (g)section 45 of the Act, by failing to pay Nicholas Allan, Lovato Altea Silvia, Jesse Claringbold, Jordan Friel, Oliver Griffin-Danby, Ebony Harrison, Michael Malupa, Tyson Stephens, Mark Tronson the weekday overtime rates as required by cl.33.2(a) of the Restaurant Award;

   (h)section 45 of the Act, by failing to pay Oliver Griffin-Danby Saturday overtime rates as required cl.33.2(b) of the Restaurant Award;

   (i)section 45 of the Act, by failing to pay Oliver Griffin-Danby Sunday overtime rates as required cl.33.2(c) of the Restaurant Award; and

   (j)section 535(1) of the Act, by failing to keep records pursuant to reg.3.33 and reg.3.34 of the Fair Work Regulations 2009 (Cth) (‘Regulations’) that it was required to keep under the Act and the Regulations for 7 years.

THE COURT ORDERS THAT:

1. The Respondent pay penalties pursuant to s.546(1) of the Act for its contraventions set out in [1] above, fixed in the sum of $31,320.

2. Orders pursuant to s.546(3)(a) of the Act requiring the Respondent to pay the penalty amount to the Consolidated Revenue Fund of the Commonwealth within 28 days of the Court’s Order.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG1741/2017

FAIR WORK OMBUDSMAN

Applicant

And

THE MEATBALL AND WINE BAR PTY LTD

Respondent

REASONS FOR JUDGMENT

Introduction

1. The Fair Work Ombudsman (‘FWO’) seeks declarations and the imposition of pecuniary penalties for admitted contraventions of the Fair Work Act 2009 (Cth) (‘the Act’) stating that the Respondents failed to pay:

   a)minimum pay rates;

   b)casual loading;

   c)Saturday penalty rates;

   d)Sunday penalty rates;

   e)additional payment for work performed between 10pm and midnight Monday to Friday;

   f)allowances where employees have a broken work day; and

   g)various overtime rates,

   as required under the Award.

2. The FWO additionally contends that the Respondent failed to keep required records, prescribed under s 535(1) and regs 3.33 and 3.34 of the Act and Fair Work Regulations 2009 (Cth) (‘Regulations’).

Background

1. The Respondent operates three Italian restaurants in Melbourne. At the relevant time between for July 2016 until October 2016 it employed 66 staff across those three restaurants.

2. On 8 September 2016, as a part of the Victoria Street Food Precinct Campaign engaged in by the FWO, Fair Work Inspector Martin Dwelly (‘Inspector Dwelly’), visited one of the Respondent’s restaurants, located in Richmond.[1]

   [1] Applicant’s pleading, 3 [4] – [5].

3. On 15 September 2016, the FWO requested that the Respondent provide time and wage records for employees performing work at the Richmond outlet for the pay period from 12 September 2016 to 18 September 2016.[2] These were provided by the Respondent on 5 October 2016.[3]

   [2] Ibid 4 [6].

   [3] Ibid [7].

4. On 14 October 2016, Inspector Dwelly issued a notice under s 712 of the Act requiring the Respondent to product records regarding employees employed between 1 July 2016 and 1 October 2016 (‘Audit Period’).[4] Records from 4 July 2016 until 2 October 2016 were provided on 31 October 2016.[5]

   [4] Ibid [8]

   [5] Ibid [9].

5. On 30 May 2017, Inspector Dwelly informed the Respondent that he found the following:

   a)26 of the employees of the Respondent were subject to the Award. The relevant employees were classified under the Award as:

   i)Food and Beverage Attendant Grade 2 under cl. B.2.2 of sch. B; and

   ii)Kitchen Attendant Grade 1 under cl. B.3.1 of sch. B.[6]

   [6] Ibid 5 – 6 [19].

   b)During the Audit Period seven employees were not paid the minimum pay rates for their classification in accordance with cl.20.1 of the Award. These underpayments totalled $1.756.62.

   c)The Respondent was required to pay any casual employees a casual loading of 25% under cl.13.1 of the Award.[7] During the Audit Period, there were 20 employees of the Respondent who were not paid sufficient casual loading in accordance with the Award. These underpayments totalled $7,429.58.

   [7] Ibid 7 [24].

   d)The Respondent was required to pay relevant employees a penalty rate for ordinary hours of work performed on Saturdays under cl.34.1 of the Award. During the Audit Period, three employees were not paid sufficient penalties for work completed on Saturdays in accordance with the Award. These underpayments totalled $121.30.

   e)The Respondent was required to pay relevant employees a penalty rate for ordinary hours of work performed on Sundays under cl.34.1 of the Award. During the Audit Period, one employee was not paid sufficient penalties for work completed on Sundays in accordance with the Award. This underpayment totalled $29.58.

   f)The Respondent was required to pay relevant employees additional payments for work completed between 10pm and midnight, Monday to Friday, under cl.34.2 of the Award. During the Audit Period, three employees were not paid sufficient additional payments for work completed between 10pm and midnight between Monday and Friday. These underpayments totalled $26.78.

   g)The Respondent was required to pay relevant employees an allowance where they have separate work period of two hours or more in one day under cl.24.2 of the Award. During the Audit Period, one employee was not paid sufficient allowances for split shifts worked. This underpayment totalled $7.84.

   h)The Respondent was required to pay relevant employees overtime rates under cls.33.2(a), 33.2(b) and 33.2(c) of the Award. During the Audit Period, ten employees were not paid sufficient overtime payments. The various categories of underpayment were:

   i)the first two hours of overtime worked Monday to Friday (‘Initial Weekday Overtime’);

   ii)any overtime after the two hour initial overtime period for weekdays (‘Weekday Overtime’);

   iii)overtime hours worked between midnight Friday and midnight Saturday (‘Initial Saturday Overtime’); and

   iv)overtime hours worked between midnight Saturday and midnight Sunday (‘Sunday Overtime’).

   i)Overtime underpayments totalled:

   i)$4,271.69 for Initial Weekday Overtime;

   ii)$385.86 for Weekday Overtime;

   iii)$4.23 for Initial Saturday; and

   iv)$116.35 for Sunday Overtime.

   j)The Respondent was required to keep employee records for a period of seven years under s.535(1) of the Act. These records must contain hours worked by casual staff, payment of penalties or loading, overtime payments and record of times when overtime commences and ceases. The Applicant alleges that the Respondent’s records were not compliant with the requirements of s.535(1) of the Act and regs.3.33 and 3.34 of the Regulations.

6. The Respondent began rectifying the underpayments to affected employees on 8 June 2017.[8] In their pleadings, the Respondent states that all underpayments have now been rectified and were in fact rectified within one to two weeks of having been notified by the Applicant. Underpayments that were identified by the Respondent in an internal audit finalised in mid-2007 were paid in full shortly after. This is not the subject of any contest.

   [8] Ibid 14 [51].

7. The parties agree that the Respondent is entitled to have multiple contraventions in the same course of conduct treated as a single contravention under s.557(1) of the Act. The Applicant submits that the overtime under payments should be grouped together as they were the result of a course of conduct that arose from a single decision of the Respondent.[9] The Applicant further submits that the remaining contraventions regarding other underpayments and record keeping cannot be grouped under s.557(1). If the submission of the Applicant are accepted, this has the effect of reducing the number of contraventions to a total of eight.

   [9] Seymour v Stawall Timber Industries [1985] FCA 386 [266]-[267].

8. The Respondent submits that they are entitled to further groupings of contraventions, citing Gibbs v Mayor, Councillors and Citizens [1992] FCA 374 [18] and Construction, Forestry, Mining and Energy Union v Cahill [2010] FCAFC 39 [39]. The Respondent submits that these cases describe a non-statutory grouping discretion and that this discretion should be exercised to aggregate the penalty rate underpayment contraventions as these all involve a breach of cl.34 of the Award. If accepted, this would result in reducing the number of contraventions to a total of six.

9. I agree with Respondent’s submissions in relation to grouping and the penalty underpayment should also be grouped resulting in a total of six contraventions.

10. The FWO submits that the factors relevant to penalty in this case, derived from the non- exhaustive factors relevant to the imposition of penalty summarised by Mowbray FM in Mason v Harrington Corporation Pty Ltd [2007] FMCA 7 at [26]-[59], are:

    a)the nature and extent of the contravening conduct;

    b)the circumstances in which the conduct took place;

    c)the loss sustained as a result of the conduct;

    d)the deliberateness of the conduct;

    e)previous similar conduct;

    f)cooperation and contrition;

    g)size and financial circumstances of the business;

    h)compliance with minimum standards;

    i)specific deterrence; and

    j)general deterrence.

11. The Respondent does not cavil with the proposition that these are relevant factors. However, the Respondent does not accept the FWO’s approach on how the Court should apportion weight to each factor when deciding on penalties. The Respondent submitted that;

    a)the purpose of civil penalties ‘is to promote the public interest in compliance with the law’;

    b)the Court must ensure that multiple contraventions do not result in a penalty that is unjust or out of proportion to the circumstances of the case; and

    c)the Court should be cautious in its review of maximum penalties as they represent the worst possible case.

Orders sought

1. The FWO, relying on the findings of Inspector Dwelly, is seeking declarations that the Respondent has contravened ss.45 and 535(1) of the Act, sections which incur civil penalties.

2. Following the declarations, the FWO seeks orders that the Respondents pay penalties totalling between $121,500 and $140,940 under s.546(1) of the Act for contraventions.

3. The Respondent submits that due to:

   a)the inadvertence of the contravening conduct;

   b)the lack of similar previous conduct;

   c)the small quantum of the underpayment;

   d)the size of the Respondent business;

   e)poor financial circumstances of the Respondent; and

   f)non-curial damage that has accrued to the Respondent,

   that the Respondent ought to be penalised between $31,320 and $44,280 in total.

The Respondent’s evidence

1. The Respondent relies on the evidence contained in an affidavit of

   
   

   Bruno Matteo sworn on 25 May 2018 (‘the Affidavit’) in relation to the circumstances of the breach and the financial position of the Respondent.

2. The Affidavit states that the underpayments were not deliberate and had resulted from a lack of understanding of the application of casual loading and correct employee classification under the Award. The Affidavit deposes that at times this lack of understanding actually resulted in overpayment of some employees.

3. The Affidavit confirms that the Respondent consulted with workplace relations company, Employsure, for advice on rates of pay. However, it says this advice was only sought in regards to more senior staff on salaries and did not include the staff affected by contraventions. The underpayment of $14,149.83 is said to represent approximately 3% of the total wages provided to staff by the Respondent during the Audit Period.

4. In regards to record keeping, the Affidavit asserts that the inability to provide time cards for the Audit Period was the result of losing data. In 2016, the Richmond outlet of the Respondent was broken into and the Point of Sale system was damaged. This resulted in data being lost and the installation of a new Point of Sale system. Because of the nature of the new system, all Point of Sale systems across all outlets were replaced and it was necessary to clear all old system data. This is said to have caused the loss of data regarding time cards and the failure to comply with the record keeping obligations under the Act. The evidence of Mr. Matteo was not the subject of any challenge at the hearing.

Adverse publicity

1. The Respondent raised the issue of the terms of the publicity of the Applicant instituting these proceedings, which they submit had a significant effect on the business.

2. The FWO published a media release about the decision to pursue legal action against the Respondent and Mr. Matteo around 22 August 2017.

3. On 21 and 22 August 2018, articles about the legal action were published in the Age newspaper, Broadsheet online and Hospitality magazine. The Affidavit also asserts that there ‘were numerous instances of adverse comment that appeared on social media forums such as Facebook’.[10]  Broadsheet removed the Flinders Lane outlet from its ‘Best of Flinders Lane’ publication and the Respondent was removed from the Good Food Guide.

   [10] Affidavit of Bruno Matteo affirmed 25 May 2018 [20].

4. Mr Matteo states that:

   the day after the publication of the [Respondent’s] media release, the front window of the Flinders Lane Meatball and Wine Bar restaurant was smashed. This was the first time, in six years of trading, that this has occurred.

5. He states further that he believes that the destruction of pot plants at the Chapel Street outlet and the appearance of graffiti on the walls of the Richmond outlet was related to the media release as these incidents occurred in the same week.

6. The Affidavit attributes the loss of an opportunity to partner with Tennis Australia and open an outlet at the Australian Open to the media release. It asserts that the loss from the projected sales was approximately $80,000. The loss of a previously strong business relationship with Murdoch Books is also attributed to the media release.

7. The Affidavit suggests that the negative publicity arising from the media release resulted in a significant decline in revenue from losing customers. This caused the Respondent to make ‘the decision to close its butcher store and to rebrand two of its restaurants…so as to dissociate the restaurants from the stigma that now attaches to the [Respondent’s] name’. The Respondent submits that profits had declined by over $200,000 in the quarter immediately following the publication of the media release.

8. In Cousins v Merringtons Pty Ltd & Anor (No 2) [2008] VSC 340, Hansen J found that adverse publicity could be a relevant factor in mitigating a civil penalty.[11] At [61] of that decision, Hansen J noted that the authorities indicated that publicity would be ‘adverse’ when reporting was ‘unfair or incorrect’.

   [11] Cousins v Merringtons Pty Ltd & Anor (No 2) [2008] VSC 340 [61] – [65].

9. In my view, the media release published by the Applicant constitutes adverse publicity. The media release was published before any hearing, named Mr. Matteo and stated that the breaches showed “deliberate disregard for worker’s entitlements, including those of vulnerable young and migrant workers’.[12] The FWO later discontinued the proceedings against Mr. Matteo. Both Mr Matteo and the Respondent deny that the breaches were deliberate and Mr Matteo has filed evidence where he provides the basis for his view that the breaches were not deliberate.

   [12] Affidavit of Bruno Matteo affirmed 25 May 2018 [18].

10. In Eva v Southern Motors Box Hill Pty Ltd [1977] FCA 35, Smithers J outlined the following principles (citations omitted):

    In assessing appropriate punishment for a crime the court is required to have in mind not only the nature and extent of the offence itself but also a wide variety of associated circumstances. Such circumstances constitute a context in which to view the penalty. Adverse publicity is often one of the inevitable consequences of wrongdoing and in most cases is without influence in the assessment of the appropriate penalty.

    But adverse publicity initiated by the prosecuting authority itself requires special consideration. If the matter is publicised ahead of the trial, and widely, and in terms likely to induce public censure of the parties concerned and those parties are in day-to-day business relationships with the public, then there is obvious danger of injury to the lawful business of the parties which from a practical point of view may have the effect of effectuating a cumulative punishment. In such a case an element has been injected into the situation which subjects the party to more than the natural and probable consequences of mere publication of the fact that they are being prosecuted for named offences. In my view this is a case in which, by reason of the press release of the prosecuting authority, the danger of cumulative punishment along these lines is real and should be treated as part of the background against which the penalty should be assessed.[13]

    [13] Eva v Southern Motors Box Hill Pty Ltd [1977] FCA 35 [66] – [67].

1. I find that this is an instance where there has been adverse publicity that has caused an injury to the Respondent that has had, essentially, an effect of cumulative punishment. The effect of adverse publicity on the Respondent should be taken into consideration as a mitigating factor affecting penalty. I think it is significant that the Applicant made claims of deliberate wrongdoing against Mr Matteo and the Respondent in circumstances where that allegation was challenged and that issue had not been determined by the Court. The matters were not reported as allegations but as a factual statement.

Actions to rectify conduct

1. The Affidavit provides that the Respondent conducted an internal audit on compliance with the Award while the FWO’s investigation was taking place. This internal audit demonstrated there had been errors in classification under the Award and resulting underpayment. Any underpayment found was rectified by way of a lump sum. Each employee was provided with a letter containing an apology from the Respondent for the underpayment.

2. Around September 2017, the Respondent began to retain Crawshay Consultants to provide payroll services. Crawshay is responsible for calculating the correct wages and penalties. New record keeping processes were also established to conform to the requirements under the Act.

Consideration of factors going to penalty

Deliberateness, nature, extent and loss sustained because of the conduct

1. The FWO submits that the amount of underpayment was significant given the investigation took place over three months. It was also submitted that workers who engage in casual employment suffer greater hardship than those whom are higher paid: Fair Work Ombudsman v Lycamobile Pty Ltd [2013] FCCA 2132 [16]. In regards to the record-keeping contraventions, the FWO submitted that this should be weighted bearing in mind that proper records are vital in preventing worker exploitation: Fair Work Ombudsman v Han Investments Pty Ltd [2017] FCA 623 [114] - [115].

2. The Respondent concedes that employees were deprived of benefit but submits that, without any evidence, the Court cannot know the extent of any hardship suffered by employees. The Court does not accept that proposition and assumes that any loss of a benefit to low paid employees in the hospitality industry is likely to be of significance to those employees. It is important to bear in mind that because of the complexity of the wage calculation, employees are likely to rely on employers to calculate the correct wage payments and are therefore vulnerable.

3. The Respondent submits that it since it overpaid some employees, it is not correct to characterise it has having received a benefit through underpaying employees.

4. The Respondent submits that none of the contraventions of the Award were deliberate and were the result of inadvertence. As noted above, it was asserted that though the Respondent consulted with ‘Employsure’, a business who purports to provide “businesses with expert solutions and workplace relations”, it was not provided advice on the entitlements for the contravention-affected employees. The Respondent contends that there is no evidence that any of the contraventions of the Award were deliberate and that the Court should be mindful that the total underpayments represented around 3% of the total wages bill for the Respondent over the Audit Period.

5. The Applicant submits that at relevant times Respondent was a member of Employsure. It states that Employsure had provided the Respondent with the Restaurant Award and relevant pay rates and had also provided Mr Matteo in his capacity as a director of the Respondent, telephone and email advice about rates of pay for employees under the Restaurant Award.

6. I accept that the Respondent did have available to it the relevant wage rates under the Award as indeed all employers do. I do not accept that they had received advice in relation to wage rates for the relevant employees from Employsure but accept they received general advice about setting up systems and termination of employment. In relation to advice regarding pay, it had sought that advice in respect of senior salaried staff such as chefs.

7. In relation to the record keeping contraventions, the Respondent refers to the Affidavit of Mr. Matteo wherein he, asserts any failure to comply is a result of the break in and new Point of Sale system and not as a result of a decision to erase data.

8. Given that Mr. Matteo swore an affidavit and made himself available for cross examination and his evidence was not challenged, I accept the evidence that he gives in relation to whether or not this conduct was deliberate and accept that it was not deliberate.

Previous similar conduct

1. It is agreed that the Respondent has not engaged in similar conduct previously and both parties concur that this is not a mitigating factor.

Cooperation and contrition

1. The parties agree that the Respondent is entitled to a discount on penalty for cooperating with authorities and for rectifying the underpayments. The Applicant submits that a 10% discount is appropriate, while the Respondent submits that 20% is appropriate.

2. In my view a more significant discounts should be allowed to take into account the cooperation by the Respondent with the Applicant. The purpose of the Applicant’s action in conducting an audit on the business is to encourage and ensure compliance with industrial laws. When a party readily cooperates and does so in a timely way this should be encouraged. The cost to the Applicant, the legal system generally and affected employees is significant where there is no cooperation given by a Respondent. Recognition of the benefits of cooperation will also encourage employers to rectify underpayments quickly which is of course of benefit to the concerned employees. In circumstances where the level of underpayment may be reasonably small compared to the level of penalty there is little incentive for an employer to rectify underpayments when they will still be met with very large penalties notwithstanding the rectification and cooperation. These considerations may be different where there is a finding that the breaches are deliberate.

Size and financial circumstances of the business

1. Any penalty imposed should have regard to the particular financial circumstances of the Respondent at the time the contraventions took place.[14] Both parties agree that the totality principle mandates that the penalty should not be crushing or oppressive.

   [14] Fair Work Ombudsman v MMP Management Services Pty Ltd & Anor [2012] FMCA 207 [39] – [42].

2. The Respondent submits that since the proceedings began, revenue has declined and the total equity position of the Respondent as at

   
   

   31 March 2018 was at a deficit of over $700,000. Mr Matteo gave evidence that the income derived from the Respondent’s businesses declined in the December 2017 quarter and that trend continued in March 2018.

3. Based on the limited financial information provided, it would appear that any penalty will have a significant impact on the financial position of the Respondent. Based on those figures, by March 2018 it had a monthly trading loss of $50,278.

4. The court accepts that a meaningful penalty must be imposed given the importance of compliance with industrial laws and minimum standards.

Specific deterrence

1. The FWO submits that specific deterrence is a relevant consideration, characterising the failure to act in compliance with the Award as deliberate. The Respondent denies its actions were deliberate and submits that it has implemented effective changes to ensure compliance in the future, making specific deterrence unnecessary.

2. In circumstances where the court has found that the contraventions were not deliberate, specific deterrence has less significance. However, the Court does acknowledge that, given the number of people employed by the Respondent, is important for it to be subject to specific deterrence.

General deterrence

1. The FWO submits that a strong message needs to be sent to the hospitality industry, who represent a large portion of the complaints made to the FWO and litigation commenced on behalf of it. The Respondent submits that any need for general deterrence has been satisfied by the volume of publicity around the proceedings.

2. The Court accepts the role of general deterrence in fixing a penalty, particularly in cases such as these where casual and often younger employees are employed. The temptation on employers to breach the Award is great particularly where it is clear that profit margins in the restaurant business are generally low and competition is intense. In this case I do not see a substantial role for general deterrence in circumstances where there has been significant negative publicity, both against the business and Mr Matteo personally. In my view, this is a case where the Applicant could have considered obtaining enforceable undertakings rather than seeking recourse through proceedings.

Totality

1. As noted above, the Applicant seeks penalties based on eight contraventions of between $121,500 and $140,940.

2. In my view the minimum penalty proposed by the Respondent is appropriate in this case for the reasons outlined above. The Court will impose a total penalty of $31,320 based on the six contraventions set out below. This represents a significant penalty given the size and financial position of the Respondent and the cooperation and contrition exhibited by the Respondent.

Provision		Contravention	Maximum Penalty	Range of penalty	Total penalty inclusive of 20% discount
Fair Work Act 2009 s.45		Minimum wages cl. 20.1 of the Restaurant Award	$54,000	15%	$6,480
Casual loading cl.13.1 of the Restaurant Award	$54,000	20%	$8,640
Penalty contraventions -cl.34 of the Restaurant Award	$54,000	5%	$2,160
Split shift allowance cl.24.2 of the Restaurant Award	$54,000	5%	$2,160
Overtime contraventions cl.33.2 of the Restaurant Award	$54,000	15%	$6,480
Fair Work Act 2009 s.535(1)		Record keeping regs. 3.33 and 3.34 of the Fair Work Regulations 2009.	$27,000	25%	$5,400
Total: $31,320

I certify that the preceding fifty four (54) paragraphs are a true copy of the reasons for judgment of Judge McNab

Date:  21 August 2018