Fair Work Ombudsman v Watch Trader Pty Ltd
[2024] FedCFamC2G 162
•27 February 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Fair Work Ombudsman v Watch Trader Pty Ltd [2024] FedCFamC2G 162
File number: MLG 2511 of 2021 Judgment of: JUDGE FORBES Date of judgment: 27 February 2024 Catchwords: FAIR WORK – failure to comply with compliance notice – application for civil penalties – where admissions made by way of statement of agreed facts – where filed statement of agreed facts incomprehensible – where steps taken by Ombudsman to correct errors – whether the respondents cooperated or frustrated proceedings – significance of statement of agreed facts under Evidence Act - where proceedings stayed against employer after it entered administration – accessorial liability of director admitted – penalty imposed Legislation: Corporations Act 2001 (Cth) s 417B
Crimes Act 2009 (Cth) s 4AA
Evidence Act 1995 (Cth) s 191
Fair Work Act 2009 (Cth) ss 3, 12, 14, 90, 539, 546, 550, 716
Federal Circuit and Family Court of Australia Act 2021 (Cth) s 141
Cases cited: Australian Building and Construction Commissioner v Pattinson [2022] HCA 13
Australian Ophthalmic Supplies Pty Ltd v McAlary-Smith [2008] FCAFC 8
Commonwealth v Director, Fair Work Building Industry Inspectorate [2015] HCA 46
Della-Vedova v R [2009] NSWCCA 107
Fair Work Ombudsman v NSH North Pty Ltd trading as New Shanghai Charlestown [2017] 275 IR 148
Fair Work Ombudsman v Rika Foods North Melbourne Pty Ltd [2022] FedCFamC2G 768
Kelly v Fitzpatrick [2007] FCA 1080
R v Crowley [2004] NSWCCA 256
Trade Practices Commission v CSR Ltd (1991) ATPR 41-076Division: Division 2 General Federal Law Number of paragraphs: 134 Date of hearing: 28 April 2023 Place: Melbourne Solicitor for the Applicant: HWL Ebsworth Lawyers Respondents: In person ORDERS
MLG 2511 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: FAIR WORK OMBUDSMAN
Applicant
AND: WATCH TRADER PTY LTD
First Respondent
DARRYL JOHN MIDDLETON
Second Respondent
ORDER MADE BY:
JUDGE FORBES
DATE OF ORDER:
27 FEBRUARY 2024
THE COURT ORDERS THAT:
1.The proceedings against the First Respondent be permanently stayed.
THE COURT DECLARES BY CONSENT THAT:
2.The Second Respondent was involved, within the meaning of section 550(2) of the Fair Work Act 2009 (Cth) (FW Act), in the contravention by the First Respondent of the Compliance Notice issued on 7 May 2021 (the Compliance Notice), and is taken by s 550(1) to have contravened s 716(5) of the FW Act.
AND THE COURT ORDERS THAT:
3.Pursuant to section 546(1) of the FW Act the Second Respondent pay a pecuniary penalty in the amount of $2,664.00 for his involvement in the contravention by the First Respondent of section 716(5) of the FW Act.
4.Pursuant to section 546(3)(a) of the FW Act any pecuniary penalties ordered to be paid by the Second Respondent be paid to the Consolidated Revenue Fund of the Commonwealth within 28 days.
5.The Applicant has liberty to apply on seven days’ notice in the event that any of the preceding 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 FORBES
INTRODUCTION
These proceedings were commenced by the Fair Work Ombudsman (the Ombudsman) on 1 October 2021.
In its application to the Court the Ombudsman sought the imposition of pecuniary penalties against the first respondent, Watch Trader Pty Ltd (Watch Trader) and the company’s sole director and secretary Mr Darryl John Middleton (Mr Middleton) in relation to a contravention of section 716(5) of the Fair Work Act 2009 (Cth) (the FW Act) following the first respondent’s failure to comply with a compliance notice issued on 7 May 2021 (the Compliance Notice).
The parties have filed a statement of agreed facts (SOAF) pursuant to section 191 of the Evidence Act 1995 (Cth) (Evidence Act). In the SOAF, Watch Trader admitted to contravening section 716(5) of the FW Act by failing to comply with the Compliance Notice and Mr Middleton admitted that he was involved in that contravention. Pursuant to section 550(1) Mr Middleton is therefore taken to have contravened s 716(5). In the face of those admissions and the accompanying evidence in support, the Court is satisfied that the respondents are liable for the contravening conduct.
Pursuant to section 141 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (the FCFCOA Act), the Ombudsman seeks declarations which record the first respondent’s contravention of s 716(5) of the FW Act and Mr Middleton’s involvement in that contravention.
The Ombudsman also seeks the imposition of pecuniary penalties pursuant to section 546(1) of the FW Act in respect of the admitted contravention of the respondents.
On 28 April 2023, the matter came before me for a penalty hearing. Mr Adams, a solicitor, appeared on behalf of the Ombudsman. Mr Middleton was self-represented for the respondents.
In support of its application for penalty, the Ombudsman relied on several documents, including:
(1)the SOAF;
(2)the affidavit of Christina Filomena Candiloro, affirmed on 8 March 2022 (March Candiloro Affidavit);
(3)the affidavit of Christina Filomena Candiloro, affirmed on 10 June 2022 (June Candiloro Affidavit);
(4)the affidavit of Fair Work Inspector Victor Josue Acevedo, affirmed on 16 March 2023 (FWI Acevedo Affidavit);
(5)the Affidavit of Barney Spencer Adams affirmed on 24 April 2023 (Adams Affidavit); and
(6)email correspondence of the 26 July 2022 sent to Mr Middleton on 1 August 2022.
The Ombudsman also relied upon its written outline of submissions on penalty (Ombudsman's Submission on Penalty) which Mr Adams developed during oral submissions at the hearing. Mr Middleton did not file any written material but he made oral submissions.
In assessing what I consider to be an appropriate penalty in this case, I have read and considered each of the filed documents and I have reflected on the parties’ oral submissions.
These reasons deal only with the relief the Ombudsman seeks against the second respondent, Mr Middleton.
Some months following the penalty hearing and after my decision had been reserved for judgment, the first respondent Watch Trader was placed into external administration under the Corporations Act 2001 (Cth) (the Corporations Act) pursuant to a winding up order made by the Supreme Court of Victoria, on 23 August 2023.
On 6 September 2023 correspondence was received by my chambers from the Ombudsman’s legal representative. The Ombudsman’s representative stated that as a result of administration and pursuant to 417B of the Corporations Act, the proceedings against the first respondent should now be stayed. The Ombudsman stated that it did not seek leave to continue the proceedings against Watch Trader but confirmed that it intended to pursue its claim for a penalty against Mr Middleton, for his involvement in the company’s contravention.
BACKGROUND
The business and employee entitlements
At all relevant times, Watch Trader, operated a retail business selling second-hand watches in the Melbourne CBD. Watch Trader was incorporated under the Corporations Act and was first registered on 16 October 2009. The second respondent, Mr Middleton, was the sole director and secretary of Watch Trader and was responsible for its operation, management and control.
The company was covered by the FW Act in respect of its employees as it was a “constitutional corporation” within the meaning of section 12 of the FW Act and a “national system employer” pursuant to s 14 of the FW Act.
Employees of Watch Trader performing sales and retail work were entitled to be paid pursuant to the General Retail Industrial Award 2010 (2010 Award) for work performed prior to 1 October 2020 and under the General Retail Industrial Award 2020 (2020 Award) for work performed after that date. These modern awards prescribe various employee entitlements including the minimum rates of pay as well as entitlements to paid annual leave.
On 9 June 2020, Ms Stella Gultom commenced part-time employment with Watch Trader. During her employment, Ms Gultom held a student visa. She was an Indonesian citizen, in her late 20s and had a good command of English.
On 29 January 2021, Ms Gultom’s employment with the company was terminated.
Compliance Notice under s 716 FW Act
In or around April 2021, Ms Gultom sought the assistance of the Ombudsman in relation to her employment with Watch Trader. At this time, a Fair Work Inspector Victor Josue Acevedo (FWI Acevedo) commenced an investigation into the company’s compliance with various fair work instruments in respect Ms Gultom’s employment.
As a result of the investigation, FWI Acevedo formed a belief that Ms Gultom had not been paid the applicable minimum wage for part of the period of her employment or accrued annual leave on termination of her employment. Specifically, FWI Acevedo formed a reasonable belief within the meaning of section 716(1)(b) of the FW Act that between 9 June 2020 and 29 January 2021, Watch Trader contravened the following provisions of the 2010 Award, 2020 Award and the National Employment Standards in respect of Ms Gultom (Contraventions):
(1)clause 12.7 of the 2010 Award and clause 17.1 of the 2020 Award - minimum rates; and
(2)section 90(2) of the FW Act - annual leave on termination.
On 7 May 2021, FWI Acevedo issued Watch Trader with a compliance notice pursuant to s 716(2) of the FW Act in respect of the alleged contraventions of the modern Awards and FW Act.
The Compliance Notice required Watch Trader to undertake the following steps by 5 June 2021;
(a)identify the number of hours worked by Ms Gultom during her period of employment;
(b)identify the amount paid to Ms Gultom during the employment period in respect to the minimum rates for the ordinary hours works and the payment of annual leave upon termination (Entitlements);
(c)calculate the amount Watch Trader should have paid to Ms Gultom during the employment period for the Entitlements;
(d)make full payment to Ms Gultom of the difference between the amount paid to Ms Gultom and the amount that should have been paid to her for the employment period;
(e)make a record of the information and amounts referred to in (a) and (c); and
(f)calculate and pay any additional superannuation contributions required by clause 22.2 of the 2010 Award and clause 20.2 of the 2020 Award in respect of amounts owed to Ms Gultom.
The Compliance Notice required the company to produce reasonable evidence of its compliance with the steps listed above by 12 June 2021, by producing a schedule of the calculations and payments and evidence that the outstanding amounts had been paid to Ms Gultom.
The parties agree that the Compliance Notice met the formal requirements of s 716(3) FW Act.
The Compliance Notice was sent to the company’s registered office address and a copy was emailed to Mr Middleton's email address on 7 May 2021 by Fair Work Officer Mr Blaec Hammond (FWO Hammond). In the email Mr Middleton was requested to contact an agent of the Ombudsman as soon as possible[1].
[1] Affidavit of Victor Josue Acevedo affirmed on 16 March 2023 Annexure VA-3 (Acevedo Affidavit)
Mr Middleton responded to this email on 7 May 2021, stating that the office was temporarily closed “due to illness” and that he would respond when he was able to return to work[2]. The Ombudsman responded on the same day reminding Mr Middleton that compliance was required by 5 June 2021.
[2] Acevedo Affidavit, Annexure VA-3
On 28 May 2021, FWO Hammond emailed Mr Middleton, noting that there had been no communication since the email on 7 May 2021. FWO Hammond reiterated that compliance with the Notice was due by 5 June 2021 and that Mr Middleton should contact the Ombudsman if additional time was required. On the same day, Mr Middleton replied expressing that the business was closed due to COVID-19 restrictions imposed by the state government[3].
[3] Acevedo Affidavit, Annexure VA-3
FWO Hammond replied later that day, pointing to the fact that the business had had multiple weeks before the lockdown in Victoria to comply with the Notice. The Ombudsman indicated that some leniency may be afforded with the 5 June 2021 date of compliance if Mr Middleton was able to provide a timeframe for when compliance could be met.
On 4 June 2021, the day before compliance with the notice was due, FWO Hammond emailed Mr Middleton stating that a payment plan may be available to him if he was unable to make payment by 5 June 2021. On the same day, Mr Middleton replied to the correspondence, in which he stated inter alia[4]:
“I am not working. Our business is shut. I am home schooling two children. Does your employer expect you to work when not at work? I have told you previously that I have unfortunately been to [sic] unwell to work so have not looked at the email you have sent me properly […]”
[4] Acevedo Affidavit, Annexure VA-3, page 16
FWO Hammond informed Mr Middleton that if he was unwell and could not respond to the Ombudsman’s request, he would be required to provide evidence about his state of health and a time frame of when he will be able to respond to the Notice or when he could find someone on act on his behalf[5].
[5] Acevedo Affidavit, Annexure VA-3
On 8 June 2021, Mr Middleton emailed FWO Hammond a copy of a medical certificate which provided that he was unable to perform “certain duties” at his work for a period of two months. In response, FWO Hammond sought clarification from Mr Middleton about what “certain duties” he was unable to perform and how those duties prevented him from complying with the Compliance Notice[6].
[6] Acevedo Affidavit, Annexure VA-6
On 11 June 2021, FWO Hammond sent Mr Middleton a Failure to Comply with Compliance Notice email which afforded Watch Trader until 25 June 2021 to provide the Ombudsman with a reasonable excuse for its failure to comply with the Notice[7].
[7]Acevedo Affidavit, Annexure VA-8
On 18 June 2021, FWO Hammond requested that Mr Middleton either comply with the notices by 25 June 2021 or alternatively provide further evidence concerning his medical and financial circumstances[8].
[8] Acevedo Affidavit, Annexure VA-10
On 25 June 2021, FWO Hammond called and left Mr Middleton a message. The FWO also sent Mr Middleton an SMS message reminding him of the company’s obligation to comply with the Compliance Notice by close of business that day[9].
[9] Acevedo Affidavit, Annexure VA-11
On 28 June 2021, after not having heard from Mr Middleton since he sent his medical certificate, the Ombudsman provided Watch Trader a further and final opportunity to rectify the first respondent’s non-compliance with the Notice by 5 July 2021 or provide a reasonable excuse for not doing so[10].
[10] Acevedo Affidavit, Annexure VA-13
On 5 July 2021, FWO Hammond called Mr Middleton and left a message confirming that a response was required by close of business that day. By the close of business on 5 July 2021, the respondents had not taken any steps to comply with the Ombudsman.
Litigation background
Although the parties have made a SOAF and this proceeding is concerned principally with the assessment of penalties, I consider it appropriate to traverse the course of the litigation because it puts some added context around the extent to which there has (or has not) been cooperation between the respondents and the regulator. That is a somewhat vexed question in these proceedings.
The Ombudsman commenced these proceedings against the first and second respondents on 1 October 2021. On 5 October 2021, the Ombudsman served sealed copies of the originating application and statement of claim on the first respondent[11].
[11] Affidavit of Christina Filomena Candiloro affirmed on 25 January 2022 [4] (January Candiloro Affidavit)
On 3 November 2021, the matter first came before the Court. There was no appearance by the respondents, although the Ombudsman’s solicitor indicated that she had been in communication with Mr Middleton. I ordered that the respondents file and serve a notice of address for service by 5 November 2021 and a response and any defence by 1 December 2021 (November Orders).
Shortly after the conclusion of the directions hearing, Mr Middleton contacted my chambers, stating that he had been unable to log into the hearing, and that he required technical support[12].
[12] January Candiloro Affidavit at [16] and annexure CFC-10
The matter came before the Court for a further directions hearing on 23 December 2021. Again, there was no appearance entered by or on behalf of the respondents. On that occasion, the Ombudsman’s solicitor indicted an intention to file an Application for Default Judgment due to the respondents’ non-compliance with the November Orders. I ordered that the matter be adjourned for a further directions, at which time any application by the Ombudsman for default judgment would be heard (December Orders).
On 24 December 2021, the Ombudsman emailed a sealed copy of the December Orders to the second respondent’s email address as well as sending a copy via express post to Mr Middleton’s residential address[13].
[13] January Candiloro Affidavit at [29] and [30]
On 25 January 2022, the Ombudsman filed an application seeking default judgment (Default Application) against the respondents pursuant to section 13.05(2)(d) of the Federal Circuit and Family Court of Australia Rules 2021 (the Rules) by reason of the respondents’ failure to comply with the filing requirements of the November Orders. The Ombudsman’s solicitor deposed that on 28 January 2021 the Default Application was emailed to Mr Middleton[14].
[14] Affidavit of Christina Filomena Candiloro affirmed on 8 March 2022 at [4] (March Candiloro Affidavit)
On 10 February 2022, the matter came before the Court again for further directions. On this occasion, Ms Candiloro appeared for the Ombudsman and Mr Middleton appeared on behalf of the respondents. The Ombudsman’s Default Application was listed for hearing on 11 March 2022 and I made a notation to my orders that the Ombudsman would be granted leave to proceed on an undefended basis in the event of the respondents’ non-appearance.
The Default Application was heard on 11 March 2022. Again, Ms Candiloro appeared for the Ombudsman and Mr Middleton appeared for the respondents. At the hearing, Mr Middleton indicated to the Court that despite the respondents’ failure to comply with earlier Court orders, he wanted to participate in the proceedings. After hearing considerable argument, I made orders providing each of the parties an opportunity to file any further written submissions by 25 March 2022 and 1 April 2022, respectively.
However, I also noted that the parties had, after a short adjournment in proceedings, indicated a likelihood that they would enter into a SOAF. I informed the parties that if a SOAF were to be filed with the Court, the parties could seek consent orders which would obviate the need for a decision on the Default Application.
Statement of Agreed Facts
On 18 March 2022, a SOAF, signed by all parties, was filed by the Ombudsman (March SOAF).
On 29 March 2022, the Ombudsman’s solicitor emailed my chambers to advise that it had come to their attention that the March SOAF filed with the Court contained cross-referencing and formatting errors. The solicitors went on to say that this error had occurred when the document had been forwarded to the respondents for signature.
The March SOAF filed by the Ombudsman was incoherent and incapable of establishing a factual basis for liability findings – a circumstance which I have regrettably described before.
In Fair Work Ombudsman v Rika Foods North Melbourne Pty Ltd [2022] FedCFamC2G 768 (Rika), the Ombudsman sought declarations and pecuniary penalties based on a SOAF which contained similar formatting and numbering errors which, had I not intervened and drawn the errors to the attention of the Ombudsman’s representative, could have led the Court into error. In Rika at [26]-[28], I observed:
“[26][…] These errors resulted in inaccurate and confusing cross-referencing throughout the document itself, with the effect that admissions attributed to the respondents were essentially incomprehensible. The effect of these errors also carried through to the Ombudsman’s filed outline of submissions which relied on those incoherent admissions. Given the great significance of an agreed statement of facts in evidentiary terms, including the expectation that it should be relied upon by the Court as the factual foundation for the imposition of civil penalties, I considered these to be errors of substance not merely form.
[27]At the commencement of the hearing and after being informed that the Ombudsman intended to rely on its written outline of submission and the statement of agreed facts, the Court drew these errors to the attention of the Ombudsman. It was somewhat concerning that the Ombudsman’s legal representative indicated that these issues were known before the commencement of the hearing. I observed that as a model litigant in these proceedings, it was incumbent on the Ombudsman to bring this to the attention of the Court.
[28]Perhaps it was not fully appreciated that if the matter had proceeded on the basis of the filed documents there was a significant risk the Court would have been led into error, with the real possibility that penalties would have been sought and might have been imposed without a sound factual basis and/or on non-binding admissions. Alternatively, perhaps it was intended that the Court should make factual findings and accept admissions which departed from those contained in the signed December Statement of Agreed Facts. A signed statement of agreed facts is an important document that binds the parties under section 191 of the Evidence Act 1995 (Cth). It cannot simply be amended ‘on the run’.”
On this most recent occasion, the Ombudsman fortunately did draw the Court’s attention to the errors before the matter proceeded to hearing. However, how such an important document could have been signed off by the Ombudsman’s solicitors and filed with the Court remains a matter of concern. Responsibility for checking the document before filing rests with the Ombudsman and its representatives. The explanation that the document was somehow corrupted by technological error in the signing process, does not adequately explain how the corrupted document came to be filed.
A Statement of Agreed Facts should represent a genuine and informed agreement between the parties about the factual basis of the litigation. The Court is entitled to assume that the SOAF has been read over, explained to the respondent and the consequences properly understood before it is signed. Where a signed and filed document is incomprehensible it leaves the Court with no confidence about what has in fact been agreed, the circumstances in which the agreement has been negotiated and whether the document reflects informed decision-making or simply acquiescence or disinterested capitulation by the respondent parties.
In a criminal proceeding it is the obligation of the Crown to ensure that an agreed statement of facts presents, in a comprehensible fashion, the facts and circumstances of the offences upon which it seeks to sentence an offender[15]. It is not a perfunctory exercise[16], even more so when a respondent is not legally represented.
[15] Della-Vedova v R [2009] NSWCCA 107 at [14]
[16] R v Crowley [2004] NSWCCA 256 at [46] per Smart AJ
I accept that administrative errors do occur, but there is no room for error here. There is very little scope, if any, for the Court to depart from an agreed statement of facts, so if the filed document is infected with error, the risk of a miscarriage of justice is high. In light of recent experience, which is not limited to this case and the case cited above, I feel compelled to remind the regulator, as a model litigant, that agreed facts must always be carefully checked by parties and their legal representatives.
I now return to the litigation history of this case and to the events which followed the Ombudsman’s discovery that the SOAF was flawed.
On 19 July 2022, the Ombudsman filed an Application in a Proceeding seeking an order for the Applicant to sign, file and serve an amended SOAF (Amendment Application). In effect, the Ombudsman sought orders which would allow it to unilaterally file an amended (ie corrected) SOAF, serve the amended SOAF on the respondents and for the respondents to be taken to be bound by the amended document.
The Ombudsman’s solicitor filed an affidavit with the application, in which she deposed to correspondence with Mr Middleton concerning the amended SOAF. The solicitor stated that she had emailed and spoken to Mr Middleton shortly after discovering the deficiencies with the March SOAF. The solicitor said she had forwarded Mr Middleton an amended version of this SOAF, explaining that with his consent, an amended copy could be filed with the Court.
Throughout April 2022, the solicitor continued her attempts to contact Mr Middleton about this amended SOAF, however she was unable to make contact. This led the Ombudsman to send a copy of the amended SOAF to Mr Middleton’s residential address on 10 May 2022[17] via express post. As of the date of the June Candiloro Affidavit, there had been no further response from Mr Middleton since a phone call in early April 2022.
[17] Affidavit of Christina Filomena Candiloro affirmed on 10 June 2022 annexure CFC-49
The Ombudsman’s Amendment Application was heard before me on 8 August 2022. Mr Adams appeared on behalf of the Ombudsman and Mr Middleton appeared on behalf of the respondents. At this hearing, Mr Adams indicated that Mr Middleton was amenable to signing the amended document. Accordingly, the Ombudsman’s Amendment Application was dismissed and the parties were granted leave to file the amended SOAF (Amended SOAF).
Had Mr Middleton not appeared and not consented to the filing of the amended SOAF, I would not have made the orders sought by the Ombudsman. It strikes me as anathema to the concept of an agreed statement of facts that a party should be permitted to unilaterally file and serve a document and for the opposing party to be taken to have agreed to the admissions contained in it. A SOAF which contains admissions for which a party is liable to the imposition of civil penalties must be the product of genuine informed agreement. Agreed facts must be stated in a document which is signed by both parties and adduced into evidence[18]. Administrative error or not, and no matter how frustrating it may have been for the Ombudsman, I cannot readily envisage any circumstance where the Court would deem a party to be bound by what purports to be an agreed statement of facts under section 191 of the Evidence Act, where there is no evidence of actual agreement from the respondent.
[18] Evidence Act , s 191(3)
In any event, on this occasion, Mr Middleton consented to the filing of the Amended SOAF. The proceedings were otherwise adjourned for a further hearing in respect of the Ombudsman’s claim for penalties. I made orders for the Ombudsman and respondents to file and serve evidence and submission in relation to penalty.
Admitted contravention of s 716(5)
By the Amended SOAF, it is an agreed fact that Watch Trader failed to comply with its obligation under the Compliance Notice by failing to take the specific action by 5 June 2021 or produce evidence of its compliance by 12 June 2021.
Mr Middleton has admitted that he was responsible for ensuring that Watch Trader complied with the terms of the Compliance Notice. In the Amended SOAF, Mr Middleton admitted that he:
(1)possessed actual knowledge of the Compliance Notice that was issued to Watch Trader;
(2)possessed actual knowledge that Watch Trader failed to comply with the Compliance Notice; and
(3)intentionally participated in Watch Trader’s failure to comply with the Compliance Notice.
Having regard to the above admissions and by virtue of subsection 550(2)(c) of the FW Act, Mr Middleton accepts that he was involved in Watch Trader’s contravention of s 716(5). By the operation of subsection 550(1) of the FW Act, Mr Middleton is taken to have contravened subsection 716(5) FW Act.
Penalty Hearing
On 28 April 2023, the matter was listed for a penalty hearing before the Court.
Mr Adams appeared on behalf of the Ombudsman. At the hearing, Mr Adams sought to rely on additional material that was not contained within the court book, including;
(1)an affidavit of Mr Adams sworn on 24 April 2023; and
(2)email correspondence sent to Mr Middleton on 1 August 2022, concerning the signing of the amended SOAF.
Mr Middleton appeared on behalf of both respondents at the hearing. The respondents did not file any evidence with the Court prior to the hearing, however Mr Middleton did make a statement in reply following Mr Adams’ address.
STATUTORY FRAMEWORK
Pursuant to sub-section 546(1) of the FW Act, this Court has power to order a person to pay a pecuniary penalty in circumstances where it is satisfied that the person has contravened a civil remedy provision. Pursuant to the table in sub-section 539(2) of the FW Act, s 716(5) is a civil remedy provision.
A contravention of sub-section 716(5) attracts a maximum penalty of 30 penalty units for an individual. For breaches occurring between 1 July 2020 and 1 July 2023, the value of a penalty unit is $222[19]. The maximum penalty for contraventions of sub-section 716(5) is $6,660.00 for an individual.
[19] Crimes Act 2009 (Cth) s 4AA
As previously mentioned, Watch Trader has entered external administration and the proceeding against the first respondent has now been stayed. Accordingly, the remaining issue to be determined is the appropriate penalty to be imposed on Mr Middleton for his involvement in the company’s contravention.
The Ombudsman submits that the following penalties are appropriate:
Respondent Maximum Penalty Range of penalty sought 60%-70% After 20% discount applied Mr Middleton $6,660.00 $3,996-$4,662 $3,197-$3,730 Applicable Legal Principles
The approach of the Court in determining penalties is well settled. The Court has a broad discretion to assess the appropriate penalty. In Fair Work Ombudsman v NSH North Pty Ltd trading as New Shanghai Charlestown[20], Bromwich J endorsed the following approach:
(1)identify the separate contraventions involved - each contravention of each separate obligation in the FW Act is a separate contravention;
(2)consider whether any of the contraventions arising from the above constitute a single course of conduct within the meaning of section 557(1) of the FW Act;
(3)consider the extent to which two or more of the contraventions have common elements - the penalties imposed should be an appropriate response to the conduct of the respondent;
(4)consider the appropriate penalty for each contravention and, if relevant, each group of contraventions; and
(5)finally, assess whether the overall penalty is an appropriate and proportionate response to the conduct as a whole which led to the contraventions. This is the application of the “totality principle”.
[20] [2017] 275 IR 148 at [36]
It is well established that the primary purpose of civil penalty provisions is to promote the public interest in compliance[21]. This purpose was recently reinforced by the High Court of Australia in Australian Building and Construction Commissioner v Pattinson [2022] HCA 13 (Pattinson), where the majority stated that the purpose of the civil remedy regime in the FW Act is the promotion of the public interest in compliance with provisions of the FW Act by way of deterrence of further contravention[22].
[21] Trade Practices Commission v CSR Ltd (1991) ATPR 41-076 at [42] (CRS); Commonwealth v Director, Fair Work Building Industry Inspectorate [2015] HCA 46 at [55] (per French CJ, Kiefel, Bell, Nettle and Gordon JJ)
[22] Australian Building and Construction Commissioner v Pattinson [2022] HCA 13 at [9] (Pattinson)
The purpose of deterrence involves putting a price on a contravention which is fairly and reasonably appropriate. A penalty should carry a sufficient sting to ensure that is not seen as a just the cost of doing business. In Pattinson the Court stated at [66]:
“The theory of s 546 of the Act is that the financial disincentive involved in the imposition of pecuniary penalty will encourage compliance with the law by ensuring that contraventions are viewed by the contravenor and others as an economically irrational choice. Whether or not experience vindicates the theory of the Act is a matter for Parliament. The court's function is to give effect to the intention of the Act. In this regard, the court must do what it can to deter non-compliance with the Act.”
Central to the Court’s task is an assessment of the gravity and seriousness of the offending which it is called upon to penalise, having regard to all relevant factual circumstances. The considerations deemed relevant to this task are well known and frequently cited[23]. They include:
[23] CSR at [42]; see also Pattinson at [18]; Kelly v Fitzpatrick [2007] FCA 1080 at [14]
·the nature and extent of the conduct which led to the breach;
·the circumstances in which the conduct took place;
·the nature and extent of any loss or damage sustained as a result of the breach;
·whether there has been similar previous conduct by the respondent;
·whether the breach was properly distinct or arose out of one course of conduct;
·the size of the business enterprise involved;
·whether or not the breach was deliberate;
·the involvement of senior management in the breach;
·whether the party committing the breach has shown contrition;
·whether the party committing the breach has taken corrective action;
·whether the party committing the breach has cooperated with enforcement authorities;
·the need to ensure compliance with minimum standard by provision of an effective means for investigation and enforcement of employee entitlements; and
·the need for specific and general deterrence.
While this extensive list forms the basis for many decisions of this Court, it is not to be interpreted by as a “rigid catalogue of matters for attention”[24]. In Pattinson, the High Court reiterated that this list should not be treated as a checklist. The Court may take into consideration matters relevant to both the character of the contravening conduct and of the contravenor[25]. Each case is fact dependent and some considerations will be more relevant or carry greater weight in some cases than in others. The Court’s task is and always remains the determination of what penalty is most appropriate given all of the relevant circumstances of the case[26].
CONSIDERATION
[24] Australian Ophthalmic Supplies Pty Ltd v McAlary-Smith [2008] FCAFC 8 at [91]
[25] Pattinson at [19]
[26] Pattinson at [68]
Deterrence
There are two aspects of deterrence – specific and general. General deterrence refers to the message the penalty will send to the community at large whereas specific deterrence concerns the particular circumstances surrounding the individual contravener.
General Deterrence
The Ombudsman’s written submission on general deterrence mainly concerned the prevalence of non-compliance within the retail industry. The Ombudsman submitted (excluding footnotes):
19.The efficacy of statutory notices such as compliance notices will be hindered if recipients perceive that a failure to comply carries no meaningful consequences. Given the importance of the power to issue a compliance notice as a tool of Fair Work Inspectors, and that compliance with such notices avoids the need for litigation or the imposition of any penalties, penalties for non-compliance should be set at a level which demonstrates there are serious consequences for failing to comply with a compliance notice. In doing so, the Court will deter other parties from failing to comply with compliance notices.
20.Watch Trader operates in the retail industry (Industry). As set out in the FWO’s Industry Profile for the Industry for the period July 2019 to June 2022:
(a)approximately 18% of all disputes received by the FWO relating to visa holders were received in relation to the Industry;
(b)approximately 8% of all compliance notices issued by the FWO were in the Industry;
(c)of all disputes raised in the Industry, approximately 32% of the workers were aged between 15 to 25 years of age;
(d)of all the disputes raised in the Industry to the FWO, approximately 7% related to non- payment of time worked, and approximately 9% related to annual leave;
(e)approximately 12.7% of all formal cautions issued by the FWO were in the Industry.
21.The FWO submits that there is a need to send a message to all employers in the Industry that a failure to comply with a compliance notice will not be tolerated by the FWO, the community, or the courts, in particular having regard to the number of complaints received by "vulnerable" workers such as visa holders.
I accept the submission of the Ombudsman that there is a need for general deterrence in order to remind small business owners within the community of the importance of complying with the statutory notice scheme.
However, the Ombudsman submitted that the information gleaned from the Industry Report should heighten the need for general deterrence, in particular due to the prevalence of disputes that concern:
(1)non-compliance within the retail industry;
(2)employees who hold visas;
(3)employees aged between 15 to 25; and
(4)annual leave entitlements.
In its written outline of submissions, at [21], the Ombudsman submits that in serving the purpose of general deterrence the Court should have regard to the number of complaints received by “vulnerable” workers such as visa holders.
In this case the relevant employee who sought the assistance of the Ombudsman, Ms Gultom, is a citizen of Indonesia. Although residing in Australia on a student visa, the Ombudsman conceded that Ms Gultom had a sound command of English, was well acquainted with local working conditions and is of an age and maturity which does not put her in a special category of vulnerability. No exploitation is alleged against the company or Mr Middleton.
At the penalty hearing, Mr Middleton said that the business continued to employ Ms Gultom notwithstanding the COVID-19 pandemic because, as a visa holder, she was not eligible for JobKeeper payments. He said they kept her on and continued to pay her, even after the business had stopped trading.
While I acknowledge the Ombudsman’s concerns for vulnerable workers, the Court’s task is to properly and fairly exercise its discretion when considering whether a respondent is an appropriate candidate to send a message of general deterrence.
In my view, the employee’s status as a student visa holder is not a matter which carries particular weight in this case. Of course, there are many situations where a worker by reason of his or her migration status might be particularly vulnerable or susceptible to exploitation by an unscrupulous employer, but that is not the case here.
In his oral submission, the second respondent pointed to the impact of COVID-19, alleging that the restrictions imposed by the State government had a significant effect on Watch Trader, causing it to eventually close its doors and cease trading. We now know that subsequent to the penalty hearing, the company entered administration. As I have mentioned in numerous other judgments, the COVID-19 pandemic is not an excuse for non-compliance. However, the impact of the pandemic contextualises the anguish and uncertainty felt by Mr Middleton, which is illustrated in his correspondence with the Ombudsman, and it is a relevant consideration in framing general deterrence.
Specific Deterrence
Specific deterrence is directed at ensuring that a contravener is not prepared to embark upon the risk of engaging in the same contravening conduct in the future.
As mentioned above, the first respondent was placed under external administration, and the proceedings against it have been stayed. Specific deterrence is relevant only to the need to deter Mr Middleton from being involved in further contravening conduct.
The Ombudsman submitted that there is a particular need to deter Mr Middleton from being involved in the same contravening conduct in the future, given that he now appears to be running another business, called Vanguard Waterproofing.
During the penalty hearing, Mr Middleton submitted that there was “nothing deliberate” in his conduct. However, Watch Trader has admitted that it did not have a reasonable excuse for non-compliance with the Compliance Notice. The company has admitted that it did not take the steps required to comply with the Compliance Notice by 12 June 2021 and, despite the instigation of litigation, those steps have never been taken.
I accept the business encountered hardship and like very many others in Victoria it did not survive the effects of the COVID-19 lockdown. Nonetheless, Mr Middleton has had to move on and he now operates another business. As a prospective employer, it is in the public interest to impose a penalty which will deter Mr Middleton from future contravening conduct.
Nature, circumstances and deliberateness of the contravening conduct
The Ombudsman submitted that the respondents were on notice from as early as 7 May 2021 of the due date for compliance with the Compliance Notice. The respondents were also on notice that any failure to comply with the Notice could lead to the Ombudsman commencing proceedings seeking civil penalties and orders for compliance.
The Ombudsman submits that as a result of Watch Trader’s failure to comply with the Compliance Notice, the Ombudsman was required to bring proceedings seeking orders to remedy the contravention. The regulator submits that the company’s conduct demonstrates a deliberate disregard for its obligations under the FW Act and the authority of the Ombudsman as a regulator of Commonwealth workplace laws.
By the admissions made by the respondents within the SOAFs, I must find that Watch Trader failed to comply with the Compliance Notice and that there was no reasonable excuse for non-compliance. The conduct was in my view deliberate. It was not the product of accident or oversight. Mr Middleton was involved in this conduct by virtue of section 550 of the Act.
Nature and extent of loss
At paragraphs [30] and [31] of its written outline of submissions, the Ombudsman submits that Ms Gultom has been directly impacted by the respondent’s conduct and that she has suffered “a substantial loss”. It is submitted that as a result of the respondents’ failure to comply with the Compliance Notice, Ms Gultom has not received the correct payment for the hours she worked or annual leave, an amount the Ombudsman estimates to be $3,202.86.
The evidentiary basis for the submission that Ms Gultom is owed $3,202.86 or thereabouts is vague. The respondents, while admitting that the former employee is owed some money, have never quantified the amount - at least until the penalty hearing at which Mr Middleton estimated the figure was in the order of $1,500.
There is no evidence before the Court of the hours worked by Ms Gultom or the amount she was paid for those hours. There is no evidence before the Court of a FWI having formed a reasonable opinion about what she is owed. There is evidence of communications between Ms Gultom and the Ombudsman about what she believes she is owed, but that of itself is not determinative.
The Ombudsman has issued a compliance notice which asserts non-compliance with a particular industrial instrument. The compliance notice imposes upon the recipient the obligation to identify the number of hours worked by the employee, identify the amount paid to the employee in respect of the minimum rates for ordinary hours worked, to calculate the amount that should have been paid to the employee and to make full payment of the difference between what was paid in the amount that should have been paid.
Watch Trader did not take those steps. For that reason it has breached s 716(5) of the FW Act and is liable to a civil penalty. Mr Middleton is liable to a civil penalty for his involvement in the company’s failure to take the steps.
However, the conundrum for the Court is that there is very little evidence upon which the Court can determine what is owed to the relevant employee if anything at all. The employee’s opinion about what she is owed and the Ombudsman's unparticularised and unexplained estimate fall short of satisfying the Court that the amount of $3,202.86 is in fact due or that the employee has in fact suffered “a substantial loss”.
Absent clear evidence, it does not follow that the failure to take the steps on the Notice necessarily gives rise to a loss. The Court can only speculate what the outcome would have been had the steps been taken. I can only infer, from the submission of the parties, that Ms Gultom has not been paid everything she was entitled to receive, and that the underpayment is in the range of $1,500 to $3,200.
Compliance with the minimum standards
The seminal object of the FW Act is to provide employees with a guaranteed safety net of minimum terms and conditions that are fair and enforceable[27]. I accept the Ombudsman’s submission that Mr Middleton’s failure to comply with the Compliance Notice undermines the enforcement mechanisms established to protect employees. The Ombudsman’s inspectors must be able to adequately exercise their compliance powers in order to effectively enforce these minimum terms. The efficacy of statutory notices such as compliance notices will be hindered or made redundant if recipients perceive that a failure to comply carries no meaningful consequences.
[27] Fair Work Act 2009 (Cth) s 3
Size of business
At the penalty hearing, the Ombudsman’s representative agreed that it was reasonable for the Court to infer that Watch Trader was a small business. Mr Adams also accepted it was reasonable for the Court to infer that the contraventions and the subsequent conduct of the respondents in their dealings with the Ombudsman occurred during the COVID-19 pandemic and that the respondent’s business was vulnerable to lockdowns and the prevailing economic climate.
The respondents did not file any evidence or written submissions prior to the penalty hearing, despite being afforded the opportunity to do so by my orders dated 8 August 2022. Nonetheless, Mr Middleton appeared in person and was afforded an opportunity to make a submission in response to the Ombudsman. As mentioned, Mr Middleton acknowledged that the employee is owed some money.
Further, Mr Middleton said that he had suffered quite severe mental health issues over the period during which he was dealing with the Ombudsman. This is corroborated by Mr Middleton’s correspondence to FWO Hammond in or around June 2021, in which indicated he was sick and unable to perform “certain duties”. He said that he sent the Ombudsman a medical certificate as evidence of his inability to perform work, in the hope that the Ombudsman would give him latitude, but the Ombudsman pressed on against him anyway.
Mr Middleton submitted that almost any penalty imposed by the Court in these proceedings will be ruinous. However, he did not produce evidence of his personal financial affairs.
Corrective action, cooperation with the FWO and contrition
The Ombudsman accepts that the respondents should be afforded some discount for the fact that they agreed to a SOAF in which they admitted a contravention of section 716(5) of the FW Act. The Ombudsman concedes, as it must, that by entering into a SOAF the respondents obviated the need for a liability hearing and at least, to some extent, have reduced the cost and complexity of the proceedings and the unnecessary waste of public resources.
However, the Ombudsman also submits that the Court should give limited weight to the respondent’s admissions. The Ombudsman submits that the respondents only agreed to the SOAF as they were simply looking for the “easiest and quicker [sic] way to bring this matter to a conclusion”[28] and that they did not truly cooperate in a manner which was meaningful, active or early.
[28] March Candiloro Affidavit annexure CFC-33
Moreover, the Ombudsman submits that the respondents failed to meaningfully engage with the Ombudsman after the proceedings were commenced and that they were responsible for unnecessarily drawing out the proceedings. To reinforce this submission, the Ombudsman relies upon the sequence of events, which I described above, in which it is said that the respondents frustrated the making and filing of the Amended SOAF. In particular, the Ombudsman submits that the respondents were obstructive and should be held responsible for the Ombudsman being put to the significant effort and expense of filing an application in the Court seeking leave to unilaterally amend the first flawed March SOAF.
So, on the one hand the Ombudsman acknowledges that the respondents should be given credit for agreeing to the SOAF upon which it now relies to seek penalties yet, on the other hand, the thrust of the Ombudsman’s submission is that the respondents caved in to the SOAF out of self-interest and that considered a whole the circumstances truly reveal that the respondents frustrated rather than cooperated in the litigation. It is a confounding submission which conveys a mixed message.
In order to properly assess the true character of the respondents’ conduct, it is necessary to look at the sequence of events which gave rise to the making of the SOAF on which the Ombudsman now relies. I have already spoken to some of those events earlier in this judgment.
On 10 February 2022 the Court made orders requiring the respondents to file and serve a notice of address for service by 18 February 2022 and a response and defence by 2 March 2022.
There is evidence that Mr Middleton sought to register with the Commonwealth Courts Portal to file a notice of address for service on 10 February 2022. However, it appears that he had some difficulty uploading this.
On 14 February 2022, solicitors representing the Ombudsman wrote to Mr Middleton informing him of the Court orders and explaining the importance of attending to those matters by the relevant times and dates. In that email, the Ombudsman explained the process for filing a notice of address for service and a response and defence. The Ombudsman put the respondent on notice that if the material required by the Court orders was not filed, the applicant would seek default judgement at the next hearing on 11 March 2022 and would seek to proceed on an undefended basis if the respondent did not attend.
Relevantly, in its correspondence on 14 February 2022, the Ombudsman’s representative outlined what it describes as the “alternative approach-Admitting the alleged Contraventions”. Over several paragraphs the Ombudsman explains that if the first and second respondents are prepared to admit contraventions of s 716 of the FW Act, the Ombudsman would agree to file a SOAF to that effect. The Ombudsman explains what would be involved in making a SOAF and informed the respondents that if that approach was adopted the Ombudsman would seek for the matter to proceed only to a hearing on the question of penalty. Furthermore, the Ombudsman stated that under the so-called “alternative approach” it would ask the Court to take into account any admission made by the respondents, although it added the caveat that in expressing any position about cooperation the respondents were still required to review their records and provide the Ombudsman with calculations on the amounts owed to the employee in accordance with the Compliance Notice.
On 3 March 2022, solicitors representing the Ombudsman wrote to Mr Middleton and put him on notice that he had not complied with the orders of 10 February 2022. The solicitors informed Mr Middleton that they were aware that he had served a notice of address for service but noted that he had not filed the document with the Court. The solicitors also noted that the respondents had not filed a response and defence in the matter and informed Mr Middleton that the Ombudsman intended to press an application for default judgement at the next hearing on 11 March 2022.
Four days later, on 7 March 2022, Mr Middleton contacted the Ombudsman's solicitors and referenced the “Alternative approach-Admitting the alleged contraventions” option which had been outlined in the 14 February 2022 email. In his email to the Ombudsman's solicitors, Mr Middleton queried “if this is the easiest and quicker [sic] way to bring this matter to a conclusion then is it possible to follow this approach above?”.
At the penalty hearing in response to a question from the court, the Ombudsman’s representative accepted that Mr Middleton's email of 7 March 2022 was a response to an invitation from the Ombudsman’s solicitors.
Nonetheless, the following day, 8 March 2022, the Ombudsman’s solicitors again wrote to Mr Middleton stating, inter alia:
“We confirm that whilst our client has considered your correspondence, we are instructed that at this stage the Applicant will be pressing to have its application for default judgement heard by the Court on Friday, 11 March 2022. It is our client's view that Watch Trader and you have been provided with numerous opportunities to comply with the court orders, and to date you and Watch Trader have failed to defend this matter with appropriate due diligence.”
This correspondence was a direct response to Mr Middleton’s email 24 hours earlier.
At the penalty hearing, in response to a question from the Court, the Ombudsman’s representative conceded that the Court could infer from the above sequence of events that the respondents had by 7 March 2022 expressed a preparedness to cooperate with the Ombudsman. Whilst I accept the Ombudsman’s caveat that there is a distinction to be drawn between an expression of an indication to cooperate and actual cooperation, in my view it was properly conceded that the respondents had expressed a willingness to pursue the so-called “alternative approach” before the default judgement hearing.
The Ombudsman nonetheless proceeded with its application to seek default judgment against the respondents on 11 March 2022, as outlined earlier in this decision.
As things turned out, a SOAF was filed by the Ombudsman on 18 March 2022. As I have already described, the document filed by the Ombudsman and signed by both parties was incomprehensible.
In the penalty proceedings the Ombudsman drew the Court’s attention to the conduct of the respondents after this error became known. While conceding that the error was entirely the Ombudsman’s fault, it is nonetheless submitted that the respondents unnecessarily drew out proceedings by failing to engage with the Ombudsman in relation to correction of this error. It is submitted that the respondents repeatedly ignored the Ombudsman and its representative’s requests for a corrected document to be re-signed and filed in substitution. The Ombudsman contends that this failure to engage and cooperate with the Ombudsman put it to the expense and effort filing an Application in a Proceeding in an attempt to unilaterally solve what it describes as a “simple problem occasioned by the respondent’s failure to re-sign the SOAF”.
Ultimately, the Amended SOAF in corrected and comprehensible form was signed and filed on 8 August 2022.
I make the following observations in relation to the above. First, in my view by signing the March SOAF (albeit in an incomprehensible and corrupted form), the respondent should be taken to have made admissions and engaged in cooperation with the regulator. At the hearing before me, Mr Adams properly conceded that the signing of the March SOAF is evidence of cooperation which weighs in favour of the respondents.
Secondly, although the Ombudsman expresses frustration at the respondents’ failure to provide assistance to correct the error, I do not agree that the respondents should be seen as responsible for this unfortunate turn of events or that they unnecessarily dragged out these proceedings. The Ombudsman or its solicitors drafted the SOAF and were responsible for conveying the document to the respondents for signature. It is a document upon which the Ombudsman intended to rely in seeking the imposition of pecuniary penalties and other relief.
The Ombudsman’s legal representatives signed the corrupted document on behalf of the regulator. If the document had been properly checked before filing it would have been clear that it made no sense. There would have been an opportunity for the Ombudsman and the respondents to correct the document. Nonetheless, the corrupted document was filed.
I am prepared to accept that the second respondent could have done more and acted more quickly to help put the matter back on track. But I do not accept that the respondent should be seen as having put the Ombudsman in the situation of having to make the extremely unusual application seeking leave to unilaterally file a substitute SOAF – an application which in my view was likely to fail. The situation in which the Ombudsman found itself was not in my view a “simple problem”, nor was it “occasioned by the respondent’s failure”.
CONCLUSION
The Court must exercise the discretion conferred by section 546 of the FW Act judicially, that being fairly and reasonably and with regard for the subject matter, scope and purpose of the statute. A penalty must not be crushing, but rather, it must be fixed at an amount that is proportionate to the contravening conduct.
As discussed above, the lack of evidence to quantifying Ms Gultom’s outstanding entitlements troubles me, as does the Ombudsman’s unparticularised and unexplained estimate, which I find does not carry significant weight when determining the loss incurred by the employee as a result of the contravention.
This is Mr Middleton’s first offence. The respondent is self-represented and has not engaged in proceedings of this kind previously. As mentioned, I regard his admissions made within the March and Amended SOAF demonstrate a preparedness to cooperate with the regulator. I do not find that the respondent’s delay in consenting to an amended SOAF should detract from his willingness to cooperate with the Ombudsman or reduce his entitlement to an appropriate discount. He should not be penalised for the Ombudsman’s administrative error.
Having regard to all of the circumstances, I do not accept the Ombudsman’s submission that the penalty should be 60-70% of the maximum with a discount of 20%. I have decided that a penalty of 50% of the maximum should be imposed with a discount of 20%, which in dollar terms is $2,664.
I will make orders in those terms.
By reason of the proceedings having now been stayed against the first respondent, I do not propose to make further orders or declarations.
I certify that the preceding one hundred and thirty-four (134) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Forbes.
Associate:
Dated: 27 February 2024
0
7
5