Fair Work Ombudsman v Westside Petroleum Retail 1 Pty Ltd
[2019] FCCA 2784
•2 October 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| FAIR WORK OMBUDSMAN v WESTSIDE PETROLEUM RETAIL 1 PTY LTD & ORS | [2019] FCCA 2784 |
| Catchwords: INDUSTRIAL LAW – Accessorial liability for breaches of a civil remedy provision of the Fair Work Act 2009 – imposition of pecuniary penalties. |
| Legislation: Fair Work Act 2009, ss.45, 539, 545, 546, 550, 557 |
| Cases cited: Gibbs v Mayor, Councillors and Citizens of City of Altona (1992) 37 FCR 216 |
| Applicant: | FAIR WORK OMBUDSMAN |
| First Respondent: | WESTSIDE PETROLEUM RETAIL 1 PTY LTD |
| Second Respondent: | PATRICK RIAD |
| Third Respondent: | FRANCESCO IERACI |
| Fourth Respondent: | SHAHZAIB KHAWAJA |
| File Number: | SYG 676 of 2019 |
| Judgment of: | Judge Cameron |
| Hearing date: | 10 September 2019 |
| Date of Last Submission: | 10 September 2019 |
| Delivered at: | Sydney |
| Delivered on: | 2 October 2019 |
REPRESENTATION
| Counsel for the Applicant: | Ms VR Brigden |
| Solicitors for the Applicant: | Office of the Fair Work Ombudsman |
| Counsel for the Respondents: | Ms L Saunders |
| Solicitors for the Respondents: | Rostron Carlyle Rojas Lawyers |
DECLARATIONS
The Court declares that:
The first respondent contravened s.45 of the Fair Work Act 2009 (“FW Act”) by:
(a)failing to pay certain employees the minimum rates of pay for all hours worked Monday to Friday as required by cl.36.3 of the Vehicle Manufacturing, Repair, Services and Retail Award 2010 (“Award”);
(b)failing to pay certain employees the minimum rate of pay for all hours worked on Saturday, Sunday or public holidays as required by cl.36.3 of the Award; and
(c)failing to pay certain employees the minimum rate of pay for hours worked in excess of 10 hours per day, or in excess of an average of 38 hours per week, or over more than 5 days per week, as required by cls.36.3, 43.6 and 37.2(a) of the Award.
The second respondent was involved in each of the first respondent’s contraventions identified in declaration 1.
The third respondent was involved in each of the first respondent’s contraventions identified in declaration 1.
The fourth respondent was involved in each of the first respondent’s contraventions identified in declaration 1.
ORDERS
The first respondent pay pecuniary penalties totalling $45,000.
The second respondent pay pecuniary penalties totalling $4,000.
The third respondent pay pecuniary penalties totalling $4,000.
The fourth respondent pay pecuniary penalties totalling $4,000.
The first respondent pay its pecuniary penalties to the Commonwealth within 28 days of the making of these orders.
The second, third and fourth respondents pay their pecuniary penalties to the Commonwealth within 6 months of the making of these orders.
For a period of two years from the making of these orders, the first respondent disseminate to all its existing and new franchisees a document or documents containing:
(a)information about the operation of the FW Act and the relevant applicable award, including but not limited to the rates of pay which apply to the employees of and to the opening hours relevant to that franchise, the relevant clauses to which each such rate relates and the date on which the document was created (including providing any updated rates as may occur from time to time);
(b)information about the potential civil penalties which may arise from non-compliance with the FW Act or relevant award, including for serious contraventions and accessorial liability; and
(c)the Fair Work Ombudsman's website address and the telephone number for the Fair Work Infoline.
(“Compliance Information”).
The Compliance Information:
(a)be prepared on each occasion by a solicitor with expertise in workplace relations engaged at the expense of the first respondent;
(b)be provided to all of the first respondent’s new franchisees before entering into a franchise agreement;
(c)be provided to all of the first respondent’s existing franchisees within 30 days of the making of these orders; and
(d)for a period of two financial years commencing on 1 July 2020 be prepared and disseminated to all of the first respondent’s franchisees on an annual basis within 30 days of the commencement of each of those financial years.
Within 30 days of the making of these orders and for a continuous 12 month period from that date, the first respondent display in any service station outlet operated by it, and in a prominent position easily visible to employees, a notice (“Workplace Notice”) which must contain:
(a)information on the applicable rates of pay under the Award for work performed on Monday to Friday, weekends and public holidays, and the overtime rates applicable (as of that date) to casual console operators; and
(b)the Fair Work Ombudsman's website address and the telephone number for the Fair Work Infoline.
The Applicant have liberty to apply on seven days’ notice in the event that any of the preceding orders is not complied with.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 676 of 2019
| FAIR WORK OMBUDSMAN |
Applicant
And
| WESTSIDE PETROLEUM RETAIL 1 PTY LTD |
First Respondent
| PATRICK RIAD |
Second Respondent
| FRANCESCO IERACI |
Third Respondent
| SHAHZAIB KHAWAJA |
Fourth Respondent
REASONS FOR JUDGMENT
INTRODUCTION
The first respondent (“Westside Petroleum”) operated service stations in various locations in regional New South Wales (“NSW”). The second to fourth respondents were, respectively, the general manager, accountant and area manager of Westside Petroleum.
The applicant (“Ombudsman”) commenced this proceeding on 20 March 2019 alleging that Westside Petroleum had contravened the Fair Work Act 2009 (“FW Act”) by failing to pay to twenty-two employees minimum weekday casual rates, penalty loadings and overtime rates, or some of those entitlements, as prescribed by the Vehicle Manufacturing, Repair, Services and Retail Award 2010 (“Award”). The Ombudsman alleged that the second to fourth respondents were accessories to Westside Petroleum’s contraventions.
These reasons are concerned with the penalties to be imposed on Westside Petroleum for its contraventions of the Award and the FW Act, as agreed and particularised below, and on the second to fourth respondents for their involvement in those contraventions.
STATEMENT OF AGREED FACTS
Agreed contraventions and declarations
By way of a Statement of Agreed Facts (“SOAF”) filed by the parties on 13 June 2019 Westside Petroleum admitted the following contraventions of the FW Act and consented to the Court making declarations accordingly:
(2) …
(a)section 45 of the FW Act by failing to pay the Employees the minimum rates of pay for all hours worked on Monday to Friday as required by clause 36.3 of the Award;
(b)section 45 of the FW Act by failing to pay the Employees the minimum rates of pay for all hours worked on Saturday, Sunday or public holidays as required by clause 36.3 of the Award; and
(c)section 45 of the FW Act by failing to pay the minimum rates of pay for hours worked in excess of 10 hours per day, or in excess of an average of 38 hours per week, or over more than 5 days per week, as required by clauses 36.3, 43.6 and 37.2(a) of the Award.
The second to fourth respondents admitted that pursuant to s.550(1) of the FW Act they were involved in each of those contraventions and are taken to have themselves similarly contravened those provisions of the Award and s.45 of the FW Act.
Agreed orders
The SOAF also sought the following orders agreed by the parties:
…
7.An order pursuant to section 546(2) of the FW Act that the First Respondent pay pecuniary penalties in respect of the contraventions set out at paragraph 2 above.
8.An order pursuant to section 546(2) of the FW Act that the Second Respondent pay pecuniary penalties in respect of the contraventions set out at paragraph 3 above.
9.An order pursuant to section 546(2) of the FW Act that the Third Respondent pay pecuniary penalties in respect of the contraventions set out at paragraph 4 above.
10.An order pursuant to section 546(2) of the FW Act that the Fourth Respondent pay pecuniary penalties in respect of the contraventions set out at paragraph 5 above.
11.An order pursuant to section 546(3)(a) of the FW Act that any pecuniary penalties ordered to be paid by the Respondents be paid to the Commonwealth within 28 days of the Court's orders.
12.An order pursuant to section 545(1) of the FW Act that for a two year period following the Court's orders, the First Respondent will disseminate to all existing and new franchisees a document or documents containing:
(a)information about the operation of the FW Act and the relevant applicable award, including but not limited to the applicable rates of pay which apply for the employees and opening hours relevant to that franchise, the relevant clauses to which the rate relates, and the date on which the document was created (including providing any updated rates as may occur from time to time);
(b)information about the potential civil penalties which may arise from non-compliance with the FW Act or relevant award, including for serious contraventions and accessorial liability; and
(c)the Fair Work Ombudsman's website address and the telephone number for the Fair Work Infoline;
(Compliance Information).
13.An order pursuant to section 545(1) of the FW Act that the Compliance Information referred above at paragraph 12 is required to be:
(a)on each occasion, prepared by a solicitor with expertise in workplace relations engaged at the expense of the First Respondent;
(b)provided to all new franchisees before entering into a franchise agreement;
(c)provided to all existing franchisees within 30 days of the date of this order; and
(d)for a period of two financial years thereafter, prepared and disseminated to all franchisees on an annual basis, within 30 days of each financial year.
14.An order pursuant to section 545(1) of the FW Act that within 30 days of these orders and for a continuous 12 month period, the First Respondent will display in any service station outlet operated by the First Respondent a notice in a prominent position easily visible to employees (Workplace Notice) which must contain:
(a)information on the applicable rates of pay for work performed on Monday to Friday, weekends and public holidays, and overtime rates applicable (as of that date) to casual console operators under the Award; and
(b)the Fair Work Ombudsman's website address and the telephone number for the Fair Work Infoline.
15.An order that the Applicant have liberty to apply on seven days’ notice in the event that any of the preceding orders are not complied with.
…
Agreed facts
In the SOAF the parties relevantly agreed on the facts outlined below.
Employment duration
During the relevant period, Westside Petroleum employed as console operators eighteen adult casual employees and four junior casual employees (“Employees”) as reflected by the following table:
Adult Employees
Employment period
Scott Biggers
4 July 2015 - 15 December 2015
Jacqueline Douglass
24 February 2016 – 20 May 2016
Sharnah Gillogly
9 February 2016 – 20 May 2016
Catherine Graham
6 February 2016 – 20 May 2016
Sarah Harwood
29 February 2016 – 1 April 2016
Mohammad Hauque
20 October 2015 – 10 November 2015
Dianne Hendry
2 February 2016 – 20 May 2016
Saju Chakiath Itteera
19 April 2016 – 19 May 2016
Shiji John
28 December 2015 – 20 May 2016
Narasimha Kota
10 March 2016 – 20 May 2016
Devender Malik
3 July 2015 – 14 December 2015
David Masterson
8 February 2016 – 20 May 2016
Chris Purcell
6 February 2016 – 20 May 2016
Nakita Robinson
29 January 2016 – 15 May 2016
Natasha Rock
2 March 2016 – 13 May 2016
Subir Sarker
26 October 2015 – 29 November 2015
Greg Sheedy
20 January 2016 – 20 May 2016
Joanna Watts
2 February 2016 – 11 April 2016
Junior Employees
Employment Period
Courtney Lewis
16 December 2015 – 26 March 2016
Chloe Pratt
4 July 2015 – 15 May 2016
Jemma Vaughn
13 March 2016 – 20 May 2016
Lucy Woods
3 October 2015 – 20 May 2016
Wage payments
As Mr Khawaja advised the Employees would be the case, Westside Petroleum paid them a net rate of $18 per hour. Paying them that flat rate in their hand meant that their notional gross rates of pay varied between $15 and $25 per hour with the exception of:
a)the week ending 25 September 2015 when Chloe Pratt was paid $27.00 per hour;
b)the week ending 30 October 2015 when Mohammad Hauque was paid $27.06 per hour;
c)the week ending 11 March 2016 when Jacqueline Douglass was paid $25.56 per hour;
d)the week ending 26 March 2016 when Nakita Robinson was paid $26.40 per hour;
e)the week ending 1 April 2016 when Shiji John was paid $28.52 per hour; and
f)the week ending 29 April 2019 when Natasha Rock was paid $27.75 per hour, Narishma Kota paid $27.49 per hour and David Masterson paid $29.52 per hour.
Underpayments by Westside Petroleum
The FW Act and the Award applied to the Employees’ employment during the relevant period.
Westside Petroleum underpaid the Employees the minimum weekday casual rates (being a minimum rate of $25.05 for adult employees and $18.79 for junior employees). The total underpayments were $22,781.26. Table 1 of the annexure to these reasons sets out those underpayments.
Westside Petroleum failed to pay Employees Saturday, Sunday and public holiday rates (being a minimum casual rate of $32.56 per hour for adult employees and $24.42 for junior employees). The total underpayments were $26,364.56. Table 2 of the annexure to these reasons sets out those underpayments.
Westside Petroleum failed to pay some of the Employees overtime rates (being a minimum casual rate of $14.21 for adult employees and $10.66 for junior employees) when they worked in excess of 10 hours on a day, in excess of an average 38 hours in a week or more than 5 days in a week. All Employees worked overtime other than Ms Pratt, Ms Graham, Ms Watts, Ms Gillogly, Ms Rock, Mr Itteera and Mr Sarker. The total underpayments were $14,777.46. Table 3 of the annexure to these reasons sets out those underpayments.
Westside Petroleum contravened cl.36.3 of the Award and s.45 of the FW Act by failing to pay the Employees variously their minimum weekday casual rates; Saturday, Sunday and public holiday penalty rates; and overtime rates, totalling $62,393.07. Table 4 of the annexure to these reasons sets out each individual’s total underpayments and the combined total of all the underpayments.
Managers’ involvement in Westfield Petroleum’s contraventions
As general manager, Mr Riad managed, authorised decisions and
oversaw Westside Petroleum’s accounts. Mr Ieraci reported directly to him. Mr Riad was aware that Westside Petroleum employed the Employees as casual console operators and that the Award applied to them. He also knew that the area manager Mr Khawaja quoted the Employees a net wage of $18 per hour and that the gross wages Westfield Petroleum paid the Employees did not include amounts for penalties or overtime and were insufficient to meet the minimum entitlements which the Award required be paid. Consequently, he was knowingly concerned in or party to each of Westside Petroleum’s contraventions.
Mr Ieraci, as the company accountant, was responsible for the management of Westside Petroleum’s accounting and payroll processes. He was aware that the area manager Mr Khawaja quoted the Employees a net wage of $18 per hour and that the gross wages Westfield Petroleum paid the Employees did not include amounts for penalties or overtime and were insufficient to meet the minimum entitlements which the Award required be paid. Consequently, he was knowingly concerned in or party to each of Westside Petroleum’s contraventions.
Mr Khawaja, as area manager, was responsible for the management of operational functions and overseeing the site managers for each service station. He was responsible for employing staff, setting pay rates of approximately $18 net per hour without additional amounts for penalties or overtime, and sending this information to the “Accounts team”. He was also responsible for sending the service stations’ timesheets to Mr Ieraci and the Accounts Assistant, Mr Zhang. He was aware that Westside Petroleum employed the Employees as casual console operators and that the Award applied to them. Mr Khawaja was also aware that under the Award different rates applied for work performed on weekdays, weekends and public holidays.
Consequently, he was knowingly concerned in or party to each of Westside Petroleum’s contraventions.
APPLICANT’S EVIDENCE
The Ombudsman’s witnesses were not cross-examined on their affidavits.
Fair Work Inspector Lang
Mr Lang is a Fair Work Inspector (“FWI”). In his affidavit sworn
26 June 2019 he deposed to matters relating to the Ombudsman’s investigation of Westside Petroleum and the other respondents.
FWI Lang deposed to the following relevant events:
a)on 30 September 2015 a complaint was received in person at the Office of the Fair Work Ombudsman from Chloe Pratt. This complaint identified Ms Pratt as a console operator and that she had been paid a flat rate. A request for assistance had then been received on 12 November 2015 in which Fabiha Yasha said that she had been paid a flat rate of $14 per hour in cash;
b)investigations into Westside Petroleum commenced in April 2016 and on 28 April 2016 several NSW Westside Petroleum petrol stations were visited. Mr Riad had also called and spoken to FWI Lang by telephone. As part of this conversation Mr Riad had told FWI Lang that employees received Award rates but their interpretation of the award had been that employees who “regularly” worked weekend shifts were not entitled to the penalty;
c)
a meeting at Westside Petroleum’s head office took place on
25 May 2016 between FWI Lang and Fair Work Inspector Kelly and Mr Makhlouf (managing director of the Westside Petroleum Group), Mr Riad and Mr Ieraci. During this meeting FWI Lang and FWI Kelly raised their concerns about Westside Petroleum’s compliance with workplace law and discussed various relevant compliance issues. During this meeting Mr Riad and Mr Ieraci confirmed that their understanding of the Award had been that they “could pay the flat rate for weekend work if this was their ordinary hours”;
d)between 27 May 2016 and 7 October 2016 email correspondence took place between Mr Riad and FWI Lang and FWI Kelly updating them on steps which had been taken subsequent to the meeting. This included updating their payroll system to “eliminate any opportunity for variance from the casual rate”;
e)
a notice to produce was issued by FWI Kelly at a second meeting at the Westside Petroleum head office on 13 October 2016 and between 22 October 2016 and 31 May 2017 there was various correspondence between the parties in relation to this notice to produce. A second notice to produce was issued on
28 June 2017 and a “Failure to Comply with a Notice to Produce” letter was issued on 2 August 2017;
f)interviews with Mr Ieraci, Mr Riad and Mr Khawaja took place on 9 November 2017, 10 November 2017 and 16 January 2018 respectively;
g)
a “Findings of Contravention” letter (“Contravention Letter”) was served on the company on 13 July 2018. Between 19 July 2018 and 26 November 2018 correspondence took place between FWI Lang and Mr Ieraci requesting an extension of time to respond to the Contravention Letter because of personal leave taken by
Mr Ieraci. Whilst an extension was initially granted, on
26 November 2018 FWI Lang wrote to Mr Ieraci noting that no response to the Contravention Letter had been received;
h)on 17 December 2018 the Ombudsman wrote to Westside Petroleum, Mr Riad, Mr Ieraci and Mr Khawaja notifying them of her intention to commence legal proceedings in respect of the contraventions; and
i)Mr Riad responded to the Contravention Letter on 11 January 2019 apologising and explaining that steps were being taken to address the Ombudsman’s concerns and that the delay had been caused by Mr Ieraci’s personal leave and limited company resources.
Fair Work Inspector Kelly
The Ombudsman also relied on an affidavit sworn by FWI Kelly.
RESPONDENT’S EVIDENCE
The respondents and their witness, Mr Makhlouf, were not cross-examined on their affidavits.
Mr Makhlouf
Mr Makhlouf is the managing director of Westside Petroleum which began as a small family business in 2012. From 2014 Westside Petroleum experienced “rapid growth” and new staff members were employed, including Mr Riad as general manager, to facilitate its transition to a “medium independent enterprise”. During this time staffing resources were limited particularly in relation to payroll.
An organisational structure was implemented between 2014 and 2015 which included employing Mr Ieraci as an accountant. Mr Makhlouf deposed that company growth sometimes “outpaced the processes” and structures that had been put in place.
Mr Makhlouf deposed that Westside Petroleum undertook large scale recruitment of Console operators in NSW between 2015 and 2016. He deposed that the underpayments were the result of “systems failure” caused by the company’s rapid growth.
Mr Makhlouf deposed that Westside Petroleum had rectified all underpayments before the commencement of this proceeding and had taken steps to prevent future underpayments by:
a)appointing a new general manager-finance;
b)appointing a retail operations manager with human resources experience to handle staff recruitment;
c)implementing a payroll verification process to check that all wages are paid in accordance with the Award rate and to minimise payroll errors;
d)becoming a member of the Australasian Convenience Petroleum Marketers Association to obtain further information about the petroleum industry;
e)obtaining advice from employment law professionals; and
f)undertaking independent sample checks of payroll by an auditor.
Mr Makhlouf deposed that Westside Petroleum expressed “deep regret” for the underpayments and apologised to affected employees.
Mr Makhlouf deposed that Westside Petroleum had maintained an “open book, cooperative and collaborative stance” for the entirety of the investigation process, which included meeting with investigators, engaging in correspondence and discussions with the investigators, and giving interviews and requested documentation.
Mr Makhlouf also deposed that sometimes investigation deadlines were delayed due to employees’ personal circumstances.
Mr Makhlouf deposed that Westside Petroleum had no history of contravening the FW Act and that once the investigation had been completed employees were repaid in less than a fortnight.
Mr Makhlouf deposed that the proceeding and the media release around it had caused Westside Petroleum reputational damage.
Patrick Riad
Mr Riad deposed that he commenced as general manager of Westside Petroleum in 2014 at a time when the Westside group was experiencing significant organisational change. He had been in charge of implementing this change and managing four departments and so relied significantly on his team, the accounting department and area managers to manage company owned and franchised service stations.
Mr Riad deposed that reviewing payroll records was not one of his daily duties and he would have had to make a request of the accounting department to obtain payroll records. He always intended that staff be paid in accordance with the Award, and ensured that he and the company co-operated with the investigation. He “deeply regretted” that the Employees had not been paid the correct amount from the start.
Mr Riad deposed that in August 2018 he became a director of the Westside Petroleum group and was also director of two other companies.
Francesco Ieraci
Mr Ieraci is Westside Petroleum’s company accountant.
He commenced employment with Westside Petroleum on 25 May 2015 when it was experiencing rapid growth. There was a large recruitment drive for console operators to meet the company’s needs and management resources were limited. Mr Ieraci deposed that it was these tight resources which contributed to Westside Petroleum’s misinterpretation of the Award.
Mr Ieraci deposed that he took steps to review Westside Petroleum’s accounts immediately after his meeting with FWI Lang, FWI Kelly,
Mr Riad and Mr Makhlouf on 25 May 2019. Although only Westside Petroleum was the subject of investigation, he reviewed all Westside Petroleum entities.
Mr Ieraci deposed that he provided calculations of underpayments and a proposed payment plan and, in accordance with the Ombudsman’s requests, provided further calculations in December 2016 and February and March of 2017. Rectification of the underpayments owing to the groups’ employees other than the console operators were made by way of payment plan between October 2017 and 31 May 2018. Mr Ieraci deposed that Westside Petroleum was waiting on the Ombudsman’s response to its calculations and proposed payment plan for the console operators when, on 28 September 2017 the Ombudsman advised that there would be a separate investigation into Westside Petroleum.
Mr Ieraci deposed that he attended an interview with FWI Lang and
FWI Kelly on 9 November 2017.
Mr Ieraci deposed that his response to the Contravention Letter was delayed as a result of personal leave and, later, annual leave. However, all underpayments had been rectified by 24 December 2018.
Mr Ieraci deposed that the underpayments had not been intentional. He deposed that he tried to co-operate with the investigation and that he “sincerely hoped no employee experienced any hardship or other misfortune as a result of these contraventions”.
Shahzaib Khawaja
Mr Khawaja deposed that in February 2015 he became area manager for Westside Petroleum which involved the following tasks:
a)hiring and training store managers and console staff;
b)business development, setting up office systems and procedures for day-to-day operations and helping to start up the business cycle;
c)setting up stores, points of sale systems, terminals and payment options;
d)stock ordering and merchandising;
e)travelling to service stations to review operations and conduct training; and
f)conducting monthly compliance checks.
Mr Khawaja deposed that Westside Petroleum opened or took over twelve new service stations in his area between February 2015 and December 2015 and that he had been in charge of recruiting Console operators for these shops.
Mr Khawaja had no previous human resources experience but he received frequent requests from prospective employees about the rate of pay. He told them that they would receive a net sum of $18 per hour. He knew of the Award rates but had limited experience in applying them. The underpayment was unintentional and a decision he “deeply regretted”, he understood that $18 per hour did not meet the Award rates and that consequently employees had been underpaid.
Mr Khawaja deposed that he had co-operated with the investigation, apologised for the underpayments and the delay the Employees experienced before the underpayments were rectified. In future he would always seek advice on the Award rates before informing employees of their rates of pay. He also deposed that he is not currently involved in the recruitment or payroll processes.
RELEVANT LEGISLATION AND INDUSTRIAL INSTRUMENT
Fair Work Act
Section 45 of the FW Act provides that a person must not contravene a term of a modern award.
Section 539 of the FW Act provides that s.45 is a civil remedy provision. By virtue of s.45, ss.539(2) and 546(2) of the FW Act provided at the relevant times that the maximum pecuniary penalty for a contravention of individual clauses of a modern award was 60 penalty units for an individual and 300 penalty units for a corporation.
In the period 28 December 2012 to 30 July 2015 a penalty unit was worth $170 and in the period 31 July 2015 to 30 June 2017 a penalty unit was worth $180: s.4AA Crimes Act 1914.
Section 550 of the FW Act provides:
550 Involvement in contravention treated in same way as actual contravention
(1)A person who is involved in a contravention of a civil remedy provision is taken to have contravened that provision.
(2)A person is involved in a contravention of a civil remedy provision if, and only if, the person:
(a)has aided, abetted, counselled or procured the contravention; or
(b)has induced the contravention, whether by threats or promises or otherwise; or
(c)has been in any way, by act or omission, directly or indirectly, knowingly concerned in or party to the contravention; or
(d) has conspired with others to effect the contravention.
Section 557 of the FW Act relevantly provides:
557Course of conduct
(1)For the purposes of this Part, 2 or more contraventions of a civil remedy provision referred to in subsection (2) are, subject to subsection (3), taken to constitute a single contravention if:
(a)the contraventions are committed by the same person; and
(b)the contraventions arose out of a course of conduct by the person.
(2)The civil remedy provisions are the following:
…
(b)section 45 (which deals with contraventions of modern awards);
…
Vehicle Manufacturing, Repair, Services and Retail Award
The Award is a modern award. At the material times it relevantly provided:
36.Casual rates for driveway attendants, roadhouse attendants and console operators
…
36.3A person employed on a casual basis principally to perform duties of a console operator, or roadhouse attendant if engaged to primarily cook other than takeaway meals will be paid as follows:
20 years & over 19 years 18 years 17 years 16 years &under (adult rate) (75%) (62.5%) (50%) (47.5%) $ $ $ $ $ Monday to Friday 25.05 18.79 15.66 12.53 11.90 Saturdays, Sundays and public holidays 32.56 24.42 20.35 16.28 15.47 Overtime for any hours worked in excess of 10 hours per day or an average of 38 hours per week will be paid in addition 14.21 10.66 8.88 7.11 6:75
…
37. Ordinary hours of work and rostering
…
37.2Subject to the exceptions provided in this clause, the ordinary hours of work of an employee will be an average of 38 hours per week on not more than five days in any week, calculated on the following bases:
(a) 38 hours within a work cycle not exceeding seven consecutive days;
…
43.Special provisions––driveway attendant, console operator and roadhouse attendant
…
43.6 Casual rates
A casual employed as a driveway attendant, roadhouse attendant, console operator or roadhouse attendant engaged primarily to cook other than takeaway meals will be paid by the hours in accordance with the casual rates prescribed in clause 36–Casual rates for driveway attendants, roadhouse attendants and console operators.
DECLARATIONS
The respondents agreed to the making of declarations based on their admissions that they had committed the contraventions referred to earlier in these reasons
I am satisfied that it is appropriate to make the declarations sought.
ORDERS
I am also satisfied that it is appropriate to made orders in accordance with those proposed in the SOAF.
PENALTIES
Principles
The question of penalty is to be determined as follows:
a)the Court is to identify the separate contraventions involved. Each contravention of a separate obligation in the Award is a separate contravention: Gibbs v Mayor, Councillors and Citizens of City of Altona (1992) 37 FCR 216 at 223; Kelly v Fitzpatrick (2007) 166 IR 14 at 17 [11]; McIver v Healey [2008] FCA 425 at [16]; Rocky Holdings Pty Ltd v Fair Work Ombudsman (2014) 221 FCR 153 at 159 [13]; Fair Work Ombudsman v Lohr [2018] FCA 5 at [29];
b)the Court should consider whether contraventions resulting from any particular course of conduct should be treated as a single contravention under s.557(1) of the FW Act (“course of conduct”);
c)to the extent that two or more contraventions have common elements, this should be taken into account when considering an appropriate penalty for those contraventions: Johnson v The Queen (2004) 78 ALJR 616 at [4]–[5]; Fair Work Ombudsman v Lifestyle SA Pty Ltd [2014] FCA 1151 at [61]–[63]. A contravener should not be penalised twice for what is, in substance, the same conduct. This is distinct from the totality principle: Mornington Inn Pty Ltd v Jordan (2008) 168 FCR 383 at 396–398 [41]–[46] (per Stone and Buchanan JJ) (the “grouping principle”);
d)the Court should determine an appropriate penalty to impose in respect of each contravention (whether a single contravention, a course of conduct contravention or a group of contraventions) having regard to all of the circumstances of the case; and
e)having fixed an appropriate penalty for each contravention or group of contraventions, the Court should consider the aggregate penalty to determine whether it is an appropriate response to the contravening conduct: Kelly v Fitzpatrick at 21–22 [30]; Australian Ophthalmic Supplies Pty Ltd v McAlary–Smith (2008) 165 FCR 560, (the “totality principle”).
Considerations
The cases have identified “a non–exhaustive range of considerations to which regard may be had in determining whether particular conduct calls for the imposition of a penalty, and if it does the amount of the penalty”, as Tracey J put it in Kelly v Fitzpatrick at 18–19 [14]. Considerations relevant to this case are identified by the headings which follow.
The nature and extent of the conduct which led to the breaches
When hiring the Employees Westside Petroleum, in the form of
Mr Khawaja, identified a roughly accurate hourly net wages figure and proceeded to apply it, regardless of when a particular individual worked or how long they had worked on a particular day or in a particular week. This had the effect that correct rates were not paid and, in particular, overtime and penalty rates were not paid.
The detail of the underpayments is set out in the annexure to these reasons.
The circumstances in which that conduct took place
The evidence indicates, and I accept, that at the relevant time Westside Petroleum was experiencing a significant and rapid expansion of its business and had placed with a person uninformed about industrial issues, Mr Khawaja, the responsibility of staffing the new service stations which it was opening or bringing under its banner. The commercial imperative to seize new business opportunities can explain distraction from issues of compliance but it does not excuse it.
Importantly, some of the Employees are properly characterised as having been vulnerable employees. Four of them were 19 years old and two were overseas nationals on visas. It can be inferred that those employees were less experienced and knowledgeable in employment matters than others of the Employees and so it was all the more important that Westside Petroleum did not, in its dealings with them, act contrary to the Award or the FW Act. That being said, however, I do observe that the first complaint to the Ombudsman about Westside Petroleum to which the Court was taken was made by one of the four junior employees, which suggests that age alone may be an unreliable indicator of vulnerability.
The nature and extent of any loss or damage sustained as a result of the breaches
The losses have been set out earlier in these reasons and in detail in the annexure. As to their contextual significance, a 38 hour week of ordinary hours would have entitled a casual console operator to gross wages of $951.90 and that some of the Employees were underpaid by approximately $1,000 per month. In the circumstances, the underpayments were not insignificant ones.
Whether there had been similar previous conduct by the respondent
I accept that none of the respondents have previously been found to have committed similar contraventions.
Whether the breaches were properly distinct or arose out of the one course of conduct
I accept the parties’ agreement that:
a)the failure to pay minimum weekday casual rates in breach of cl.36.3 of the Award was a single course of conduct;
b)the failure to pay the minimum rate of pay for all hours worked on Saturday, Sunday or public holidays in breach of cl.36.3 of the Award was a single course of conduct; and
c)the failure to pay overtime rates in breach of cls.36.3, 43.6 and 37.2(a) of the Award was also a single course of conduct.
It was not suggested, in my view correctly, that any further grouping of the contraventions was appropriate.
Whether or not the breaches were deliberate
The Ombudsman submitted that:
[Although] The Respondents may not have set about to breach workplace laws, their conduct in maintaining the pay system which caused the underpayments was, at the very least, performed (and continued) in the knowledge that the practices were not compliant with Award requirements and therefore deliberate to that extent.
In their affidavit evidence the respondents sought to put this contention in issue. Relevantly, Mr Khawaja deposed:
… At no time did I intend to pay under award rates.
I thought that this was high enough to meet the award obligations, in part because I did not understand that casual workers were entitled to be paid overtime for rostered hours.
Mr Ieraci deposed:
I acknowledge that a number of employees of Westside Petroleum were underpaid. This was at all times an accident and, in respect of my involvement, an honest mistake about the correct interpretation of the Vehicle Manufacturing, Repair, Services and Retail Award 2010. For example, I took the view that cl.28.1 of the Award, which states that overtime rates do not apply to casual employees, meant that casual employees were not entitled to overtime rates. I did not realise that there was a separate clause setting out overtime rates for casual workers.
Mr Riad deposed:
… I knew that the employees were being paid a flat rate for their rostered hours. I was not specifically aware that this would result in any person being underpaid, or of the rostering, classification or ages of any individual employee affected.
However, Mr Riad and Mr Ieraci both made formal admissions in the SOAF that at “all relevant times” they:
… knew that the Gross Payments paid to the Employees during the Assessment Period were insufficient to meet the minimum entitlements required to be paid under the Award.
I note in that connection that Mr Riad sent emails on 27 May 2015 and 16 July 2015 which quoted cl.36.3 of the Award. Mr Ieraci wrote a similar email on 29 October 2015.
As Mr Khawaja did not make a similar admission and was not cross-examined on his affidavit I am prepared to accept that he did lack a correct understanding of the Award albeit in two of three emails just mentioned he had been advised by both Mr Riad and Mr Ieraci of the terms of cl.36.3 of the Award.
Given the admissions of the senior managers, Messrs Riad and Ieraci, and the contents of the emails to which I have referred, I conclude that Westside Petroleum’s contraventions of the Award and so of the FW Act were deliberate.
Whether senior management was involved in the breaches
As just noted, Mr Riad and Mr Ieraci were senior managers of Westside Petroleum, being respectively the company’s general manager and accountant. The relevant failures were therefore known to persons holding very senior positions in the company who were in a position to stop the practice which Mr Khawaja initiated, each of whom could in some situations, including this, be considered the directing mind of the company. Westside Petroleum must therefore be understood to have knowingly committed the contraventions. It should therefore be subject to a greater penalty than if it had not been subjectively aware of them.
The size of the business enterprise involved
The picture of Westside Petroleum gained from the evidence is of a company with resources, had it chosen to deploy them, sufficient to ensure that the terms of the Award were known, understood and followed. This was not an employer which could not afford advice and assistance.
Whether the party committing the breach co-operated with the Ombudsman, exhibited contrition and took corrective action
In this case, the question of contrition arises in relation to a corporate respondent and three individuals. The latter three have made express statements of regret or similar, while the Managing Director of Westside Petroleum, Mr Makhlouf, deposed to the company’s “deep regret” at the underpayments and apologised for them. The Ombudsman submitted in this connection:
The Applicant acknowledges the cooperation consistently shown by the Respondents. From an early point in the investigation, Mr Riad and Mr Ieraci (on behalf of the Company) provided documents both voluntarily and in response to statutory notices issued by the FWO (through which the regulator was able to assess underpayments), and remained engaged throughout the investigation. … Each of the Respondents (in addition to Managing Director, Mr Makhlouf) participated in electronically recorded interviews with the FWO, and agreed to make full admissions of liability shortly after the filing of this proceeding. …
The evidence also supports a conclusion that Westside Petroleum took significant steps to correct its conduct and to make restitution to the Employees. On 24 December 2018 it made payments to all of the Employees, according to the contact details it had, although the Ombudsman did observe that only a week earlier she had advised the respondents that this proceeding would be commenced. The Ombudsman gently criticised the delay in making restitution, noting that it came five months after the Contravention Letter but, fairly, noted that steps were taken to implement payment of lawful pay rates very shortly after her investigation commenced. She also conceded that Mr Makhlouf had deposed to other corrective steps including staffing changes, a verification process for payroll runs, membership of an industry association and the engagement of employment law professionals and external auditors.
The parties agreed that some discount on the penalties to be imposed would be appropriate recognition of the respondents’ co-operation, expressions of regret and contrite actions. In that regard it should be stressed that discounts for co-operation are not allowed simply because enforcement proceedings have been made less complicated and less expensive by appropriate concessions. The benefit of such a discount should be reserved for cases where it can be fairly said that an admission of liability has indicated an acceptance of wrongdoing and a suitable and credible expression of regret and/or has indicated a willingness to facilitate the course of justice: Mornington Inn v Jordan at 405 [76].
I find that those criteria have been satisfied in this case. Moreover, I consider the steps which have been taken, not least the agreements regarding notices to be posted in Westside Petroleum premises, have shown an objective and substantial alteration in practice and willingness to take necessary action. I consider that the penalties to be imposed should be discounted by a quarter to reflect this.
The need for specific and general deterrence
Regardless of that discount, the penalties to be imposed should contain a component for specific deterrence because all of the respondents remain engaged in the same business, albeit subject to some changes in duties and operations. Nevertheless, that component will be less than it would have been if the respondents had not taken the steps to which reference has been made.
The need for general deterrence remains significant. It is unacceptable that Westside Petroleum focussed on the growth of its business and failed to have proper regard to very basic employer obligations. The penalties will include a component for general deterrence to mark the Court’s disapproval of the admitted contraventions and to discourage others from repeating the respondents’ contraventions. I do not accept, at least in this case, that the posting of notices is a matter of material significance to the question of general deterrence or that the publicity of the proceeding is likely to be of any particular relevance to other employers unless it is accompanied by a suitable sanction.
PENALTIES
When setting the penalties in this case it is appropriate to have regard to the value of a penalty unit at the end of the period of contravention in respect of which this proceeding was brought, namely $180: Fair Work Ombudsman v Grouped Property Services Pty Ltd (No.2) [2017] FCA 557 per Katzmann J at [396]–[401].
It follows that the maximum penalties are these:
a)for each contravention by Westfield Petroleum: $54,000; and
b)for each contravention by Mr Riad, Mr Ieraci and Mr Khawaja: $10,800.
In determining the penalties to be imposed I have had regard to the principle of proportionality, the purposes of sentencing and the task of instinctive synthesis of various factors into a single result which were discussed by Barker J in Australian Building & Construction Commissioner v Construction, Forestry, Mining & Energy Union (No.2) (2010) 199 IR 373 at 376 [4]-[7]. I consider the appropriate penalties to be:
Westside Petroleum: Contravention of s.45 of the FW Act by reason of Gross Penalty One quarter discount Net penalty Failure to pay Monday to Friday rates under clause 36.3 of the Award 20,000 5,000 15,000 Failure to pay Saturday, Sunday and public holiday rates under clause 36.3 of the Award 20,000 5,000 15,000 Failure to pay overtime rates under clauses 36.3, 37.2(a) and 43.6 of the Award 20,000 5,000 15,000 TOTAL 45,000
Mr Riad Contravention of s.45 of the FW Act by reason of Gross Penalty One quarter discount Net penalty Failure to pay Monday to Friday rates under clause 36.3 of the Award 3,000 750 2,250 Failure to pay Saturday, Sunday and public holiday rates under clause 36.3 of the Award 3,500 875 2,625 Failure to pay overtime rates under clauses 36.3, 37.2(a) and 43.6 of the Award 3,500 875 2,625 TOTAL 6,750
Mr Ieraci Contravention of s.45 of the FW Act by reason of Gross Penalty One quarter discount Net penalty Failure to pay Monday to Friday rates under clause 36.3 of the Award 3,000 750 2,250 Failure to pay Saturday, Sunday and public holiday rates under clause 36.3 of the Award 3,500 875 2,625 Failure to pay overtime rates under clauses 36.3, 37.2(a) and 43.6 of the Award 3,500 875 2,625 TOTAL 6,750
Mr Khawaja Contravention of s.45 of the FW Act by reason of Gross Penalty One quarter discount Net penalty Failure to pay Monday to Friday rates under clause 36.3 of the Award 3,000 750 2,250 Failure to pay Saturday, Sunday and public holiday rates under clause 36.3 of the Award 3,500 875 2,625 Failure to pay overtime rates under clauses 36.3, 37.2(a) and 43.6 of the Award 3,500 875 2,625 TOTAL 6,750
Westside Petroleum’s penalties amount to $45,000. I believe that such a total is just and appropriate.
Westside Petroleum is to pay its total penalty to the Commonwealth within twenty-eight days.
The penalties for the other respondents amount to $6,750 each. However, as none of those respondents had previously contravened an industrial law or instrument and it was not suggested that their actions were motivated by personal gain or self-interest more generally, I consider those individual sums to be excessive in the circumstances. I propose to reduce each of them to $4,000. I also consider it appropriate to allow them six months to pay those sums to the Commonwealth.
I certify that the preceding eighty-four (84) paragraphs are a true copy of the reasons for judgment of Judge Cameron
Associate:
Date: 2 October 2019
ANNEXURE
Table 1 – Underpayments: Monday-Friday
| Part 1: Adult Employees | ||||
| Employee | Hours worked | Entitlement | Amount Paid | Underpayment |
| Scott Biggers | 274.00 | $6,863.70 | $5,739.29 | $1,124.41 |
| Jacqueline Douglass | 299.00 | $7,489.95 | $6,356.36 | $1,133.53 |
| Sharnah Gillogly | 191.00 | $4,784.55 | $3,480.10 | $1,304.45 |
| Catherine Graham | 113.00 | $2,830.65 | $2,168.70 | $661.95 |
| Sarah Harwood | 191.00 | $4,784.55 | $4,059.50 | $725.05 |
| Dianne Hendry | 261.50 | $6,550.58 | $5,090.38 | $1,460.20 |
| Mohammad Hauque | 96.00 | $2,404.80 | $1,954.50 | $450.30 |
| Saju Chakiath Itteera | 108.00 | $2,705.40 | $2,037.14 | $668.26 |
| Shiji John | 528.00 | $13,226.40 | $11,404.57 | $1,821.83 |
| Narasimha Kota | 346.00 | $8,667.30 | $7,715.81 | $951.49 |
| Devender Malik | 851.50 | $21,330.08 | $19,039.13 | $2,290.95 |
| David Masterson | 499.00 | $12,499.95 | $10,966.35 | $1,533.60 |
| Chris Purcell | 501.00 | $12,550.05 | $11,393.43 | $1,156.62 |
| Nakita Robinson | 388.00 | $9,719.40 | $8,325.00 | $1,394.40 |
| Natasha Rock | 209.00 | $5,235.45 | $4,021.76 | $1,213.69 |
| Subir Sarker | 81.00 | $2,029.05 | $1,616.00 | $413.05 |
| Greq Sheedy | 472.50 | $11,836.13 | $9,418.58 | $2,417.55 |
| Joanna Watts | 202.50 | $5,072.63 | $3,744.74 | $1,327.89 |
| TOTAL | 5,612.00 | $140,580.62 | $118,531.34 | $22,049.22 |
| Part 2: Junior Employees | ||||
| Employee | Hours worked | Entitlement | Amount Paid | Underpayment |
| Courtney Lewis | 225.00 | $4,227.75 | $4,061.56 | $166.19 |
| Chloe Pratt | 402.25 | $7,558.28 | $7,278.62 | $279.66 |
| Jemma Vaughan | 349.00 | $6,557.71 | $6,506.07 | $51.64 |
| Lucy Woods | 501.50 | $9,404.41 | $9,169.86 | $234.55 |
| TOTAL | 1,477.75 | $27,748.15 | $27,016.11 | $732.04 |
Table 2 – Underpayments: Saturdays, Sundays and public holidays
| Part 1: Adult employees | |||||
| Employee | Day | Hours worked | Entitlement | Amount Paid | Underpayment |
| Scott Biggers | Saturday | 211.00 | $12,258.84 | $7,558.71 | $4,700.13 |
| Sunday | 157.50 | ||||
| Public Holiday | 8.00 | ||||
| Jacqueline Douglass | Saturday | 36.00 | $3,093.20 | $1,992.53 | $1,100.67 |
| Sunday | 53.00 | ||||
| Public Holiday | 6.00 | ||||
| Sharnah Gillogly | Saturday | $390.72 | $233.30 | $157.42 | |
| Sunday | 6.00 | ||||
| Public Holiday | 6.00 | ||||
| Catherine Graham | Saturday | 114.00 | $8,172.56 | $4,794.30 | $3,378.26 |
| Sunday | 120.00 | ||||
| Public Holiday | 17.00 | ||||
| Sarah Harwood | Saturday | 6.00 | $1,074.48 | $717.50 | $356.98 |
| Sunday | 9.00 | ||||
| Public Holiday | 18.00 | ||||
| Mohammad Hauque | Saturday | 16.00 | $781.44 | $450.30 | $331.14 |
| Sunday | 8.00 | ||||
| Public Holiday | |||||
| Dianne Hendry | Saturday | 88.00 | $5,030.52 | $3,016.12 | $2,014.40 |
| Sunday | 48.50 | ||||
| Public Holiday | 18.00 | ||||
| Saju Chakiath Itteera | Saturday | 3.00 | $97.68 | $54.86 | $42.82 |
| Sunday | |||||
| Public Holiday | |||||
| Shiji John | Saturday | 113.00 | $8,595.84 | $5,661.32 | $2,934.52 |
| Sunday | 113.00 | ||||
| Public Holiday | 38.00 | ||||
| Narasimha Kota | Saturday | 55.00 | $3,939.76 | $2,777.74 | $1,162.02 |
| Sunday | 35.00 | ||||
| Public Holiday | 31.00 | ||||
| Devender Malik | Saturday | 32.50 | $7,439.96 | $5,084.87 | $2,355.09 |
| Sunday | 188.00 | ||||
| Public Holiday | 8.00 | ||||
| David Masterson | Saturday | $846.56 | $545.45 | $301.11 | |
| Sunday | 9.00 | ||||
| Public Holiday | 17.00 | ||||
| Chris Purcell | Saturday | 117.00 | $8,856.32 | $6,136.57 | $2,719.75 |
| Sunday | 110.00 | ||||
| Public Holiday | 45.00 | ||||
| Nakita Robinson | Saturday | 71.00 | $5,177.04 | $3,389.45 | $1,787.59 |
| Sunday | 60.00 | ||||
| Public Holiday | 28.00 | ||||
| Natasha Rock | Saturday | $504.68 | $308.84 | $195.84 | |
| Sunday | 15.50 | ||||
| Public Holiday | |||||
| Subir Sarker | Saturday | 32.00 | $1,823.36 | $1,059.00 | $764.36 |
| Sunday | 24.00 | ||||
| Public Holiday | |||||
| Greg Sheedy | Saturday | $423.28 | $257.42 | $165.86 | |
| Sunday | |||||
| Public Holiday | 13.00 | ||||
| Joanna Watts | Saturday | 15.00 | $716.32 | $418.76 | $297.56 |
| Sunday | |||||
| Public Holiday | 7.00 | ||||
| TOTAL | 2,126.00 | $69,222.56 | $44,457.04 | $24,765.52 |
Table 2 - continued
| Part 2: Junior Employees | |||||
| Employee | Day | Hours worked | Entitlement | Amount Paid | Underpayment |
| Courtney Lewis | Saturday | 40.00 | $2,759.46 | $2,144.32 | $615.12 |
| Sunday | 49.50 | ||||
| Public Holiday | 23.50 | ||||
| Chloe Pratt | Saturday | 18.00 | $879.12 | $648.00 | $231.12 |
| Sunday | 6.00 | ||||
| Public Holiday | 12.00 | ||||
| Jemma Vaughan | Saturday | 27.00 | $3,516.48 | $3,201.66 | $314.82 |
| Sunday | 81.00 | ||||
| Public Holiday | 36.00 | ||||
| Lucy Woods | Saturday | 33.50 | $1,916.97 | $1,478.99 | $437.98 |
| Sunday | 40.00 | ||||
| Public Holiday | 6.00 | ||||
| TOTAL | 372.50 | $9,072.03 | $7,472.97 | $1,599.04 | |
Table 3 - Underpayments: overtime
| Part 1: Adult employees | ||||
| Employee | Overtime hours worked | Entitlement | Amount Paid | Underpayment |
| Scott Biggers | 62.00 | $881.02 | $0.00 | $881.02 |
| Jacqueline Douglas | 25.00 | $355.25 | $0.00 | $355.25 |
| Sarah Harwood | 35.00 | $497.35 | $0.00 | $497.35 |
| Mohammad Hauque | 18.00 | $255.78 | $0.00 | $255.78 |
| Dianne Hendry | 16.00 | $227.36 | $0.00 | $227.36 |
| Shiji John | 145.00 | $2,060.45 | $0.00 | $2,060.45 |
| Narasimha Kota | 139.00 | $1,989.40 | $0.00 | $1,989.40 |
| Devender Malik | 220.00 | $3,126.20 | $0.00 | $3,126.20 |
| David Masterson | 44.00 | $625.24 | $0.00 | $625.24 |
| Chris Purcell | 205.00 | $2,913.05 | $0.00 | $2,913.05 |
| Nakita Robinson | 82.00 | $1,165.22 | $0.00 | $1,165.22 |
| Greg Sheedy | 4.00 | $56.84 | $0.00 | $56.84 |
| TOTAL | 995.00 | $14,138.95 | $0.00 | $14,153.16 |
| Part 2: Junior employees | ||||
| Employee | Overtime hours worked | Entitlement | Amount Paid | Underpayment |
| Courtney Lewis | 19.50 | $207.87 | $0.00 | $207.87 |
| Jemma Vaughan | 113.00 | $1,204.58 | $0.00 | $363.132 |
| Lucy Woods | 5.00 | $53.50 | $0.00 | $53.30 |
| TOTAL | 137.50 | $1,465.95 | $0.00 | $624.30 |
Table 4 - Total underpayments
| Employee | Entitlement | Total Underpayment | ||
| Monday to Friday | Saturday, Sunday and Public Holiday | Overtime | ||
| Scott Biggers | $1,124.41 | $4,700.13 | $881.02 | $6,705.56 |
| Jacqueline Douglass | $1,133.53 | $1,100.67 | $355.25 | $2,567.60 |
| Sharnah Gillogly | $1,304.45 | $157.42 | - | $1,461.87 |
| Catherine Graham | $661.95 | $3,378.26 | - | $4,040.21 |
| Sarah Harwood | $725.05 | $356.98 | $497.35 | $1,579.38 |
| Mohammad Hauque | $450.30 | $331.14 | $255.78 | $1,005.02 |
| Dianne Hendry | $1,460.20 | $2,014.40 | $227.36 | $3,701.96 |
| Saju Chakiath Itteera | $668.26 | $42.82 | - | $711.08 |
| Shiji John | $1,821.63 | $2,934.52 | $2,060.45 | $6,730.09 |
| Narasimha Kota | $951.49 | $1,162.02 | $1,989.40 | $4,034.66 |
| Devender Malik | $2,290.95 | $2,355.09 | $3,126.20 | $7,772.24 |
| David Masterson | $1,533.60 | $301.11 | $625.24 | $2,299.15 |
| Chris Purcell | $1,156.62 | $2,719.75 | $2,913.05 | $6,789.42 |
| Nakita Robinson | $1,394.40 | $1,787.59 | $1,165.22 | $4,302.66 |
| Natasha Rock | $1,213.69 | $195.84 | - | $1,377.13 |
| Subir Sarker | $413.05 | $764.36 | - | $1,177.41 |
| Greg Sheedy | $2,417.55 | $165.86 | $56.84 | $2,640.25 |
| Joanna Watts | $1,327.89 | $297.56 | - | $1,625.45 |
| Courtney Lewis | $166.19 | $615.12 | $207.87 | $765.08 |
| Chloe Pratt | $279.66 | $231.12 | - | $344.40 |
| Jemma Vaughan | $51.64 | $314.82 | $363.13 | $414.77 |
| Lucy Woods | $234.55 | $437.98 | $53.30 | $347.68 |
| TOTAL | $22,781.26 | $26,364.56 | $14,777.46 | $62,393.07 |
Key Legal Topics
Areas of Law
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Employment Law
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Statutory Interpretation
Legal Concepts
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Breach
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Penalty
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Statutory Construction
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Remedies
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