Fair Work Ombudsman v Zenobia Trading Pty Ltd
[2023] FedCFamC2G 453
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Fair Work Ombudsman v Zenobia Trading Pty Ltd [2023] FedCFamC2G 453
File number(s): SYG 231 of 2022 Judgment of: JUDGE CAMERON Date of judgment: 27 April 2023 Catchwords: INDUSTRIAL LAW – breaches of civil remedy provisions of the Fair Work Act 2009 (Cth) – imposition of penalties – relevant considerations. Legislation: Fair Work Act 2009 (Cth) ss 12, 14, 539, 545, 546, 547, 550, 687, 700, 701, 716, 793
Crimes Act 1914 (Cth) s 4AA
Evidence Act 1995 (Cth) s 191
Cases cited: Australian Building and Construction Commissioner v Pattinson (2022) 96 ALJR 426
Kelly v Fitzpatrick (2007) 166 IR 14
Fair Work Ombudsman v Grouped Property Services Pty Ltd (No 2) [2017] FCA 557
Division: Fair Work Division Number of paragraphs: 26 Date of hearing: 27 April 2023 Place: Sydney Solicitor for the Applicant: Fair Work Ombudsman For the Respondents: No appearance by or for the respondents ORDERS
SYG 231 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: FAIR WORK OMBUDSMAN
Applicant
AND: ZENOBIA TRADING PTY LTD (ACN 125 465 590)
First Respondent
JORGE BALLAS
Second Respondent
order made by:
JUDGE CAMERON
DATE OF ORDER:
27 April 2023
THE COURT DECLARES BY CONSENT THAT:
1.The first respondent contravened s.716(5) of the Fair Work Act 2009 (Cth) by failing to comply with the compliance notice served on it on 13 June 2021.
2.The second respondent was involved, within the meaning of s.550(2)(c) of the Fair Work Act 2009 (Cth), in the first respondent’s contravention.
THE COURT ORDERS BY CONSENT THAT:
1.Within 28 days the first respondent:
(a)pay to the applicant the outstanding entitlements the first respondent was required to pay Khem Poudel under the compliance notice served on it on 13 June 2021, being $6,034.71; and
(b)pay $546.26 into Khem Poudel’s nominated superannuation fund and provide proof of such payment to the applicant;
2.Within 28 days the first respondent pay to the applicant interest on the amount required to be paid in accordance with order 1(a), calculated in accordance with paragraph 2.2 of the Federal Court of Australia practice note “Interest on Judgments Practice Note (GPN-INT)”.
3.The applicant distribute to Khem Poudel the amounts paid to the applicant pursuant to orders 1(a) and 2 above within 90 days of the payments being made by the first respondent.
THE COURT FURTHER ORDERS THAT:
4.The first respondent pay a pecuniary penalty of $15,000.
5.The second respondent pay a pecuniary penalty of $3,000.
6.The penalties be paid within 28 days.
7.The pecuniary penalties be paid to the Commonwealth.
8.The applicant have liberty to apply on 7 days’ notice in the event that the orders have not been complied with.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE CAMERON
INTRODUCTION
This proceeding was brought by the Fair Work Ombudsman ("Ombudsman") under the Fair Work Act 2009 (Cth) ("FW Act"). It principally concerns a contravention of the FW Act by the first respondent in failing to comply with a compliance notice issued on 13 June 2021 (“Notice”). The Notice alleged contraventions by the first respondent, Zenobia Trading Pty Ltd (“Zenobia”), of the Restaurant Industry Award 2010 (“2010 Award”) which was renamed the Restaurant Industry Award 2020 (“2020 Award”) as of 29 May 2020 (collectively, “Awards”). These contraventions arose from the alleged underpayment of Zenobia’s employee, Khem Poudel, over the course of his employment from 26 February 2020 to 26 November 2020. Amongst other things, the Notice required Zenobia to calculate the amounts owed to Mr Poudel and to pay them.
Zenobia was the operator of a restaurant in North Strathfield, a suburb of Sydney. The second respondent, Mr Ballas, was Zenobia’s sole director and was responsible for its day-to-day management, directions and operations.
In a statement of claim filed on 18 February 2022 the Ombudsman sought declarations that the respondents had contravened the FW Act. The Ombudsman also sought orders that Zenobia comply with the Notice, including by paying outstanding amounts with interest and the imposition of pecuniary penalties on the respondents.
In a statement of agreed of facts filed on 5 October 2022 Zenobia admitted contravening s.716(5) of the FW Act and Mr Ballas admitted his involvement, within the meaning of s.550 of the FW Act, in that contravention.
The respondents have not filed any evidence or submissions, nor have they appeared today. The second respondent filed a notice of address for service and appeared for the first respondent at the first court date on 11 March 2022 and subsequently. The second respondent has continued to represent the first respondent in this proceeding and he was advised of today's hearing date. I am satisfied the respondents have submitted to the jurisdiction of the Court and that they have been notified of today’s hearing. I am further satisfied that the matter should proceed to judgment notwithstanding their absence from the hearing.
STATEMENT OF AGREED FACTS
The terms of the statement of agreed facts are set out in attachment A to these reasons. In summary, it was agreed that:
(a)Mr Poudel had been employed by Zenobia as a casual employee from 26 February 2020 to 26 November 2020;
(b)Mr Poudel’s employment was covered by the 2010 Award until 29 May 2020 and then by the 2020 Award;
(c)Mr Poudel was entitled to be classified as a cook (grade 1);
(d)Mr Poudel was paid a flat hourly wage which did not satisfy his casual minimum hourly rate or penalty rates entitlements under the Awards;
(e)following a complaint by Mr Poudel on 3 December 2020 and an investigation by Fair Work Inspector (“FWI”) Andy Lam, FWI Lam formed a reasonable belief that Zenobia had contravened the following terms of the Awards in respect of Mr Poudel’s employment:
(i)clauses 13 and 20.1 of the 2010 Award and cls.18 and 11.2 of the 2020 Award regarding the casual minimum wage ($3,314.72);
(ii)clause 34.2(a)(i) of the 2010 Award and cl.24.2(b) of the 2020 Award regarding the penalty rate for work between 10:00pm and midnight on Monday to Friday ($108.35);
(iii)clause 34.1 of the 2010 Award and cl.24.2(b) of the 2020 Award regarding the penalty rate for work on a Saturday ($1,565.10); and
(iv)clause 34.1 of the 2010 Award and cl.24.2(b) of the 2020 Award regarding the penalty rate for work on a Sunday ($1,046.54);
(collectively “Outstanding Entitlements”)
(f)pursuant to s.716(2) of the FW Act, on 13 June 2021 FWI Lam issued the Notice to Zenobia;
(g)the Notice required Zenobia to remedy the contraventions of the Awards by:
(i)calculating and paying Mr Poudel his Outstanding Entitlements and superannuation-related entitlements as required by cl.22.2 of the 2020 Award (and cl.30.2 of the 2010 Award) by 14 July 2021; and
(ii)providing the Ombudsman with reasonable evidence of the steps taken to comply with the Notice, including details of the calculations and proof of full payment of the amounts, by 21 July 2021;
(h)Zenobia did not comply with the Notice by the required deadlines and did not provide a reasonable excuse for not having done so;
(i)Zenobia’s failure to comply with the Notice contravened s.716(5) of the FW Act;
(j)Mr Ballas was responsible for ensuring Zenobia’s compliance with the Notice and had actual knowledge of the Notice, of the requirement to comply and of Zenobia’s failure to comply and, as such, was an intentional participant in Zenobia’s failure to comply with the Notice;
(k)Mr Ballas was involved in Zenobia’s breach of s.716(5) of the FW Act and by virtue of s.550(2) of the Act is taken to have contravened the provision himself; and
(l)Zenobia is liable to compensate Mr Poudel $6,034.71 for the Outstanding Entitlements and $546.26 for unpaid superannuation contributions.
LEGISLATION AND RULES
At all material times the FW Act relevantly provided:
539Applications for orders in relation to contraventions of civil remedy provisions
...
(2)For each civil remedy provision, the persons referred to in column 2 of the item may, subject to sections 540 and 544 and Subdivision B, apply to the courts referred to in column 3 of the item for orders in relation to a contravention or proposed contravention of the provision, including the maximum penalty referred to in column 4 of the item.
Standing, jurisdiction and maximum penalties Item Column 1
Civil remedy provision
Column 2
Persons
Column 3
Courts
Column 4
Maximum penalty
... 3 45 (in relation to a contravention or proposed contravention of an outworker term) (a) an outworker;
(b) an employer;
(c) an outworker entity;
(d) an employee organisation;
(e) an employer organisation; ...
...
(b) the Federal Circuit and Family Court of Australia (Division 2);
...
for a serious contravention—600 penalty units; or
otherwise—60 penalty units
...
546 Pecuniary penalty orders
(1)The Federal Court, the Federal Circuit and Family Court of Australia (Division 2) or an eligible State or Territory court may, on application, order a person to pay a pecuniary penalty that the court considers is appropriate if the court is satisfied that the person has contravened a civil remedy provision.
Determining amount of pecuniary penalty
(2) The pecuniary penalty must not be more than:
(a)if the person is an individual—the maximum number of penalty units referred to in the relevant item in column 4 of the table in subsection 539(2); or
(b)if the person is a body corporate—5 times the maximum number of penalty units referred to in the relevant item in column 4 of the table in subsection 539(2).
...
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.
…
716 Compliance notices
Application of this section
(1)This section applies if an inspector reasonably believes that a person has contravened one or more of the following:
...
(b)a term of a modern award;
...
Giving a notice
(2)The inspector may, except as provided by subsection (4), give the person a notice requiring the person to do either or both of the following within such reasonable time as is specified in the notice:
(a)take specified action to remedy the direct effects of the contravention referred to in subsection (1);
(b)produce reasonable evidence of the person’s compliance with the notice.
…
Person must not fail to comply with notice
(5) A person must not fail to comply with a notice given under this section.
(6) Subsection (5) does not apply if the person has a reasonable excuse.
A penalty unit was worth:
(a)$210 until 30 June 2020; and
(b)$222 on and from 1 July 2020: s.4AA of the Crimes Act 1914 (Cth).
APPLICANT’S EVIDENCE
Correspondence regarding compliance notice
FWI Thammakitpairote deposed in an affidavit affirmed on 26 October 2022 that the Ombudsman had had the following interactions with Mr Ballas regarding the Notice and the actions required to be taken by Zenobia:
(a)on 16 June 2021 FWI Thammakitpairote emailed Mr Ballas referring to the Notice and stated that failure to comply was a contravention of the FW Act;
(b)on 25 June 2021 Steven Tokic, a compliance notice officer employed by the Ombudsman, emailed Mr Ballas with a copy of the Notice and a reminder about the 14 July 2021 date for compliance with the obligation to pay the amounts owing to Mr Poudel;
(c)on 25 June 2021 and 20 July 2021 Mr Tokic tried to reach Mr Ballas by telephone;
(d)on 21 July 2021 Mr Ballas contacted Mr Tokic by telephone and advised that he was not in a financial position to be able to comply with the Notice as the restaurant had closed down and he had large debts to cover while in pandemic lockdown with no income;
(e)on 29 July 2021 Mr Tokic emailed Mr Ballas a letter notifying him of Zenobia’s failure to comply with the Notice and inviting Mr Ballas to provide a reasonable excuse (if any) within 7 days;
(f)on 11 August 2021 Mr Tokic emailed Mr Ballas a copy of the Notice and provided a final opportunity to rectify non-compliance by 18 August 2021. On the same day, Mr Tokic sent a text message to Mr Ballas with the same information;
(g)on 23 August 2021 Mr Tokic spoke to Mr Ballas who advised that he was not in a position to comply with the Notice as he was on the verge of losing his business and home and claimed that he had lost $3 million due to COVID lockdowns. Mr Tokic confirmed that there was no possibility of Mr Ballas complying with the Notice and that Mr Ballas understood that legal action might be the next course of action; and
(h)on 1 February 2022 a solicitor employed by the Ombudsman sent Mr Ballas a letter notifying him that, should he not comply with the Notice or provide any relevant information to the Ombudsman by 14 February 2022, litigation seeking penalties against Zenobia and Mr Ballas personally might commence without further notice.
Industry report
FWI Thammakitpairote deposed that the Ombudsman conducted research into particular industries and annexed to his affidavit a report into the café and restaurant industry. That report disclosed that cafes and restaurants accounted for 9.7% of all the disputes completed by the Ombudsman in the 2018/2019 to 2021/2022 financial years.
Searches regarding the respondents
FWI Thammakitpairote deposed that on 24 October 2022 a legal support officer employed by the Ombudsman conducted a search using the Equifax database and found that Zenobia remained registered as at 24 October 2022. This search further provided that Mr Ballas, as at 24 October 2022, was the director of Zenobia and a second company, Gojo Investments Pty Ltd (ACN 143 101 311) which remained registered and was associated with Atmosphere Restaurant Café (ABN 411 431 013 11) which a Google search recorded as “permanently closed”.
FWI Thammakitpairote deposed that on 24 October 2022 a legal support officer employed by the Ombudsman conducted a search using the Australian Business Register database and found that Gojo Investments Pty Ltd, of which Mr Ballas was the director, was the Trustee for the Gojo Investments Trust which was associated with the “Raman Bar & Grill”. FWI Thammakitpairote deposed that on 25 October 2022 he conducted a Google search and found a website and Facebook page for “Raman Bar & Grill” and observed a post on Facebook dated 20 October 2022 inviting customers to make bookings.
DISCUSSION
Declarations
The facts agreed by the parties satisfy me that it is appropriate to make the declarations sought.
Considerations
The purpose of a penalty under the FW Act’s civil penalty regime is primarily, if not solely, the promotion of the public interest in compliance with the provisions of that Act by the deterrence of contravention of it. The theory is that the financial disincentive involved in the imposition of a pecuniary penalty will encourage compliance with the law by ensuring that contraventions are viewed by the contravener and others as an economically irrational choice: Australian Building and Construction Commissioner v Pattinson (2022) 96 ALJR 426 at 431 [9], 442 [66]. When determining the penalties appropriate to impose for contraventions, regard should be had to all of the circumstances of the case, guided by the various discretionary considerations discussed in authorities such as Kelly v Fitzpatrick (2007) 166 IR 14, in order to arrive at a single result that is an instinctive synthesis of those various factors. In circumstances such as the present, where the period during which the contraventions occurred saw the value of a penalty unit change, it would be appropriate, when setting the penalties to be imposed, to have regard to the value of a penalty unit at the end of the period of contravention, although regard may also be had to the fact that a lower amount applied for part of the period: Fair Work Ombudsman v Grouped Property Services Pty Ltd (No 2) [2017] FCA 557 per Katzmann J at [396]–[401].
Nature and extent of the conduct which led to the contraventions
The respondents were plainly on notice that Zenobia had failed to comply with the Notice and, prior to the commencement of this proceeding, were given numerous opportunities to rectify the non-compliance. The Ombudsman submitted that the respondents’ conduct “demonstrate[d] a disregard for their obligations under the FW Act and the authority of the [Ombudsman] as a regulator of Commonwealth workplace laws” and to an extent that has to be accepted as, knowing what they had to do, they did not do it. However, I have not overlooked what Mr Ballas is recorded as having said to the Ombudsman’s representatives, albeit he has not attended the hearing today, or filed any evidence, that might permit the Court to make a confident conclusion as to the veracity of his statements in those conversations.
Nature and extent of loss
The respondents’ failure to comply with the Notice led to the Ombudsman bringing this compliance proceeding at some public cost. It has also led to Mr Poudel still being out of pocket to the extent already mentioned.
Size and financial resources of respondents
No evidence was led by the respondents that might have shed light on the size of Zenobia’s business or how its resources were affected by the pandemic, as asserted by Mr Ballas in his conversations with the Ombudsman’s officials. However, it can be assumed that the business was not a large one or that the non-compliance was an error of a junior staff member which might have some comparatively innocent explanation.
Deterrence
I accept the Ombudsman’s submission that compliance notices are an important enforcement tool which, if complied with, avoid litigation and the imposition of penalties and that, consequently, a penalty for non-compliance should demonstrate the serious consequences of such inaction and serve as a deterrent to repetition. I note in that connection that that the restaurant industry accounts for 9.7% of the total disputes completed by the Ombudsman in the financial years to which I referred earlier and accept the Ombudsman’s submission in that connection that general deterrence is especially important in that industry.
I also note that although Zenobia does not currently operate any business, it was still a registered company at the time of the FWI Thammakitpairote’s affidavit and has led no evidence regarding its current or future intentions. As such, any penalty should include a component for specific deterrence as there is a risk that the company may operate a business employing staff in the future. As far as Mr Ballas is concerned I have regard to him being a director of Gojo Investments Pty Ltd which is linked to a currently trading restaurant “Raman Bar & Grill”.
Previous contraventions
It was not suggested that the respondents had committed similar contraventions in the past.
Cooperation and corrective action
I note that the Ombudsman acknowledged that the respondents have co-operated in the proceeding by making full admissions but also note Zenobia has not addressed its wrongdoing by paying the compensation to Mr Poudel for his outstanding entitlements and superannuation. I accept the Ombudsman’s submission that, in those circumstances, the appropriate discount on penalty is 10%.
PENALTIES
I consider that the appropriate penalty to impose on Zenobia for its contravention of the Notice is $15,000.
I consider that the appropriate penalty to impose on Mr Ballas for his contravention of the Notice as an accessory is $3,000.
Those penalties are to be paid to the Commonwealth within 28 days.
CONCLUSION
There will be declarations and orders accordingly.
Zenobia will also be ordered to pay the Outstanding Entitlements and unpaid superannuation contributions, with interest, to the Ombudsman for on-payment to Mr Poudel.
I certify that the preceding twenty-six (26) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Cameron. Associate:
Dated: 29 May 2023
ATTACHMENT A: STATEMENT OF AGREED FACTS
This Statement of Agreed Facts is made by the Applicant and the First and Second Respondents for the purposes of section 191 of the Evidence Act 1995 (Cth).
A. ADMITTED CONTRAVENTIONS
(1)On the basis of the facts set out below, the First Respondent, Zenobia Trading Pty Ltd (ACN 465 590), admits to contravening section 716(5) of the Fair Act 2009 (Cth) (FW Act) by failing without reasonable excuse to comply with a compliance notice issued pursuant to section 716(2) of the Act.
(2)On the basis of the facts set out below, the Second Respondent, Mr Jorge Ballas, admits that he was involved in the First Respondent's contravention of section 716(5) of the FW Act within the meaning of section 550(2)(c) of the FW Act, and pursuant to section 550(1) of the FW Act, is taken to have contravened section 716(5) of the FW Act.
The Applicant
(3)The Applicant, the Fair Work Ombudsman, is and was at all relevant times:
(a)a statutory appointee of the Commonwealth appointed by the Governor−General by written instrument pursuant to section 687(1) of the FW Act; and
(b)a Fair Work Inspector (FWI) pursuant to section 701 of the Act; and
(c)a person with standing to bring these proceedings and to apply for orders for contraventions of civil remedy provisions pursuant to section 539(2) of the FW Act.
(4)FWI Andy Lam (FWI Lam) is and was at all relevant times a FWI appointed by the Applicant under section 700 of the FW Act
The Respondents
(5)The First Respondent is and was at all relevant times:
(a)a company incorporated under the Corporations Act 2001 (Cth) and registered since 17 May 2007;
(b)a constitutional corporation within the meaning of section 12 of the FW Act;
(c)a national system employer within the meaning of section 14 of the FW Act;
(d)until in or around July 2021, a company that owned and operated a Lebanese/middle-eastern-style restaurant in North Strathfield, New South Wales (the Business).
(6)The Second Respondent is and was at all relevant times:
(a)a natural person capable of being sued;
(b)the sole director of the First Respondent;
(c)a person responsible for the operation, management and control of the First Respondent, including employment of staff;
(d)a person responsible for ensuring that the First Respondent complied with its obligations under the FW Act;
(e)a person whose conduct (engaged in on behalf of the First Respondent and within the scope of his actual or apparent authority) is taken to be that of the First Respondent pursuant to section 793(1) of the FW Act.
B. CONTRAVENTION OF SECTION 716(5) OF THE FW ACT
The Investigation
(7)Following a request for assistance made to the Applicant by Mr Khem Poudel (the Employee) on 3 December 2020, FWI Lam commenced an investigation into the First Respondent's compliance with Commonwealth workplace laws (Investigation).
(8)As a result of the Investigation, FWI Lam formed a reasonable belief that, at all relevant times between 26 February 2020 and 26 November 2020 (Employment Period):
(a)the Employee was employed by the First Respondent;
(b)the Restaurant Industry Award 2020 (until 29 May 2021, known as the Restaurant Industry Award 2010) (Restaurant Award) covered and applied to the Employee's employment with the Respondent;
(c)the Employee was engaged and worked as a casual employee;
(d)the Employee was entitled to be classified as a Cook Grade 1 under the Restaurant Award;
(e)the Employee was paid a flat hourly rate of pay which did not satisfy his entitlements to the casual minimum hourly rate or penalty rates.
(9)By reason of the facts in paragraph 8 above, FWI Lam formed a reasonable belief, for the purposes of section 716(1) of the FW Act, that the First Respondent contravened the following terms of the Restaurant Award in respect of the Employee during the Employment Period:
(a)clauses 18 and 11.2 – casual minimum wage (clauses 13 and 20.1 of the 2010 version of the Award);
(b)clause 24.2(b) – penalty rate for work between 10:00PM and midnight, Monday to Friday (clause 34.2(a)(i) of the 2010 version of the Award); and
(c)clause 24.2(b) – Saturday and Sunday penalty rates (clause 34.1 of the 2010 version of the Award).
(together, the Contraventions).
Compliance Notice
(10)On 13 June 2021, pursuant to section 716(2) of the FW Act, FWI Lam gave a compliance notice to the First Respondent (Compliance Notice) relating to the Contraventions.
(11)The Compliance Notice was served by a Process Server hand delivering it to the Second Respondent at ...
(12)Pursuant to section 716(2) of the FW Act, the Compliance Notice required the First Respondent to:
(a)take action (Specified Action) to remedy the direct effects of the Contraventions by 14 July by:
(i)calculating and paying to the Employee the amounts owing in respect of the Contraventions; and
(ii)in respect of the amounts paid to the Employee in compliance with the Compliance Notice, calculating additional superannuation contributions required by clause 22.2 of the Restaurant Award and paying such contributions to the Employee's superannuation fund; and
(b)produce to the Applicant reasonable evidence of the steps taken by the First Respondent to comply with the Compliance Notice by 21 July 2021, including:
(i)details of the First Respondent's calculations; and
(ii)proof of full payment of the amounts owing.
(13)The Compliance Notice met the requirements of section 716(3) of the FW Act.
Failure to comply with the Compliance Notice
(14)The First Respondent did not:
(a)take the Specified Act by 14 July 2021, or at all; and
(b)produce to the Applicant any evidence of compliance with the Compliance Notice by 21 July 2021, or at all.
(15)The First Respondent admits that, by reason of the matters agreed to in paragraph 14 above, it failed without reasonable excuse to comply with the Compliance Notice and thereby contravened section 716(5) of the FW Act.
C. ACCESSORIAL LIABILITY OF THE SECOND RESPONDENT
(16)By reason of the matters at paragraph 6 above, the Second Respondent was responsible for ensuring that the First Respondent complied with the Compliance Notice.
(17)By reason of the matters at paragraph 10 to 15 above, the Second Respondent:
(a)had actual knowledge:
(i)that the Compliance Notice was given to the First Respondent; and
(ii)of the requirement that the First Respondent comply with the Compliance Notice within the timeframe specified;
(b)had actual knowledge of the First Respondent's failure to comply with the Compliance Notice; and
(c)was an intentional participant in the First Respondent's failure to comply with the Compliance Notice.
(18)The Second Respondent admits that, by reason of the matters agreed to in paragraphs 16 and 17 above:
(a)he was involved, within the meaning of section 550(2)(c) of the FW Act, in the First Respondent's contravention of section 716(5) of the FW Act; and
(b)is taken to have himself contravened section 716(5) of the FW Act by reason of section 550(1) of the FW Act.
D. AMOUNT OUTSTANDING UNDER THE COMPLIANCE NOTICE
(19)The amount the First Respondent would have paid the Employee had it complied with the Compliance Notice was $6,034.71, plus $546.26 in superannuation contributions, comprising:
(a)$3,314.72 in respect of casual minimum wages;
(b)$108.35 in respect of work between 10pm and midnight, Monday to Friday;
(c)$1,565.10 in respect of Saturday work; and
(d)$1,046.54 in respect of Sunday work.
E. RECOMMENDED RELIEF
(20)By consent, the parties seek the following declarations:
(a)the First Respondent contravened section 716(5) of the FW Act by failing to comply with the Compliance Notice; and
(b)the Second Respondent was involved, within the meaning of section 550(2)(c) of the FW Act, in the First Respondent's contravention at paragraph 20(a) above.
(21)By consent, the parties seek the following orders:
(a)pursuant to section 545(1) of the FW Act, within 28 days the First Respondent:
(i)pay to the Applicant the outstanding entitlements the First Respondent was required to pay the Employee under the Compliance Notice, being $6,034.71 (gross);
(ii)pay $546.26 into the Employee's nominated superannuation fund and provide proof of such payment to the Applicant;
(b)pursuant to section 547(2) of the FW Act, within 28 days the First Respondent pay to the Applicant interest on the amount required to be paid in accordance with paragraph 21 (a)(i) above;
(c)the Applicant distribute to the Employee the amounts paid to the Applicant pursuant to paragraphs 21(a)(i) and 21(b) above within 90 days of the payments being made by the Respondent;
(d)pursuant to section 546(1) of the FW Act, within 28 days of this order, the First Respondent pay a pecuniary penalty to the Commonwealth for the contravention declared at paragraph 20(a) above;
(e)pursuant to section 546(1) of the FW Act, within 28 days of this order, the Second Respondent pay a pecuniary penalty to the Commonwealth for the contravention declared at paragraph 20(b) above;
(f)the Applicant have liberty to apply on seven days' notice in the event that any of the above orders are not complied with; and
(g)such further order or orders as the Court considers appropriate.
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