Fair Work Ombudsman & Vizaan Pty Ltd (in liq)

[2025] FedCFamC2G 141

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

Fair Work Ombudsman & Vizaan Pty Ltd (in liq) [2025] FedCFamC2G 141

File number:

LNG 48 of 2023

Judgment of:

JUDGE BLAKE

Date of judgment:

11 February 2025

Catchwords:

INDUSTRIAL LAW – Admitted contraventions – First Respondent in liquidation – imposition of pecuniary penalties on Second Respondent – factors considered – penalties imposed.

Legislation:

Crimes Act 1914 (Cth) s 4AA.

Corporations Act 2001 (Cth) s 500(2).

Evidence Act 1995 (Cth) s 191.

Fair Work Act 2009 (Cth) ss 45, 535(1), 536(3), 550(2)(c), 550(1), 546(1), 557(1), 557(2).

Fair Work Regulations 2009 (Cth) regs 3.33(3)(d), 3.34.

Vehicle Repair, Services and Retail Award 2020 cll 25.2, 27.4(a)(iv), 27.5(b), 27.4(a)(ii), 27.4(a)(iii).

Cases cited:

Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (2017) 249 FCR 458

Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (2017) 254 FCR 68

Australian Ophthalmic Supplies Pty Ltd v McAlary-Smith

(2008) 165 FCR 560

Basi v Namitha Nakul Pty Ltd (No 2) [2023] FCA 671

Fair Work Ombudsman v Sushi Bay Pty Ltd (in liq)(No.3) [2024] FCA 869

Fair Work Ombudsman v Tiger Telco Pty Ltd (in liq) [2012] FCA 479

Fair Work Ombudsman v Wongtas (No 2) [2012] FCA 30

Division:

Division 2 General Federal Law

Number of paragraphs:

87

Date of hearing:

20 November 2024

Place:

Melbourne via Microsoft Teams

Solicitor for the Applicant:

Mr Reece of the Fair Work Ombudsman

Solicitor for the Respondents:

Mr Loganathan of Logan & Partners

ORDERS

LNG 48 of 2023

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

FAIR WORK OMBUDSMAN

Applicant

AND:

VIZAAN PTY LTD (IN LIQUIDATION) (ACN 629 269 969)

First Respondent

LOVELEEN GUPTA

Second Respondent

ORDER MADE BY:	JUDGE BLAKE
DATE OF ORDER:	11 February 2025

THE COURT DECLARES THAT:

1.During the period from 28 December 2020 to 24 February 2021, Mr Gupta contravened the following provisions of the Fair Work Act 2009 (‘Act’) by being involved in the contraventions by the First Respondent of the following civil remedy provisions:

(a)section 45 of the Act by failing to pay Mr Anwar Sadat Rahman (‘Mr Rahman’) the afternoon shift penalty rate, in contravention of clause 25.2 of the Vehicle Repair, Services and Retail Award 2020 (‘Vehicle Award’);

(b)section 45 of the Act by failing to pay Mr Rahman the public holiday penalty rate, in contravention of clause 27.4(a)(iv) of the Vehicle Award;

(c)section 45 of the Act by failing to pay Mr Rahman the rate for the first three hours of overtime performed on Monday to Saturday, as required by clause 27.5(b) of the Vehicle Award;

(d)section 45 of the Act by failing to pay Mr Rahman the rate for overtime after the first three hours of overtime on Monday to Saturday, as required by clause 27.5(b) of the Vehicle Award;

(e)section 45 of the Act for failing to pay Mr Rahman the rate for overtime worked on a Sunday, as required by clause 27.5(b) of the Vehicle Award;

(f)section 45 of the Act for failing to pay Mr Rahman the Saturday afternoon penalty rate, as required by clause 27.4(a)(ii) of the Vehicle Award;

(g)section 45 of the Act for failing to pay Mr Rahman the Sunday penalty rate, as required by clause 27.4(a)(iii) of the Vehicle Award;

(h)section 535(1) of the Act by failing to make and keep records of the type required by regulation 3.33(3)(d) of the Fair Work Regulations 2009 (Cth) (‘Regulations’);

(i)section 535(1) of the Act by failing to make and keep records of the type required by regulation 3.34 of the Regulations; and

(j)section 536(3) of the Act by knowingly providing false or misleading payslips to Mr Rahman.

THE COURT ORDERS THAT:

2.Pursuant to section 546(1) of the Act, Mr Gupta pay a pecuniary penalty of $17,049.60 to the Commonwealth with respect to the Contraventions declared at paragraph 1 above, within 90 days of the date of this Order.

Note: The form of the order is subject to the entry in the Court’s records.

Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).

REASONS FOR JUDGMENT

JUDGE BLAKE

1. The issue to be determined in this matter is whether any pecuniary penalty should be imposed on the Second Respondent for various contraventions of the Fair Work Act 2009 (Cth) (‘Act’) and if so, the amount of such penalty.

2. At some point after the proceedings were commenced, the First Respondent, Vizaan Pty Ltd (‘Vizaan’), went into liquidation. Section 500(2) of the Corporations Act 2001 (Cth) has the effect that any proceeding against a company in liquidation is stayed. No orders are sought by the Applicant against Vizaan.

3. This proceeding was listed and heard together with proceeding LNG49/2023 being Fair Work Ombudsman v KLM Foods Pty Ltd (ACN 629 269 969) (‘KLM Foods’) & Loveleen Gupta (‘KLM Proceeding’). Mr Gupta is the Second Respondent in both proceedings.

4. The Applicant relied on its Initiating Application filed 19 December 2023, its Statement of Claim filed 19 December 2023, the affidavit of Fair Work Inspector Griggs affirmed 24 July 2024 (‘Inspector Griggs’), its Written Submissions on Penalty filed 20 September 2024, and its Written Submissions in Reply on Penalty on 25 October 2024.

5. The Second Respondent relied on the affidavit of Loveleen Gupta (‘Mr Gupta’) affirmed 11 October 2024,[1] and the Written Submissions of Mr Gupta filed 8 October 2024.

   [1] Mr Gupta’s representative made submissions in respect of this matter (LNG48/2023) and the KLM Proceeding at the same time, and relied on Mr Gupta’s affidavit from the KLM Proceeding in this proceeding – see for example, Transcript p.20 (lines 9-13), p.21 (lines 34-37), p.22 (lines 1-13), p.24 (lines 44-46), p.25 (lines 1-10).

   BACKGROUND FACTS

6. The Applicant and Mr Gupta prepared and submitted a Statement of Agreed Facts filed 14 June 2024 (‘Agreed Facts’) for the purposes of section 191 of the Evidence Act 1995 (Cth). The Agreed Facts form the background to these proceedings.

7. The Applicant contended, and Mr Gupta did not dispute, that given the Agreed Facts, findings can be made Vizaan engaged in conduct which contravened various provisions of the Act, that Mr Gupta was involved in the conduct of Vizaan that is said to have contravened certain provisions of the Act, and that pecuniary penalties may be imposed on Mr Gupta in respect of his involvement in the conduct of Vizaan.[2]  

   [2] There does not appear to be any dispute that the present matter can proceed on this basis notwithstanding that Vizaan is in liquidation: see for example, Fair Work Ombudsman v Wongtas (No 2) [2012] FCA 30 (‘Wongtas’) at [1], [33]- [35] and [37] (Cowdroy J) and Fair Work Ombudsman v Tiger Telco Pty Ltd (in liq) [2012] FCA 479 (‘Tiger Telco’) at [2]-[3] and [16] – [17] (Bromberg J).

   Agreed Facts

8. What follows is taken from the Agreed Facts, which I have relied on in its entirety.

9. The Applicant is the holder of an office established under the Act and has standing to commence and pursue these proceedings.

10. Vizaan was a national system employer within the meaning of the Act, and the operator of a business employing staff to work at a petrol station located in Kingston, Tasmania (‘Business’). Mr Gupta is the husband of the sole director of Vizaan, Swati Gupta, an agent of Vizaan, a person with actual or apparent responsibility for the operation, management and control of the Business and the person responsible for ensuring that Vizaan complied with its legal obligations under the Act, and a person with the express or implied consent or agreement of Swati Gupta to engage in conduct on behalf of Vizaan in respect of the Business.

11. In the period 28 December 2020 to 24 February 2021 (‘Underpayment Period’), Vizaan employed Anwar Sadat Rahman (‘Mr Rahman’). Mr Rahman was engaged to work an average of 38 ordinary hours per week, and was employed as a console operator in the Business.

12. During the Underpayment Period, the Vehicle Repair, Services, and Retail Award 2020 (‘Vehicle Award’) covered and applied to Vizaan and Mr Rahman. Mr Rahman fell within the ‘Vehicle industry RS&R employee level – 4R4’ classification in Schedule A of the Vehicle Award. Mr Rahman was a full-time employee within the meaning of clause 9 of the Vehicle Award.

13. During the Underpayment Period, Vizaan paid Mr Rahman the following flat rates of pay for 76 hours each fortnight, without distinction as to the time, day, or the actual number of hours he worked:

    (a)between 28 December 2020 and 24 January 2021, a flat rate of $21.54 per hour; and

    (b)between 25 January 2021 and 21 February 2021, a flat rate of $21.92 per hour.

    Failure to pay afternoon shift penalty rates

14. During the Underpayment Period, Vizaan was required to pay Mr Rahman, pursuant to clause 25.2 of the Vehicle Award, the minimum hourly rate for any ordinary hours of work during a shift on a Monday to Friday commencing after noon and not later than 6:00 pm, but failed to do so.

15. During the Underpayment Period:

    (c)Mr Rahman performed 240 ordinary hours of work during a shift commencing after noon and not later than 6:00 pm;

    (d)Vizaan was required to pay Mr Rahman $6,127.80 for his ordinary hours of work during a shift commencing after noon and not later than 6:00 pm;

    (e)Mr Rahman was paid $5,299.27 for his ordinary hours of work during a shift commencing after noon and not later than 6:00 pm; and

    (f)Vizaan failed to pay Mr Rahman the minimum hourly rate for any ordinary hours of work during a shift on a Monday to Friday commencing after noon and not later than 6:00 pm, resulting in an underpayment of $828.53, thereby contravening clause 25.2 of the Vehicle Award (‘afternoon penalty rate contravention’).

    Failure to pay public holiday penalty rates

16. Vizaan was required to pay Mr Rahman, pursuant to clause 27.4(a)(iv) of the Vehicle Award, the minimum hourly rate for ordinary hours of work performed on a public holiday, but did not do so.

17. During the Underpayment Period:

    (g)Mr Rahman performed 22.5 ordinary hours of work on a public holiday;

    (h)Vizaan was required to pay Mr Rahman $969.30 for his ordinary hours of work on a public holiday;

    (i)Mr Rahman was paid $487.50 for his ordinary hours of work on a public holiday; and

    (j)Vizaan failed to pay Mr Rahman the minimum hourly rate for ordinary hours of work performed on a public holiday, resulting in an underpayment of $481.80, thereby contravening clause 27.4(a)(iv) of the Vehicle Award (‘public holiday rates contravention’).

    Failure to pay overtime rates (Monday to Saturday first three hours)

18. Vizaan was required to pay Mr Rahman, pursuant to clause 27.5(b) of the Vehicle Award, the minimum hourly rate for the first three hours of overtime performed on Monday to Saturday, but did not do so.

19. During the Underpayment Period:

    (a)Mr Rahman performed 15 hours of first three hours of overtime on Monday to Saturday;

    (b)Vizaan was required to pay Mr Rahman $486.36 for his first three hours of overtime on Monday to Saturday;

    (c)Mr Rahman did not receive any payment for his first three hours of overtime on Monday to Saturday; and

    (d)Vizaan failed to pay Mr Rahman the minimum hourly rate for the first three hours of overtime performed on Monday to Saturday, resulting in an underpayment of $486.36, thereby contravening clause 27.5(b) of the Vehicle Award (‘first overtime contravention’).

    Failure to pay overtime rates (Monday to Saturday after three hours)

20. Vizaan was required to pay Mr Rahman, pursuant to clause 27.5(b) of the Vehicle Award, the minimum hourly rate for overtime performed after the first three hours of overtime on Monday to Saturday, but did not do so.

21. During the Underpayment Period:

    (a)Mr Rahman performed 22.5 hours of overtime after three hours of overtime on Monday to Saturday;

    (b)Vizaan was required to pay Mr Rahman $972.72 for overtime performed after the first three hours of overtime on Monday to Saturday;

    (c)Mr Rahman did not receive any payment for overtime performed after the first three hours overtime on Monday to Saturday; and 

    (d)Vizaan failed to pay Mr Rahman the minimum hourly rate for overtime performed after the first three hours of overtime on Monday to Saturday, resulting in an underpayment of $972.72, thereby contravening clause 27.5(b) of the Vehicle Award (‘second overtime contravention’).

    Sunday overtime 

22. Vizaan was required to pay Mr Rahman, pursuant to clause 27.5(b) of the Vehicle Award, the minimum hourly rate for overtime that he worked on a Sunday, but did not do so.

23. During the Underpayment Period:

    (a)Mr Rahman performed 45 hours of overtime on a Sunday;

    (b)Vizaan was required to pay Mr Rahman $1,944.30 for overtime he worked on a Sunday;

    (c)Mr Rahman did not receive any payment for overtime he worked on a Sunday; and

    (d)Vizaan failed to pay Mr Rahman $1,944.30 in respect of the minimum hourly rate for overtime worked on a Sunday, thereby contravening clause 27.5(b) of the Vehicle Award (‘Sunday overtime rate contravention’).

    Failure to pay Saturday afternoon penalty rates

24. Vizaan was required to pay Mr Rahman, pursuant to clause 27.4(a)(ii) of the Vehicle Award, the minimum hourly rate for any ordinary hours of work performed after noon on a Saturday, but did not do so.

25. During the Underpayment Period:

    (a)Mr Rahman performed 22.50 ordinary hours of work after noon on a Saturday;

    (b)Vizaan was required to pay Mr Rahman $731.26 for his ordinary hours of work after noon on a Saturday;

    (c)Mr Rahman was paid $490.35 for his ordinary hours of work after noon on a Saturday; and

    (d)Vizaan failed to pay Mr Rahman the minimum hourly rate for ordinary hours of work performed after noon on a Saturday, resulting in an underpayment of $240.91, thereby contravening clause 27.4(a)(ii) of the Vehicle Award (‘Saturday afternoon penalty rate contravention’).

    Failure to pay Sunday penalty rates

26. Vizaan was required to pay Mr Rahman, pursuant to clause 27.4(a)(iii) of the Vehicle Award, the minimum hourly rate for any ordinary hours of work performed on a Sunday.

27. During the Underpayment Period:

    (a)Mr Rahman performed 15 ordinary hours of work on a Sunday;

    (b)Vizaan was required to pay Mr Rahman $488.93 for his ordinary hours of work on a Sunday;

    (c)Mr Rahman was paid $328.80 for his ordinary hours of work on a Sunday; and

    (d)Vizaan failed to pay Mr Rahman the minimum hourly rate for ordinary hours of work performed on a Sunday, resulting in an underpayment of $160.13, thereby contravening clause 27.4(a)(iii) of the Vehicle Award (‘Sunday penalty rate contravention’).

    Total underpayments

28. The contraventions recited above resulted in Mr Rahman being underpaid a total of $5,114.75 (collectively, the ‘Underpayment Contraventions’). The underpayments were rectified by Vizaan on or around 31 May 2023.

    Failure to make and keep pay records

29. Section 535(1) of the Act and regulation 3.33(3)(d) of the Fair Work Regulations (‘Regulations’) required Vizaan to make and keep for seven years, records that specified the penalty rates that Mr Rahman was entitled to be paid. Mr Rahman worked hours that attracted penalty rates. Vizaan failed to keep the required records, and thereby contravened section 535(1) of the Act and regulation 3.33(3)(d) of the Regulations (‘first pay records contravention’). 

    Failure to make and keep overtime records

30. Section 535(1) of the Act and regulation 3.34 of the Regulations required Vizaan to make and keep for seven years, a record that specified the number of overtime hours worked by Mr Rahman each day, or when Mr Rahman started and ceased working overtime hours. Mr Rahman worked hours that attracted overtime. Vizaan failed to keep the required records and thereby contravened section 535(1) of the Act and regulation 3.34 of the Regulations (‘second pay records contravention’).

    Knowingly giving a false or misleading payslip to an employee

31. Section 536(3) of the Act prohibited Vizaan from giving a false or misleading payslip to Mr Rahman.

32. During the Underpayment Period, Vizaan gave four pay slips to Mr Rahman that stated he worked 76 hours in each of the following fortnightly pay periods:

    (a)28 December 2020 to 10 January 2021;

    (b)11 January 2021 to 24 January 2021;

    (c)25 January 2021 to 7 February 2021; and

    (d)8 February 2021 to 21 February 2021;

    (collectively, the ‘Pay Slips’).

33. The Pay Slips were false or misleading because Mr Rahman worked more than 76 hours in each of the relevant fortnightly pay periods listed above. Mr Gupta knew the Pay Slips were false or misleading because he knew the hours of work recorded in the Pay Slips, and knew the hours worked by Mr Rahman. By virtue of Mr Gupta’s state of mind, Vizaan knew the pay slips were false or misleading and it thereby contravened section 536(3) of the Act (‘false payslip contravention’).

34. Mr Gupta was, inter alia, a person responsible for ensuring Vizaan complied with its obligations under the Act and the Vehicle Award, was the controlling mind of Vizaan, was the person responsible for or with oversight of Mr Rahman performing work, was responsible for determining wages and conditions of employment of Mr Rahman, was responsible for the rostering of Mr Rahman, was responsible for, or with oversight of, the issuing and preparing of pay slips to Mr Rahman, and had oversight of the making and keeping of records relating to the hours of work, rates of pay and amounts paid to Mr Rahman.

35. Mr Gupta knew, inter alia, that the Act and Vehicle Award applied to Mr Rahman, the nature of the work performed by Mr Rahman, the hours and days worked by Mr Rahman, what Mr Rahman was paid, that Vizaan did not keep employee records or payment records, and that Vizaan provided false payslips to Mr Rahman. Mr Gupta admits to being directly involved in, and being an intentional participant in the contraventions referred to above, as contemplated by section 550(2)(c) of the Act. Pursuant to section 550(1) of the Act, Mr Gupta was directly or indirectly knowingly concerned in or party to each of Vizaan’s contraventions, and is to be treated as having himself contravened each of the provisions Vizaan contravened.

    PRINCIPLES

36. In the recent decision of the Federal Court of Australia in Fair Work Ombudsman v Sushi Bay Pty Ltd (in liq) (No.3) [2024] FCA 869, Katzmann J at [11]-[21] summarised the principles governing the approach to determining the imposition of civil penalties. I intend to approach this matter in a manner consistent with the principles enunciated by Katzmann J.

    IDENTIFICATION AND GROUPING OF THE CONTRAVENTIONS

37. The various contraventions are set out above.

38. Section 557(1) of the Act relevantly provides that two 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 the contraventions are committed by the same person, and the contraventions arose out of a course of conduct by the person. This principle also finds voice in the common law: Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (2017) 249 FCR 458 at [88].

39. The Applicant accepts that the Respondents are entitled to the benefit of section 557(1) to group multiple contraventions where the contraventions are of the same civil remedy provision in section 557(2), and where the evidence demonstrates that the contraventions arose from a single course of conduct.

1. Noting the submissions of the Applicant, and applying those principles to the matter before me, the Respondents are entitled to the benefit of section 557(1) of the Act in relation to the following:

   (a)any multiple contraventions of clause 25.2 of the Vehicle Award that constitute the afternoon penalty rate contravention;

   (b)any multiple contraventions of clause 27.4(a)(iv) of the Vehicle Award that constitute the public holiday rates contravention;

   (c)any multiple contraventions of clause 27.5(b) of the Vehicle Award that constitute the first overtime contravention;

   (d)any multiple contraventions of clause 27.5(b) of the Vehicle Award that constitute the second overtime contravention;

   (e)any multiple contraventions of clause 27.5(b) of the Vehicle Award that constitute the Sunday overtime rate contravention;

   (f)any multiple contraventions of clause 27.4(a)(ii) of the Vehicle Award that constitute the Saturday afternoon penalty rate contravention;

   (g)any multiple contraventions of clause 27.4(a)(iii) of the Vehicle Award that constitute the Sunday penalty rate contravention;

   (h)any multiple contraventions of section 535(1) of the Act and regulation 3.33(3)(d) of the Regulations that constitute the first pay records contravention;

   (i)the multiple contraventions of section 535(1) of the Act and regulation 3.34 of the Regulations that constitute the second pay records contravention; and

   (j)the multiple contraventions of section 536(3) of the Act that constituted the false payslip contravention.

   MAXIMUM PENALTIES

2. The Act sets penalties by reference to penalty units as defined in section 4AA of the Crimes Act 1914 (Cth). The maximum penalties for Mr Gupta in respect of each contravention are as follows:

Contravention	Penalty Units	Penalty Unit value	Maximum Penalty
afternoon penalty rates contravention	60	$222	$13,320
public holiday rates contravention	60	$222	$13,320
first overtime contravention	60	$222	$13,320
second overtime contravention	60	$222	$13,320
Sunday overtime rate contravention	60	$222	$13,320
Saturday afternoon penalty rate contravention	60	$222	$13,320
Sunday penalty rate contravention	60	$222	$13,320
first pay records contravention	60	$222	$13,320
second pay records contravention	60	$222	$13,320
false payslip contravention	60	$222	$13,320

ASSESSMENT OF PENALTY

The nature and extent of the contravening conduct and the circumstances in which it took place

1. This is a case in which there are multiple breaches of the Act.

2. At paragraph [3] of his written submissions, Mr Gupta says he ‘did not have actual knowledge of his legal obligations’. That submission cannot be accepted. It is not consistent with what is set out in paragraph [52] of the Agreed Facts. There, Mr Gupta has admitted knowledge of a range of matters, including that the Vehicle Award applied to Mr Rahman, the hours worked by Mr Rahman, the payments made to Mr Rahman, and that Vizaan did not keep employee records specifying overtime hours worked or penalty rates. In my view, Mr Gupta had knowledge of all of the matters set out in the Agreed Facts.

3. The Underpayment Contraventions meant Mr Rahman was not paid what he was owed. He was paid instead a flat rate of pay in circumstances where the Respondents knew that Mr Rahman was entitled to particular benefits under the Vehicle Award. The terms of the Vehicle Award were blatantly disregarded.

4. While the Award was disregarded, it is relevant to note two matters. First the total of the underpayments was $5114.75. I accept this is a significant amount for Mr Rahman, but it is not large in the context of many other underpayment matters that come before the Court. Second, the Underpayment Period extended for approximately two months, a reasonably confined period of time. These were not contraventions that extended over many months or years.

5. In respect of the false payslip contravention, Mr Gupta knew the real hours Mr Rahman worked, but deliberately presented him with a document that was false.

6. The first pay records contravention and the second pay records contravention are of significance. The failure to keep proper records makes the task of ensuring compliance with relevant laws more difficult. It makes it more difficult for employees to easily check what they are entitled to and for employers to respond to any queries. It also makes it difficult for persons such as the Applicant to identify contraventions of workplace laws.

7. In the circumstances of this case, all of the contraventions noted above were deliberate.

8. Evidence attached to the affidavit of FWI Griggs indicates that Mr Rahman was on a ‘TU573’ visa. The Applicant makes a submission at paragraph [25] of its written submissions that ‘the risk of exploitation of immigrant workers in Australia is significant’. At paragraph [40] of the Applicant’s submissions, it is said that ‘there is a particular need for general deterrence in this case, given that Mr Rahman is an immigrant worker who fell within the category of being a highly vulnerable employee’.

9. There is no direct evidence from Mr Rahman in this case. There is no evidence before the Court as to what a ‘TU573’ visa is. Nor is there evidence before the Court as to Mr Rahman’s personal circumstances, including where he is originally from, whether he spoke English, or any hardships he might have endured. Simply because Mr Rahman was on a visa does not make him a highly vulnerable employee. The evidence before me is insufficient to conclude that Mr Rahman was a vulnerable employee simply because he was on a visa.

   Loss or damage caused by the contravening conduct 

10. I have noted that the total of the underpayments is $5,114.75. It is important to keep that figure firmly in mind. It was no doubt significant to Mr Rahman, and it accrued over a reasonably short period of two months, but it is not a large sum. The amount has been repaid to Mr Rahman. There is no evidence from Mr Rahman as to how the underpayments affected him.

    The period over which the contraventions occurred

11. As noted, the Underpayment Period was confined. The other contraventions (being the non-Underpayment Contraventions) occurred within the Underpayment Period. The confined periods over which the contraventions occurred is of significance. These are not contraventions that spanned months or years.

    Have the Respondents engaged in similar previous conduct?

12. There is no evidence before me to suggest that Mr Gupta has previously engaged in similar conduct. Accordingly, the contraventions are to be treated as first offences.

    Corrective action and contrition

13. The underpayments to Mr Rahman have been rectified. There is not any evidence that Mr Gupta has apologised for what occurred. While Vizaan is in liquidation, Mr Gupta is involved with other businesses, including KLM Foods Pty Ltd (which is a respondent in the other proceeding before me). Mr Gupta’s representative submitted that Mr Gupta ‘has implemented numerous measures in his other venture to ensure that such contraventions do not take place’, that he has ‘engaged a proper accountant’, has ‘engaged a consulting agency named Employsure’, and has ‘reviewed his records’. While I note this was outlined in the submissions, there is no evidence before me as to whether these things occurred. In the circumstances, these submissions constitute little more than assertions without factual foundation. I am unable to give them any weight.

    The size and financial circumstances of the Respondents

14. Attached to the affidavit of Mr Gupta were documents from the ATO showing overdue and outstanding director’s penalties payable (for KLM) in the amounts of $293,502, $442,989.87, and $46,508.74 respectively. It is not clear whether these amounts are payable by Mr Gupta personally, or are amounts owing by KLM. In the absence of evidence indicating these are personal debts of Mr Gupta, it is not possible to take these into account.

15. Vizaan is in liquidation. In respect of Mr Gupta, attached to the affidavit of FWI Griggs were property searches and Equifax searches that disclosed the following:

    (a)Mr Gupta owns a real property at Granton with an estimated property value of $720,000, and the loan amount against the property is recorded as nil;

    (b)Mr Gupta and Swati Gupta own a property in Montrose with an estimated property value of $1,040,000, and the loan amount against the property is recorded as nil; and

    (c)Mr Gupta and Swati Gupta own a property in Lutana with an estimated property value of $520,000, and the loan amount against the property is recorded as nil.

16. The Applicant asked me to accept these valuations for the purposes of its submission that Mr Gupta’s financial position is ‘sound’, and that he has the capacity to pay any penalties that may be imposed. I am not prepared to accept these estimated values as accurate estimates of the value of the properties when regard is had to the disclaimer that is noted on each of the documents. That disclaimer makes clear the valuation is generated using a computer driven mathematical model, and without physical inspection of the property. More significantly, the disclaimer states that the value ‘must not be relied upon as a professional valuation or an accurate representation of the market sale or rental value of the subject property. CoreLogic does not warrant the accuracy, currency or completeness of the AVM Estimate...’. While I do not accept the valuations, I accept based on other evidence that Mr Gupta owns one property, and has a share in two others.

17. There is then the question of any loans attached to the properties. Mr Gupta’s representative contended that the three properties above were not mortgage free, that the combined mortgage on all the properties was approximately $1.8 million, and that Mr Gupta was making monthly repayments towards those mortgages of $13,000. In support of that submission, Mr Gupta’s representative referred the Court to bank statements that were annexed to Mr Gupta’s affidavit. One bank statement with Loan ID 18575 bearing the account name of Mr Gupta and Swati Gupta shows the balance of the loan being $1,053,757.41 as at 30 June 2024. Another bank statement bearing Loan ID 18576 with an account name of Mr Gupta and Swati Gupta shows an outstanding loan amount of $646,798.55 as at 30 June 2024.

18. I am not able to make any finding as to whether the properties above are subject to a mortgage loan. There is no evidence before me about how Equifax obtains its information in relation to whether a property is mortgaged or not, or whether that information is reliable. There is also no evidence before me from Mr Gupta that the loans he refers to are mortgage loans. I accept, however, that Mr Gupta has a share in loans in the amounts set out in the bank statements, and that the amount of $1.7 million is a significant sum.

19. Thus, the position of Mr Gupta is as follows:

    (a)Mr Gupta is the holder of one property, and shares holdings in two other properties; and

    (b)Mr Gupta shares liabilities with Swati Gupta of approximately $1.7 million.

20. Given the evidence, I do not accept the Applicant’s submission that Mr Gupta’s financial position is sound. Equally though, I do not accept that Mr Gupta’s financial position is precarious. The evidence is not sufficient to reach either conclusion.

    The Involvement of Senior Management

21. Mr Gupta had responsibility for, inter alia, ensuring Vizaan complied with its obligations under the Act, and he was also a person with actual or apparent responsibility for the operation, management and control of the Business. Senior management of Vizaan was involved in the contraventions.

    Co-operation

22. Mr Gupta entered into the Agreed Facts which avoided the need for a trial on the factual issues in dispute. The underpayments have also been rectified. In the circumstances, the Applicant submits that a 20% discount for co-operation is appropriate.

    Need to ensure compliance with minimum conditions

23. The Act, together with the Vehicle Award, sets out minimum conditions of employment to which employees are entitled. The Act and the Vehicle Award also seek to regulate the behaviour of participants in the labour market.

24. This is a case where the contraventions were deliberate. There is a need to ensure compliance with the minimum conditions.

25. This is not just a case where an employee was underpaid his entitlements. Two contraventions arise from conduct that strikes at the heart of ensuring compliance with the system of minimum terms and conditions. The first is the first pay records contravention. The second is the second pay records contravention. There is also the false payslip contravention. By engaging in this conduct, the Respondents engaged in conduct that frustrates the mechanisms designed to bring about quick compliance.

    Deterrence

26. Specific deterrence is directed at the party who has contravened the provisions of the Act. It is concerned with ensuring a contravening party is not prepared to engage in the contravening conduct in the future.

27. There is a need for specific deterrence in this case. The conduct in paying employees a flat rate of pay, when the Respondents otherwise had knowledge of the Vehicle Award, is deliberate. There has been no remorse shown. There is no evidence of steps taken to ensure that the failures which occurred here do not occur again. Mr Gupta appears to have interests in, or be involved in, other entities that may well conduct business and employ employees, including KLM Foods Pty Ltd, ZV Retail Pty Ltd, AGHA Juice Hobart Pty Ltd and Southern Tasmania Petroleum Pty Ltd.

28. In written submissions at paragraphs [38] – [39], the Applicant contended that payment of a fixed rate of pay regardless of when work was performed and whether additional hours were worked, was a deliberate and systematic approach taken to deprive Mr Rahman of his entitlements. The Applicant referred to the decision of Halley J in Basi v Namitha Nakul Pty Ltd (No 2) [2023] FCA 671. This submission was not developed orally before me. I am not persuaded to characterise what occurred here as a ‘dishonest scheme to deprive employees of their statutory entitlements’. The facts of this case differ significantly from what was before Halley J where, inter alia, a ‘cashback’ regime was enforced by the employer by coercive behaviour. As I have said, however, the conduct of the Respondents was deliberate, and that means there is a real need for specific deterrence in this case.

29. General deterrence is concerned with ensuring, among other things, that the penalty is likely to act as a deterrent in preventing similar contraventions by like-minded persons. There is a need to send a strong and clear message to ensure that the type of conduct disclosed in this case is not repeated.

    CONSIDERATION OF PENALTY

30. Included as Annexure A to the Applicant’s written outline of submissions, was a table setting out the penalties the Applicant seeks to have imposed on Mr Gupta. I have reproduced that annexure as Annexure 1 to this judgment. It can be seen from Annexure 1 that the Applicant has arrived at the proposed penalty on Mr Gupta by applying the following steps:

    (a)proposing a penalty for each contravention. The proposed penalty for each contravention is arrived at by specifying that the penalty to be imposed should be a certain specified percentage of the maximum penalty available for that contravention;

    (b)applying a 20% discount for cooperation; and

    (c)applying a further 20% discount for totality.

    The proposed penalty for each contravention

    Underpayment contraventions

31. There are seven Underpayment Contraventions. The penalty proposed by the Applicant in respect of each of the Underpayment Contraventions (and the amount of each underpayment) is set out below:  

Contravention	Underpayment	Applicant’s Proposed Penalty
afternoon penalty rate contravention	$828.53	$2,664 (20% of maximum penalty)
public holiday rate contravention	$481.80	$2,664 (20% of maximum penalty)
first overtime contravention	$486.36	$2,664 (20% of maximum penalty)
second overtime contravention	$972.72	$2,664 (20% of maximum penalty)
Sunday overtime rate contravention	$1,944.30	$5,328 (40% of maximum penalty)
Saturday afternoon penalty rate contravention	$240.91	$2,664 (20% of maximum penalty)
Sunday penalty rate contravention	$160.13	$2,664 (20% of maximum penalty)
Total	$5114.75	$21,312

1. The Applicant has proposed that all of the Underpayment Contraventions attract a penalty of 20% of the maximum, apart from the Sunday overtime rate contravention. Asked about the approach to proposing penalties, the Applicant stated that:

   So, we say that the different penalties are to ensure that the penalty has a reasonable relationship to the severity of the contravention, as well as reflecting the need for deterrence. So, as I say, in some cases there will be a complete failure to pay entitlements. In some cases, there will be a partial failure, and there will be various amounts of underpayment depending on which contravention. So, we say that that is part of the reason for the variation.

2. I accept that the amount of the underpayment flowing from a contravention is a factor to consider when assessing the level of penalty. I accept it is also relevant to take account of whether an employee has been partially paid, or not paid at all. It would appear that the Applicant seeks 40% of the maximum penalty for the Sunday overtime rate contravention given the amount of the underpayment to Mr Rahman, and the fact that he was not paid any overtime at all. Mr Rahman was also, however, not paid any amount in respect of the second overtime rate contravention, and that amount was one of the more significant underpayments in this case. Despite this, a penalty of 20% of the maximum is sought in respect of the second overtime rate contravention. When these matters are considered alongside the fact that this is a first offence for Mr Gupta, and the Underpayment Contraventions occurred over a very limited period of time of around two months, I am of the view that the Sunday penalty rate contravention should also attract a penalty of 20% of the maximum. Apart from this matter I am otherwise satisfied that the penalties proposed by the Applicant in respect of the Underpayment Contraventions are appropriate.

3. For the reasons referred to above, the penalty for each of the Underpayment Contraventions is as follows:

Contravention	Underpayment	Applicant’s Proposed Penalty	Court Assessed Penalty
the afternoon penalty rate contravention	$828.53	$2,664	$2,664
public holiday rate contravention	$481.80	$2,664	$2,664
first overtime contravention	$486.36	$2,664	$2,664
second overtime contravention	$972.72	$2,664	$2,664
Sunday overtime rate contravention	$1,944.30	$5,328	$2,664
Saturday afternoon penalty rate contravention	$240.91	$2,664	$2,664
Sunday penalty rate contravention	$160.13	$2,664	$2,664
Total	$5114.75	$21,312	$18,648

The other contraventions

1. The Applicant proposes a penalty of 40% of the maximum penalty for each of the first pay records contravention and the second pay records contravention. No submission was received on why 40% of the maximum is more appropriate than 30% of the maximum, or indeed 20% of the maximum, or less. Failing to keep records can make it difficult for the Applicant and others to ensure compliance, but that is not a sufficient explanation for setting the penalty at 40% of the maximum. That situation will always arise where there is a failure to keep proper records. 

2. Section 535 of the Act requires the keeping of relevant, proper records. The Act provides that conduct that falls foul of section 535 of the Act may be penalised by the imposition of a penalty of up to $13,320 for an individual. Thus, the legislature has contemplated that contravention of section 535 may lead to the imposition of a penalty anywhere along a range from zero penalty units to up to the maximums set out above. The question that confronts the Court is what penalty along that range, given the nature of the offence committed in contravention of section 535, should be imposed.

1. I am not satisfied in the circumstances, that a penalty of 40% of the maximum should be imposed for the first pay records contravention or the second pay records contravention. Notwithstanding the deliberate nature of the conduct, that level of penalty fails to take account of the fact that this is a first offence for these Respondents, the level of underpayments that have resulted from the contravention, or the time period over which the contraventions occurred. In my view, the penalty should be set at 20% of the maximum penalty for each of these contraventions.

2. The Applicant proposes a penalty of 60% of the maximum penalty in respect of the false payslip contravention. No submission was received on why this particular level of penalty is sought. I accept that the provision of false or misleading payslips to employees is a serious matter, but that does not explain why 60% of the maximum penalty is sought in this case. As I have explained above in relation to section 535 of the Act, section 536(3) of the Act prohibits certain conduct. The Act provides that conduct that falls foul of section 536(3) of the Act may be penalised by the imposition of a penalty of up to $13,320 for an individual. Thus, the legislature has contemplated that contravention of section 536(3) of the Act may lead to the imposition of a penalty anywhere along a range from zero penalty units to up to the maximums set out above. The question that confronts the Court is what penalty along that range, given the nature of the offence committed in contravention of section 536(3), should be imposed.

3. In my view, weighing up the matters referred to above, including the deliberate nature of the conduct, and the fact that is a first offence, a penalty of 20% of the maximum penalty will be imposed for the false payslip contravention on Mr Gupta.

4. Accordingly, the penalties to be imposed on Mr Gupta for the contraventions (other than the Underpayment Contraventions are as follows:

Contravention	Penalty
First pay records contravention	$2664
Second pay records contravention	$2664
False payslip contravention	$2664
Total penalty	$7992

Discount for co-operation

1. The Applicant proposed a discount of 20% given the co-operation of Mr Gupta. I agree that in the circumstances of this case and given the extent of the co-operation I have noted earlier, a discount of 20% is appropriate.

   Totality

2. The total penalties imposed on Mr Gupta are $26,640 ($18,648 + 7,992). After the application of this discount, the penalties on Mr Gupta are $21,312. The Court now needs to consider the application of the totality principle and whether the penalties would be crushing or oppressive. The principle has been described by Full Courts of the Federal Court of Australia: see Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (2017) 254 FCR 68 at [117], and Australian Ophthalmic Supplies Pty Ltd v McAlary-Smith (2008) 165 FCR 560 at [102].

3. The Applicant has proposed a discount for totality of 20%. I agree that is an appropriate discount in all the circumstances of the matter. Accordingly, the total penalty to be levied on Mr Gupta is $17,049.60.

   ORDERS AND DECLARATIONS

4. At paragraph [2] of its written submissions, the Applicant accepted that the proceedings are presently stayed against Vizaan, that the Applicant had not sought leave to continue proceedings against Vizaan, and that it only sought penalties be imposed on Mr Gupta. Despite this, in Annexure B to its written submissions, the Applicant expressly sought declarations that Vizaan has contravened the Act and the Vehicle Award. It is not immediately clear to me how declarations may be made against Vizaan in circumstances where the proceedings against it are stayed.

5. During the course of the hearing, I raised with the Applicant generally how the proceedings could continue to be conducted. In response to that query, I was sent the authorities I have referred to earlier at paragraph [7], footnote 2. While I have accepted that the proceedings can continue against Mr Gupta only, the authorities the Applicant sent to me do not contain any discussion as to whether declarations may be made against a company in liquidation. Bromberg J in Tiger Telco did not make any declarations against the first respondent, His Honour noting that the applicant in that case sought no orders against it (at [2]). In contrast, Cowdroy J made declarations against a company in liquidation in Wongtas, but the basis of that outcome is not explained.

6. In my view, given the proceedings are stayed, no declarations can be made against Vizaan. Declarations and orders may only be made against Mr Gupta. Accordingly, I will make declarations largely in the form sought by the Applicant that Mr Gupta contravened various provisions of the Act and the Vehicle Award by being involved in contraventions committed by Vizaan, and make orders that Mr Gupta pay the pecuniary penalties to the Commonwealth. No orders or declarations will be made with respect to Vizaan.

I certify that the preceding eighty-seven (87) numbered paragraphs are  a true copy of the Reasons for Judgment of Judge Blake.

Associate:

Dated:       11 February 2025

ANNEXURE 1 – PROPOSED PENALTIES – SECOND RESPONDENT – MR GUPTA

Declaration no.	Contravention	Relevant period	Penalty Units	Penalty Unit value	Maximum penalty	Proposed penalty %	Proposed penalty
1(a)	section 45 of the FW Act by failing to pay Mr Rahman the afternoon shift penalty rate, in contravention of clause 25.2 of the Vehicle Award 2020	28 December 2020 - 21 February 2021	60	$222	$13,320	20%	$2,664
1(b)	section 45 of the FW Act by failing to pay Mr Rahman the public holiday penalty rate, in contravention of clause 27.4(a)(iv) of the Vehicle Award 2020	28 December 2020 - 21 February 2021	60	$222	$13,320	20%	$2,664
1(c)	section 45 of the FW Act by failing to pay Mr Rahman the rate for the first three hours of overtime performed on Monday to Saturday, as required by clause 27.5(b) of the Vehicle Award 2020	28 December 2020 - 21 February 2021	60	$222	$13,320	20%	$2,664
1(d)	section 45 of the FW Act by failing to pay Mr Rahman the rate for overtime after the first three hours of overtime on Monday to Saturday, as required by clause 27.5(b) of the Vehicle Award 2020	28 December 2020 - 21 February 2021	60	$222	$13,320	20%	$2,664
Declaration no.	Contravention	Relevant period	Penalty Units	Penalty Unit value	Maximum penalty	Proposed penalty %	Proposed penalty
1(e)	section 45 of the FW Act for failing to pay Mr Rahman the rate for overtime worked on a Sunday, as required by clause 27.5(b) of the Vehicle Award 2020	28 December 2020 - 21 February 2021	60	$222	$13,320	40%	$5,328
1(f)	section 45 of the FW Act for failing to pay Mr Rahman the Saturday afternoon penalty rate, as required by clause 27.4(a)(ii) of the Vehicle Award	28 December 2020 - 21 February 2021	60	$222	$13,320	20%	$2,664
1(g)	section 45 of the FW Act for failing to pay Mr Rahman the Sunday penalty rate, as required by clause 27.4(a)(iii) of the Vehicle Award 2020	28 December 2020 - 21 February 2021	60	$222	$13,320	20%	$2,664
1(h)	section 535(1) of the FW Act by failing to make and keep records of the type required by regulation 3.33(3)(d) of the FW Regulations	28 December 2020 - 21 February 2021	60	$222	$13,320	40%	$5,328
1(i)	section 535(1) of the FW Act by failing to make and keep records of the type required by regulation 3.34 of the FW Regulations	28 December 2020 - 24 February 2021	60	$222	$13,320	40%	$5,328
Declaration no.	Contravention	Relevant period	Penalty Units	Penalty Unit value	Maximum penalty	Proposed penalty %	Proposed penalty
1(j)	section 536(3) of the FW Act by knowingly providing false or misleading payslips to Mr Rahman	28 December 2020 - 24 February 2021	60	$222	$13,320	60%	$7,992
Total	600	$133,200	$39,960
Total after 20% discount for cooperation							$31,968
Total after further 20% reduction for totality							$25,574 (approx. 19% of potential maximum)