Holland v Agon Pty Ltd
[2008] FMCA 297
•12 March 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| HOLLAND v AGON PTY LTD & ANOR | [2008] FMCA 297 |
| INDUSTRIAL LAW – Application for imposition of penalties – underpayment of employees – civil penalty hearing – agreed facts – consideration of matters relevant to penalty. |
| Workplace Relations Act 1996 (Cth) ss.3, 182(3), 185(2), 719(1), 719(4), 719(6), 722(1), 728, 841 Crimes Act 1914 (Cth) s.4AA |
| Mason v Harrington Corporation Pty Ltd [2007] FMCA 7 Salandra v Risborg Services Pty Ltd [2008] FMCA 76 |
| Applicant: | KYLIE JEAN HOLLAND |
| First Respondent | AGON PTY LTD |
| Second Respondent: | RODNEY ALLAN LEWIS |
| File Number: | ADG 306 of 2007 |
| Judgment of: | Simpson FM |
| Hearing date: | 14 February 2008 |
| Date of Last Submission: | 14 February 2008 |
| Delivered at: | Adelaide |
| Delivered on: | 12 March 2008 |
REPRESENTATION
| Counsel for the Applicant: | Mr M Evans QC with Mr Connelly |
| Solicitors for the Applicant: | Hunt & Hunt |
| Counsel for the Respondents: | Mr C Cocks |
| Solicitors for the Respondents: | Moore Law |
ORDERS
A penalty of $10,000 is imposed on the first respondent pursuant to s.719(1) of the Workplace Relations Act 1966 (Cth) (“the Act”) for contravention of s.182(3) of the Act.
A penalty of $6,000 is imposed on the first respondent pursuant to s.719(1) of the Act for contravention of s.185(2) of the Act.
Pursuant to s.841 of the Act the first respondent shall pay the sum of $16,000 to the Commonwealth.
A penalty of $2,000 is imposed on the second respondent pursuant to ss.728 and 719(1) of the Act for being knowingly concerned in the first respondent’s contravention of s.182(3) of the Act.
A penalty of $1,200 is imposed on the second respondent pursuant to ss.728 and 719(1) of the Act for being knowingly concerned in the first respondent’s contravention of s.185(2) of the Act.
Pursuant to s.841 of the Act the second respondent shall pay the sum of $3,200 to the Commonwealth.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT ADELAIDE |
ADG 306 of 2007
| WORKPLACE INSPECTOR KYLIE JEAN HOLLAND |
Applicant
And
| AGON PTY LTD |
First Respondent
And
| RODNEY ALLAN LEWIS |
Second Respondent
REASONS FOR JUDGMENT
The proceedings
This is an application brought by Workplace Inspector Holland against the first respondent employer company, Agon Pty Ltd (“Agon”) and the second respondent Rodney Allan Lewis (“Mr Lewis”) the managing director and principal shareholder of Agon. The applicant sought orders as follows:
1.An order pursuant to s.719(6) of the Workplace Relations Act 1996 (Cth) (“the Act”) requiring the first respondent to pay the employees referred to the in the applicant’s affidavit the amounts due to them under the Australian Fair Pay and Conditions Standard (“the underpayment contraventions”);
2.An order pursuant to s.722(1) of the Act requiring the first respondent to pay interest in respect of the underpayment contraventions;
3.Orders pursuant to s.719(1) of the Act imposing penalties against:
i)The first respondent by reason of it committing the underpayment contraventions;
ii)The second respondent (pursuant to s.728 of the Act) for being involved in the underpayment contraventions.
On 14 February 2008 the matter proceeded as a penalty hearing. At the conclusion of submissions, at the request of the parties, I made orders by consent as follows:
1.The first respondent pay to the applicant the sum of $1,621.63 being interest payable to the employees for underpayment of wages, such payments to be made pursuant to s.722(1) of the Workplace Relations Act 1996 (Cth) payable within 14 days.
2.The first respondent pay to Rosslyn Gaye Lewis the sum of $2,121.15 in relation to underpayment of wages for the period 24 January 2007 to 3 July 2007 such payments to be made pursuant s.719(6) of the Workplace Relations Act 1996 (Cth) such sum to be payable within 28 days.
It remains for me to impose penalties as sought in paragraph 3 of the final orders sought as detailed above.
The evidence and other material
The material put before me at the penalty hearing comprised the following:
1.Affidavit of Workplace Inspector Holland sworn 1 November 2007;
2.Statement of Agreed Facts together with attached schedules marked “A” and “B” (“the Statement”);
3.Management reports for Agon for financial years ending June 2004, 2005, 2006 and 2007.
During oral submissions on behalf of each of the parties factual material was put before me that I have been asked by the parties to accept as accurate.
The Statement provides a helpful summary of the factual background to this matter. I accept as true the facts contained in the Statement and incorporate it (absent Schedules A and B) into these reasons.
STATEMENT OF AGREED FACTS
BACKGROUND
1. Agon Pty Ltd (“the First Respondent”) is a registered proprietary company limited by shares.
2. The directors of the First Respondent Rosslyn Gaye Lewis and Rodney Allan Lewis (“the Second Respondent”). The Second Respondent is also the secretary, manager and dominant shareholder of the First Respondent.
3. The First Respondent’s registered office is situated at 2 Alfred Place, Strathalbyn, in the State of South Australia.
4. The First Respondent was at all material times engaged in the business of operating the Agon Berry Farm located at Main Road, Mount Compass.
5. The operation of the Agon Berry Farm included growing, harvesting and sales of produce.
6. Between 27 March 2006 and 23 January 2007 (“the period”) the First Respondent employed a total of 23 staff at the Agon Berry Farm.
7. The staff employed during the period performed duties including planting, spraying, irrigating, weed management, farm maintenance, pruning, picking, wrapping, shop/counter sales and taking telephone orders for Agon in the operation of the Agon Berry Farm.
8. Prior to and during the period there was no State or Federal award or other relevant industrial instrument governing the employees at the Agon Berry Farm.
9. During the period, the following 10 employees (“the employees”) were employed on a casual basis:
9.1. C Bailey
9.2. L Reynolds
9.3. R Lewis
9.4. H Turnbull
9.5. S Esposito
9.6. C Dowse
9.7. D Harrison
9.8. B Grillett
9.9. L Turnbull
9.10. W Phelps
10. The employees were all adults, had no disability and were not the subject of a training program.
11. During the period the employees were paid hourly rates varying from $9.00 per hour up to $14.60 per hour.
THE ACT
12. Subsequent to 27 March 2006 the terms and conditions of employment of the employees were informed by the Workplace Relations Act 1996 (Cth) (“the Act”).
13. Pursuant to section 172 of the Act, the Australian Fair Pay and Conditions Standard provided key minimum entitlements of employment for the employees.
Wage Rates
14. Pursuant to section 182(3) of the Act, the First Respondent was obliged to pay the employees a basic periodic rate of pay for each of the employee’s hours that was at least equal to the standard Federal Minimum Wage (“FMW”).
15. Pursuant to section 195(1) of the Act, from 27 March 2006, the FMW was $12.75 per hour, subject to the power of the Australian Fair Pay Commission (AFPC) to adjust the FMW.
16. Pursuant to section 196 of the Act, on 20 October 2006, the AFPC announced its FMW decision which came into effect from 1 December 2006.
17. Pursuant to that decision from 1 December 2006, the FMW was $13.47 per hour.
Casual Loading
18. Pursuant to subsections 185(3) Item 4 and 186 of the Act, from 27 March 2006, the default casual loading percentage was 20%.
19. Accordingly, from 27 March 2006 the employees were entitled to $12.75 per hour plus 20% casual loading making a total of $15.30 per hour.
20. From 1 December 2006, the employees were entitled to $13.47 per hour plus 20% casual loading making a total of $16.16 per hour.
THE UNDERPAYMENTS
21. At all relevant times during the period, none of the employees were paid the correct hourly rate as required by the Act.
C Bailey
22. During the period C Bailey was paid an hourly rate of $14.60.
23. Between 27 March 2006 and 30 November 2006 C Bailey worked 1064 hours.
24. Between 1 December 2006 and 23 January 2007 C Bailey worked 272.25 hours.
25. In total C Bailey was underpaid $1,169.51.
26. C Bailey received a back payment of $294.30, but was still owed $875.21 at the time of institution of proceedings.
L Reynolds
27. During the period L Reynolds was paid an hourly rate of $11.00.
28. Between 27 March 2006 and 30 November 2006 L Reynolds worked 749.75 hours.
29. Between 1 December 2006 and 23 January 2007 L Reynolds worked 162.75 hours.
30. At the time of instituting proceedings L Reynolds was still owed $4,063.72.
R Lewis
31. During the period R Lewis was paid an hourly rate of $13.00.
32. Between 27 March 2006 and 30 November 2006 R Lewis worked 989 hours.
33. Between 1 December 2006 and 23 January 2007 R Lewis worked 235.75 hours.
34. At the time of instituting proceedings R Lewis was still owed $3,021.40.
H Turnbull
35. During the period H Turnbull was paid an hourly rate $12.00.
36. Between 27 March 2006 and 30 November 2006 H Turnbull worked 801.25 hours.
37. Between 1 December 2006 and 23 January 2007 H Turnbull worked 212.75 hours.
38. In total H Turnbull was underpaid $3,529.17.
39. H Turnbull received a back payment of $478.00, but was still owed $3,050.77 at the time of instituting proceedings.
S Esposito
40. During the period S Esposito was paid an hourly rate of $9.00.
41. Between 27 March 2006 and 30 November 2006 Esposito worked 392.50 hours.
42. Between 1 December 2006 and 23 January 2007 S Esposito worked 80.5 hours.
43. At the time of instituting proceedings S Esposito was still owed $3,049.13.
C Dowse
44. During the period C Dowse was paid an hourly rat of $14.00.
45. Between 27 March 2006 and 30 November 2006 C Dowse worked 755.75 hours.
46. Between 1 December 2006 and 23 January 2007 C Dowse worked 220 hours
47. In total C Dowse was underpaid $1,454.18.
48. C Dowse received a back payment of $257.58, but was still owed $1,196.60 at the time of instituting proceedings.
D Harrison
49. During the period D Harrison was paid an hourly rate of $14.60.
50. Between 27 March 2006 and 30 November 2006 D Harrison worked 1124.25 hours.
51. D Harrison did not work for the First Respondent between 1 December 2006 and 23 January 2007.
52. At the time of instituting proceedings D Harrison was still owed $786.97.
B Grillet
53. During the period B Grillet was paid an hourly rate of $10.50.
54. Between 27 March 2006 and 30 November 2006 B Grillet worked 353.50 hours.
55. Between 1 December 2006 and 23 January 2007 B Grillet worked 250.50 hours.
56. At the time of instituting proceedings the evidence provided that B Grillet was still owed $3,114.58.
L Turnbull
57. During the period L Turnbull was paid an hourly rate of $10.00.
58. L Turnbull did not work for the First Respondent between 27 March 2006 and 30 November 2006.
59. Between 1 December 2006 and 23 January 2007 L Turnbull worked 93.50 hours.
60. At the time of instituting proceedings L Turnbull was still owed $575.96.
W Phelps
61. During the period W Phelps was paid an hourly rate of $9.00.
62. Between 27 March 2006 and 30 November 2006 W Phelps worked 16 hours.
63. Between 1 December 2006 and 23 January 2007 W Phelps worked 59 hours.
64. At the time of instituting proceedings W Phelps was still owed $523.24.
Total
65. At the time of instituting proceedings, the evidence obtained by the OWO provided that between 27 March 2006 and 23 January 2007, the First Respondent underpaid the employees a total of $21,466.30.
66. Before the institution of proceedings, the First Respondent made back payments totalling $1,208.73.
67. At the time of instituting proceedings the total of outstanding underpayments was $20,257.57.
THE INSTITUTION OF PROCEEDINGS
68. On 29 September 2006, the Office of Workplace Ombudsman (“OWO”) received a complaint in respect of underpayment of several employees of the First Respondent.
69. On 24 October 2006, the OWO commenced its investigation.
70. On 21 December 2006, the OWO informed the Second Respondent of the complaints made against the First Respondent and the obligation of the First Respondent to pay its employees the FMW.
71. On 10 January 2007, the OWO sent to the respondents a Notice to Produce Documents. At the request of the respondents, an extension of time within which to comply with the Notice to Produce Documents was granted. By letter dated 30 January 2007 the respondents complied with the Notice to Produce Documents.
72. On 19 April 2007 the OWO informed the respondents that it had calculated that the amount of $21,466.30 was owed to a total of 11 employees and requested a response. The Second Respondent requested an extension to respond to the primary findings and an extension was granted until 14 May 2007.
73. On 11 May 2007, a further extension until 21 May was granted by the OWO after another request was made on behalf of the First Respondent.
74. On 14 May 2007, the Second Respondent asserted that the initial findings of the OWO were incorrect and asked for a further extension to respond. A further extension was not granted.
75. On 23 May 2007, a response from the respondents was received stating that the OWO’s calculations of amounts underpaid to the employees were incorrect and that the amount of $20,257.57 was the correct sum owed to the employees.
76. On 18 June 2007, the OWO sent a Breach Notice to the respondents in respect of the outstanding underpayments to employees of $20,257.57 requesting payment.
77. The Breach Notice informed the respondents that if the outstanding amounts were paid, no further action would be taken by the OWO.
78. Between 18 June 2007 and 2 November 2007 various representations were made by or on behalf of the respondents that the outstanding amounts would be repaid as detailed in the Applicant’s affidavit of 1 November 2007.
79. As at 2 November 2007 the respondents had not made any payment towards the outstanding amounts at all and the proceedings were therefore instituted.
80. On 21 January 2008, the OWO sent to the respondents a Notice to Produce Documents in order to obtain documents to facilitate an investigation of the issue detailed in paragraphs 86 to 88 below. This Notice to Produce required the production of documents by 5 February 2008.
81. On 4 February 2008, a representative of the respondents contacted the OWO and requested an extension of time to comply with the Notice to Produce of 21 January 2008. The requested extension of time was not granted.
82. Later, on 4 February 2008, the solicitor of the respondents contacted the OWO and requested an extension of time to comply with the Notice to Produce of 21 January 2008. The requested extension of time was not granted.
83. The Respondents forwarded documents to the OWO in response to the Notice to Produce of 21 January 2008 on 11 February 2008.
PAYMENTS
84. On 5 December 2007, the OWO received a letter from the solicitors representing the respondents attaching trust cheques payable to each of the employees in satisfaction of the outstanding underpayments.
85. The OWO posted the cheques to the employees on 5 December 2007 totalling $20,257.57, being the amount identified in the Breach Notice. It is likely each of the employees received their respective cheques within one to two business days of postage.
86. A further underpayment in respect of R Lewis has since been identified.
87. After the period R Lewis’ hourly rate of pay was not increased to $16.16 as directed at the time of the Second Respondent’s record of interview of 28 June 2007 but rather remained at $13 per hour up until 3 July June 2007 [sic].
88. 671.25 hours were worked by R Lewis from 24 January 2007 to 3 July 2007 which when multiplied by the underpayment of $3.16 per hour evidences a further underpayment of $2,121.15 that has not been rectified.
89. The OWO has also obtained further evidence from which provides that B Grillet was paid back pay in the amount of $1,471.60 on 6 March 2007. This amount includes an adjustment for the period in the amount of $738.63, the remainder of the sum being back pay for the period between 23 January 2007 and when B Grillet’s hourly rate was increased to $16.16.
90. It has therefore come to the OWO’s attention that, with respect to the payments received by the respondents detailed in paragraphs 88 and 89, B Grillet has in fact been overpaid by $738.63.
INTEREST
91. It is agreed that the interest payable to the employees in respect of each of their underpayments calculated at 6.5% as detailed in the attached schedule marked “A”.
CONTRAVENTIONS
92. The First Respondent admits that it contravened:-
92.1. Section 182(3) of the Act by failing to pay each of the employees at the rate prescribed by the FMW during the period;
92.2. Section 185(2) of the Act by failing to pay each of the employees the casual loading percentage during the period.
93. The Second Respondent admits, by reason of operation of section 728 of the Act, that he is to be treated as having contravened:-
93.1. Section 182(3) of the Act by failing to pay each of the employees at the rate prescribed by the FMW during the period;
93.2. Section 185(2) of the Act by failing to pay each of the employees the casual loading percentage during the period.
COURSE OF CONDUCT
94. As the contraventions referred to in paragraphs 92.1 and 93.1 arose out of a course of conduct by the respondents, they shall, for the purposes of section 719 of the Act, be taken to constitute a single breach of sections 182(3) and 185(2) of the Act by each respondent.
95. As detailed in the attached annexure marked “B”, the course of conduct referred to in paragraph 92 above is made up of 311 individual contraventions.
96. As the contraventions referred to in paragraphs 92.2 and 93.2 arose out of a course of conduct by the respondents, they shall, for the purpose of section 719 of the Act, be taken to constitute a single breach of sections 182(3) and 185(2) of the Act by each respondent.
97. As detailed in the attached annexure marked “B”, the course of conduct referred to in paragraph 94 above is made up of 311 individual contraventions.
Having previously made an order by consent in relation to the payment of interest it is unnecessary for me to deal further with Schedule A[1].
[1] Referred to in paragraph 91 of the Statement.
The relevant matters contained in Schedule B of the Statement has been accurately summarised in the body of the Statement[2].
[2] Paragraphs 95, 96 and 97 of the Statement.
The considerations relevant to penalty
On the basis of the respondent’s admissions contained in the Statement I find that the first respondent has committed numerous breaches of both s.182(3) and s.185(2) of the Workplace Relations Act 1996 (Cth) (“the Act”). On the basis of the admissions I find that the breaches arose out of a course of conduct by the first respondent. As a result of s.719 of the Act the breach of each of the subsections shall be taken to constitute a single breach of each sub‑section. Further, as a result of the second respondent admitting that he was knowingly concerned in the first respondent’s breaches, he is by reason of s.728 of the Act to be treated as having also contravened the two subsections.
Penalty is determined by s.719(4) of the Act. The maximum penalty that may be imposed is 60 penalty units for an individual and 300 penalty units for a company. By reason of s.4(1) of the Act, penalty unit has the same meaning as given by s.4AA of the Crimes Act 1914 (Cth) which in turn provides, that, unless a contrary intention appears, penalty unit is $110. The maximum penalty that can therefore be imposed in relation to each of the 2 breaches by the company is $33,000 and in relation to Mr Lewis $6,600.
In deciding what penalties to impose I have been referred by Counsel for the applicant to the factors identified in Salandra v Risborg Services Pty Ltd [2008] FMCA 76 which in turn relied upon the reasons of Mowbray FM in Mason v Harrington Corporation Pty Ltd (2007) FMCA 7. I acknowledge that the matters to be taken into account are not closed and that, in an appropriate case, other matters might be considered.
I propose to address the submissions put on behalf of the parties under the headings identified by counsel for the applicant.
The nature and extent of the conduct which led to the breaches and the circumstances in which the conduct took place
The breaches occurred on 43 occasions between 27 March 2006 and 23 January 2007 and on each occasion related to up to ten employees. There were a total of 311 breaches of s.182(3) of the Act being underpayment breaches in relation to the standard Federal Minimum Wage. There were a further 311 breaches of sub-s.185(2) of the Act being breaches of casual loadings provisions.
When the second respondent was interviewed on behalf of the applicant on 28 June 2007 he said that he was not aware of the amount of the Federal Minimum Wage at the time when the breaches occurred but that he was aware of this when he was being interviewed. This was elaborated upon during submissions put on behalf of the respondents.
I find that, whilst at the times of the breaches Mr Lewis did not know the detail of the Australian Fair Pay and Conditions Standard including the amount of the standard Federal Minimum Wage, he was aware that a Federal Minimum Wage that applied to Agon’s employees had been implemented. In these circumstances it was clearly incumbent on him to take steps to inform himself of the detail of the Australian Fair Pay and Conditions Standard and the amount that was payable to Agon’s employees and to ensure that it was paid. He did not do so.
The circumstances in which the conduct took place
The underpayment occurred at a time when the Work Choices changes to the legislation were quite new. Mr Lewis, through his Counsel, says that the focus of his attention was on having Australian Workplace Agreements (“AWA”) put into place rather than on complying with the Australian Fair Pay and Conditions Standard. I find that Mr Lewis’ efforts in relation to the AWAs distracted him from properly attending to Agon’s obligations to comply with the requirements of the Australian Fair Pay and Conditions Standards.
I also take into account the fact that Mr Lewis and therefore Agon were going through a difficult time as a result of the combined effects of an increasingly competitive market and Mr Lewis’ health difficulties as referred to later in these reasons.
The nature and extent of any loss or damage sustained as a result of the breaches
As is detailed in paragraphs 84 to 91 of the Statement, Mr Lewis has taken steps to ensure that Agon has (apart from paying his daughter her full employee entitlements) paid all employees their lawful entitlements together with interest as required by s.722(1) of the Act. This is very much to the respondents’ credit as, even as far back as the interview on 28 June 2007, Mr Lewis said “I don’t have the money to pay at the moment[3]. I am looking at selling the farm”. I place great weight on the fact that, although Agon has very little by way of assets, it has ensured that none of the employees have been disadvantaged. Payments of arrears and interest were made to all affected employees (other than Mr Lewis’ daughter) in December 2007.
[3] I take him to be referring to both himself and Agon not having sufficient money.
Whether there has been similar previous conduct by the party
There is no indication that there has been any other similar conduct by either of the respondents.
Whether the breaches were properly distinct or arose out of the one course of conduct
I accept the statements contained in paras.94, 95, 96 and 97 of the Statement and find that Agon was involved in a course of conduct when it carried out the acts and omissions that constitute each of the breaches of ss.182(3) and 185(2) of the Act. I also consider that there is a close connection between the two breaches which should be taken into account when determining penalty in relation to the latter.
The size of the business enterprise involved
I take into account that Agon is a small proprietary company employing only 23 staff during the period that we are concerned with.
Whether or not the breaches were deliberate
As previously mentioned in these reasons, Mr Lewis knew that legislative changes now required the company to comply with employment minimum standards. Notwithstanding this, he allowed the company to be involved in numerous breaches of the Act over a ten month period. I accept that Mr Lewis did not know the exact amount that was payable but find that this provided no real excuse for the company’s and his conduct. In this sense, Agon’s conduct was deliberate
Whether senior management was involved in the breaches
Mr Lewis was the principal shareholder and manager of Agon and was therefore the person who was intimately involved in the breaches.
Whether the party committing the breach had exhibited contrition for the breach, firstly by taking action to make reparation for any loss resulting from the breach whether or not there was a legal obligation to do so, and, second, in any other manner
I have previously mentioned in these reasons the fact that full reparation (including interest) has been made (or will be made when Mr Lewis’ daughter has been paid) to all of these workers.
Whether the party committing the breach has taken corrective action to ensure further breaches do not occur
There is no material that has been put before me to suggest that further breaches have occurred since 23 January 2007. The company is, so far as I am aware, still trading. It is reasonable for me to infer that this is as a result of steps being taken by Mr Lewis to ensure there have been no further breaches of the Act.
Whether the party committing the breach has cooperated with the enforcement authorities
The applicant makes no complaint about the respondents’ co-operation in relation to this matter save that the applicant says that the respondents have taken far too long to provide information.
The need to ensure compliance with minimum standards by provision of an effective means for investigation and enforcement of employee entitlements
I take into account the relevant principal objects contained in s.3 of the Act as it existed at the time of these breaches, namely:
·Providing an economically sustainable safety net of minimum wages and conditions for those whose employment is regulated by this Act;
·Ensuring compliance with minimum standards, industrial instruments and bargaining processes by providing effective means for the investigation and enforcement of:
i)Employment entitlements; and
ii)The rights and obligations of employers and employees, and their organisations.
The penalty that I impose will be aimed to ensuring that these objects are achieved by stressing the importance that Parliament places on these provisions as is reflected by the significant penalties that can now be imposed.
The need for specific and general deterrence
I take into account the need to impose a penalty that will act as a specific deterrent to the respondents to ensure that they treat legislation such as this with the importance that it warrants and as a general deterrent to the rest of the business community so that it sends a clear message to them that the Parliament and the Courts treats conduct such as we have here as extremely serious.
If the party has admitted the breaches of the applicable provisions – that fact
I take into account the fact that the respondents have admitted their breaches and have thereby saved the public from the cost of a trial. I have made an appropriate allowance for this factor.
If the party is an individual, the character, antecedents, age, means and physical or mental condition of the party
In relation to the second respondent, I take into account the fact that he is of good character. He has been a hard working family man for many years and has been successful with his business enterprises. In January 2003 Mr Lewis had an accident resulting in serious injuries. He was unable to work for six months as a result of being hospitalised and later involved in rehabilitation. In 2007 Mr Lewis’ marriage broke down. Although I have not been provided with details, it is likely that this followed a substantial period of marital tension which would have distracted him somewhat from his work.
The increasing competition in the industry that the first respondent was involved in has put financial pressure on Mr Lewis. On top of this the Work Choices legislation imposed additional burdens and stresses. During submissions on 14 February 2007 I was informed by Counsel for Mr Lewis’ that he intends to retire and to sell his business at some time in the near future. This recent statement confirms what Mr Lewis said in his record of interview of 28 June 2007.
Penalty
Taking into account all the material put before me together with the submissions of Counsel and applying the totality principle I consider that an appropriate aggregate penalty in relation to Agon to be $16,000 and in relation to Mr Lewis an aggregate penalty of $3,200. In relation to Agon I apportion $10,000 to the breach of s.182(3) of the Act and $6,000 in relation to the breach of s.185(2) of the Act. In relation to Mr Lewis I apportion $2,000 to the breach of s.182(3) of the Act and $1,200 in relation to the breach of s.185(2) of the Act.
There will be orders as detailed at the beginning of these reasons.
I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of Simpson FM
Associate: Julie Davey
Date: 12 March 2008
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