In v Giri Australia Pty Ltd (No 2)
[2024] FedCFamC2G 133
•29 February 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
In v Giri Australia Pty Ltd (No 2) [2024] FedCFamC2G 133
File number(s): MLG 1682 of 2022 Judgment of: JUDGE SYMONS Date of judgment: 29 February 2024 Catchwords: INDUSTRIAL LAW – Fair Work – claim alleging dismissal in contravention of general protection – claim alleging non-payment of entitlements – where respondents have not participated in the proceedings – application for default judgment and for the payment of compensation and pecuniary penalties against the respondents – whether on the face of statement of claim applicant has established an entitlement for declaratory relief – whether relief sought is reasonably supported by the materials before the Court – default judgment ordered - declarations and orders for payment of compensation and pecuniary penalties made Legislation: Crimes Act 1914 (Cth) s 4AA
Fair Work Act 2009 (Cth) ss 45, 340, 342, 539, 542, 546, 550, 557
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) rr 11.02, 12.01, 13.05, 13.06
Hospitality Industry (General) Award 2020 cll 11.1, 11.4, 18.1, 18.4, 27, 28, 28.4, 29, 29.2.
Cases cited: Aitken v Construction, Mining, Energy, Timberyards, Sawmills and Woodworkers Union of Australia – Western Australian Branch (1995) 63 IR 1; [1995] IRCA 352.
Australian Building and Construction Commissioner v Pattinson & Anor (2022) 399 ALR 599; [2022] HCA 13.
Australian Licensed Aircraft Engineers Association v International Aviation Service Assistance Pty Ltd (2011) 193 FCR 526; [2011] FCA 333.
BJ International Limited v Ashgar (No 2) [2013] FCA 580.
Construction, Forestry, Mining and Energy Union v Hail Creek Coal Pty Ltd [2016] FCA 1032.
Fair Work Ombudsman v NSH North Pty Ltd trading as New Shanghai Charlestown (2017) 275 IR 148; [2017] FCA 1301.
In v Giri Australia [2023] FedCFamC2G 689.
James Cook University v Ridd (2020) 382 ALR 8; [2020] FCAFC 123.
Macquarie Bank Limited v Seagle (2005) 146 FCR 400; [2005] FCA 1239.
Rathner; in the matter of Mildura Grand Pty Ltd (in liq) v Bendigo Skyrider Pty Ltd [2011] FCA 626.
Richardson v Oracle Corporation Australia Pty Ltd (2014) 312 ALR 285; [2014] FCAFC 82.
Sayed v Construction, Forestry, Mining and Energy Union (2016) 239 FCR 336: [2016] FCAFC 4.
Speedo Holdings BV v Evans (No 2) [2011] FCA 1227.
Trade Practices Commission v CSR Ltd [1990] FCA 521.
Division: Division 2 General Federal Law Number of paragraphs: 88 Date of last submission: 8 February 2024 Date of hearing: 8 February 2024 Place: Melbourne Pro-bono counsel for the Applicant: Mr D Murphy The First Respondent: Did not appear The Second Respondent: Did not appear ORDERS
MLG 1682 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MICHELLE IN
ApplicantAND: GIRI AUSTRALIA PTY LTD
First RespondentLALIT GIRI
Second Respondent
ORDER MADE BY:
JUDGE SYMONS
DATE OF ORDER:
29 FEBRUARY 2024
THE COURT ORDERS THAT:
1.Pursuant to ss 545(1) and 545(2)(b) of the Fair Work Act 2009 (Cth) (the FW Act), the first respondent pay to the applicant within 28 days of the date of this order:
(a)compensation for economic loss in the amount of $19.591.29; and
(b)compensation for non-economic loss in the amount of $8,000.
2.Pursuant to s 546(1) of the FW Act, the first respondent pay pecuniary penalties in the amount of $56,610 for the first respondent’s contraventions of s 45 and s 340(1)(a)(ii) of the FW Act, the subject of the declarations made by the Court on 8 February 2024.
3.Pursuant to s 546(3)(c) of the FW Act the first respondent pay the pecuniary penalties referred to in paragraph 2 to the applicant within 28 days after the day on which these orders are made.
4.Pursuant to s 546(1) of the FW Act, the second respondent pay a pecuniary penalty in the amount of $4,662 for the second respondent’s contravention of s 340(1)(a)(ii) of the FW Act, the subject of the declaration made by the Court on 8 February 2024.
5.Pursuant to s 546(3)(c) of the FW Act the second respondent pay the pecuniary penalty referred to in paragraph 4 to the applicant within 28 days after the day on which these orders are made.
6.The applicant serve a sealed copy of these orders on the first and second respondents by 4pm on 1 March 2024.
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 SYMONS:
INTRODUCTION
The applicant (Ms In) applies under r 13.05(2)(c) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (the Rules) for default judgment against the respondents in a proceeding Ms In has brought under the Fair Work Act 2009 (Cth) (the FW Act).
Ms In claims that the first respondent (Giri Australia) contravened s 45 of the FW Act by failing to pay her wage and superannuation entitlements in accordance with terms of the Hospitality Industry (General) Award 2020 (the Award) and that it contravened s 340(1)(a)(ii) of the FW Act by taking adverse action against her (in the form of her dismissal) for a proscribed reason. Ms In claims that the second respondent (Mr Giri) was a person involved in Giri Australia’s contravention of s 340(1)(a)(ii) within the meaning of s 550(1) of the FW Act.
PROCEDURAL HISTORY
On 20 July 2022, Ms In filed an application in the Fair Work Division of this Court in which she sought orders against Giri Australia.
At the first return of the matter on 6 September 2022, orders were made for Giri Australia to file and serve a notice of address for service by 8 September 2022. This did not occur.
When the matter returned before a Registrar on 20 September 2022, orders were made for Ms In to file an affidavit of service attaching evidence confirming the registered office of Giri Australia. Ms In complied with this order by filing an affidavit of service of the application on Giri Australia at its registered office, as recorded in the ASIC database. According to the affidavit, the originating application and Form 2 were sent by pre-paid post to Giri Australia on 20 September 2022.
On 4 October 2022 a Registrar made orders to facilitate the filing by Ms In of an application for default judgment against Giri Australia by 25 October 2022. The orders contained notations including that: the respondent has not appeared at the directions hearings listed on 6 September 2022[1], 20 September 2022 and 4 October 2022 and a person named Mr Lenny Giri attended the hearing on 4 October 2022 but denied that he was a representative of the respondent.
[1] It appears that the reference to 6 September 2022 was made in error and Giri Australia did appear, through a representative, on this date.
On 25 October 2022 Ms In filed an application seeking default judgment against Giri Australia and provided evidence of service of this application on Giri Australia on 29 November 2022.
On 7 December 2022, the matter came before me for directions. On this date I made an order that Ms In be referred to a pro bono lawyer pursuant to r 12.01 of the Rules as well as orders for the filing of any amended initiating application, amended application for default judgment and statement of claim. Giri Australia was ordered to file and serve a notice of address for service by 17 December 2022 (later extended to 20 January 2023) and any response to the application for default judgment by 28 April 2023. The orders made this day contained the following notations:
A. The respondent was served with notice of today’s directions hearing by the applicant, however the respondent did not appear.
B.On 29 November 2022, Chambers emailed Mr Lenny Giri the Microsoft Teams Link for today’s hearing and received the following response:
Dear Symons
Please don’t email me I have nothing to do with Michelle.
As I have notified on the last hearing.
Please contact the Director or the business owner.
Regards lenny
On 22 March 2023, Mr Murphy of counsel accepted the referral to assist Ms In in a pro bono capacity.
On 6 April 2023, orders were made relisting the matter to 2 August 2023, in circumstances where Ms In, through pro-bono counsel, foreshadowed that an application to join Mr Lalit (Lenny) Giri as a second respondent would be made.
On 4 July 2023, Ms In filed an application in a proceeding in which she sought judgment in default against Giri Australia and leave to include Mr Giri as the second respondent in the proceeding. The application was supported by an affidavit of Ms In affirmed on the same date. The application and Ms In’s supporting affidavit were both served on Giri Australia and Mr Giri on 4 and 5 July 2023, respectively.[2]
[2] Applicant’s Affidavit of Service filed on 14 July 2023.
On 2 August 2023, I granted leave to Ms In pursuant to r 11.02(2) of the Rules to include Mr Giri as the second respondent in the proceeding and to file and serve an amended statement of claim that introduced allegations that Mr Giri was liable as an accessory: In v Giri Australia [2023] FedCFamC2G 689. On the same date, a suite of procedural orders were made, including that:
(a)Giri Australia file a notice of address for service by 11 August 2023;
(b)Giri Australia file a response to the amended statement of claim by 1 September 2023;
(c)Giri Australia file any response to the application for default judgment by 27 October 2023;
(d)Mr Giri file a notice of address for service by 11 August 2023;
(e)Mr Giri file a response to the amended statement of claim by 1 September 2023;
Ms In served a sealed copy of these orders and an unsealed copy of the amended statement of claim on Giri Australia and Mr Giri by registered post and email, respectively, on 3 August 2023. [3]
[3] Applicant’s Affidavit of Service filed on 11 August 2023.
On 5 October 2023, Ms In filed an application in a proceeding seeking judgment in default against Mr Giri. The application was supported by an affidavit of Ms In affirmed the same date. The application and Ms In’s supporting affidavit were both served on Giri Australia and Mr Giri on 12 October 2023.[4]
[4] Applicant’s First Affidavit of Service filed on 6 February 2024.
The next day, the Court made orders that Mr Giri file any response to the application for default judgment by 27 October 2023 and that the two applications for default judgment be heard together on 9 November 2023.
On 7 November 2023 and in circumstances where Ms In brought to the attention of the Court that she had, in error, served unsealed copies on the respondents of her amended statement of claim, the hearing of the default judgment applications was re-listed to 8 February 2024. Giri Australia and Mr Giri were given until 7 December 2023 to file a response to the amended statement of claim. Ms In served a copy of the orders made on 7 November 2023 and a sealed copy of the amended statement of claim on Giri Australia and on Mr Giri by post and email, respectively, on 9 November 2023.[5]
[5] Applicant’s Second Affidavit of Service filed on 6 February 2024.
As at the date of this judgment, neither Giri Australia nor Mr Giri had filed any material in this proceeding.
The hearing on 8 February 2024
When the matter was called on for hearing on 8 February 2024 Mr Murphy appeared for Ms In. There was no appearance by or on behalf of either Giri Australia or Mr Giri. Neither respondent communicated with the Court to advise of or to explain their absence. Ms In invited the Court to proceed, in the absence of the respondents, to hear her applications for default judgment. I indicated, having regard to the history of the proceeding generally, which was characterised by the lack of participation by either Giri Australia or Mr Giri and the failure of either respondent to appear at the hearing that it was appropriate to proceed with the hearing generally under r 13.06(1)(e) of the Rules.
On this date, having heard submissions from Mr Murphy, I made declarations that Giri Australia had contravened ss 45 and 340(1)(a)(ii) of the FW Act and a declaration that Mr Giri had contravened s 340(1)(a)(ii) of the FW Act. My reasons for making these declarations follow.
ARE THE RESPONDENTS IN DEFAULT?
Rule 13.04(2) of the Rules provides that a respondent is in default if the respondent:
(a)has not satisfied the applicant’s claim; and
(b)fails to:
(i)give an address for service before the time for the respondent to give an address for service has expired; or
(ii)file a response before the time for the respondent to file a response has expired; or
(iii)comply with an order of the Court in the proceeding; or
(iv)file and serve a document required under these Rules; or
(v)produce a document as required by Part 14; or
(vi)do any act required to be done by these Rules; or
(vii)defend the proceeding with due diligence.
Ms In submits that both respondents are in default pursuant to r 13.04(2)(b)(iii) through their failure to comply with the following two orders of the Court:
First, the Court’s orders of 2 August 2023 which required Giri Australia and Mr Giri to each file and serve a notice of address for service by 11 August 2023.
Second, the Court’s orders of 7 November 2023 which required Giri Australia and Mr Giri to each file and serve a response to the Amended Statement of Claim dated 6 November 2023 by 7 December 2023.
Mr Murphy identified these two acts of default as representing the clearest examples of default. However, as he also acknowledged, the whole of the proceeding is marked by a litany of other defaults along the way attributable to both Giri Australia and to Mr Giri. Viewed as a whole, it could also be said therefore that the conduct of both respondents involved a failure to defend the proceeding with due diligence, this being an act of default recognised under r 13.04(2)(vii) of the Rules.
I am satisfied that both Giri Australia and Mr Giri are in default. Neither respondent has satisfied the claim against them. Further, neither respondent has filed a notice of address for service (as required by the Rules and a series of orders of the Court, including those made on 2 August 2023) and neither respondent has filed a response to the Amended Statement of Claim (as required by the orders made on 7 November 2023). It is apparent from the procedural history set out above that the orders that gave rise to these acts of default were served on both respondents.
ORDERS ON DEFAULT
When a respondent is in default, or when a respondent is absent from a hearing, the Court may make one of the orders set out in r 13.05(2) of the Rules. Relevant to the applications before me is r 13.05(2)(c) which provides that the Court may:
if the proceeding was started by an application supported by a statement of claim or the Court has ordered that the proceeding continue on pleadings – give judgment against the respondent for the relief that:
(i) the applicant appears entitled to on the statement of claim; and
(ii) the Court is satisfied it has power to grant….
The principles guiding the exercise of the Court’s discretion under this sub-rule have been identified as follows:
(c)First, r 13.05(2)(c) of the Rules “does not require proof of the claim by evidence, but only requires that – on the face of the statement of claim – there is a claim for the relief sought”.[6]
(d)Second, before the Court may make an order under r 13.05(2)(c) of the Rules it must be satisfied that the document, which the applicant has filed with the application, is on its face “a statement of claim”. A statement of claim is a pleading, which means it must comply with the rules of pleading.[7]
(e)Third, it follows from (b) that the statement of claim must plead at least one reasonable cause of action that supports the granting of the relief the applicant seeks in the application. More particularly, “each element of the relevant civil wrong” of which the applicant complains must be “properly and discretely pleaded in the statement of claim”.[8]
(f)Fourth, although 13.05(2)(c) of the Rules does not require proof of the claim by evidence, it is permissible for the applicant to adduce evidence that is relevant to the relief sought.
(g)Finally, the Court retains a discretion not to make an order under r 13.05(2)(c) of the Rules even if the preconditions for making an order are satisfied.[9]
[6] Rathner; in the matter of Mildura Grand Pty Ltd (in liq) v Bendigo Skyrider Pty Ltd [2011] FCA 626 at [9].
[7] Under r 1.06(3) of the Rules, the rules of the Federal Court Rules 2011 (Cth) (FC Rules) identified in Schedule 1 to the Rules apply, with necessary changes, to general federal law proceedings. The FC Rules there identified include the rules of pleading.
[8] Macquarie Bank Limited v Seagle [2005] FCA 1239 at [24].
[9] See the authorities decided under Order 35A of the Federal Court Rules 1979 (Cth) referred to by Flick J in Speedo Holdings B.V. v Evans (No 2) [2011] FCA 1227 at [20].
MS IN’S PLEADED CASE, CLAIMS FOR RELIEF, AND EVIDENCE
In her amended statement of claim Ms In alleges the following facts:
Ms In commenced employment with Giri Australia on a casual basis on about 23 June 2021. At relevant times, Giri Australia was a national system employer within the meaning of s 14 of the FW Act. Ms In turned 20 years of age on 31 December 2021.
At all times, the Hospitality Industry (General) Award 2020 (the Award) applied to Ms In and Giri Australia in respect of Ms In’s employment. Ms In was classified as a Food and Beverage Attendant Grade 2 under the Award and Giri Australia was required to pay Ms In for the hours she worked in accordance with clauses 11.1, 11,4, 18.1, 18.4, 28.4 and 29.2 of the Award.
Between 23 June 2021 and 30 December 2021, the Award provided rates for junior employees who were 19 years of age engaged as casuals in the amounts described in paragraph 7 of the amended statement of claim.
Between 31 December 2021 and 23 March 2022, the Award provided rates for junior employees who were 20 years of age engaged as casuals in the amounts described in paragraph 8 of the amended statement of claim.
Between 23 June 2021 and 30 December 2021 and between 31 December 2021 and 23 March 2022, Ms In performed work for Giri Australia in the quantity (of hours) and categories described in the tables set out in paragraphs 9 and 10 respectively, of the amended statement of claim and was entitled to be paid the respective sums of $5,964.91 and $8,216.77 for a total of $14,181.68.
Between 23 June 2021 and 23 March 2022, Giri Australia paid Ms In the gross sum of $10,737 which resulted in an underpayment across this period of $3,444.68 in wage entitlements.
Giri Australia was required to make contributions to Ms In’s superannuation fund of 9.5% and then, from 1 July 2021, 10% in accordance with clause 27.2 of the Award.
Between 23 June 2021 and 30 June 2021 and between 31 June 2021 and 23 March 2022, Giri Australia was required to pay Ms In the amounts of $37.68 and $1,378.5, respectively in superannuation. Giri Australia did not make any contributions to Ms In’s superannuation.
On 22 March 2022, Ms In sent Mr Giri a text message in which she queried the amount paid to her by Giri Australia in respect of hours worked and fuel allowance (described as the 22 March Inquiry).
On 23 March 2022, Ms In sent two text messages to an employee of Giri Australia (Sanjay) in which she asked Sanjay who the new book keeper was and stated “I didn’t get paid how much I should have” (described as the 23 March Complaint and/or Inquiry).
Shortly after Ms In sent the text messages to Sanjay, Mr Giri telephoned Ms In and in that phone call, which involved a dismissal within the meaning of s 342 of the FW Act:
(a)Said words to the effect that Ms In “had gone behind my back”, referring to Ms In having made the 22 March Inquiry and 23 March Complaint and/or Inquiry;
(b)Said words to the effect that Ms In’s actions were “unprofessional”;
(c)Said words to the effect that he (Mr Giri) “no longer wanted to continue working” with Ms In;
(d)Said words to the effect that Ms In should “never contact” Mr Giri or Giri Australia again;
(e)Asked how much money Ms In wanted;
(f)Without waiting for Ms In’s answer sent $100 by way of direct deposit to Ms In; and
(g)Said words to the effect that Ms In should not attend for work again.
By making the 22 March Inquiry, Ms In exercised a workplace right by making an inquiry in relation to her employment pursuant to s 341(1)(c)(ii) of the FW Act.
By making the 23 March Complaint and/or Inquiry, Ms In exercised a workplace right by making a complaint and/or inquiry in relation to her employment, within the meaning of s 341(1)(c)(ii) of the FW Act.
The dismissal was motivated by reason of, or for reasons including, that Ms In had exercised her workplace rights to make the 22 March Inquiry and to make the 23 March Complaint and/or Inquiry.
On the basis of these alleged facts, Ms In relies on the following causes of action.
(a)A cause of action against Giri Australia based on its contravention of s 45 of the FW Act, that contravention consisting of Giri Australia contravening terms of the Award dealing with rates of pay;
(b)A cause of action against Giri Australia based on its contravention of s 45 of the FW Act, that contravention consisting of Giri Australia contravening a term of the Award dealing with payment of superannuation; and
(c)A cause of action against Giri Australia based on its contravention of s 340(1)(a)(ii) of the FW Act, that contravention consisting of Giri Australia dismissing Ms In because she exercised a workplace right.
Ms In also pleads the following facts in relation specifically to Mr Giri:
Mr Giri knew that Ms In had made complaints or inquiries in relation to her employment and that the dismissal was motivated by reason of, or for reasons including, that Ms In had exercised workplace rights.
Mr Giri dismissed Ms In on behalf of Giri Australia.
Mr Giri aided, abetted, counselled or procured the dismissal, or was by his actions knowingly concerned in or party to the dismissal.
This is said to crystallise in a cause of action that Mr Giri was a person involved in Giri Australia’s contravention of s 340(1)(a)(ii) of the FW Act within the meaning of s 550(2) and, because of s 550(1) is taken to have contravened s 340(1)(a)(ii) of the FW Act.
I am satisfied that the amended statement of claim filed in this matter and upon which Ms In relies complies with the rules of pleading and properly and distinctly pleads causes of action that support the granting of relief. In particular, I am satisfied that the facts alleged in the amended statement of claim establish that Giri Australia contravened ss 45 and 340(1)(a)(ii) of the FW Act and that Mr Giri was a person involved, within the meaning of s 550(2) of the FW Act, in Giri Australia’s contravention of s 340(1)(a)(ii).
THE DISCRETION TO GIVE DEFAULT JUDGMENT
The discretion to enter default judgment should be exercised with caution: Speedo Holdings BV v Evans (No 2) [2011] FCA 1227 at [20]. It is appropriate, when deciding whether to exercise the discretion, to have regard to “the nature of the default itself, any explanation provided for the default, the manner in which the party in default has conducted the proceeding to-date and whether the Court could have any confidence that a proceeding would henceforth be conducted in an orderly and proper manner”: BJ International Limited v Ashgar (No 2) [2013] FCA 580 at [13].
Ms In’s pro-bono counsel prepared comprehensive written submissions that identified the following considerations which, it was said, supported an order for default judgment. These were:
·The continuing nature of the respondents’ default which occurred over a significant period of time and in circumstances where both Giri Australia and Mr Giri had briefly participated in the proceeding; Giri Australia attended a directions hearing before Registrar Hird on 6 September 2022[10] and Mr Giri attended a directions hearing before Registrar Edwards on 4 October 2022 and on 29 November 2022 sent an email to the Court in relation to the proceeding. It was submitted that these “derisory” steps demonstrated that the respondents had knowledge of and capacity to participate in the proceeding and served to underscore the respondents’ failure to engage with the proceeding.
·The lack of any indication that the respondents intended to rectify their defaults or defend the proceeding. Instead, the Court was invited to infer from the matters identified above that both respondents intended to “maintain their delinquency”.
·The orders in respect of which the respondents were in default reflect and conform to the requirements of the Court’s rules and can therefore be said to accord with the common practice of the Court.
·The respondents’ default self-evidently was occasioning delay to the proceeding. The proceeding had not advanced past pleadings because of the respondents’ refusal to defend it.
·While the consequences for the respondents of default judgment were obvious, they had elected not to contest the proceeding and should not be spared those consequences as a result.
[10] Affidavit of Ms In dated 4 July 2023, [11].
I adopt these submissions as providing a cogent basis for the exercise of the discretion to award default judgment.
COMPENSATION
Although I consider it appropriate to award default judgment, I cannot simply award Ms In what she seeks by way of default judgment without further inquiry. I must be satisfied that the orders I make are reasonably supported by the materials before the Court. In this case, the materials relevant to making this assessment are the amended statement of claim and the affidavits of Ms In affirmed on 4 July 2023 and 5 October 2023. I have also been assisted by the written submissions prepared and the oral submissions made on Ms In’s behalf by Mr Murphy.
In this regard I note that although neither respondent appeared or was represented at the hearing on 8 February 2024, which would have provided the occasion to address the Court on matters going to compensation and/or penalties, I made orders creating an opportunity for both respondents to file and serve by 23 February 2024, a response to Ms In’s written submissions dated 6 February 2024 insofar as they addressed both of these topics. I made these orders in recognition of the fact that it was only in these submissions that Ms In first quantified the amount she sought in respect of non-economic loss and penalties; the basis for her claim for economic loss was set out in her amended statement of claim (underpayments) and affidavit dated 5 October 2023. Neither respondent filed any material responsive to these orders or indicated that they intended to do so.
Section 545 FW Act
Under s 545(1) of the FW Act this Court may make any order that it considers appropriate if the Court is satisfied that a person has contravened a “civil remedy provision”. That expression is defined in s 539(1) of the FW Act to include the provisions identified in column 1 of the table to s 539(2) of the FW Act. Column 1 includes ss 45 and 340(1) of the FW Act.
Section 542(2) of the FW Act identifies three types of order that the Court may make where a civil remedy provision has been contravened, including an order awarding compensation for loss that a person has suffered because of the contravention (s 545(2)(b)). However, these examples are not intended to limit the Court’s power under s 545(1).[11] To the extent that a limit does apply it reflects the governing consideration that any order must give effect to what the Court considers “appropriate”.
[11] James Cook University v Ridd [2020] FCAFC 123 at [155].
It is not controversial that s 545(1) empowers the Court to make orders that provide redress for economic loss as well as to compensate a person for pain and suffering, for loss of amenity or enjoyment of life and other intangibles which are not readily capable of arithmetic calculation.[12] In both cases there must be an appropriate causal connection between the loss suffered and the relevant contravention of the FW Act.[13] In determining whether this connection exists the Court will often be required to make projections about what would have been likely to occur had the FW Act not been contravened. This is an assessment that operates on probabilities and possibilities.[14]
[12] This was the expression adopted by Bromberg J in Ewin v Vergara (No 3) [2013] FCA 1311 at [39] which has been applied in the context of the FW Act: see, e.g. Clarke v Elite Systems Australia Pty Ltd (No 2) [2018] FCCA 2864 at [129]
[13] See Australian Licensed Aircraft Engineers Association v International Aviation Service Assistance Pty Ltd (2011) 193 FCR 526 at [423] per Barker J
[14] Construction, Forestry, Mining and Energy Union v Hail Creek Coal Pty Ltd [2016] FCA 1032 at [40] per Reeves J
Where a claim for general damages is made, the Court will be assisted by medical evidence, however this is not a necessary pre-condition to prove a compensable injury or condition nor to prove that a person has experienced hurt or injured feelings as a result of a contravention. [15] However, something more than mere assertion is required to justify an order for compensation for non-economic loss.
[15] Richardson v Oracle Corporation Australia Pty Ltd [2014] FCAFC 82 at [104].
The approach overall is for the Court to consider the detriment occasioned to the employee by the employer’s contravention of the FW Act, and the extent to which it is reasonable to compensate the employee for such consequences.[16]
[16] Aitken v Construction, Mining, Energy, Timberyards, Sawmills and Woodworkers Union of Australia – Western Australian Branch (1995) 63 IR 1 per Lee J when considering factors relevant to an award of compensation under s 170EE of the then Industrial Relations Act 1988 (Cth)
Compensation for contraventions of s 45 of the FW Act
Ms In seeks the amount of $4,860.86 as compensation for loss arising from the failure of Giri Australia to pay her wage entitlements and superannuation contributions.
In the amended statement of claim at paragraphs 7 to 19 (reproduced as Annexure A to this judgment) the amount claimed is fully particularised by reference to the prevailing rates of pay under the Awards, the hours worked by Ms In and amounts owing with allowance made for payments made by Giri Australia across the relevant periods. The claim amount of $4,860.86 comprises an amount of $3,444,68 in unpaid wage entitlement and $1,416.18 in unpaid superannuation contributions.
I am satisfied that the material before the Court supports this claim and that it involves a loss suffered by Ms In because of Giri Australia’s contraventions of s 45 of the FW Act.
Compensation for contravention of s 340(1)(a)(ii) of the FW Act
Lost income
Ms In seeks $19,591.29 in lost income. In her written submissions, which in turn referred to matters deposed to in Ms In’s affidavit of 5 October 2023, the following justification for the amount sought was given.
23.…Ms In intended to continue working for Giri Australia until at least around November 2023. This was the date that she was due to finish her degree at Monash University. In around April 2023, the remuneration that Ms In earned from her other employment exceeded what she considers she would have earned had she remained employed by Gir Australia, and accordingly Ms In only claims lost earnings for the period between 22 March 2022 to 1 April 2023. Ms In has no reason to doubt that, had Giri Australia not contravened the General Protections in the Act, Giri Australia would have continued offering her shifts after March 2022 and up until at least April 2023. Ms In’s conclusion is supported by the fact that Giri Australia consistently offered Ms In shifts between June 2021 and March 2022. For these reasons, an appropriate order for compensation in respect of Ms In’s claim under section 340 would include an order referable to her lost earnings in the period 22 March 2022 to 1 April 2023.
24.As to the quantum of those lost earnings, in the 16 weeks prior to her dismissal, Ms In averaged 20.96 hours of work per week, including 6.12 hours on a Saturday and 6.43 hours on a Sunday. Assuming that Ms In would have continued to perform those hours between 22 March 2022 and 1 April 2023, and applying the rates mandated by the Award throughout that time period, Ms In’s lost earnings total $36,640.87.
25.It is appropriate that from that amount be deducted the increased earnings that Ms In enjoyed between 22 March 2022 and 1 April 2023 at her other employment, Kmart. This deduction is proper because after Ms In was dismissed by Giri Australia she consequently became more available for shifts at Kmart. Ms In earned an average of $320 per week at Kmart by reason of her dismissal from Giri Australia.
26.When Ms In’s increased earnings at Kmart across the relevant period are deducted from her total lost earnings at Giri Australia, the lost earnings caused by her unlawful dismissal amount to $19,591.29…
I am satisfied that for the reasons elucidated above, the material that is before the Court supports a claim for compensation in the amount of $19.591.29 being an appropriate response to the loss in earnings suffered by Ms In because of Giri Australia’s contravention of s 340(1)(a)(ii) of the FW Act.
Damages for distress, hurt and humiliation
Ms In seeks $10,000 in general damages for distress, hurt or humiliation. The explanation advanced by Ms In for seeking this amount appears in the written submissions which, again, make reference to and incorporate Ms In’s affidavit evidence. They relevantly state:
28.The evidence establishes that Ms In’s dismissal caused her to feel substantial distress. She deposes to feeling “deeply betrayed” by Giri Australia and Mr Giri. The dismissal “upsets me to this day” and “I still feel anger and frustration when I think about it”. Ms In loved working in hospitality and in the Strange Concept restaurant and obtained a Certificate IV in Hospitality because she saw a future for herself in that industry. However, the dismissal caused her to lose her passion for hospitality and she has not returned to work in the hospitality industry since. She states that “the thought of working in a restaurant or café again makes me feel anxious and upset” because the thought of working in a restaurant provokes thoughts of “the way that Giri Australia dismissed me from my employment”. Ms In also lost friendships and the sense of community she derived from working at Strange Concept. Her sense of distress and the hurt she felt at losing a job she enjoyed affected her performance at university and she required repeated extensions on assignments and other tasks.
I accept that Ms In experienced some emotional hardship, including feelings of betrayal, anger and frustration as a result of her dismissal by Giri Australia and that these feelings have persisted well beyond the date of the dismissal and encroached on areas of her life including, importantly, her study.
I consider that an appropriate quantum of damages for pain and suffering in this case is $8,000. This takes into account that the purpose of damages is compensatory rather than punitive and that although Ms In’s evidence of injury transcended “mere assertion”, it was nonetheless fairly limited.
PENALTY
Power and principles
Subsection 546(1) of the FW Act provides that this Court may, on application, order a person to pay a pecuniary penalty the Court considers is appropriate if the Court is satisfied the person has contravened a “civil remedy provision”. As noted earlier, both ss 45 and 340(1) of the FW Act have this status.
Subsection 546(2) of the FW Act provides that the pecuniary penalty the Court may impose must not, where the person is an individual, be more than “the maximum number of penalty units referred to in the relevant item in column 4 of the table in subsection 539(2)” and, if the person is a body corporate, must not be more than five times “the maximum number of penalty units referred to in the relevant item in column 4 of the table in subsection 539(2)”. The maximum penalty units for a contravention of s 45 and s 340(1) of the FW Act at the relevant time are 60 penalty units for an individual, and 300 penalty units for a body corporate. Section 12 of the FW Act provides that “penalty unit” has the meaning given by s 4AA of the Crimes Act 1914 (Cth). The penalty unit provided for by s 4AA of that Act across the period of Ms In’s employment with Giri Australia was $222. Thus, $66,600 is the maximum penalty a corporation may be ordered to pay for each contravention of a civil remedy provision, and $13,320 is the maximum penalty an individual may be ordered to pay for each contravention of a civil remedy provision.
The approach to determining penalty was revisited by the High Court in the decision of Australian Building and Construction Commissioner v Pattinson & Anor [2022] HCA 13 (Pattinson). In that case, the majority upheld the Commissioner’s appeal and confirmed that the purpose of a civil penalty is primarily, if not solely, the promotion of the public interest in compliance with the provisions of the FW Act by the deterrence of further contraventions of the FW Act by those responsible and by (like) others. The Court rejected the approach implicit in the decision of the Full Court (the subject of the appeal) that a penalty must be proportionate to the seriousness of the conduct that constituted the contravention. The majority held instead that “[t]he power conferred by s 546 of the Act is not subject to constraints drawn from the criminal law and there is no place for a ‘notion of proportionality’…in a civil penalty regime”.[17] However, the Court did accept that s 546 requires the Court to ensure that any penalty “strikes a reasonable balance between deterrence and oppressive severity”.[18] It was only in this more qualified sense that the conception of “proportionality” had any role to play.
[17] Pattinson at [10].
[18] Pattinson at [41].
The High Court also referred to the several factors identified by French J in Trade Practices Commission v CSR Ltd [1990] FCA 521 which informed the assessment of a penalty of an appropriate deterrent value. The list revealed that both the circumstances of the contravenor and the circumstances of the contravention may be relevant to the assessment of whether the maximum level of deterrence is called for.[19] However, the Court repeated the caution that the list of possible relevant considerations should not be approached as a “rigid catalogue of matters for attention” and instead the task of the court remains to determine what is an “appropriate” penalty in the circumstances of the particular case.[20]
[19] Pattinson at [57].
[20] Pattinson at [18] and [19].
In Fair Work Ombudsman v NSH North Pty Ltd trading as New Shanghai Charlestown [2017] FCA 1301 at [36], Bromwich J set out the steps which are routinely followed in the assessment of penalties for contraventions of the FW Act:
(1)Identify the separate contraventions, with each breach of each obligation being a separate contravention, and each breach of a term of the Award being a separate contravention.
(2)Consider whether each separate contravention should be dealt with independently or with some degree of aggregation for those contraventions arising out of a course of conduct, noting that s 557 of the FW Act provides that two or more contraventions of a civil remedy provision are to be taken to be a single contravention if committed by the same person and arising out of a course of conduct by that person.
(3)Consider whether there should be further adjustment to ensure that, to the extent of any overlap between groups of separate aggregated contraventions, there is no double penalty imposed, and that the penalty is an appropriate response to what each respondent did.
(4)Consider the appropriate penalty in respect of each final individual group of contraventions, taken in isolation.
(5)Consider the overall penalties arrived at…and apply the totality principle, to ensure that the penalties for respondent are appropriate and proportionate to the conduct viewed as a whole, making such adjustments as are necessary: see Kelly v Fitzpatrick [2007] FCA 1080; 166 IR 14 at [30]; Australian Ophthalmic Supplies Pty Ltd v McAlary-Smith [2008] FCAFC 8; 165 FCR 560 at [23], [71] and [102].
What are the contraventions?
There are six contraventions – Giri Australia contravening s 45 of the FW Act by not paying Ms In her wage entitlements pursuant to: (i) clause 11 of the Award (casual loading); (ii) clause 28 of the Award (overtime rates) and; (iii) clause 29 of the Award (penalty rates); Giri Australia contravening s 45 of the FW Act by not making superannuation contributions to a superannuation fund for Ms In’s benefit pursuant to clause 27 of the Award; Giri Australia and Mr Giri contravening s 340(1) of the FW Act by dismissing Ms In from her employment;
Should any grouping of contraventions occur?
Ms In submits, and I accept, that beyond the grouping that occurs by virtue of s 557(1) of the FW Act (multiple instances of the same breach are taken to constitute a single contravention) it would be appropriate to group together the three underpayment contraventions in recognition of the interrelationship between the legal and/or factual elements of the contraventions. In this case, I accept that each of this first class of contraventions involved essentially the same conduct by Giri Australia in transacting Ms In’s pay; they were administrative in character.
As to the second class of contravention, being the failure of Giri Australia to pay any superannuation to Ms In, I accept the submission of Ms In that it should stand alone, in recognition of its separate legal character. It does however engage s 557(1) of the FW Act to the extent that it was a repeated failure that arose out of a course of conduct.
I accept that the third class of contravention (s 340(1)) was a singular contravention constituted by a discrete act and does not attract either the statutory course of conduct provision or common law course of conduct principles.
Assessing penalty for contravention of s 45 – underpayments
The following matters are relevant to assessing penalty for this contravention:
(a)The failure to pay Ms In wage entitlements prescribed by the Award had the effect of undermining the safety net that the FW Act establishes for minimum-wage workers;
(b)The contravention led to the loss of $3,444,68; not an insignificant amount;
(c)It can reasonably be inferred that the conduct was deliberate. I accept Ms In’s submission that this conclusion follows from the repetitive nature of the contraventions and the fact that, instead of engaging with Ms In’s complaints and inquiries regarding her pay, Giri Australia and Mr Giri chose to terminate her employment instead;
(d)There is no evidence that Giri Australia has engaged in any similar conduct;
(e)There is no direct evidence about the size of Giri Australia’s business although I infer that it was a small business, noting however that this consideration is not exculpatory;
(f)Mr Giri was a former director of Giri Australia and there is evidence before the Court that he had managerial responsibilities and had control over Giri Australia’s business transaction account.[21] There is at least some involvement in the contravention by senior management;
(g)Giri Australia has not exhibited any contrition, taken any corrective action, or cooperated with the process initiated to seek redress for its conduct. Instead, it has “thumbed its nose” at this proceeding;
(h)Ms In was a young worker at the time of her employment and, for this reason, can be regarded as “vulnerable” to contraventions of this kind;
(i)The penalty should incorporate a significant element for both general and specific deterrence. As to the first category, the penalty should be set at a level that will signal to employers, and to persons involved in the management of companies that employ people, that there will be a significant penalty to pay if they do not comply with provisions directed at minimum wage conditions. As to the second category, there is a need for specific deterrence in circumstances where Giri Australia remains registered and there is no evidence that it (and those individuals who sit behind it) have learnt any lessons from this proceeding.
[21] Affidavit of Michelle Rose In date 4 July 2023 at [28]-[29].
Ms In invites the Court to impose a penalty in the amount of $19,980 for this first contravention, representing around 30% of the maximum. I consider that this is appropriate.
Assessing penalty for contravention of s 45 – superannuation
The following matters are relevant to assessing penalty for this contravention:
(a)The failure to pay Ms In superannuation entitlements prescribed by the Award and by the FW Act had the effect of denying her an important entitlement which, by its nature, is difficult for an employee to monitor;
(b)The contravention led to the loss of $1,416.18, although in real terms (making allowance for returns on the superannuation fund) the loss was likely greater than this;
(c)It can reasonably be inferred that the conduct was deliberate. I accept Ms In’s submission that this conclusion follows from the repetitive nature of the contraventions and the fact that, instead of engaging with Ms In’s complaints and inquiries regarding her pay, Giri Australia and Mr Giri chose to terminate her employment instead;
(d)There is no evidence that Giri Australia has engaged in any similar conduct;
(e)There is no direct evidence about the size of Giri Australia’s business although I infer that it was a small business, noting however that this consideration is not exculpatory;
(f)Mr Giri was a former director of Giri Australia and there is evidence before the Court that he had managerial responsibilities and had control over Giri Australia’s business transaction account. There is at least some involvement in the contravention by senior management;
(g)Giri Australia has not exhibited any contrition, taken any corrective action, or cooperated with the process initiated to seek redress for its conduct. Instead, it has “thumbed its nose” at this proceeding;
(h)Ms In was a young worker at the time of her employment and, for this reason, can be regarded as “vulnerable” to contraventions of this kind;
(i)The penalty should incorporate a significant element for both general and specific deterrence. As to the first category, the penalty should be set at a level that will signal to employers, and to persons involved in the management of companies that employ people, that there will be a significant penalty to pay if they do not comply with the obligation to make superannuation contributions. As to the second category, there is a need for specific deterrence in circumstances where Giri Australia remains registered and there is no evidence that it (and those individuals who sit behind it) have learnt any lessons from this proceeding.
Ms In invites the Court to impose a penalty in the amount of $19,980 for this second contravention, representing around 30% of the maximum. I consider that this is appropriate.
Assessing penalty for contravention of s 340(1) of the FW Act
The following matters are relevant to assessing penalty for this contravention:
(a)The contravention consisted of Giri Australia dismissing Ms In because she had complained and made inquiries about her salary, this being a matter that was fundamental to her employment relationship with Giri Australia. The action Giri Australia took, dismissal, was as substantial an injury as Giri Australia could have inflicted on Ms In’s rights as an employee; although she was a casual employee she had been consistently offered shifts over a period of nine months. The dismissal was also deliberate. These are matters that weigh in favour of assessing penalty at the higher end of the scale;
(b)There is no evidence that Giri Australia or Mr Giri have engaged in any similar conduct;
(c)There is no direct evidence about the size of Giri Australia’s business although I infer that it was a small business, noting however that this consideration is not exculpatory;
(d)Mr Giri was a former director of Giri Australia and there is evidence before the Court that he had managerial responsibilities and had control over Giri Australia’s business transaction account. Mr Giri, as part of senior management, was directly involved in Ms In’s dismissal;
(e)Neither Giri Australia nor Mr Giri have exhibited any contrition, taken any corrective action, or cooperated with the process initiated to seek redress for their conduct. Instead, they have both “thumbed their nose” at this proceeding;
(f)Ms In was a young worker at the time of her employment and, for this reason, can be regarded as “vulnerable” to contraventions of this kind. It was a bold step for Mr Giri to take to immediately telephone Ms In following her pay inquiry and to terminate her employment on the spot;
(g)The penalty should incorporate a significant element for both general and specific deterrence. As to the first category, the penalty should be set at a level that will signal to employers, and to persons involved in the management of companies that employ people, that there will be a significant penalty to pay if they do not comply with the FW Act. As to the second category, there is a need for specific deterrence in circumstances where Giri Australia remains registered and there is no evidence that it (and those individuals who sit behind it) or Mr Giri have learnt any lessons from this proceeding.
I consider that a penalty that represents 35% of the maximum is appropriate in this case. This translates to a penalty of $23,310 for Giri Australia and a penalty of $4,662 for Mr Giri
Aggregation and totality
The penalties I have (provisionally) assessed are as follows (in the following table):
Contravening conduct
Giri Australia
Mr Giri
Contravention of s 45 FW Act – underpayments
$19,980 (30% of $66,600)
N/A
Contravention of s 45 FW Act – superannuation
$19,980 (30% of $66,600)
N/A
Contravention of s 340(1) FW Act – dismissal for proscribed reason
$23,310 (35% of $66,600)
$4,662 (35% of $13,320)
TOTAL
$63,270
$4,662
I propose to make a modest adjustment to the penalties imposed in the case of Giri Australia in recognition of the totality principle. No adjustment is warranted in the case of Mr Giri. The adjustment is to reduce the penalty for each contravention of s 45 of the FW Act from 30% to 25%) (resulting in a penalty of $16,650).
With this adjustment, the penalties are as follows:
Contravening conduct
Giri Australia
Mr Giri
Contravention of s 45 FW Act – underpayments
$16,650 (25% of $66,600)
N/A
Contravention of s 45 FW Act – superannuation
$16,650 (25% of $66,600)
N/A
Contravention of s 340(1) FW Act – dismissal for proscribed reason
$23,310 (35% of $66,600)
$4,662 (35% of $13,320)
TOTAL
$56,610
$4,662
To whom should penalties be paid?
Subsection 546(3)(c) of the FW Act provides that the Court may order that a pecuniary penalty be paid to a “particular person”. Ms In is comprehended by this description. In Sayed v Construction, Forestry, Mining and Energy Union [2016] FCAFC 4, at [116] the Full Court observed:
In this appeal…the policy considerations of s 546(3) “speak loudly” in the circumstances to justify the payment of the penalty imposed to the individual affected by the contravention who, under the authority of the FW Act, commenced and maintained this enforcement proceeding. If [the applicant] had not pursued the action, it is unlikely that it would have been pursued. He took on the proceeding at obvious cost to himself.
It is appropriate, and I therefore propose, to make an order under s 546(3)(c) of the FW Act that the penalties identified in paragraph [85] above be paid to Ms In.
ORDERS
I will order that Giri Australia, within 28 days, pay to Ms In compensation for economic loss in the amount of $19.591.29 and compensation for non-economic loss in the amount of $8,000. I will further order that within 28 days Giri Australia and Mr Giri pay pecuniary penalties to Ms In in the sums of $56,610 and $4,662 respectively.
I certify that the preceding eighty-eight (88) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Symons. Associate:
Dated: 29 February 2024.
“ANNEXURE A”
Amended Statement of Claim
(7)Between 23 June 2021 and 30 December 2021, the Award provided for the following rates for junior employees who were 19 years of age engaged as casuals:
(a)ordinary hourly rate: $23.08;
(b)evening work on a Monday to Friday: $25.45;
(c)Saturday hourly rate: $27.69;
(d)Sunday hourly rate: $32.31;
(e)public holiday hourly rate: $46.15;
(f)overtime performed on a weekend: $46.16.
(8)Between December 31 2021 and the Dismissal, the Award provided for the following rates for junior employees who were 20 years of age engaged as casuals:
(a)ordinary hourly rate: $27.15;
(b)evening work on a Monday to Friday: $29.52;
(c)Saturday hourly rate: $32.58;
(d)Sunday hourly rate: $38.01;
(e)public holiday hourly rate: $54.30;
(f)overtime performed on a weekend: $54.30.
(9)Between 23 June 2021 and 30 December 2021, Ms In:
(a)performed the number of hours of work for Giri Australia that are set out in the following table in the column marked ‘hours’,
(b)performed those hours in the categories in the following table in the column marked ‘categories’; and
(c)by reason of the matters in the preceding two sub-paragraphs and paragraph 7, was entitled to be paid the sum in the following table in the column marked ‘owing’:
Category
Hours
Owing
Ordinary hours (Monday to Friday between 7am and 7pm)
25
$577
Evening work (Monday to Friday between 7pm and midnight)
9.5
$241.77
Saturday
82.5
$2,284.42
Sunday
76.5
$2,471.71
Public holidays
4.45
$205.37
Overtime performed on a weekend
4
$184.64
Total
202.95
$5,964.91
(10)Between 31 December 2021 and the Dismissal, Ms In:
(a)performed the number of hours of work for Giri Australia as are set out in the following table in the column marked ‘hours’,
(b)performed those hours in the categories in the following table in the column marked ‘categories’; and
(c)by reason of the matters in the preceding two sub-paragraphs and paragraph 8, was entitled to be paid the sum in the following table in the column marked ‘owing’:
Category
Hours
Owing
Ordinary hours (Monday to Friday between 7am and 7pm)
79.75
$2,165.21
Evening work (Monday to Friday between 7pm and midnight)
8.75
$258.3
Saturday
68.5
$2,231.73
Sunday
78.7
$2,991.38
Public holidays
5
$271.5
Overtime performed on a weekend
5.5
298.65
Total
246.2
$8,216.77
(11)By reason of the matters in the preceding two paragraphs, Giri Australia was obligated under the Award to pay Ms In a total of $14,181.68.
(12)Between 21 June 2021 and 30 December 2021, Giri Australia paid Ms In a gross sum of $10,737.
(13)By reason of the matters above:
(a)in contravention of the Award, Giri Australia underpaid Ms In
$3,444.68 in unpaid wage entitlements;
(b)Giri contravened s 45 of the Act.
Underpayment of superannuation entitlements
(14)At all material times, the Award provided at clause 27.2 that an employer must make such superannuation contributions to a superannuation fund for the benefit of an employee as will avoid the employer being required to pay the superannuation guarantee charge under superannuation legislation with respect to that employee.
(15)From:
(a)21 June 2021 to 30 June 2021, the superannuation guarantee was 9.5%;
(b)1 July 2021 to the Dismissal, the superannuation guarantee was 10%.
(16)Between 21 June 2021 and 30 June 2021, Ms In:
(a)performed:
(i)2.5 ordinary hours;
(ii)4 evening hours; and
(iii)8.5 hours on a Saturday;
(b)by reason of the matters in the preceding paragraph and paragraph 7, was entitled to be paid $396.66 in wage entitlements;
(c)by reason of the matters in the preceding sub-paragraph and paragraph 15, in accordance with the superannuation guarantee was entitled to be receive $37.68 in superannuation contributions.
(17)Between 1 July 2021 and the Dismissal, Ms In:
(a)Performed:
(i)102.25 ordinary hours;
(ii)14.25 evening hours;
(iii)142.5 hours on a Saturday;
(iv)155.25 hours on a Sunday;
(v)9.75 hours on a public holiday;
(vi)9.5 hours of overtime on a weekend;
(b)by reason of the matters in the preceding paragraph and paragraphs 7 and 8, was entitled to be paid $13,785 in wage entitlements;
(c)by reason of the matters in the preceding sub-paragraph and paragraph 15, in accordance with the superannuation guarantee was entitled to receive $1,3785 in superannuation contributions.
(18)Throughout Ms In’s employment, Giri Australia did not make any contributions to Ms In’s superannuation.
(19)By reason of the above, Giri Australia:
(a)contravened clause 27.2 of the Award; and
(b)contravened s 45 of the Act.
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