Readdie v People Shop Pty Ltd (Penalty)

IN THE MAGISTRATES’ COURT OF VICTORIA
AT MELBOURNE
INDUSTRIAL DIVISION

Case No. N11679381

LAUREN READDIE	Plaintiff
and
PEOPLE SHOP PTY LTD T/AS ERUDITE LEGAL	Defendant

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MAGISTRATE:	K Fawcett
WHERE HELD:	Melbourne
DATE OF HEARING:	11 March 2025
DATE OF DECISION:	9 April 2025
CASE MAY BE CITED AS:	Readdie v People Shop Pty Ltd (Penalty)
MEDIUM NEUTRAL CITATION:	[2025] VMC 3

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INDUSTRIAL LAW – Fair Work Act 2009 (Cth) ss 44, 62(1), 323(1), 546, 547, 548, 557, 557A – Judiciary Act 1903 (Cth) s 79(1) – pecuniary penalty orders – course of conduct – whether a proceeding commenced as a small claim can be amended to a non-small claim proceeding – application of State laws as to amendment of pleadings when exercising federal jurisdiction – factors relevant to determining appropriate penalty – relevance of prior contraventions of senior manager – contrition, cooperation and corrective action – conduct of defendant during proceeding.

APPEARANCES:
For the Plaintiff	Lauren Readdie	Litigant in person
For the Defendant	Lulu Xu	Director

HER HONOUR:

INTRODUCTION

This proceeding concerns claims made by Ms Readdie under the Fair Work Act 2009 (Act) against her former employer People Shop relating to her employment as a solicitor between 17 February 2022 and 13 March 2022. I determined these claims on 27 November 2024 (Liability Decision) and made the following orders:
1. The Defendant is ordered to pay the sum of $7,913.84 to the Plaintiff.
2. The Defendant is ordered to pay the sum of $271.89 to the Plaintiff’s nominated superannuation fund.
3. The Defendant has contravened the following provisions of the Fair Work Act 2009 (Cth) (the Act):
a.s 44 of the Act, by contravening s 62(1) of the Act by requiring the Plaintiff to work more than 38 hours in the weeks of 14 February, 21 February and 7 March 2022, with those additional hours being unreasonable;
b. s 323(1) of the Act, by failing to pay the Plaintiff as required on 27 February 2022 and 27 March 2022;
c. s 535(1) of the Act, in respect of its payment to her of $1000 on 6 March 2022, by failing to keep pay records required by r 3.33 of the Fair Work Regulations 2020 (Cth) (the Regulations);
d. s 535(1) of the Act, in respect of the failure to keep overtime records required by r 3.34 of the Regulations;
e. s 535(1) of the Act, in respect of the failure to keep superannuation records required by r 3.37 of the Regulations; and
f. s 536(1) of the Act, in respect of its payment to her of $1000 on 6 March 2022, by failing to provide a pay slip containing the information set out in r 4.36 of the Regulations.
Section 546(1) of the Act provides that an eligible State or Territory court may order a person to pay a pecuniary penalty that the court considers is appropriate if the court is satisfied that the person has contravened a civil remedy provision. This decision concerns Ms Readdie’s remaining claim for the imposition of civil penalties in respect of People Shop’s contraventions of civil remedy provisions under the Act, along with interest pursuant to s 547 of the Act.
Ms Readdie filed written submissions regarding these matters in accordance with my directions. People Shop did not file any written material. Both parties made oral submissions at the penalty hearing on 11 March 2025. I have had regard to the parties’ submissions and the evidence and findings in the Liability Decision. This decision assumes familiarity with the Liability Decision and defined terms have the same meaning in both.

JURISDICTIONAL ISSUES

People Shop raised two jurisdictional issues. Firstly, People Shop contended that an amendment to Ms Readdie’s claim to remove her election that it be dealt with as a small claim pursuant to s 548 of the Act, and to add a claim for penalties, was invalid because s 548 does not permit such an amendment. Secondly, People Shop argued that the decision to allow Ms Readdie to amend her claim was invalid on procedural grounds.
At the relevant time,[1] s 548 of the Act provided:
[1]Between when Ms Readdie’s Complaint was filed on 8 August 2022 and when the relevant amendments were completed on 16 June 2023.
548 Plaintiffs may choose small claims procedure
(1)Proceedings are to be dealt with as small claims proceedings under this section if:
(a) a person applies for an order (other than a pecuniary penalty order) under Division 2 from a magistrates court or the Federal Circuit and Family Court of Australia (Division 2); and
(b)    the order relates to an amount referred to in subsection (1A); and
(c)the person indicates, in a manner prescribed by the regulations or by the rules of the court, that he or she wants the small claims procedure to apply to the proceedings.
(1A)      The amounts are as follows:
(a) an amount that an employer was required to pay to, or on behalf of, an employee:
(i)     under this Act or a fair work instrument; or
(ii)      because of a safety net contractual entitlement; or
(iii) because of an entitlement of the employee arising under subsection 542(1);
(b) an amount that an outworker entity was required to pay to, or on behalf of, an outworker under a modern award.
(1B) Proceedings are also to be dealt with as small claims proceedings under this section if:
(a) a person applies for an order (other than a pecuniary penalty order) under Division 2 from a magistrates court or the Federal Circuit and Family Court of Australia (Division 2) in connection with a dispute relating to one or more of the following matters:
(i) whether a casual employee meets the requirements of either or both of paragraphs 66B(1)(a) and (b);
(ii) whether an employer of a casual employee has reasonable grounds under section 66C not to make an offer to the employee to convert to full‑time or part‑time employment under section 66B;
(iii) whether a casual employee may make a request of an employer to convert to full‑time or part‑time employment under section 66F;
(iv) whether an employer of a casual employee has reasonable grounds under section 66H to refuse a request from the employee made under section 66F; and
(b) the person applying for the order indicates, in a manner prescribed by the regulations or by the rules of the court, that he or she wants the small claims procedure to apply to the proceedings.
[note omitted]
Limits on award
(2)       In small claims proceedings, the court may not award more than:
            (a)     $20,000; or
            (b)     if a higher amount is prescribed by the regulations—that higher amount.
Procedure
(3)        In small claims proceedings, the court is not bound by any rules of evidence and procedure and may act:
            (a)     in an informal manner; and
            (b)     without regard to legal forms and technicalities.
(4)At any stage of the small claims proceedings, the court may amend the papers commencing the proceedings if sufficient notice is given to any party adversely affected by the amendment.
Legal representation
(5) A party to small claims proceedings may be represented in the proceedings by a lawyer only with the leave of the court.
(6) If the court grants leave for a party to the proceedings to be represented by a lawyer, the court may, if it considers appropriate, do so subject to conditions designed to ensure that no other party is unfairly disadvantaged.
(7) For the purposes of this section, a person is taken not to be represented by a lawyer if the lawyer is an employee or officer of the person.
Representation by an industrial association
(8) The regulations may provide for a party to small claims proceedings to be represented in the proceedings, in specified circumstances, by an official of an industrial association.
(9) However, if small claims proceedings are heard in a court of a State, the regulations may so provide only if the law of the State allows a party to be represented in that court in those circumstances by officials of bodies representing interests related to the matters in dispute.
The relevant procedural history is as follows.
Ms Readdie elected on her Form 13A Complaint, as filed, to have the matter heard as a small claim, as provided for by the applicable rules of the Court.[2] She obtained a default order on her claim on 22 November 2022. On 1 December 2022, People Shop applied for a re-hearing in respect of the default order. On 22 December 2022, after People Shop’s application for re-hearing had been made but prior to its determination, Ms Readdie filed and served a document (the December Notice) stating as follows:
[2]Magistrates’ Court (Miscellaneous Civil Proceedings) Rules 2020 (MiscellaneousRules), r 13.02 and Form 13A.
APPLICATION FOR ORDERS IN RELATION TO CONTRAVENTIONS OF CIVIL REMEDY PROVISIONS: FAIR WORK ACT 2009 (CTH) S 539
In relation to complaint: N11679381
I wish to exercise the right afforded to me by s 540(1)(a) of the Fair Work Act 2009 (Cth) to request that orders be made against my former employer - People Shop Pty Ltd, trading as Erudite Legal - in relation to contraventions of civil remedy provisions. I cite the following eligible contraventions:
* s 44(1) An employer must not contravene a provision of the National Employment Standards
- s 61(2)(a) maximum weekly hours
- s 61(2)(e) compassionate leave
* s 323 Method and frequency of payment
(1) An employer must pay an employee amounts payable to the employee in relation to the performance of work:
(a) in full (except as provided by section 324); and
(b) in money by one, or a combination, of the methods referred to in subsection (2); and
(c) at least monthly.
People Shop’s re-hearing application was granted on 3 April 2023 by a Judicial Registrar, and the Judicial Registrar also ordered as follows:
The Plaintiff's [Complaint] is amended so that the proceeding is no longer a matter to which the Small Claims Procedure in s 548 of the Fair Work Act 2009 applies, and that the notice the Plaintiff filed on 22 December 2022 is taken to form an annexure to the Plaintiff's complaint (3 April Order).
At a Directions Hearing before me on 14 June 2023, Ms Readdie confirmed that she was pursuing civil penalties and that she had filed and served the December Notice. I confirmed that the Judicial Registrar had made the order referred to above. People Shop also sought particulars of Ms Readdie’s damages claim. I proposed that Ms Readdie file and serve an amended claim including her pecuniary penalty claim and particulars of her damages claim. People Shop submitted that this would be an appropriate course. I ordered:
1. On or before 16 June 2023 the Plaintiff has leave to file and serve an amended claim and particulars of claim including her claim for pecuniary penalties and her claim for general damages (which may be provided by way of attachments to the complaint).
2. On or before 23 June 2023 the Defendant is to file and serve any further defence to the amended claim.
On 16 June 2023, Ms Readdie filed a document (June Amendment) stating:
AMENDMENT TO PLAINTIFF'S CLAIM
Please note that on Page 6 of the Form 13A, the following section should be amended to read:
ORDERS SOUGHT
The plaintiff seeks orders that the defendant do either or both of the following:
Pay monies in the sum of the breaches claimed: $11,378.36 - as calculated in application.
Impose a penalty: Y - outlined in the document entitled Application for Orders in Relation to Contraventions of Civil Remedy Provisions'. Please also see document entitled 'Email sent 22 Dec'.
Do something else: An award of general and/or pecuniary damages, of an amount in the vicinity of $10,000 - $15,000, or other amount as awarded by the court - outlined in the documents entitled 'Application for … Orders in Relation to Contraventions of Civil Remedy Provisions and Applicant's Submissions Regarding the Possibility of Entitlement to Damages'.
People Shop did not subsequently file any amended defence, or otherwise take issue with Ms Readdie’s penalties claim. Instead, People Shop pursued its Conspiracy Application[3] and the proceeding then took the course summarised in the Liability Decision.[4]
[3]Liability Decision, [6].
[4]Ibid, [4]-[34].
Section 548 of the Act can be enlivened when a person applies for an order in respect of an amount that an employer was required to pay to, or on behalf of, an employee under the Act or a fair work instrument.[5] Where a person indicates that they want the small claims procedure to apply to proceedings, s 548 governs the procedure which this Court must apply to those proceedings.[6] The small claims procedure under s 548 of the Act cannot be used where a person seeks a pecuniary penalty order.[7]
[5]Act, ss 548(1), (1A)(a)(i).
[6]Ibid, s 548(1).
[7]Ibid, s 548(1)(a).
Section 548(4) deals expressly with amendment of the papers commencing a proceeding. The crux of People Shop’s first jurisdictional argument is that s 548(4) of the Act is a complete statement of the power of the Court to allow amendments to a small claim and does not empower the Court to allow an amendment from a small claim to a non-small claim. I accept People Shop’s contention that s 548(4) only operates insofar as a proceeding remains a small claim. I conclude that the purpose of s 548, as evident from its text, in the context of the compliance and enforcement regime established in Chapter 4 of the Act, is to establish a less onerous procedure for determining claims of low monetary value. The monetary limit for a small claim, at the relevant time, was $20,000.[8] Section 548 relaxes a number of aspects of practice and procedure commonly associated with the determination of civil claims. The court is not bound by rules of evidence and procedure and may act in an informal manner and without regard to legal forms and technicalities.[9] A party may only be represented by a lawyer with leave of the court, which may be granted conditionally so as to not unfairly disadvantage another party.[10] Representation by industrial associations is facilitated.[11] Viewed in this context, the amendment power in s 548(4) is a specific instance of the informality, absence of legal form and technicality referred to in s 548(3). It provides a court with broad power to allow amendments to a small claim at any stage, with the only procedural requirement being sufficient notice to a party adversely affected. Given this, I do not consider s 548(4) permits an amendment to a claim with the effect that s 548 no longer applies to that claim.
[8]Ibid, s 548(2).
[9]Ibid, s 548(3).
[10]Ibid, s 548(5), (6).
[11]Ibid, s 548(8), (9).
However, I do not accept that s 548(4) is a complete statement of the circumstances in which Ms Readdie’s claim may be amended. Section 548(4) is silent as to the procedure for amendment of a small claim to a non-small claim. As such, there is a ‘gap’ in respect of the applicable powers and procedure for such amendments.
In dealing with Ms Readdie’s claim, this Court is exercising federal jurisdiction. Section 79(1) of the Judiciary Act 1903 (Cth) provides:
(1) The laws of each State or Territory, including the laws relating to procedure, evidence and the competency of witnesses, shall, except as otherwise provided by the Constitution or the laws of the Commonwealth, be binding on all Courts exercising federal jurisdiction in that State or Territory in all cases to which they are applicable.
In Masson v Parsons[12] the High Court described the purpose and effect of s 79(1):
As was explained in Rizeq v Western Australia, the purpose of s 79(1) of the Judiciary Act is to fill a gap in the laws which regulate matters coming before courts exercising federal jurisdiction by providing those courts with powers necessary for the hearing and determination of those matters. In the case of a State court exercising federal jurisdiction … such a gap exists by reason of the absence of State legislative power to command a court as to the manner of its exercise of federal jurisdiction. In such cases, s 79(1) fills the gap by picking up the texts of State laws governing the manner of exercise of State jurisdiction and applying them as Commonwealth laws governing the manner of exercise of federal jurisdiction. …[13] [Citations omitted].
[12][2019] HCA 21.
[13]Ibid, [30], Keifel CJ, Bell, Gageler, Keane, Nettle and Gordon JJ; citing Rizeq v Western Australia (2017) 262 CLR 1, [15]-16], [32], Keifel CJ, [90],[103], Bell, Gageler, Keane, Nettle and Gordon JJ.
Accordingly, this Court may rely on the application of its own procedural rules as Commonwealth laws to fill the ‘gap’ left by s 548(4). Relevantly, Rule 36.01 of the Magistrates Court General Civil Procedure Rules 2020 (Vic) (GCP Rules) provides that at any stage in a proceeding, this Court may grant leave to amend any document (including a complaint or pleading) for the purpose of determining the real question in controversy between the parties to any proceeding, correcting any defect or error or avoiding multiplicity of proceedings. The Court may exercise any power under the rules of its own motion or on application of a party[14] and is also empowered to dispense with compliance with the requirements of the rules.[15] The Magistrates’ Court Act 1989 (Vic) (MC Act) provides that the Industrial Division of the Court is obliged to exercise its jurisdiction with the minimum of legal form and technicality.[16] I conclude that the application of these provisions pursuant to s 79(1) of the Judiciary Act empowered this Court to permit the amendment of Ms Readdie’s small claim to a non-small claim and to include her claim for pecuniary penalties. Accordingly, I reject People Shop’s first jurisdictional argument.
[14]Magistrates Court General Civil Procedure Rules 2020 (Vic), r 1.14.
[15]Ibid, r 2.04.
[16]MC Act, s 4(3C).
People Shop’s second jurisdictional argument is based on alleged procedural deficiencies associated with the Judicial Registrar’s decision. In particular, People Shop contends that the 3 April Order amended Ms Readdie’s claim on the Judicial Registrar’s own motion, without an application and (referring to Chief Commissioner of Police v Crupi)[17] with insufficient reasons. People Shop contends that the Court lacks jurisdiction accordingly.
[17][2024] HCA 34.
I conclude that I am entitled to proceed on the basis of the Judicial Registrar’s decision as it stands. Review of a Judicial Registrar’s determination is provided for under section 16K of the MC Act and the rules of the Court.[18] An application for review is required to be made, supported by affidavit, within 14 days after the date on which the determination was made.[19] No review in respect of the 3 April Order has been applied for or conducted. The matter was raised for the first time as a jurisdictional argument at the Penalty Hearing. Accordingly, I reject People Shop’s second jurisdictional argument.
[18]Magistrates' Court (Judicial Registrars) Rules 2015, Part 3.
[19]Ibid, r 16(2), subject to the discretion of the Court to extend time: r 16(3).
In any event, in addition to the 3 April Order, the amendments to Ms Readdie’s claim to include the pecuniary penalty claims were subsequently confirmed by way of the June Amendment. People Shop consented to my orders permitting this amendment and did not file any amended defence or otherwise take issue with the addition of these claims. Consistent with both the 3 April Order and the June Amendment, Ms Readdie’s claim was not heard as a small claim pursuant to s 548. It was heard and determined by the Court as an ordinary Industrial Division proceeding.

LEGAL PRINCIPLES FOR DETERMINING APPROPRIATE PENALTIES

The purpose of civil penalties is primarily, if not solely, the promotion of the public interest in compliance with the Act by both specific and general deterrence of further contraventions.[20] A civil penalty must be ‘fixed with a view to ensuring that it is not regarded by the contravenor or others as an acceptable cost of doing business.’[21] For the purpose of general deterrence, it is important to send a message that the relevant contraventions are serious and not acceptable.[22] An ‘appropriate’ civil penalty will not exceed what is reasonably necessary to achieve the deterrence of future contraventions of a like kind by the contravenor and others,[23] and will strike a reasonable balance between oppressive severity and the need for deterrence.[24] Both the circumstances of the contravenor as well as the conduct involved in the contravention may be considered, as both may bear on the need for deterrence.[25]
[20]Australian Building and Construction Commissioner v Pattinson (2022) 274 CLR 450; [2022] HCA 13 (Pattinson), [9].
[21]Ibid, [17], citing Singtel Optus Pty Ltd v Australian Competition and Consumer Commission (2012) 287 ALR 249, 265 [62].
[22]Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union [2017] FCAFC 113; 254 FCR 68; 271 IR 321, [98].
[23]Pattinson, [9].
[24]Ibid, [46]-[47].
[25]Ibid, [55].
The maximum penalty is one factor in determining an appropriate penalty, in that there must be some reasonable relationship between the theoretical maximum and the penalty imposed.[26] However, the maximum penalty is not to be applied ‘mechanically.’[27]
[26]Ibid, [10], citing ACCC v Reckitt Benckiser (Australia) Pty Ltd (2016) 340 ALR 25 (Reckitt Benckiser), 63 [156].
[27]Ibid, [53], citing Reckitt Benckiser, [155]- [156] (citations omitted).
Other factors which may be relevant to determining an appropriate penalty in respect of the Act include: the nature and extent of the contravening conduct; the amount of loss or damage caused; the circumstances in which the conduct took place; the size of the contravening company and its market power; the deliberateness of the contravention and the period over which it extended; whether the contravention arose out of the conduct of senior management or a lower level; whether the contravener has a corporate culture conducive to compliance or had taken corrective action; whether the contravenor has cooperated with authorities responsible for enforcement of the Act in relation to the contravention; whether there has been any similar previous conduct by the contravenor; whether the contravenor had exhibited contrition; and the need to ensure compliance with minimum standards by provision of an effective means for investigation and enforcement.[28] These factors are non-exhaustive and should not be applied as a checklist.[29] Consistent with Pattison,[30] deterrence remains the primary factor, with these other factors to be ‘seen through the prism of what is necessary to achieve deterrence.’[31]
[28]Ibid, [18]; citing Re Trade Practices Commission v CSR Limited [1990] FCA 521; (1991) ATPR 41-076; [42]; Kelly v Fitzpatrick (2007) 166 IR 14; [2007] FCA 1080, [14]. Ms Readdie referred also to Fair Work Ombudsman v Austop Natural Therapy and supplies Pty Ltd [2020] FCCA 2920, [64].
[29]Pattinson, [19].
[30]Ibid, [9].
[31]Fair Work Ombudsman v Sushi Bay Pty Ltd (in liq) (No 3) [2024] FCA 869 (Sushi Bay), [15]; Pattinson, [44].
Further, the principles of totality, parity and course of conduct derived from criminal sentencing may assist in the assessment of what is considered reasonably necessary to achieve deterrence.[32] Ultimately, as with criminal sentencing, determination of a civil penalty is an evaluative exercise, taking account the relevant factors through a process of ‘instinctive synthesis.’[33]
[32]Pattinson, [45].
[33]Sushi Bay, [18], citing Reckitt Benckiser, [44] and Flight Centre Ltd v Australian Competition and consumer Commission (No 2 ) (2018) 260 FCR 68, [55].
In considering appropriate penalties I have followed the established procedural approach as set out in Fair Work Ombudsman v NSH North Pty Ltd (NSH):[34]
(1)Identify the separate contraventions, with each breach of each obligation being a separate contravention, and each breach of a term … 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 given 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 ...
(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 … are appropriate and proportionate to the conduct viewed as a whole, making such adjustments as are necessary.[35]

CONSIDERATION OF APPROPRIATE PENALTIES

[34](2017) 275 IR 148.

[35]Ibid, [36] (citations omitted).

Identifying the contraventions

Step 1 is to identify each individual contravention. Ms Readdie contends that penalties should be imposed in respect of each of the contraventions referred to in my 27 November 2024 order, including contraventions of ss 535 and 536 of the Act. However, whilst Ms Readdie alleged contravention of these provisions in her Complaint, she did not state that she sought the imposition of penalties in respect of these contraventions in either the December Notice or the June Amendment. Those documents contain Ms Readdie’s pecuniary penalty claim. They state that her claim for penalties relates (relevantly) to contraventions of: s 44(1) of the Act in respect of s 61(2)(a) maximum weekly hours and s 323(1) of the Act in respect of non-payment.
Accordingly, I do not consider it was sufficiently apparent from Ms Readdie’s Complaint that she sought penalties in respect of contraventions of ss 535 and 536 of the Act. The imposition of penalties is a serious consequence and I consider People Shop was entitled to know which contraventions were the subject of the penalty claim. Despite having determined that People Shop contravened ss 535 and 536 of the Act, I consider the Court is confined to imposing penalties only in respect of those contraventions which Ms Readdie identified in the December Notice and the June Amendment.

Course of conduct considerations

Step 2 is to apply s 557 of the Act to ascertain whether there should be an aggregation for contraventions arising out of a course of conduct. Section 557 relevantly provides:
(1)For the purposes of this Part, 2 or more contraventions of a civil remedy provision referred to in subsection (2) are … taken to constitute a single contravention if:
(a)     the contraventions are committed by the same person; and
(b)     the contraventions arose out of a course of conduct by the person.
(2)        The civil remedy provisions are the following:
(a)section 44 (which deals with contraventions of the National Employment Standards);
…
(g)  subsection 323(1) (which deals with methods and frequency of payment); …

Unreasonable Hours Contraventions

There were three separate contraventions of s 44, for the weeks of 14 February, 21 February and 7 March 2022. In each case, People Shop required Ms Readdie to work more than 38 hours. Those additional hours were unreasonable, in contravention of s 62(1) of the Act. Ms Readdie contended that these should not be treated as a group or course of conduct, because in each week, the factors which made the hours unreasonable varied, and the conduct escalated, compounding on each occasion. People Shop did not make any submissions in respect of this contention.
Ms Readdie relied on the decision in Fair Work Ombudsman v Melotte (Melotte)[36] in support of her contention. In Melotte, the court considered an agreement reached between parties as to penalties. This included treating ‘unreasonable hours’ contraventions in respect of two different employees as two separate contraventions.[37] The Fair Work Ombudsman contended that because each employee worked their own roster, the requirement upon each of them to work unreasonable additional hours was separate and the matters relevant to determining whether additional hours are unreasonable were specific to each employee. The court accepted that the two contraventions should not be treated as a single course of conduct for the purposes of s 557.
[36][2024] FedCFamC2G 1318.
[37]Ibid, [5] (1(b)(iii) and (iv)).
The decision in Melotte does not expressly state how many contraventions occurred in respect of each employee. However, I infer there were multiple, given they related to rosters for a period of over two years.[38] In Melotte, the multiple contraventions for each employee were treated by the Court as a single contravention despite treating the individual employees separately. Here, the contraventions each related to Ms Readdie and occurred over successive weeks (leaving aside her absence from work).
[38]Ibid, [4] (8).
Accepting some specific matters as to Ms Readdie’s personal circumstances in each relevant week differed, many of the circumstances relevant to consideration of the unreasonableness of the requirement, both in respect of her circumstances and People Shop’s conduct, were common and cumulative. Accordingly, I consider People Shop’s ‘unreasonable hours’ contraventions comprise a course of conduct for the purpose of s 557 and that the Court is required to treat them as a single contravention. This is consistent with the treatment of multiple contraventions in respect of a single employee in Melotte. Accordingly, I will impose a single penalty in respect of the contraventions of s 44(1) of the Act in respect of s 61(2)(a) maximum weekly hours.

Failure to pay contraventions

There were two separate contraventions of s 323(1), in respect of each of the occasions People Shop failed to pay Ms Readdie as required by her Contract on 27 February 2022 and 27 March 2022.
Ms Readdie contended that these should not be characterised as a course of conduct for the purposes of s 557, as the failure to make the first payment may have been based on an inadequate or defective system, whereas the second could only be characterised as deliberate. People Shop did not make any submissions on this question. However, I do not consider that the differential matters raised by Ms Readdie derogate from the Court’s obligation to recognise these contraventions as a course of conduct and treat them as a single contravention pursuant to s 557. Accordingly, I will impose a single penalty in respect of the contraventions of s 323(1) of the Act.

Determining appropriate penalties

Ms Readdie contended that in determining appropriate penalties the Court should have regard to what she characterised as: People Shop’s deliberate and malicious evasion of its obligations; the higher standard required of an incorporated legal practice; previous contraventions of the Act by Mr Shivesh Kuksal (sole shareholder of People Shop); and People Shop’s abuses of process and the making of vexatious allegations against her in the proceeding with the intent to force her into abandoning her claim.
It was not in dispute that People Shop has not complied with my orders of 27 November 2024 which required compensation payments to be made to and on behalf of Ms Readdie to address the contravention of s 323(1) of the Act.
People Shop contended that it had not made those payments because it intends to challenge the Liability Decision on various grounds, along with this decision. People Shop further contended that the Court should not have regard to previous contraventions of the Act by Mr Kuksal.
In considering the appropriate penalty, I have had regard to these submissions, and have considered the relevant non-exhaustive factors[39] insofar as they are raised by the parties in submissions or by way of the evidence and findings in the Liability Decision. I have considered each of these matters in the context that they inform what penalty is reasonably necessary to achieve both specific and general deterrence of further contraventions.
[39]See paragraph 23.

Factors relevant to the Unreasonable Hours Contravention

The nature and extent of the Unreasonable Hours Contravention, the circumstances in which it took place and its impact on Ms Readdie led me to conclude in the Liability Decision that the contraventions were particularly egregious.[40] The nature and extent of the conduct is summarised in the Liability Decision as follows:
[136] The sheer number of hours [Ms Readdie] was required to work are, in my view, self-evidently excessive. The times of the day, night and weekends she was required to work were arbitrary and unusual. … The requirement that she work excessive hours whilst staying in a hotel room with Mr Kuksal and Ms Xu deprived her of any form of personal autonomy or agency without any rational justification apparent. Whilst performing the additional hours, Ms Readdie’s time was monopolised by People Shop. …. Mr Kuksal’s requirement that Ms Readdie watch the Ice Hockey movie, unrelated to her work, at around 1am on a Sunday morning after having already worked approximately 14 hours on a Saturday, and maintain communication with him whilst doing so, was on any view unreasonable.
[40]Liability Decision, [138].
The circumstances in which the conduct took place included that Ms Readdie’s employment with People Shop was her first job as a lawyer,[41] meaning she had no experience of how law firms ordinarily operate by which to judge the requirements on her.[42] Further, they included that Ms Readdie was rarely provided with notice of the hours she would be required to work, and was often not aware what time she would start or how long she would be required to work on any given day.[43]
[41]Ibid, [135].
[42]Ibid, [136].
[43]Ibid, [134].
The effect of the contravention on Ms Readdie was significant. The hours she worked contributed to an exacerbation of her pre-existing medical condition.[44] The requirement that she work unreasonable hours impeded her ability to make arrangements for her mother returning home from hospital after a serious illness, caused her to be unavailable to see her mother on her birthday, and she was required to work on a day for which she had sought and obtained leave to attend her former partner’s funeral.[45] The unreasonable hours impeded her capacity to obtain a reasonable amount of sleep and caused her to be isolated, both physically and in her capacity to communicate, from her family.[46] Further, in all the circumstances, they made her working environment so repugnant that it constituted a repudiatory breach of Contract leading to the end of her employment by way of her acceptance of that breach.[47]
[44]Ibid, [132].
[45]Ibid, [133].
[46]Ibid, [136].
[47]Ibid, [150].
Given my finding that Ms Readdie only worked when required by People Shop,[48] it is evident that People Shop’s requirement that Ms Readdie work the hours I have held to be unreasonable was deliberate.
[48]Ibid, [92].
The duration of the contravention was short, in the sense that it occurred only in three separate weeks. However, those three weeks comprised the entirety of Ms Readdie’s employment, save for her period of unpaid personal leave.[49]
[49]Ibid, [48]-[51].

Factors relevant to the Failure to Pay Contravention

The quantum of loss and damage sustained by Ms Readdie due to the contravention of s 323(1) is relatively modest. However, in context, the amount represented the whole of the salary Ms Readdie was entitled to for the entirety of her employment, save for the single $1000 payment made to her.
I conclude that People Shop’s contravention of s 323(1) of the Act was deliberate. The obligations in s 323(1) relate directly to the obligations on People Shop to comply with the terms of its own Contract with Ms Readdie. It failed to do so. In respect of the February Payment Month, the explanations provided to Ms Readdie were variously that it needed to be ‘clear to process’, that People Shop was waiting for another employee’s details to process both in the same pay run and the complexity of the payroll system.[50] However, there was no evidence to substantiate any administrative difficulty and I am not persuaded that this was a cause of the non-payment. In any event, the deposit of $1000 to Ms Readdie on 6 March 2022 illustrates that People Shop had capacity to pay Ms Readdie despite any issues with the payroll system. In addition, the failure to pay Ms Readdie for the February Payment Month occurred in the context of Mr Kuksal attempting to reduce Ms Readdie’s rate of pay for overtime hours by way of the Second Contract.[51] No attempt at all was made to pay Ms Readdie for the March Payment Month.
[50]Ibid, [50]-[51].
[51]Ibid, [88]-[89].
As with the unreasonable hours Ms Readdie was required to work, the failure to pay Ms Readdie was a repudiatory breach of the Contract, accepted by Ms Readdie.[52]
[52]Ibid, [150].
People Shop has not at any point accepted that it was required to pay Ms Readdie. Further, despite the Court’s order of 27 November 2024, People Shop has still not paid Ms Readdie the compensation she is owed. People Shop’s explanation for this is that it intends to challenge the Liability Decision, along with this decision. In the absence of a stay, the order stands, and People Shop has failed to comply with it. This illustrates a striking lack of contrition.

Factors relevant to both contraventions

Involvement of senior management/similar previous conduct by the Defendant

Ms Readdie contended that the decision of Alvarez Nino v Kuksal (No 4)[53] (Alvarez Nino) is relevant to determining penalty. Alverez Nino concerned underpayment claims by eight temporary residents in Australia on either international student or working visas. Mr Kuksal was the Respondent to the Applications. The Court held that Mr Kuksal was the employer of each Applicant,[54] and that Mr Kuksal had underpaid each Applicant pursuant to the applicable Modern Award. People Shop contended that the Court should not have regard to Alvarez Nino, because here, the Defendant is People Shop, which has not previously contravened the Act. It would be unfair to attribute Mr Kuksal’s prior conduct to People Shop, and nothing in the Act permits that to occur.
[53][2023] Fed CFamC2G 1051.
[54]Ibid, [298].
I accept People Shop’s submission that Mr Kuksal’s previous similar conduct cannot be attributed to People Shop, in a formal sense. These are the first contraventions of the Act by People Shop, and I have approached the matter on that basis.
However, Mr Kuksal was in reality ‘the boss’[55] of People Shop. He was the sole shareholder. Whilst not a Director, and whilst also described as the ‘client,’[56] it is apparent from the totality of the evidence that he was the key decision maker as to the activities of People Shop and in particular as to Ms Readdie’s hours of work and payment which gave rise to People Shop’s contraventions. It is well established that the involvement of senior management in a contravention may be relevant to determining an appropriate penalty, as are the circumstances of the contraventions, in a broad sense. In any event, the matters the Court may consider are not exhaustive. Ultimately, the primary purpose of the imposition of a penalty is both specific and general deterrence and the Court may have regard to any matter relevant to that purpose.
[55]Liability Decision [38].
[56]Ibid, [67].

I consider that previous similar conduct by senior personnel is capable of being relevant to both specific and general deterrence because an employer should have systems, processes or governance structures in place to protect against future contraventions by a senior manager who has engaged in similar previous conduct. However, whilst Mr Kuksal’s previous contraventions in Alvarez Nino relate to employment which occurred in 2017,[57] the findings of contravention were not made until 24 November 2023. The contraventions by People Shop in respect of Ms Readdie occurred in February and March 2022. Given no findings of contravention had been made at the relevant time, I have determined not to have regard to Mr Kuksal’s contraventions as found in Alvarez Nino. At the relevant time, it was not established that Mr Kuksal had engaged in similar previous conduct and in these circumstances, the additional deterrence objective I have identified does not arise.

Whether the breaching party exhibited contrition, took corrective action and cooperated with enforcement authorities

[57]Alvarez Nino, [111]-[202].

As I have outlined above in respect of the ‘failure to pay’ contravention, People Shop has exhibited no contrition for its contraventions and has taken no corrective action.
In addition, despite the multiple, overwhelmingly unmeritorious applications brought by People Shop, the number of hearings conducted and the number of interlocutory decisions made in the proceeding,[58] People Shop ultimately failed to engage at all with the substance of Ms Readdie’s Complaint and at no time articulated a viable defence to Ms Readdie’s claim.[59] It made no submissions in respect of the process which ultimately led to the striking out of most of its defence, and made no attempts to amend its defence subsequently. [60] It failed to comply with discovery orders and orders to file and serve any documents or a list of witnesses on which it relied. [61] It refused to cross examine Ms Readdie, and save for Ms Xu’s brief evidence, failed to call any witnesses at the final hearing and ultimately withdrew from the hearing.[62] People Shop’s conduct unduly lengthened the proceeding,[63] and Ms Readdie was required to prosecute her claim throughout this period, despite the absence of a substantive defence to her claim. I conclude that People Shop’s conduct during the proceeding demonstrates both a lack of cooperation and a lack of contrition.
[58]Liability Decision, [7].
[59]Ibid, [2]-[34].
[60]Ibid, [10].
[61]Ibid, [13].
[62]Ibid, [14]-[34].
[63]Ibid, [6]-[7].

Size of the business enterprise involved

Neither People Shop nor Ms Readdie made submissions as to this matter. There was no evidence before me as to People Shop’s current activities. Whilst I am satisfied People Shop is a small company, there was no evidence that this would limit its capacity to meet the imposition of a penalty or that to do so would cause undue hardship. Conversely, I am not persuaded that People Shop’s status as an incorporated legal practice requires the imposition of a higher penalty. Accordingly, this matter is neutral as to the penalty to be imposed..

Maximum penalties

Ms Readdie contends that the Court should impose the maximum penalties. Alternatively, she contended that there is a generally accepted practice of a ‘contrition discount’ of around 20 per cent for parties who have cooperated with Fair Work Ombudsman Investigations, displayed a genuine degree of contrition or who have already taken steps to pay remuneration ordered. Accordingly she contended, given People Shop’s absence of contrition, that any penalty should comprise no less than 20 per cent of the maximum.
Pursuant to s 546(2)(b) of the Act, the maximum penalty in respect of a contravention of a civil remedy provision for a body corporate is five times the maximum number of penalty units set out in the table at s 539(2) in respect of the relevant provision. In the case of each of the civil remedy provisions contravened, the table at s 539(2) provides that the maximum penalty for a serious contravention is 600 penalty units, or otherwise, 60 penalty units. Accordingly, the maximum penalty for a serious contravention for a body corporate is 3000 penalty units, or otherwise is 300 penalty units.
‘Serious contravention’ is defined in s 557A of the Act, as follows:
(1) A contravention of a civil remedy provision by a person is a serious contravention if:
(a) The person knowingly contravened the provision and
(b) The person’s conduct constituting the contravention was part of a systematic pattern of conduct relating to one or more other persons.
Ms Readdie contended that the contraventions are serious contraventions. However, to constitute a serious contravention, the person’s conduct must have been part of a systematic pattern of conduct relating to ‘one or more other persons’ (italics added). There is no evidence before me of any conduct of People Shop relating to any other person but Ms Readdie. In any event, the requirement in s 557A(6) that a person applying for an order in relation to a serious contravention must specify the relevant contravention in the person’s application has not been met, as the serious contravention allegation was first raised in Ms Readdie’s penalty submissions. I conclude that the contraventions are not serious contraventions within the meaning of s 557A of the Act.
The value of a penalty unit at the time of the contraventions was $222,[64] meaning the maximum penalty for each contravention is $66,600.
[64]Crimes Act 2014 (Cth), s 4AA.

Quantum of penalties to be imposed and totality considerations

Each of the above considerations must be evaluated as a whole in imposing an appropriate penalty for each contravention.
Ms Readdie’s employment was short, the underpayment was modest, and People Shop had not previously contravened the Act. These matters lead me to conclude that something less than the maximum penalties is sufficient to achieve general and specific deterrence.
However, the contraventions had a significant impact on Ms Readdie. The ‘unreasonable hours’ contravention was particularly egregious. The contraventions were deliberate. They were undertaken by Mr Kuksal, who was in reality the most senior person within People Shop. People Shop has shown no contrition, has taken no corrective action despite the order of the Court requiring it to make payment to Ms Readdie, and failed to cooperate throughout the proceeding, unduly lengthening the proceeding and failing to engage with or defend the substance of Ms Readdie’s claim. In light of these matters, I conclude that it is necessary to impose significant penalties in order to deter People Shop from future contraventions of the Act and to give effect to the purpose of general deterrence as to similar conduct by other employers.
Balancing all of these considerations, for the Failure to Pay contravention, I consider a penalty of $22,200 is appropriate. This represents a third of the maximum penalty. For the Unreasonable Hours contravention, I consider a penalty of $26,640 is appropriate. This represents 40 per cent of the maximum penalty. The total penalty to be imposed is $48,840.
The final step is to apply the totality principle, to ensure that the penalties are appropriate and proportionate to the conduct viewed as a whole, and make any adjustments necessary. I consider that the total penalty is appropriate and proportionate and no adjustment is required. I consider a total penalty of $48,840 is reasonably necessary to achieve objective of general and specific deterrence.

Who the penalties should be paid to

Pursuant to s 546(3), the Court may order that the penalty, or part of the penalty, be paid to the Commonwealth, a particular organisation or a particular person.
Ms Readdie submitted that she is not seeking to have the entire penalty paid to her, but a modest portion, with the balance payable to whichever recipient the Court sees fit. Ms Readdie seeks that she be awarded an amount which reflects her unsuccessful damages claim. She takes issue with the Court’s determination as to damages in the Liability Decision and contends that the Court should have raised and allowed her to address the identified pleading deficiencies at an earlier stage in the proceeding. She further seeks an amount which acknowledges the time she has been required to invest in prosecuting the proceeding.
People Shop made no submission as to who the penalties should be payable to.
The power in s 546(3) ‘is ordinarily to be exercised by awarding any penalty to the successful applicant.’[65] Whilst the Court may depart from that principle depending on the particular circumstances, Ms Readdie has not articulated who the penalty might otherwise be payable to or on what basis. I consider that it is appropriate in these circumstances, given Ms Readdie has brought the claim and prosecuted the proceeding, to order that the penalty be payable to Ms Readdie.
[65]Sayed v Construction, Forestry, Mining and Energy Union [2016] FCAFC 4, [101], [107].

INTEREST

Ms Readdie sought that the Court order interest in accordance with s 547(2). People Shop did not make any submission in opposition. Interest pursuant to s 547 is payable in relation to an amount that a person was required to pay to, or on behalf of, another person under the Act. Section 547(2) requires that on application, the Court must include an amount of interest in the sum ordered, unless good reason is shown to the contrary. No good cause has been shown to the contrary and accordingly, I will order that interest be paid by People Shop.
The sum required to be paid by People Shop to Ms Readdie pursuant to s 323(1) of the Act is $7845.23.[66] Interest is required to be determined taking into account the period between the day the relevant cause of action arose, and the date of the Court’s order. Ms Readdie’s cause of action in respect of the amount of $4106.01, being the amount remaining payable in respect of the February Payment Month, arose on 1 March 2022. Her cause of action in respect of the $3739.22 payable in respect of the March Payment Month arose on 29 March 2022.
[66]Liability Decision, [122]. This reflects the sum payable to Ms Readdie less amounts in respect of superannuation and reimbursement of expenses.
Section 547 does not specify the rate at which interest is to be calculated.[67] The Supreme Court Act 1986 (Vic) empowers the Court to award interest in accordance with ss 58, 59 and 60 at the rate specified in the Penalty Interest Rates Act 1983 (Vic), which is 10 per cent. Those provisions have no application to this proceeding in light of s 547. However, given the applicable rate is at the Court’s discretion, I determine to apply that rate as it is generally applicable to the Court when awarding interest. Accordingly, the interest payable to 28 March 2025 in respect of the February Payment Month is $1263.30 and in respect of the March Payment Month is $1,121.77. I will order that total interest of $2,385.07 be paid.
[67]In the Federal Court, this matter is addressed by way of the Interest on Judgments, General Practice Note, 18 September 2017, which has no application to this Court.

EVENTS SUBSEQUENT TO THE PENALTY HEARING

I reserved my decision following the penalty hearing on 11 March 2025. Subsequently, on 12 March 2025, Ms Readdie emailed the Court Registry attaching a screen shot of a Company Summary for People Shop stating its status as ‘Strike-Off Action in Progress.’ Her email stated ‘it appears that People Shop P/L is in the process of being wound-up’ and requested that the Court provide additional instructions in forthcoming orders about who will be liable for monies owed to her. I have determined not to have regard to the screenshot or email. I do not consider the screenshot to be determinative of the ongoing status of People Shop. Further, orders in the proceeding can only be made against People Shop, as the only Defendant.
On Tuesday 8 April 2025 at 9.45am, the Court Registry advised the parties that this decision would be handed down on Wednesday 9 April 2025 at 9.30am. At 10.20am on Tuesday 8 April 2025, Ms Xu emailed the Court Registry stating ‘the Defendant wishes to be heard in relation to the Plaintiff’s representations regarding its current registration [contained in the correspondence of 12 March 2025] as well as her reliance on the judgment of the Federal Circuit Court.’
I have determined to refuse the Defendant’s application to be heard, for the following reasons. Firstly, as I have not had regard to Ms Readdie’s email of 12 March 2025, it is unnecessary to hear from People Shop in respect of it. Secondly, People Shop has already had the opportunity to make submissions on the ‘judgment of the Federal Circuit Court’ during the penalty hearing, and did so, as reflected earlier in this decision. Thirdly, the application was not made in accordance with Order 46 of the GCP Rules, contrary to my order of 21 November 2023 requiring this. Fourthly, People Shop’s conduct in the proceeding has already occasioned undue delay, and no grounds were articulated as to why this application was not made until after the parties were notified that this decision would be delivered. Fifthly, in light of these matters, I consider it would be unjust to Ms Readdie to delay delivery of this decision.

ORDERS

Further and in addition to the orders of 27 November 2024, the Court orders:
1. Pursuant to s 546(1) of the Fair Work Act 2009 (Cth) (the Act), the Defendant is ordered to pay a pecuniary penalty of $22,200 for contravention of s 323(1) of the Act.
2. Pursuant to s 546(1) of the Act, the Defendant is ordered to pay a pecuniary penalty of $26,640 for contravention of s 44 of the Act in respect of s 62(1) of the Act.
3. Pursuant to s 546(3) of the Act, the Defendant is ordered to pay the sums referred to in Orders 1 and 2 to the Plaintiff.
4. Pursuant to s 547(2) of the Act, the Defendant is ordered to pay the sum of $2,385.07 to the Plaintiff in respect of interest.

[2025] VMC 3

9 April 2025