Scotto v Scala Bros Pty Ltd and Anor (No.2)
[2015] FCCA 2167
•13 August 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SCOTTO v SCALA BROS PTY LTD & ANOR (No.2) | [2015] FCCA 2167 |
| Catchwords: INDUSTRIAL LAW – Underpayments of employees over three legislative regimes, the Workplace Relations Act 1996, the Fair Work Act 2009 (“FW Act”) and the FW Act bridging period from 1 July 2009 to 31 December 2009 – pecuniary penalties – relevant considerations – appropriate approach to quantification of penalty when there is a course of conduct over three legislative regimes – grouping principle. |
| Legislation: Workplace Relations Act 1996, ss.719, 824 |
| Scotto v Scala Bros Pty Ltd & Anor [2014] FCCA 2374 Gibbs v The Mayor, Councillors & Citizens of the City of Altona (1992) 37 FCR 216 |
| Applicant: | PAUL SCOTTO |
| First Respondent: | SCALA BROS PTY LTD (ABN 66 000 104 870) |
| Second Respondent: | GIUSEPPINA BOSSI |
| File Number: | SYG 2333 of 2010 |
| Judgment of: | Judge Cameron |
| Hearing date: | 17 March 2015 |
| Date of Last Submission: | 17 March 2015 |
| Delivered at: | Sydney |
| Delivered on: | 13 August 2015 |
REPRESENTATION
| Counsel for the Applicant: | Mr M. Seck |
| Solicitors for the Applicant: | Thomson Geer |
| Counsel for the Respondents: | Mr B. Cross |
| Solicitors for the Respondents: | Australian Business Lawyers |
THE COURT DECLARES THAT:
The first respondent contravened cl.32 of sch.8 to the Workplace Relations Act 1996 (“WR Act”) in that in the period 1 December 2006 to 27 June 2009 in breach of cl.3 of the Notional Agreement Preserving the Shop Employees (State) Award (NSW) (“Shop NAPSA”) it failed to pay the applicant the entirety of his ordinary time wages.
The first respondent contravened cl.32 of sch.8 to the WR Act in that in the period 27 March 2006 to 27 June 2009 in breach of cl.3 of the Shop NAPSA it failed to pay the applicant overtime wages.
The first respondent contravened cl.32 of sch.8 to the WR Act in that in the period 27 March 2006 to 27 June 2009 in breach of cl.3 of the Shop NAPSA it failed to pay the applicant penalty rates payable to him for working on Saturdays.
The first respondent contravened cl.32 of sch.8 to the WR Act in that in the period 27 March 2006 to 27 June 2009 in breach of cl.3 of the Shop NAPSA it failed to pay the applicant a breakfast allowance.
The first respondent contravened cl.32 of sch.8 to the WR Act in that in the period 27 March 2006 to 27 June 2009 in breach of cl.3 of the Shop NAPSA it failed to pay the applicant annual leave loading payable to him.
The first respondent contravened item 2(1) of sch.16 to the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (“FW (TPCA) Act”) in that in the period 1 July 2009 until 31 December 2009 in breach of cl.3 of the award-based transitional instrument based on the Shop NAPSA it failed to pay the applicant overtime wages.
The first respondent contravened item 2(1) of sch.16 to the FW (TPCA) Act in that in the period 1 July 2009 to 31 December 2009 in breach of cl.3 of the award-based transitional instrument based on the Shop NAPSA it failed to pay the applicant a breakfast allowance.
The first respondent contravened s.45 of the Fair Work Act 2009 (“FW Act”) in that in the period 1 January 2010 until 5 May 2010 in breach of cl.A.2.3 of the General Retail Industry Award 2010 (“Retail Award”) it failed to pay Mr Scotto overtime wages.
The first respondent contravened s.536(1) of the FW Act in that in the period 1 July 2009 to 5 May 2010 it failed to provide the applicant with pay slips which met the requirements of the FW Act and the Fair Work Regulations 2009 (“FW Regulations”).
The first respondent contravened s.90(2) of the FW Act in that following the termination of his employment on 5 May 2010 it failed to pay the applicant his accrued but untaken annual leave entitlements.
The first respondent contravened s.45 of the FW Act in that following the termination of the applicant’s employment on 5 May 2010 in breach of cl.A.5.2 of the Retail Award it failed to pay the applicant annual leave loading on his accrued but untaken annual leave entitlements.
The first respondent contravened s.4(5) of the Long Service Leave Act 1955 (NSW) (“LSL Act”) in that following the termination of the applicant’s employment on 5 May 2010 it failed to pay the applicant the entirety of his long service leave entitlements.
The Second Respondent is taken to have contravened:
(a)cl.32 of sch.8 to the WR Act in that in the period 14 June 2009 to 27 June 2009 in breach of cl.3 of the Shop NAPSA she was involved in the first respondent’s failure to pay the applicant the entirety of his ordinary time wages;
(b)cl.32 of sch.8 to the WR Act in that in the period 14 June 2009 to 27 June 2009 in breach of cl.3 of the Shop NAPSA she was involved in the first respondent’s failure to pay the applicant overtime wages;
(c)cl.32 of sch.8 to the WR Act in that in the period 14 June 2009 to 27 June 2009 in breach of cl.3 of the Shop NAPSA she was involved in the first respondent’s failure to pay the applicant penalty rates payable to him for working on Saturdays;
(d)cl.32 of sch.8 to the WR Act in that in the period 14 June 2009 to 27 June 2009 in breach of cl.3 of the Shop NAPSA she was involved in the first respondent’s failure to pay the applicant a breakfast allowance;
(e)item 2(1) of sch.16 to the FW (TPCA) Act in that in the period 1 July 2009 to 31 December 2009 in breach of cl.3 of the award-based transitional instrument based on the Shop NAPSA she was involved in the first respondent’s failure to pay the applicant overtime wages;
(f)item 2(1) of sch.16 to the FW (TPCA) Act in that in the period 1 July 2009 to 31 December 2009 in breach of cl.3 of the award-based transitional instrument based on the Shop NAPSA she was involved in the first respondent’s failure to pay the applicant a breakfast allowance;
(g)s.45 of the FW Act in that in the period 1 January 2010 to 5 May 2010 in breach of cl.A.2.3 of the Retail Award she was involved in the first respondent’s failure to pay the applicant overtime wages;
(h)s.90(2) of the FW Act in that she was involved in the first respondent’s failure upon the termination of his employment on 5 May 2010 to pay the applicant his accrued but untaken annual leave entitlements; and
(i)s.45 of the FW Act in that upon the termination of the applicant’s employment on 5 May 2010 in breach of cl.A.5.2 of the Retail Award she was involved in the first respondent’s failure to pay the applicant annual leave loading on accrued but untaken annual leave entitlements.
The Second Respondent is deemed to have contravened s.4(5) of the LSL Act in respect of the first respondent’s failure to pay the applicant the entirety of his long service leave entitlements.
THE COURT ORDERS THAT:
Within twenty-eight days the parties file a draft short minute of orders giving effect to the Court’s findings on the question of compensation.
The first respondent pay penalties totalling $31,500 in respect of its contraventions of the WR Act, the FW (TPCA) Act, the FW Act and the LSL Act.
The first respondent pay those penalties to the applicant within twenty-eight days.
The second respondent pay to the applicant penalties totalling $6,000 in respect of her involvement in certain of the first respondent’s contraventions of the WR Act, the FW (TPCA) Act, the FW Act and in respect of her deemed contravention of the LSL Act.
Payment of the penalties ordered in order 4 be suspended until such time as the second respondent is found in any other proceeding to have committed, after the pronouncement of these orders, a contravention of the FW Act.
Orders 4 and 5 be wholly discharged at the conclusion of a two year period commencing upon the pronouncement of these orders if, during that period, the second respondent has not been found in any other proceeding to have committed, after the pronouncement of these orders, a contravention of the FW Act.
The applicant have liberty to apply for variation of orders 4 and 5 if, in the two year period commencing upon the pronouncement of these orders, the second respondent has been found in any other proceeding to have committed, after the pronouncement of these orders, a contravention of the FW Act.
The applicant pay the respondents thirty percent of their costs of the proceeding as agreed or taxed under pt.40 of the Federal Court Rules 2011.
The parties have liberty to apply in relation to the implementation of these orders.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2333 of 2010
| PAUL SCOTTO |
Applicant
And
| SCALA BROS PTY LTD (ABN 66 000 104 870) |
First Respondent
| GIUSEPPINA BOSSI |
Second Respondent
REASONS FOR JUDGMENT
INTRODUCTION
For much of the period from 1984 until 5 May 2010, the applicant in this proceeding (“Mr Scotto”) was employed by the first respondent (“Scala Bros”) to work at the combined delicatessen and café which it operated at the Flemington Markets in Sydney. In a judgment delivered on 17 October 2014 (Scotto v Scala Bros Pty Ltd & Anor [2014] FCCA 2374 (“first judgment”)), I found that Scala Bros had breached:
a)the Workplace Relations Act 1996 (“WR Act”) by failing to pay Mr Scotto any or all of his ordinary time wages, overtime, penalty rates for work performed on Saturdays, a breakfast allowance and annual leave loading in the period from 27 March 2006 to 30 June 2009;
b)the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (“FW (TPCA) Act”) by failing to pay Mr Scotto a breakfast allowance in the period from 1 July 2009 to 31 December 2009;
c)the FW (TPCA) Act and the Fair Work Act 2009 (“FW Act”) by failing to pay Mr Scotto overtime in the period from 1 July 2009 until the termination of his employment;
d)the FW Act and the Fair Work Regulations 2009 (“FW Regulations”) by failing to provide Mr Scotto with pay slips in the period from 1 July 2009 until the termination of his employment; and
e)the FW Act and the Long Service Leave Act 1955 (NSW) (“LSL Act”) by failing to pay Mr Scotto, upon termination of his employment on 5 May 2010, his accrued annual leave and leave loading and the entirety of his long service leave entitlements.
I also found that the second respondent (“Mrs Bossi”), who was a director of Scala Bros and is Mr Scotto’s aunt, was involved in Scala Bros’ contraventions from the point she became the proprietor of the business, 14 June 2009, and is therefore taken to have contravened the same provisions as Scala Bros contravened in the period 14 June 2009 to 5 May 2010: first judgment at [471]-[501] and [526]. However, through oversight, at [493] of the first judgment I failed to express a finding that Mrs Bossi had contravened s.536(1) of the FW Act because the pay slips issued to Mr Scotto during the time when she was proprietor of Scala Bros did not comply with reg.3.46 of the FW Regulations. Such a finding would have been the logical consequence of the finding at [492] of the first judgment that Mrs Bossi had been knowingly involved in that contravention by Scala Bros. However, as no application was made that I should address that oversight by making a finding that Mrs Bossi had, as an accessory, contravened s.536(1) of the FW Act because of the deficient pay slips, I will not do so and thus no question of the imposition of a penalty for such a contravention arises.
Additionally, at [518(c)] of the first judgment I found that Mrs Bossi was obliged, jointly with Scala Bros, to compensate Mr Scotto for a failure to pay annual leave loading in respect of annual leave taken by Mr Scotto in December 2008 and January 2009. This was an error. At [488] of the first judgment I found that the allegations of accessorial liability made against Mrs Bossi in respect of the period before 14 June 2009 had not been made out. For that reason, Mrs Bossi is not liable, as an accessory, to compensate Mr Scotto for Scala Bros’ failure to pay him annual leave loading in respect of the annual leave he took in December 2008 and January 2009. Further, that sub-paragraph referred incorrectly to the FW Act. It should, instead, have referred to cl.32 of sch.8 to the WR Act and to s.722 of that Act. It also should not have made reference to the General Retail Industry Award 2010 (“Retail Award”).
This stage of the proceeding is concerned with the amounts which should be paid to Mr Scotto in compensation and whether the respondents should be ordered to pay civil pecuniary penalties and, if so, in what amounts. These reasons are also concerned with the parties’ respective applications for costs pursuant to s.570 of the FW Act.
Pursuant to the first judgment the parties were ordered to file a draft short minute of orders giving effect to the Court’s findings on the question of compensation. The parties were able to agree on the quantification of the compensation to be ordered except on three issues in respect of which they sought further findings from the Court. Those issues were:
a)whether Mr Scotto worked on Easter Saturday during the relevant period: 28 October 2004 to 5 May 2010;
b)which days in the relevant years were public holidays; and
c)whether Mr Scotto’s annual leave and long service leave entitlements should be paid by reference to a weekly wage of $989 per week.
APPLICANT’S SUBMISSIONS
Compensation
Easter Saturdays
Mr Scotto submitted that the evidence was that Scala Bros was busiest during the Easter period. The wages book for 2010 recorded that Mr Scotto worked on Easter Saturday and his own evidence was that he had worked on all days that the shop was open, except when he took annual leave or leave without pay.
Mr Scotto submitted that Easter Saturday was a public holiday and that work performed on a public holiday was to be paid at the rate of double time and a half. He submitted that the Court should find that he had worked on Easter Saturdays, like any other Saturday, and was entitled to be paid the penalty rates applicable to public holidays for that work.
Accrued annual leave
Mr Scotto submitted that under s.90 of the FW Act he was entitled upon the termination of his employment to receive an amount in respect of accrued but untaken annual leave calculated at the base rate of pay to which he would have been entitled had he taken that leave. Under s.16(1) of the FW Act, his base rate of pay was the rate of pay “payable” to him for his ordinary hours of work. He argued that the FW Act did not define “payable” and submitted that the term referred to what was payable under the contract of employment and that that might be greater than the minimum rates prescribed by an applicable industrial instrument.
Mr Scotto submitted that the respondents had previously conceded that he was owed an amount for accrued annual leave calculated at his “ordinary rates at termination” of $800 per week. It was submitted that, consistent with this approach, the Court had made findings in the first judgment (at [418]-[421]) that Mr Scotto had received $989 gross per week in respect of “ordinary time hours” in the period immediately before the termination of his employment and that it followed that his entitlements in respect of annual leave on termination were to be calculated on the basis that his ordinary time wages were $989 gross per week.
Long service leave
Mr Scotto submitted that under s.4(5) of the LSL Act he was entitled upon the termination of his employment to receive an amount in respect of any accrued but untaken long service leave calculated at his ordinary rate of pay. It was submitted that “ordinary pay” had the same meaning as “ordinary remuneration” which was defined in s.3 of the LSL Act as:
… the remuneration for that worker’s normal weekly number of hours of work calculated at the time rate of pay fixed by the terms of that worker’s employment for his or her work under the terms of that worker’s employment …
Mr Scotto submitted that the legislation referred to contractual entitlements and that his long service leave entitlements on termination ought to be calculated at the rate of $989 gross per week.
Breakfast allowance
Mr Scotto submitted that the Court had found in the first judgment at [418] that he was entitled to receive a breakfast allowance of $6.70 until 31 December 2009. He submitted that the breakfast allowance between 27 March 2006 and 31 December 2009 had been $5.80 and that an amendment to [418] should be made to reflect the correct rate.
Penalties
Number of contraventions and maximum penalties available
Mr Scotto submitted that in order to determine the appropriate penalty to impose it was first necessary to identify the separate contraventions involved. He referred in this regard to Gibbs v The Mayor, Councillors & Citizens of the City of Altona (1992) 37 FCR 216 at 223 where Gray J held that each breach of each separate legal obligation imposed by the award was a separate contravention. Mr Scotto submitted that one had to examine the substance of the provision in order to determine whether or not a separate legal obligation had been created and that, in this case, each of the provisions of the Shop Employees (State) Award (“Shop Award”) which the respondents were found to have contravened constituted an independent obligation because they created different entitlements, prescribed different rates, had different purposes and operated differently.
Having regard to the “substance rather than the form” of Scala Bros’ legal obligations, Mr Scotto submitted that Scala Bros had committed eight separate contraventions, being:
a)the obligation to pay minimum wages for ordinary hours (cl.3(iii) of the Shop Award);
b)the obligation to make overtime payments (cl.15 of the Shop Award);
c)the obligation to pay penalty rates for Saturday work (cl.14 of the Shop Award);
d)the obligation to pay a breakfast allowance (cl.16 of the Shop Award);
e)the obligation to pay annual leave loading during annual holidays (cl.23 of the Shop Award);
f)the obligation to pay accrued but untaken annual leave on termination of employment (s.90(2) of the FW Act);
g)the obligation to pay accrued but untaken long service leave on termination of employment (s.4(5) of the LSL Act); and
h)the obligation to provide pay slips for each pay period (s.123(1) of the Industrial Relations Act 1996 (NSW) (“IR Act”), reg.19.22 of the Workplace Relations Regulations 2006 and s.536(1) of the FW Act).
It was submitted that the Court had found that Mrs Bossi had contravened the above provisions in respect of the period after 13 June 2009.
Mr Scotto submitted that overtime, breakfast allowance and penalty rates were independent obligations under separate terms which created different entitlements and should not be treated as a single contravention. He also submitted that the Court had made two separate findings in relation to unpaid annual leave and so underpayment of annual leave and annual leave loading ought not be treated as a single contravention. The first finding, it was submitted, concerned unpaid annual leave loading for annual leave that Mr Scotto had taken during his employment in breach of the Shop Award and the second finding concerned payments in respect of unpaid annual leave and annual leave loading on termination of employment in breach of the FW Act.
Mr Scotto submitted that the maximum pecuniary penalties that could be imposed were:
a)$33,000 for a body corporate and $6,600 for an individual for each contravention of the WR Act or the FW Act;
b)under s.357 of the IR Act, $10,000 for a contravention of an industrial instrument; and
c)$2,200 under s.10 of the LSL Act.
Mr Scotto submitted that Scala Bros’ breaches of the Shop Award were contraventions under the IR Act, the WR Act and the FW Act which created technically separate obligations to comply with that award. He acknowledged, however, that Scala Bros’ failure to comply with its obligations under the Shop Award involved a single course of conduct which commenced under the IR Act and continued under the WR Act and the FW Act. Consequently, the maximum penalties that could be imposed on the respondents were:
a)for five contraventions of the Shop Award – $165,000 for Scala Bros and $35,000 for Mrs Bossi;
b)for two contraventions of the FW Act and predecessor legislation in respect of annual leave and pay slips – $66,000 for Scala Bros and $13,200 for Mrs Bossi; and
c)for one contravention of the LSL Act – $2,200 for Scala Bros and $2,200 for Mrs Bossi.
Mr Scotto also submitted that the Court’s finding that Mr Carrano had been “generous” and “paternalistic” should not be considered a mitigating factor because:
a)the Court’s finding at [338] that Mr Carrano had been “generous” and “paternalistic” concerned the Red Book and not “the relevant period of the contraventions”;
b)in any event, Mr Carrano’s alleged “paternalism” breached statutory provisions which prohibit an employer from directing or controlling how an employee’s wages should be spent;
c)Mr Carrano’s “generosity” still resulted in the Court finding that Mr Scotto should be compensated for what was likely to be the highest amount awarded to a single employee in contested proceedings in Australian litigation history; and
d)there was no evidence that Mrs Bossi had made any effort to replicate Mr Carrano’s “generosity” by making any payments to Mr Scotto in addition to his weekly remuneration.
It was submitted that the respondents’ assertion that Mr Carrano had been attempting to adequately remunerate Mr Scotto in the form of these other payments was contrary to the Court’s finding at [331] that such payments did not form part of his remuneration.
Nature and extent of the conduct
Mr Scotto submitted that Scala Bros’ failure to pay him minimum wages for ordinary hours worked, overtime, Saturday penalty rates, annual leave, annual leave loading and long service leave were serious contraventions by any standard and, in the case of wages, overtime, penalty rates and allowances, persistent in nature. It was submitted that the underpayments took place over the entire duration of Mr Scotto’s employment of about twenty-five years, even though the Court found that he was only entitled to the amounts for the six year period before the commencement of the claim.
It was also submitted that the underpayments arose in part out of Scala Bros’ failure to keep accurate records in relation to Mr Scotto’s hours of work or to provide him with pay slips. It was submitted that these failures became the major source of the evidentiary dispute between the parties and that, had such records been kept and supplied, the litigation may have been avoided or its scope significantly reduced.
Mr Scotto submitted that the seriousness of the conduct was higher because the respondents’ evidence supported key parts of his claim. For example, even though Mrs Bossi’s evidence was that Mr Scotto had worked on Saturdays, the respondents continued to claim that the wages books accurately recorded his hours and days of work despite Saturdays not being recorded.
It was submitted that much of the proceeding was spent on the respondents’ claim that Mr Scotto had received other benefits as part of his remuneration, a claim which the Court ultimately rejected. It was submitted that those claims, being in breach of provisions based on the Truck Act, could never have been relied upon and, rather than being a mitigating factor as contended by the respondents, ought to be regarded as an aggravating factor when determining the penalties to be imposed.
Circumstances in which the conduct took place
It was submitted that Mr Scotto was a vulnerable worker who had been exploited. The circumstances of his vulnerability were said to include the fact that he had worked at Scala Bros chiefly with his step-grandfather, Mr Carrano, from the age of eighteen, had relied on Mr Carrano for much of his life in relation to both professional and personal issues, had lived with Mr Carrano for a large part of his early life and had come to trust that Mr Carrano would look after him. It was submitted that Mr Scotto was also functionally illiterate and had no knowledge about industrial relations matters or his entitlements under the relevant industrial instruments.
It was also submitted that Scala Bros did not comply with even the most basic legal obligations: its employment records were inaccurate and incomplete in significant respects, no pay slips were provided and no transparent process existed to account for the payment of wages or compliance with industrial relations laws. It was submitted that Scala Bros was unsophisticated when it came to human resources matters and failed to take any steps to ensure that Mr Scotto was paid in accordance with applicable laws and instruments.
Nature and extent of the loss
Mr Scotto submitted that, excluding interest, he was owed a total of $215,351.39 in respect of his underpayments, comprising the following amounts:
a)$4,456.74 for ordinary hours worked;
b)$126,339.82 for overtime and penalty rates;
c)$7,999.40 in respect of a breakfast allowance;
d)$56,768.60 in respect of annual leave;
e)$10,522.96 in annual leave loading; and
f)$9,263.87 in respect of long service leave.
It was submitted that this case represented the highest amount ordered by a Court for underpayment of employee entitlements under industrial laws and industrial instruments to a single employee in contested litigation in Australian history.
It was also submitted that should it be demonstrated that Scala Bros had insufficient funds to meet the underpayments, the Court could take this into account in ordering penalties against Mrs Bossi in respect of the contraventions.
Similar previous conduct
Mr Scotto submitted that there were no prior findings of contraventions of Commonwealth or State workplace laws by the respondents.
It was submitted, however, that given the Court’s finding that the wages books were not accurate in all respects it could be inferred that the records of other employees were also inaccurate, possibly resulting in similar underpayments. For example, while no one was recorded in the wages books as having worked on Saturdays for most of Mr Scotto’s employment, the uncontested evidence was that Scala Bros opened on Saturdays and that Saturday was their busiest day of the week.
Whether the contraventions arose out of a single course of conduct
Mr Scotto submitted that each group of contraventions arose out of a single course of conduct and should be treated as a separate course of conduct.
Mr Scotto submitted that where an employer has failed to comply with its obligations under an industrial instrument or industrial law, such a failure amounts to a continuing contravention because the obligation to make payments continues to apply until payment is made: Jones v Lorne Saw Mills Pty Ltd [1923] VLR 58 at 65-66, Brammer v Deery Hotels Pty Ltd (1974) 22 FLR 276 at 279, R v Industrial Appeals Court; Ex parte Barelli’s Bakeries Pty Ltd [1965] VR 615 at 620-622, Burgess v Kaputar Timbers Pty Ltd (1999) 91 IR 378 at 384. It was submitted that because the contraventions in this case arose out of single courses of conduct which began in 1983 and were continuing, the Court had to have regard to the contraventions and underpayments that occurred outside the six year period.
It was also submitted that the Court’s finding with respect to the six year limitation period applied only in relation to Mr Scotto’s claim for compensation and that there was no reason why the Court should not have regard to conduct outside the limitation period when considering the issue of penalty.
Size of the business
It was submitted that Scala Bros operated a busy retail shop which, based on the wages books, employed between about four to fourteen employees at any one time.
Mr Scotto accepted that Scala Bros had been a small business but argued that this did not excuse its failure to comply with award obligations: Kelly v Fitzpatrick (2007) 166 IR 14 at 21 [28]. It was submitted that the size of the business was not, in any event, a material factor in Scala Bros’ contraventions as the underpayments arose as a direct result of Mr Carrano’s instructions to Mrs Ciano to prepare wages books without regard to the actual hours worked by Mr Scotto.
Deliberateness of the contraventions
Mr Scotto submitted that there was no evidence that the contraventions were deliberate. However, the evidence showed that there was a high degree of recklessness involved, demonstrated by Scala Bros’ practice of creating inaccurate records concerning Mr Scotto’s hours of work, starting and finishing times and working days. It was submitted that such inaccuracies could not have been mere mistakes and that no adequate explanation had been provided for the significant inaccuracies leading to Mr Scotto’s underpayment and the need to litigate the case.
Involvement of senior management
Mr Scotto submitted that after Mr Carrano’s death, Mrs Bossi was the directing mind and will of Scala Bros and had chief responsibility for the conduct of its affairs. He submitted that the involvement of senior management in the contraventions was an aggravating factor in relation to penalty.
Contrition, corrective action and cooperation
It was submitted that the respondents had not expressed contrition for their conduct. To the contrary, they had defended the proceeding vigorously and did not, apart from one concession which was made in respect of annual leave after nine days of hearing, concede any points even when those points appeared to be inconsistent with their own evidence.
It was submitted that it had been necessary to adduce evidence concerning Mr Scotto’s employment over a twenty-nine year period because:
a)his length of continuous service was relevant to calculating his unpaid annual leave and long service leave;
b)the Court had to order penalties in respect of “continuing offences” for persistent breaches by the respondents of their obligations;
c)it was necessary to explain the circumstances surrounding the commencement of his employment, the nature of his personal and work relationships with Mr Carrano, the nature and circumstances of his employment, the manner in which remuneration was paid, the nature of Scala Bros’ business, the mixing of business and personal/family affairs, the circumstances leading to the underpayments, the continuous nature of the relevant breaches and the respondents’ poor record keeping; and
d)the evidence showed an ongoing and consistent pattern of conduct which in turn helped to prove the underpayments during the limitation period.
Deterrence
Mr Scotto submitted that the issue of specific deterrence was not an applicable factor in this case as Scala Bros had ceased to operate.
In relation to the issue of general deterrence, Mr Scotto submitted that it was necessary to send a message to the community at large, and to employers in particular, that employee entitlements had to be paid correctly and that employers had to comply with their obligations to keep accurate records and provide pay slips.
It was also submitted that the Court should take into account the message that was communicated to the industry in which Scala Bros operated: Flattery v The Italian Eatery t/as Zeffirelli’s Pizza Restaurant (2007) 163 IR 14 at 28-29 [63]-[66] and Plancor Pty Ltd v Liquor, Hospitality and Miscellaneous Union (2008) 171 FCR 357 at 369 [37].Mr Scotto submitted that employment in the retail industry, particularly in cafes and small retail shops, was dominated by vulnerable employees, usually young people and casuals. It was submitted that employers operating in circumstances similar to those of Scala Bros should be made aware that such contraventions and underpayments were unacceptable.
Mrs Bossi’s accessorial liability
It was submitted that the Court had found that after Mr Carrano’s death on 13 June 2009 Mrs Bossi had made all decisions of importance relating to the Scala Bros business and had had knowledge of the essential ingredients of the claims made against Scala Bros. Significantly, Mrs Bossi had authorised the change of hours in the wages books to reflect Mr Scotto’s hours of work and working days more accurately. She also modified the payment of wages by making a part-payment of Mr Scotto’s wage by direct deposit into his account and by part-payment in cash, which indicated that she had direct knowledge of the amounts that were being paid to him.
It was submitted that, relevantly, once Mrs Bossi became aware of Mr Scotto’s claims after he ceased employment, she made no proper inquiries but decided that his claims were unfounded even though a proper analysis of the wages records would have indicated some fundamental flaws that failed to accord with her own understanding of Mr Scotto’s hours of work and working days.
It was submitted that there were no mitigating factors in relation to Mrs Bossi’s conduct which would involve a significant discount of any penalty to be imposed upon her.
It was submitted that it would not be correct to overlay Scala Bros and Mrs Bossi as though they were the same individual. It was submitted that, in assessing penalties, the Court was required to treat the corporation and the individual as separate entities.
It was submitted that each of these factors were aggravating factors relevant to the amount of the penalty to be imposed against Mrs Bossi.
Amount of penalties
Mr Scotto submitted that the contraventions in this case were serious and repeated and, but for the six year limitation period, he would have been entitled to recover significantly more than he was to be awarded.
Mr Scotto also submitted that the respondents had made no admissions during the hearing but had defended the matter vigorously, had made claims for set-off and the repayment of a loan which were ultimately unsuccessful and had relied on employment records found to be misleading and inaccurate in several major aspects.
It was submitted that, having regard to these matters, little or no discount should be applied to the applicable maximum penalties, being $233,200 against Scala Bros and $50,400 against Mrs Bossi.
Mr Scotto submitted that the penalties should be paid to him.
Costs
Mr Scotto submitted that the respondents had engaged in a number of unreasonable acts which had caused him to incur costs in litigating this proceeding in that they had:
a)defended the proceeding based chiefly on matters contained in inaccurate wages books;
b)made inconsistent claims that the wages books were accurate but conceded that he had worked Saturdays and started and finished work at times inconsistent with the details set out in the wages book; and
c)made a claim for set-off and a cross-claim without any evidence, both of which were doomed to fail and unnecessarily increased costs. He submitted that substantial time had been spent refuting the respondents’ claim that the amounts contained in the ledgers should be set-off or taken into account when determining the payments to be made to him, or in prosecuting the cross-claim.
Mr Scotto submitted that the respondents had also acted unreasonably in failing to accept a reasonable offer to settle the case. By way of an offer of compromise dated 17 March 2011, Mr Scotto offered to accept $350,000 to settle the matter on the basis that each party should bear its own costs. That offer was made more than twelve months before trial and before significant costs had been incurred. It was submitted that even before penalties were taken into account, this offer was very close to the amount which Mr Scotto would now be paid by way of compensation and interest and the offer was also less than the amount to be awarded by the Court against the respondents in total once penalties were taken into account. It was submitted that in circumstances where there was an agreement between the parties that any penalties should be paid to Mr Scotto, the total of those penalties should be taken into account when determining whether he had bettered his offer.
It was submitted that the penalty to be imposed in this case was also a relevant factor on the question of costs and that there was nothing constraining the Court from having regard to all of the circumstances when ascertaining whether a party had acted unreasonably in refusing to accept an offer.
It was also submitted that although the Court found that Mr Scotto’s claims before 28 October 20014 were statute barred, evidence and submissions for the whole twenty-nine year period were relevant to the proceeding as a whole for the reasons summarised above at [40]. It was submitted that the respondents’ cross-claim also traversed matters which went outside the six year period and that Mr Scotto had had to meet that claim in defending the proceeding.
It was submitted that the Court had to consider whether there were, in fact, any real costs thrown away as a result of those parts of the claim which were brought outside the limitation period. It was submitted that if the Court was satisfied that they had had to be dealt with in any event in order to deal with other parts of the claim, for example for the purposes of determining the cross-claim and set-off, then no costs should be awarded to the respondents in respect of that period.
Mr Scotto submitted that, in light of these matters, he should be awarded costs under s.570(2) of the FW Act and s.824(2) of the WR Act.
RESPONDENTS’ SUBMISSIONS
Compensation
The respondents submitted that Mr Scotto’s claim for compensation in respect of annual leave and long service leave was calculated on the basis that he was a level 4 employee of the applicable award whereas the Court had found that he was a level 1 employee. They submitted that the weekly rate of $989 was not Mr Scotto’s ordinary base rate of pay as this rate incorporated overtime and Saturday work. They submitted that the correct rate of pay for a level 1 employee was $601.92 per week.
Penalties
Number of contraventions and maximum penalties available
The respondents submitted that in determining how many contraventions had occurred the correct focus was on whether the contraventions arose from common conduct which could be grouped: Fair Work Ombudsman v Lifestyle SA Pty Ltd [2014] FCA 1151 at [63] and Fair Work Ombudsman v Kentwood Industries Pty Ltd (No.3) [2011] FCA 579 at [32]-[34]. They submitted that the appropriate groupings in this case, and the maximum penalties for each, were:
Contravention
Scala Bros
Mrs Bossi
Minimum wages during ordinary hours
$33,000
$6,600
Overtime, Saturday penalties and breakfast allowance
$33,000
$6,600
Annual leave and annual leave loading
$33,000
$6,600
Long service leave
$2,200
$2,200
Pay slips
$33,000
-
Total
$134,200
$22,000
Whether a penalty is relevant in the circumstances
The respondents submitted that this was not an ordinary underpayment case where an employer knowingly paid vulnerable employees below standards or set up schemes in an attempt to avoid such standards. Rather, the evidence clearly showed that Mr Scotto had received, in addition to wages, significant payments from Mr Carrano in the form of cash benefits and expenses paid on his behalf. The respondents submitted that while the Court had made a finding (at [331]) that such payments were not to be treated as remuneration, nevertheless, they represented an attempt by Mr Carrano, in a generous and paternalistic way and in the context of a family business, to remunerate Mr Scotto adequately. It was submitted in this regard that Mrs Ciano had given evidence that Mr Carrano aimed to pay Mr Scotto $200 more than he was entitled to receive under the award, that Mr Scotto was the only employee who received such benefits and that these over-award payments were made throughout the period that she was working as Scala Bros’ bookkeeper (i.e. from 1985 to January 2008).
The respondents submitted that when the business became Mrs Bossi’s responsibility, she simply paid Mr Scotto what he, incorrectly and falsely, said he had been paid previously. It was submitted that there was no conscious decision by Mrs Bossi to deviate at all from the generous and paternalistic approach which had been adopted by Mr Carrano.
The respondents submitted that Mr Scotto was not in the position of someone being brought up to a level at which he should have been paid nor was he in any way short-changed.It was submitted that as a result of the Court’s earlier findings, Mr Scotto would effectively be receiving compensation, plus significant interest, for remuneration over award rates while retaining the expense and cash payments that were made to him over the award rate.
The respondents submitted that Scala Bros’ attempts at generosity and paternalism through Mr Carrano, together with the expense and cash payments actually made and Mrs Bossi’s best efforts to replicate that generosity, should in the unusual circumstances of this matter result in the Court not imposing any penalties on either respondent.
In the alternative, should the Court find that a penalty was appropriate in the circumstances, the respondents submitted that the following were relevant factors which should be taken into account when determining quantum.
Nature of the conduct, circumstances in which it took place and deliberateness
It was submitted that the contraventions occurred in circumstances where the respondents had been attempting, in a generous and paternalistic way, to make what in retrospect could be seen to be misguided payments to remunerate Mr Scotto. It was submitted that while their attempts to compensate him with greater payments were deliberate, the contraventions were not.
The respondents submitted that, importantly, the case which was put forward by Mr Scotto was not the case upon which he was successful. It was submitted that the Court specifically rejected the submission made by Mr Scotto that the wages books were designed to deceive, a submission which was necessitated by the fact that Mr Scotto’s “story” of gradual wage increases was entirely inconsistent with the figures which had been recorded in the wages books, the group certificates and his own tax returns. It was submitted that the Court had in fact found that the wages books were correct insofar as they recorded what Mr Scotto had been paid.
The respondents also submitted that the Court’s rejection of Mr Scotto’s evidence concerning the wages he had received, together with the significant credit findings which had been made against him, dispelled any suggestions that the litigation could have been avoided or its scope reduced had accurate records been kept. The respondents submitted that there were only two things which could have achieved a more prompt conclusion of the matter, namely, Mr Scotto conceding that he had received the amounts recorded in the wages books and the limitation of his claim to the appropriate limitation period, both of which he had not been prepared to do.
Nature and extent of the loss
It was submitted that Mr Scotto would not suffer any loss as the respondents had sufficient funds to meet the Court’s orders with respect to compensation and interest.
Similar previous conduct
It was submitted that neither of the respondents had ever been liable for similar previous conduct.
In relation to Mr Scotto’s submission that it could be inferred from the Court’s reasoning that other employees may have been similarly underpaid, the respondents submitted that this was incorrect and that the Court had in fact found at [323] that:
Finally, I reject any implication which may have been contained in Mr Scotto’s submissions that the wages books were designed to deceive. No evidence was adduced to the effect that Mr Carrano had any intention of that sort and I do not infer that Mrs Bossi’s continuation of his practices should be characterised in that way. Casualness with detail, even detail which the law requires be provided or recorded, is not synonymous with deception or dishonesty and I note that there was no suggestion that Mr Carrano had underpaid any other employee or been the subject of any complaint on that score.
Single course of conduct
The respondents submitted that the contraventions arose from a single course of conduct, being the decision to pay Mr Scotto by way of a combination of award wages, cash and expense payments.
The respondents submitted that Mr Scotto sought to subvert the six year limitation period by encouraging the Court to consider issues outside that period even though he was prohibited by s.357 of the IR Act from seeking penalties. They submitted that the only contraventions in relation to which he could seek relief where those which had occurred after March 2006.
Size of the business
The respondents submitted that Scala Bros was a very small business, particularly during the relevant limitation period. It did not employ a human resources adviser and was not a member of any employer or industry association.
Contrition and cooperation
The respondents submitted that it was wrong to suggest that they were not contrite simply because they had defended the proceeding vigorously and had made no concessions. It was submitted that concessions had in fact been made in relation to annual leave and that this was done later in the piece because Mr Scotto did not adequately particularise his claim with respect to what he said he was owed until days before the hearing.
The respondents also submitted that they were required (and at great cost) to defend the proceeding vigorously because Mr Scotto proceeded on an “extraordinary and unsustainable 29 year claim in the amount of $1,558,789.95” and on the basis of allegations as to his earnings that were not accepted by the Court. They submitted that in the circumstances they were bound to defend the proceeding.
The respondents further submitted that, far from being unco-operative, at an early stage in the proceeding on 26 November 2010 they sought an order for discovery and that documents covering the entire twenty-nine year claim period were produced in an attempt to dissuade Mr Scotto from proceeding or to at least limit his claim to the period within the limitation period.
Deterrence
The respondents submitted that no specific deterrence was required as Scala Bros had ceased to trade, while the need for general deterrence was at best very limited due to the unusual facts of the case. The respondents submitted by way of example that unlike the circumstances in Kelly v Fitzpatrick where a small incorporated family business agreed to a flat hourly rate in ignorance of the relevant instruments, in this matter there was a clear attempt, in a clumsy and familial way, to comply with award obligations by providing Mr Scotto with benefits to account for the manner and hours of his work. The respondents submitted that general deterrence should be directed in this case towards discouraging family groupings from trying to satisfy their obligations by alternate means. They submitted that this was a significantly smaller group than the general community and less requiring of deterrence.
Aggregate penalty
The respondents submitted that the penalties to be imposed in this case, if any, should be at the very lowest end of the scale. It was submitted in relation to Mrs Bossi in particular that the Court had found at [490] that:
I am willing to assume that Mrs Bossi was not aware that the failure to provide proper pay slips, overtime or a breakfast allowance were breaches of the Shop NAPSA and then the transitional provisions of the Retail Award, and thus of the WR Act and then the FW (TPCA) Act and the FW Act. I also assume that Mrs Bossi was not aware that Mr Scotto’s pay for the weeks ending 20 and 27 June 2009 was insufficient to satisfy his ordinary time wage entitlements, or his Saturday penalty rate entitlement. However, I find that she did know the essential facts constituting the contraventions and was an intentional participant in the relevant acts or omissions.
It was submitted that, in light of these findings and given that Mrs Bossi had had the responsibility of managing Scala Bros thrust upon her for a short period by the death of her father, Mrs Bossi was even less deserving of the imposition of any penalties.
It was also submitted that the legislature made it clear that individuals should have a maximum penalty of one fifth of a corporation. It was submitted that any penalty imposed upon Scala Bros would have the practical and real effect of significantly adding to whatever penalties might be imposed upon Mrs Bossi, possibly in excess of what would ordinarily be imposed on an individual.
Costs
The respondents submitted that Mr Scotto’s claim in relation to the period prior to 28 October 2004 was clearly statute barred and doomed to fail and so commenced without reasonable cause.
The respondents submitted that it was not reasonable of Mr Scotto to say that it had been necessary to traverse the entire period of his employment as background when he had made a claim for compensation in relation to a period outside the limitation period.They submitted that as this part of the claim was instituted without reasonable cause, which significantly and unreasonably increased the costs of the proceeding, they should be awarded half of their costs on a party and party basis. They submitted that this represented their best estimate of the time wasted addressing irrelevant issues relating to the period prior to 28 October 2004.
In relation to Mr Scotto’s offer of compromise, the respondents submitted that it was unreasonable to suggest that they should have accepted an offer which exceeded the amount to be awarded for compensation and interest. They also submitted that, prior to the Court embarking on a twelve day hearing, Mr Scotto could have accepted an offer of $150,000 but instead sought to “roll the dice” for $1,558,789.95.
The respondents submitted that they had not engaged in any unreasonable acts whereas Mr Scotto’s evidence was not accepted as to earnings and the Court relied partially or wholly on the wages books, group certificates and Mr Scotto’s tax returns.
CONSIDERATION
Compensation
Although the Court was advised that the parties could not agree on the three issues referred to above at [5], the respondents only made submissions on the third of them. I have reached the following conclusions in relation to the three issues in dispute.
Work on Easter Saturdays
Mr Scotto’s evidence was to the effect that he worked six days a week on the days when the markets were open and that the markets were not open on public holidays. Although I was not taken to any proclamations under s.19(1) of the Banks and Bank Holidays Act 1912 (NSW), which was repealed with effect from 31 December 2010, I am prepared to infer from the fourth schedule to that Act that Easter Saturday was generally proclaimed a public holiday in New South Wales under that Act. The Public Holidays Act 2010 (NSW) has provided from 31 December 2010 that Easter Saturday is a public holiday in New South Wales. Even so, based on Mrs Bossi’s evidence, I find that Scala Bros opened on Easter Saturdays. Indeed, based on the evidence of Mrs Bossi and Mrs Ciano, Easter was a busy time of year for Scala Bros.
I found in the first judgment that Mr Scotto’s standard work week was six days in length and Mrs Bossi’s evidence, which I accept, was to the effect that Mr Scotto worked on Easter Saturdays although perhaps not every one of them because he and his family used to like to go away and hire a boat.
In the absence of evidence concerning which Easter Saturdays Mr Scotto did not work, I find that he did work on each of them between 24 October 2004 and 5 May 2010.
Which days were public holidays
I have already found that in the relevant period Easter Saturday was observed as a public holiday in New South Wales and that Scala Bros opened on Easter Saturdays notwithstanding. However, that is not the complete answer to whether Mr Scotto was entitled to public holiday penalty rates for working on those days.
Clause 17 of the Shop Award dated 7 March 2001, reproduced in exhibit 6, provided that Easter Saturday was to be a holiday and that work done on that day was to be paid at double time and a half, with a minimum payment of three hours. That situation was not changed by variations to the Shop Award made on 31 January 2006, as subsequently corrected by Serial C6256 published at p.631 of vol.364 of the NSW Industrial Gazette on 30 November 2007 and relevantly reproduced in exhibit 6 – to the extent that an amendment after the commencement of Workplace Relations Amendment (Work Choices) Act 2005 could affect the terms of the notional agreement preserving state awards based on the Shop Award (“Shop NAPSA”).
From 27 March 2006 until 30 June 2009, s.611 of the WR Act provided a definition of public holiday which did not include Easter Saturday but which did provide for States to declare Easter Saturday as a public holiday. That situation continued under s.115 of the FW Act. As noted earlier I have found that in the relevant period Easter Saturday was observed as a public holiday in New South Wales.
I therefore find that Mr Scotto was entitled to be paid double time and a half for working on Easter Saturday in 2005, 2006, 2007, 2008, 2009 and 2010. The findings at [402] of the first judgment should be read subject to these comments.
Relevant rate of pay
According to Scala Bros’ wages books, Mr Scotto was paid a standard amount every week, the amount rising from time to time. The amount was paid whether he worked more or fewer hours, on public holidays or ordinary days and whether or not he was taking annual leave. There was no evidence that Mr Scotto and Scala Bros had discussed the characterisation of Mr Scotto’s weekly pay and so, for the reasons given in the first judgment at [413] to [421], there is no basis to set the amount by which Mr Scotto’s final pay exceeded his award-based ordinary time entitlements off against his other pecuniary entitlements under the Retail Award.
By analogy, it must be concluded that the pay Mr Scotto received from mid-2009 should be treated as payment for thirty-eight hours’ ordinary time work with a considerable over-award component. On that basis, Mr Scotto’s accrued annual leave entitlement and long service leave entitlement upon termination should be calculated by reference to his final weekly wage of $989 gross. In reaching this conclusion, I have not ignored that from early July 2009 the wages books recorded Mr Scotto working eight hours per day, six days per week which might suggest that some of his wages were apportioned to the overtime he worked on Saturdays. However, in the absence of any evidence to suggest that Mrs Bossi told Mr Scotto that a portion of his wages was being allocated to his Saturday overtime entitlement, then there is no basis to find that it should be.
Consequently, Mr Scotto’s accrued annual leave and long service leave entitlements on termination should be calculated by reference to an ordinary time wage of $989 gross per week.
Penalties
Relevant considerations
As Tracey J said in Kelly v Fitzpatrick at 18-19 [14], in Mason v Harrington Corporation Pty Ltd [2007] FMCA 7 Mowbray FM identified “a non-exhaustive range of considerations to which regard may be had in determining whether particular conduct calls for the imposition of a penalty, and if it does the amount of the penalty”. Tracey J adopted those considerations, describing them as follows:
· The nature and extent of the conduct which led to the breaches.
· The circumstances in which that conduct took place.
· The nature and extent of any loss or damage sustained as a result of the breaches.
· Whether there had been similar previous conduct by the respondent.
· Whether the breaches were properly distinct or arose out of the one course of conduct.
· The size of the business enterprise involved.
· Whether or not the breaches were deliberate.
· Whether senior management was involved in the breaches.
· Whether the party committing the breach had exhibited contrition.
· Whether the party committing the breach had taken corrective action.
· Whether the party committing the breach had cooperated with the enforcement authorities.
· The need to ensure compliance with minimum standards by provision of an effective means for investigation and enforcement of employee entitlements and
· The need for specific and general deterrence.
Considerations relevant to this case are:
a)the circumstances in which the conduct took place;
b)the nature and extent of the conduct;
c)the nature and extent of any loss or damage sustained as a result of the breaches;
d)whether there has been similar previous conduct by the respondents;
e)whether the breaches were properly distinct or arose out of the one course of conduct;
f)the size of the business enterprise involved;
g)the deliberateness of the breaches;
h)contrition and corrective action; and
i)the need for general deterrence.
The circumstances in which the conduct took place
It would probably be correct to describe Mr Scotto, at the time he commenced his employment with Scala Bros in 1984, as vulnerable. He was young, not very literate and was employed by and living with his grandmother and step-grandfather. In those days, when it came to matters associated with work, I think it most unlikely that Mr Scotto did anything other than what Mr Carrano asked of him and on the terms that Mr Carrano dictated. However, I am not persuaded that that situation did not change. As time went by, it is apparent that Mr Scotto became increasingly independent, to the extent of leaving his employment at Scala Bros on at least two and probably three occasions, one being for more than two years and the last break being in 2004 when he and his wife established the La Scala restaurant.
Nor am I persuaded that for the bulk of his employment Mr Scotto was underpaid or that advantage was taken of him. The great complicating factor in this matter has been Mr Carrano’s death and the consequent inability to obtain his explanation of the company’s records which has enabled Mr Scotto to make various allegations with little fear of contradiction. At this point it is worth repeating my findings at [343] of the first judgment that Mr Scotto was not entirely frank in his evidence and at [349] that some of his evidence reflected poorly on his credit. It should not be overlooked that the evidence of Mr Scotto’s witness, Mrs Ciano, was to the effect that Mr Carrano had aimed to pay Mr Scotto an amount that was $200 more than the amount to which he was entitled under the award and that Mr Scotto was the only employee who received above award wages, monetary benefits and had expenses paid on his behalf: first judgment at [188].
Scala Bros was a family business run on idiosyncratic and rather informal lines by Mr Carrano. However, the impression I have gained overall is that even if the formal requirements of industrial legislation, the Shop Award and the Shop NAPSA were not properly observed, Mr Scotto nevertheless was not underpaid under Mr Carrano’s proprietorship until, for reasons which follow at [109] and [110], 2005.
Further, I reject the submissions made on Mr Scotto’s behalf asserting breaches of statutory provisions based on the former Truck Act to the extent that they implied that Mr Carrano was thereby taking advantage of Mr Scotto. Also, the payment by Mr Carrano of Mr Scotto’s expenses did not amount to a serious breach of Truck Act provisions because I conclude that those payments should be treated as ones which Mr Scotto, in effect, wished Mr Carrano to make on his behalf, presumably for reasons of convenience. Most importantly, it was not demonstrated that this was a situation where Mr Carrano required Mr Scotto to accept his pay in a form other than cash. Indeed, the evidence indicated that if Mr Scotto had not had those expenses paid for him, the amounts in question would have been paid to him in cash. As I said in the first judgment at [336]:
It seems that the Red Book was not much more than a record of petty cash disbursements made by Mr Carrano to or for Mr Scotto with other, larger, cheque payments to or for him being recorded in the ledger. The sheets of figures and the ledger books also indicate that the cash disbursements and the cheques were taken into account when determining a final balance owing to Mr Scotto at the end of a particular financial year, although exactly how that was done is not clear.
Even though Mr Scotto would wish the Court to consider him relatively powerless in his relationship with Scala Bros, I have concluded that he worked there when it suited him and that no advantage was taken of him. In this regard, I note that after Mr and Mrs Scotto sold their share of the La Scala business because it was not a success, Mr Carrano accepted Mr Scotto back at Scala Bros as if he had not been absent – which has the consequence that Mr Scotto is entitled to long service leave in circumstances where he would not otherwise be so entitled.
Mr Scotto alleged on more than one occasion that he had believed that Mr Carrano would “look after” him. The basis of that assumption was never properly explained, or indeed justified, but I find that in fact Mr Scotto was looked after by being able to return to Scala Bros when he wanted employment and by being remunerated sufficiently, even if on an informal basis in contravention of the formal requirements of relevant statutes and instruments.
The nature and extent of the conduct
The conduct with which this case is concerned had two aspects. The first was Scala Bros’ failure to make payments in accordance with the applicable industrial legislation and industrial instruments. The second was the extent to which those failures resulted in Mr Scotto’s total remuneration being less than that to which he was entitled. A failure to make payments in accordance with the applicable industrial legislation and instruments does not necessarily mean that an employee’s total remuneration was less than that to which he or she was entitled. In the latter connection it is not to be forgotten, as noted in the first judgment at [420], that in Printing & Kindred Industries Union v Vista Paper Products Pty Ltd (1994) 57 IR 414 at 433 Wilcox CJ stated that the extent of an employee’s loss is a relevant consideration in determining whether or not to exercise the discretion to make an order for payment and that where there has been no significant loss, a court might justifiably decline to make an order for compensation. The extent of an employee’s loss is also relevant to the question of penalty.
In relation to the first aspect of Scala Bros’ conduct, I accept Mr Scotto’s submission that each breach of each separate legal obligation was a separate contravention and that Scala Bros:
a)breached the WR Act by contravening:
i)the obligation to pay minimum wages for ordinary hours;
ii)the obligation to pay penalty rates for Saturday work; and
iii)the obligation to pay annual leave loading during Mr Scotto’s employment;
b)breached both the WR Act and the FW (TPCA) Act by contravening the obligation to pay a breakfast allowance;
c)breached the WR Act, the FW (TPCA) Act and the FW Act by contravening the obligation to make overtime payments;
d)breached the FW Act by contravening:
i)the obligation to provide pay slips for each pay period;
ii)the obligation to pay accrued but untaken annual leave on the termination of Mr Scotto’s employment; and
iii)the obligation to pay annual leave loading on termination of employment;
e)breached the LSL Act by contravening the obligation to pay accrued but untaken long service leave on the termination of Mr Scotto’s employment.
For the same reasons I find that Mrs Bossi:
a)breached the WR Act by contravening:
i)the obligation to pay minimum wages for ordinary hours; and
ii)the obligation to pay penalty rates for Saturday work;
b)breached both the WR Act and the FW (TPCA) Act by contravening the obligation to pay a breakfast allowance;
c)breached the WR Act, the FW (TPCA) Act and the FW Act by contravening the obligation to make overtime payments;
d)breached the FW Act by contravening:
i)the obligation to pay accrued but untaken annual leave on the termination of Mr Scotto’s employment; and
ii)the obligation to pay annual leave loading on termination of employment; and
e)breached the LSL Act by contravening the obligation to pay accrued but untaken long service leave on the termination of Mr Scotto’s employment.
Although Mr Scotto submitted that Scala Bros had contravened the IR Act by failing to provide pay slips, he did not demonstrate that under the IR Act failure to provide adequate pay slips was punishable by a civil penalty, rather than as a prosecutable offence, and that he might therefore have standing to raise the issue. Nor did he seek to address the finding at [467] of the first judgment that he did not have standing to seek a civil penalty under the WR Act, which should have been a reference to the Workplace Relations Regulations 2006, for so much of the failure to provide proper pay slips as occurred between 27 March 2006 and 30 June 2009. These matters will be taken into account when determining penalty.
In relation to the second aspect of Scala Bros’ conduct, although Mr Scotto asserted that he had been underpaid from the commencement of his employment, according to annexure 31 to Mrs Bossi’s affidavit affirmed 15 September 2011, the general ledger records that, at least until 2004, he was receiving amounts in addition to the weekly wages recorded in the wages books. In the absence of Mr Carrano and given the reservations I have concerning the weight which may be attached to Mr Scotto’s evidence as explained in the first judgment at [343] to [349], I am not prepared to infer that Mr Scotto suffered a material underpayment of his wages at any point prior to 2005. I also note that until 30 November 2006 even the wages recorded in the wages books against Mr Scotto’s name exceeded his ordinary time entitlements.
However, according to the same annexure to Mrs Bossi’s affidavit, the ledgers do not record any cheque payments being made to or for Mr Scotto in the 2005/06, 2006/07, 2007/08 and 2008/09 financial years. In those circumstances I am willing to infer that a period of underpayment of Mr Scotto’s full entitlements commenced in the 2005/06 financial year.
Nature and extent of any loss or damage
Mr Scotto’s breakdown of his underpayments has been set out earlier in these reasons at [27]. Given that the parties were largely agreed on the quantification of compensation due to Mr Scotto and that, to the extent that they did not agree, I have found in favour of Mr Scotto’s contentions, I accept that the calculation which he has provided is accurate enough for present purposes and that Mr Scotto is entitled to compensation of more than $200,000. That is a very significant amount. However, it is also somewhat misleading. In this connection, the following matters should be noted:
a)Mrs Bossi’s overpayment of Mr Scotto’s ordinary time wages amounted to more than $17,000;
b)if Mr Carrano had not accepted Mr Scotto’s return to Scala Bros in 2004 after what I characterise to have been a resignation when he went to work at La Scala, Mr Scotto would not have been entitled to long service leave;
c)it is almost certain that Mr Scotto was provided his breakfast by Scala Bros and thus the claim for a breakfast allowance seems opportunistic; and
d)the general ledger’s record of payments to Mr Scotto on account of annual leave suggests that he took more leave than the wages books recorded, with the consequence that the entitlement which is strictly his right according to the first judgment is probably greater than the amount to which he would have been entitled if Scala Bros had kept proper records. Similar considerations apply to his outstanding entitlement to annual leave loading on accrued annual leave.
Whether there has been similar previous conduct by the respondents
Mr Scotto accepted that the respondents had not previously been found to have contravened industrial laws or instruments but submitted that it might be inferred that other employees’ records were probably inaccurate, possibly resulting in similar underpayments. Although the inference is inescapable that Scala Bros’ inattention to detail applied just as much to other employees as it did to Mr Scotto and occurred over many years, that is an insufficient basis to conclude, particularly in the absence of any known complaint by any of those employees, that any other employee was underpaid.
Whether the contraventions arose out of a single course of conduct
Although some of the contraventions which have been found to have occurred persisted from one legislative regime to another and thus could attract penalties under more than one statute, it would not be appropriate to impose penalties other than on the basis that many were continuing courses of conduct. In Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v Carlton Sheet Metal Pty Ltd [2011] FMCA 536, I said at [91] and [92]:
Generally, it would not be appropriate to impose more than one penalty in respect of a single course of conduct even it [sic] results in more than one contravention. It was said in Pearce v R (1998) 194 CLR 610:
To the extent to which two offences of which an offender stands convicted contain common elements, it would be wrong to punish that offender twice for the commission of the elements that are common. No doubt that general principle must yield to any contrary legislative intention, but the punishment to be exacted should reflect what an offender has done; it should not be affected by the way in which the boundaries of particular offences are drawn. Often those boundaries will be drawn in a way that means that offences overlap. To punish an offender twice if conduct falls in that area of overlap would be to punish offenders according to the accidents of legislative history, rather than according to their just deserts. (at 623 [40] per McHugh, Hayne and Callinan JJ)
In Mornington Inn Pty Ltd v Jordan (2008) 168 FCR 383 at 397 [42], Stone and Buchannan JJ accepted the proposition that:
Where there are truly two or more incursions into criminal conduct, consecutive sentences will generally be appropriate. Where, whatever the number of technically identifiable offences committed, the prisoner was truly engaged upon one multi-faceted course of criminal conduct, the judge is likely to find concurrent sentences just and convenient. (Attorney-General (SA) v Tichy (1982) 30 SASR 84 per Wells J at 93)
In Construction, Forestry, Mining & Energy Union v Williams (2009) 262 ALR 417 the Full Court of the Federal Court recognised that sometimes a single act of offending conduct will comprise two or more technically identifiable offences. The court recognised that there will be instances where the interrelationship of multiple offences is so intimate that those offences can only be said to arise from a single course of conduct and that in such an instance injustice can only be avoided by imposing concurrent terms, otherwise the offender would be punished more than once for the same criminality. In that case, it was held that it was appropriate to take the single course of conduct into account by imposing separate fines for the two offences which, when aggregated, would represent a single penalty appropriate to punish the single course of conduct concerned.
In this case I am satisfied that, whatever the number of technically identifiable contraventions, Industry Access’s failure to comply with its obligations under the Superannuation Award was a single course of conduct which commenced under the WRA and continued under the FWA. I am of the same view in relation to its failure, under the WRA and the FWA and in breach of the Award, to pay sums in lieu of notice. …
Such an approach reflects one aspect of the “Grouping Principle” referred to by Mansfield J in Fair Work Ombudsman v Lifestyle SA and is appropriate to be applied in this case. I therefore find that although each breach of each separate legal obligation was a separate contravention, each continuing contravention was a course of conduct and that Scala Bros committed nine separate contraventions, being its breaches of:
a)the obligation to pay minimum wages for ordinary hours;
b)the obligation to make overtime payments;
c)the obligation to pay penalty rates for Saturday work;
d)the obligation to pay a breakfast allowance;
e)the obligation to pay annual leave loading during Mr Scotto’s employment;
f)the obligation to pay out accrued but untaken annual leave on termination of employment;
g)the obligation to pay annual leave loading on accrued but untaken annual leave on termination of employment;
h)the obligation to pay accrued but untaken long service leave on termination of employment; and
i)the obligation to provide pay slips for each pay period.
For the same reasons, I find that Mrs Bossi committed seven contraventions, being her breaches of:
a)the obligation to pay minimum wages for ordinary hours;
b)the obligation to make overtime payments;
c)the obligation to pay penalty rates for Saturday work;
d)the obligation to pay a breakfast allowance;
e)the obligation to pay out accrued but untaken annual leave on termination of employment;
f)the obligation to pay annual leave loading on untaken annual leave on termination of employment;
g)the obligation to pay accrued but untaken long service leave on termination of employment.
In Fair Work Ombudsman v Lifestyle SA Mansfield J also stated that it was appropriate to group contraventions according to the type of employee entitlement to which they related. This is the second aspect of the “Grouping Principle”. In this case I have concluded that some further grouping of Scala Bros’ contraventions is appropriate. I find the appropriate grouping of contraventions to be breaches of obligations concerning:
a)minimum ordinary time wages;
b)overtime, Saturday penalties and breakfast allowance;
c)annual leave loading during Mr Scotto’s employment;
d)annual leave and annual leave loading on termination;
e)long service leave on termination; and
f)pay slips.
For Mrs Bossi, I find the appropriate grouping of contraventions to be breaches of obligations concerning:
a)minimum ordinary time wages;
b)overtime, Saturday penalties and breakfast allowance;
c)annual leave and annual leave loading on termination; and
d)long service leave on termination.
Size of the business
Scala Bros was a small family business which employed only a few people. Even so, the payment of employee wages and entitlements is a basic function of any business enterprise and the enterprise’s size and sophistication, or lack of it, should have no impact on the discharge of that obligation.
In this case, the small and familial nature of the enterprise allowed a casual approach to be taken when such an approach was not an option under the law.
Deliberateness of the contraventions
I do not believe that Scala Bros intended to underpay Mr Scotto and, in fact, have found that for many years it did not. The underpayments which have been found arose out of casualness with detail and a failure to recognise the importance of strict observance of industrial law and instruments.
Contrition and corrective action
Although it has an industrial context, this is also a family argument in which people who were once close appear to have fallen out completely. That dynamic has created an intractable dispute where emotion seems to have played a very significant role. In circumstances where I believe that there was no intention to underpay Mr Scotto, where his claim was almost extravagantly large and was characterized by a mass of detail which was difficult to master, where because of Mr Carrano’s death there is more to the story than is recorded in the books of the business and where Mr Scotto has plainly received benefits above and beyond the wages recorded in the wages books, the absence of any contrition on the part of Mrs Bossi, and Scala Bros under her proprietorship, does not seem to me to be a matter of great significance.
Deterrence
The parties were agreed that the Court need only consider general deterrence as Scala Bros is no longer trading.
Some element for general deterrence must be included in the penalties to be imposed on the respondents in order that the Court’s disapproval of Scala Bros’ deficient record keeping and its deficient observance of its industrial obligations should be noted, in particular by smaller enterprises employing family members.
Mrs Bossi’s accessorial liability
The observations concerning Scala Bros also apply, as far as relevant, to Mrs Bossi regarding her period of proprietorship of Scala Bros. However, I am satisfied that she was required, with no notice, to assume responsibility for a business of whose day to day operations she had no detailed understanding or much relevant experience. The circumstances in which she came to operate the business and her perpetuation of practices which must have seemed to her to have been acceptable because they had been followed for many years by her father explain, even if they do not excuse, her failures to observe the relevant legislation and awards in a proper way.
Finally, I note that Mrs Bossi’s career has always lain in quite a different field and that the business has been sold. It seems to me that Mrs Bossi was in large part a victim of circumstance and that she will not in the future be placed in a position where she will be employing staff as she did at Scala Bros.
Penalties to be imposed
The potential penalties applicable to the contraventions were set out in the first judgment at [57]-[60], [75]-[76], [84]-[86], [93] and [96].
I have taken into account the matters considered above when arriving at my decision as to the penalties to be imposed on Scala Bros and Mrs Bossi. In the circumstances, I consider the appropriate penalties to be imposed on Scala Bros to be:
a)$5,000 for its failure to pay minimum ordinary time wages;
b)$20,000 for its failure to pay overtime, Saturday penalties and breakfast allowance;
c)$1,000 for its failure to pay annual leave loading during Mr Scotto’s employment;
d)$2,000 for its failure to pay annual leave and annual leave loading on termination;
e)$500 for its failure to pay long service leave on termination; and
f)$3,000 for its failure to provide pay slips as required by the FW Act.
The total penalty is therefore $31,500. I am satisfied that this is a just and appropriate amount as an aggregate figure.
For Mrs Bossi, I find the appropriate grouping of contraventions to be:
a)$1,000 for her involvement in Scala Bros’ failure to pay minimum ordinary time wages;
b)$4,000 for her involvement in Scala Bros’ failure to pay overtime, Saturday penalties and breakfast allowance;
c)$500 for her involvement in Scala Bros’ failure to pay annual leave and annual leave loading on termination; and
d)$500 for her involvement in Scala Bros’ failure to pay long service leave on termination.
The total penalty is therefore $6,000. I am satisfied that this is a just and appropriate amount as an aggregate figure. However, I am also of the view that Mrs Bossi’s penalty should be suspended and potentially set aside after two years. I have reached this conclusion in light of all the circumstances surrounding Mrs Bossi’s proprietorship of the business. Amongst those considerations were the sudden circumstances in which Mrs Bossi came to be the proprietor of Scala Bros and what I accept were the practical difficulties which she confronted as an inexperienced person with other commitments in running the business until it could be sold in August 2010.
Declarations and orders concerning contraventions
Declarations and orders will be made reflective of my conclusions concerning the respondents’ contraventions of the WR Act, the FW (TPCA) Act and the FW Act and the penalties to be imposed consequent upon those contraventions.
Costs
In matters such as the present, s.824 of the WR Act and s.570 of the FW Act provide that the Court is not to award costs unless the proceeding has been commenced vexatiously or without reasonable cause or costs have been incurred as a result of a party’s unreasonable act or omission. Exceptional circumstances are required before an order for costs will be made under those provisions.
As to what amounts to an unreasonable act or omission, the Full Court of the Federal Court said in Construction, Forestry, Mining and Energy Union v Clarke (2008) 170 FCR 574:
The exception [to the requirement that costs orders are not to be made] applies when two criteria are satisfied. The first criterion is that one party must have engaged in “an unreasonable act or omission”. As the reasoning of Tracey J in Australian and International Pilots Association v Qantas Airways Ltd (No 3) (2007) 162 FCR 392 and Siopis J in McAleer v University of Western Australia (No 2) (2007) 161 IR 151 demonstrates, whether a party has conducted itself or its litigation in such a way as to cross this threshold will depend on the particular circumstances of the case. The second criterion is that the act or omission of one party must have “caused another party to the proceeding to incur costs in connection with the proceeding”. Once both criteria are satisfied, then the Court “may” in its discretion order the party which has engaged in the unreasonable act or omission to pay some or all of the costs of the other party.
… As the authorities indicate, there is a distinction between a party who pursues arguments which are ultimately abandoned or rejected by the Court and a party who commences a proceeding which is misconceived in the sense of being incompetent or unsupportable: Australian and International Pilots Association 162 FCR at 402; Standish v University of Tasmania (1989) 28 IR 129 at 138-139. Simply because a party does not conduct its litigation in the most efficient way does not mean that the Court should exercise its discretion in s 824(2) of the WR Act to make a costs order. … [W]hile courts should use the discretion in s 824(2) to ensure that parties to litigation arising from the WR Act do not engage in unreasonable acts and omissions which put the other party to undue expense, they should also be careful not to exercise the discretion with too much haste, given that such haste may discourage parties, for fear of an adverse costs order, from pursuing litigation under the WR Act in the manner which they deem best.
… [T]he respondent was entitled to meet the appeal. The mere fact that it could have done so in a different or timelier fashion is not sufficient, in itself, to warrant the making of an adverse costs order against it, particularly where the usual practice in litigation arising from the WR Act is to make no orders as to costs.
(at 582-583 [28]-[30])
The only matters raised by Mr Scotto against the respondents which might satisfy such criteria were their unsuccessful cross claim and their failure to accept a notice of offer of compromise for $350,000 with each party to pay their own costs. The cross claim, although speculative, was not unarguable. There was sufficient evidence in the ledgers to support an allegation that Mr Scotto had been lent money by Scala Bros but ultimately there was insufficient evidence to prove that contention or the terms of any such loan. In such circumstances, the conclusion that the cross claim was brought out of time was unavoidable but it had not been inevitable. It was not unreasonable in such circumstances for the respondents to have prosecuted the cross claim: Nimmo, in the matter of an application for an inquiry relating to an election for an office in the Australian Education Union (NT Branch) (No.2) [2011] FCA 728 at [12].
Nor was it unreasonable of the respondents to not accept the notice of offer of compromise for $350,000 which, according to the affidavit of Amanda Johnstone sworn on 16 January 2015, was served on or about 17 March 2011. In March 2011 pt.2 of sch.3 to the Federal Magistrates Court Rules 2001 provided that Order 23 of the (then) Federal Court Rules (“FCR”), with the exception of rr.14 and 15, was to apply to proceedings such as this one. At that time, O.23 r.4 of the FCR provided:
4 Further requirements of offer
(1)If:
(a) a sum of money is offered; and
(b) that sum is inclusive of the costs of the proceeding;
the notice of offer may specify the amount that is in respect of costs.
(2)If:
(a) a sum of money is offered; and
(b) that sum is inclusive of interest;
the notice of offer must specify the amount that is in respect of interest and how it is calculated.
…
It must be inferred that the terms of the notice of offer of compromise, which were, relevantly:
The First Respondent to pay the Applicant the sum of three hundred and fifty thousand dollars ($350,000)
did not contain a component for interest. That being so, it is plain that Mr Scotto has not achieved a result in the proceeding which is as good as or better than the offer he made. Although the mechanical comparison of one figure with another should not be given primacy when considering questions of reasonableness when an offer is not accepted, if a person in Mr Scotto’s position achieves an amount significantly less than the amount he offered to accept, it would only be in unusual circumstances that the respondent would be held to have acted unreasonably in not accepting the offer: Blagojevch v Australian Industrial Relations Commission (2000) 98 FCR 45 at 57 [34]. In this case Mr Scotto has achieved a sum significantly less than the one he offered to accept and no unusual circumstances justify a finding that it was unreasonable that the respondents did not accept that offer.
Further, I reject Mr Scotto’s suggestion that any penalties which are to be imposed should be taken into account when determining whether he equalled or bettered his offer. His submission was contrary to authority in that penalties are not compensatory in nature: Plancor Pty Ltd v Liquor, Hospitality and Miscellaneous Union per Gray J at 370 [40].
The respondents submitted that the pursuit by Mr Scotto of causes of action which were time barred was unreasonable or done without reasonable cause. A proceeding will be instituted without reasonable cause if it has no real prospects of success, or was doomed to failure: Council of Kangan Batman Institute of Technology and Further Education v Australian Industrial Relations Commission (2006) 156 FCR 275 at 289 [60] but the applicant’s case must also be shown to have been wholly bereft of any reasonable cause, de minimus situations aside: Shea v Energy Australia Services Pty Ltd (No 7) [2014] FCA 1091. As Mr Scotto has succeeded in respect of several aspects of his claims, I do not find that the proceeding was instituted without reasonable cause.
On the other hand, I do consider that the pursuit by Mr Scotto of causes of action which were time barred was unreasonable in the sense of being an unreasonable act which caused the respondents to incur costs. It was unreasonable because Mr Scotto’s claims to compensation for amounts allegedly outstanding from dates more than six years before the commencement of the proceeding were bound to fail.
I accept that some exploration of Mr Scotto’s entire work history was necessary in order that his claims for accrued annual leave and long service leave might be advanced and I accept that his entire work history might have some relevance to the magnitude of the penalties which were sought. However, the scope of the case which Mr Scott mounted in relation to events between 1981 and 2004 was much greater than was required to deal with penalties and leave entitlements on termination.
Mr Scotto’s claims to be entitled to be compensated in relation to causes of action which, if they accrued at all accrued more than six years before the commencement of this proceeding, were advanced principally on the basis of an extrapolation from principles relevant to penalty proceedings. The principles in question are ones which are applied in order that a contravener is not punished unduly harshly for repetitive conduct of the same nature. The proposition that the existence of a course of conduct which can be used to mitigate the severity of a penalty could have some effect on when causes of action accrue was quite unsupported by any authority propounded by Mr Scotto. Indeed, one authority which he cited, Brammer v Deery Hotels Pty Ltd at 279, was authority contrary to his proposition, in its reference to s.119(3) of the Conciliation and Arbitration Act 1904, which was similar in terms to s.369(3) of the IR Act, s.719(9) of the WR Act and s.545(5) of the FW Act.
The second basis of the argument was that a failure to make a payment due on a particular date was a continuing failure which daily gave rise to a new cause of action. That argument implied that without a wrongdoer having done anything to justify it, a cause of action could accrue more than once. The novelty of that proposition required the argument be more thoroughly argued than was the case.
In addresses concerning the Court’s findings on the limitation issue, Mr Scotto submitted that it is not unreasonable to raise an issue on which there is no authority. In general terms that may be so. However, in this case there was authority: Brammer v Deery Hotels Pty Ltd. Mr Scotto also observed that the Court had dealt with the matter according to first principles without explaining why his arguments had failed to do so too. It appears to me that basic principles concerning the contractual nature of employment and when causes of action relating to it accrue were given insufficient attention, as was the statutory bar on compensation orders in respect of underpayments more than six years old found in s.369(3) of the IR Act, s.719(9) of the WR Act and s.545(5) of the FW Act. The claims for compensation in respect of alleged underpayments which occurred more than six years before the commencement of the proceeding should not have been made and unreasonably caused the respondents to incur costs.
Mr Scotto should pay thirty per cent of the respondents’ costs of the proceeding. I certify that it was reasonable of the respondents to brief counsel.
FINAL MATTERS
Now that the remaining issues concerning the compensation due to Mr Scotto have been determined, the parties are to quantify the amounts due to him by reference to the first judgment and these reasons and file a draft short minute of orders giving effect to the Court’s findings. In that regard, I note the breakfast allowance rate on which the parties have agreed and adopt it. I also note that the compensation calculations should not include an amount for breakfast allowance referable to the period 28 June 2009 to 5 May 2010: first judgment at [418] and [421].
I certify that the preceding one hundred and forty-five (145) paragraphs are a true copy of the reasons for judgment of Judge Cameron
Associate:
Date: 13 August 2015
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