Sutton v Edyvane's Transports Pty Ltd - [2022] FedCFamC2G 834

Federal Circuit and Family Court of Australia
(DIVISION 2)
Sutton v Edyvane’s Transports Pty Ltd [2022] FedCFamC2G 834

File number: MLG 1870 of 2021

Judgment of: JUDGE RILEY

Date of judgment: 12 October 2022

Catchwords: INDUSTRIAL LAW – failure to keep records, provide payslips, provide employment records for inspection, display the applicable awards and the National Employment Standards, pay on retirement outstanding sums for annual leave and long service leave, pay for work diaries and protective clothing, and failure to pay livestock carting allowance and long distance transport allowance – contraventions serious – company director involved in the contraventions – RDOs not required to provided.

Legislation: Fair Work Act 2009 ss.45, 90(2), 323, 535, 536, 545(2), 546(1), 547, 550, 557A, 557B, 557C
Fair Work Regulations 2009 reg.3.31, 3.32, 3.33, 3.34, 3.36, 3.37(1), 3.42 and 3.46
Long Service Leave Act 1992 (Vic) (repealed) ss. 66(1), 72(2), 73(1), 74.

Other material:

Road Transport and Distribution Award 2010 cl. 4, 5, 16.2(b)(vi), 16.4(a),(b)(ii), 22.5
Road Transport (Long Distance) Operation Award 2010 cl. 4, 5, 14.1(c),(i),(v), 14.2(a),(b),(i), 20.5.

Cases cited:
Dormer v Relocation Laws Pty Ltd [2019] ACTMC 33
Duncan v Kelly Logistics Pty Ltd [2021] FedCFamC2G 330
EZY Accounting 123 Pty Ltd v Fair Work Ombudsman (2018) 360 ALR 26; (2018) 282 IR 86; [2018] FCAFC 134
Fair Work Ombudsman v Devine Marine Group Pty Ltd [2014] FCA 1365
Fair Work Ombudsman v Grouped Property Services Pty Ltd (2016) 152 ALD 209; [2016] FCA 1034
Fair Work Ombudsman v IE Enterprises Pty Ltd [2020] FCA 848
Farrell v Choosewell Health Link Proprietary Limited [2021] FCCA 910
Gallagher v AG Labour Services Pty Ltd [2020] FCA 1753
Ghimire v Karriview Management Pty Ltd (No 2) (2019) 290 IR 331; [2019] FCA 1627
Jess v Cooloola Milk Pty Ltd [2021] FCCA 1526

York v Lucas (1985) 158 CLR 661; (1985) 61 ALR 307; (1985) 59 ALJR 776; (1985) ATPR 40-622; [1985] 158 CLR 661.

Division: Division 2 General Federal Law

Number of paragraphs: 193

Date of last submission: 5 September 2022

Dates of hearing: 15, 16, 17 and 18 August 2022

Place: Melbourne

Counsel for the Applicant: Alan Ford

Solicitor for the Applicant: Peter Hull & Associates

Counsel for the Respondents: Stephen Bunce

Solicitor for the Respondents: Wakefield Vogrig & Boote Lawyers
ORDERS

MLG 1870 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
RONALD SUTTON

Applicant

AND:
EDYVANE'S TRANSPORTS PTY LTD
(ACN 004 749 759)

First Respondent

MARIANNA LYNETTE EDYVANE

Second Respondent

order made by:

JUDGE RILEY

DATE OF ORDER:

12 October 2022

THE COURT DECLARES THAT:
1.The first respondent contravened the following civil remedy provisions of the Fair Work Act 2009 (“the Act”) and the Fair Work Regulations 2009 (“the regulations”):
(a)s.535 of the Act, by contravening:
(i)reg.3.32(a), (b), (c), (d) and (e) of the regulations by not making and keeping records with the required content;
(ii)reg.3.33(1)(a) and (3)(c), (d) and (e) of the regulations by not making and keeping records with the required details of pay;
(iii)reg.3.34 of the regulations by not making and keeping records with the required details regarding overtime;
(iv)reg.3.36(1)(a) and (b) and (2)(a) and (b)(i) and (ii) of the regulations by not making and keeping records with the required details regarding leave;
(v)reg.3.37(1)(d) and (e) of the regulations by not making and keeping records with the required details regarding superannuation contributions; and
(vi)reg.3.42(1), (2), and (3) or (4) of the regulations by not making employment records available on request;

(b)s.536 of the Act and reg.3.46 of the regulations by failing to provide pay slips with all of the required information;
(c)s.45 of the Act by contravening cl.5 of:
(i)the Road Transport and Distribution Award 2010 (“the RTD”); and
(ii)the Road Transport (Long Distance) Operation Award 2010 (“the RTLDO”),

by failing to ensure that copies of the awards and the National Employment Standards were available to the applicant either on a noticeboard which was conveniently located at or near the workplace or through electronic means, whichever made them more accessible;
(d)s.323 of the Act, by failing to pay the applicant on his retirement for 20 weeks of his long service leave entitlement in the sum of $24,000;
(e)s.90(2) of the Act by failing to pay the applicant on his retirement for 56 weeks of annual leave in the sum of $67,200;
(f)s.45 of the Act, by failing to comply with cl.16.4(a) of the RTD and cl.14.2(a) of the RTLDO by failing to reimburse the applicant for work diaries in the sum of $160;
(g)s.45 of the Act, by failing to comply with cl.16.4(b)(ii) of the RTD and cl.14.2(b)(i) of the RTLDO by failing to reimburse the applicant for protective clothing;
(h)s.45 of the Act, by failing to comply with cl.16.2(b)(vi) of the RTD, cl.14.1(c)(v) of the RTLDO and cl.14.1(c)(i) of the RTLDO by failing to pay the applicant $4,321.40 for the livestock carting allowance and $1,800.64 for the long distance operations allowance.

2.Each of the civil remedy provisions contravened by the first respondent is a serious contravention within the meaning of s.557A of the Act.
3.Pursuant to s.550 of the Act, the second respondent was involved in each of the first respondent’s contraventions identified in declarations 1(b), (c), (f), (g) and (h).

THE COURT ORDERS THAT:
4.Pursuant to s.546(1) of the Act, pecuniary penalties be imposed on the first respondent for the contraventions set out in declaration 1 in amounts to be determined.
5.Pursuant to s.546(1) of the Act, pecuniary penalties be imposed on the second respondent for the contraventions set out in declarations 1(b), (c), (f), (g) and (h) in amounts to be determined.
6.Pursuant to s.545(2) of the Act, the first respondent pay the applicant:
(a)$24,000 for accrued but unpaid long service leave;
(b)$67,200 for accrued and unpaid annual leave;
(c)$160 for work diaries;
(d)$4,321.40 for the livestock carting allowance; and
(e)$1,800.64 for the long distance operations allowance.

7.Pursuant to s.547 of the Act, the first respondent pay the applicant interest until judgment on the payments ordered by order 6.
8.The question of the costs of the proceeding be reserved.

Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE RILEY:
introduction

This is an application for:
(a)declarations as to certain alleged contraventions of the Fair Work Act 2009 (“the Act”) and the Fair Work Regulations 2009 (“the regulations”);
(b)penalties for those contraventions; and
(c)costs.
This judgment will address the alleged contraventions. The court will deal with the questions of the amount of any penalties and any costs order following a separate hearing on those issues, as is the usual practice in these matters.
The applicant (“Mr Sutton”) was employed by the first respondent for 34 years as a truck driver. He is now retired. The first respondent (“Edyvane’s”) is a company that was incorporated in 1968 and carries on the business of livestock transportation. The second respondent (“Ms Edyvane”) is an office administrator and was at all relevant times a director of Edyvane’s.
BACKGROUND
Mr Sutton’s outline of submissions filed on 29 July 2022 set out the background to this matter as follows:
1.On about 1 January 1985, the applicant commenced employment with the first respondent, and retired on 5 July 2019 (“Employment”) at the age of 66.
2.The applicant’s primary responsibility was to transport livestock, mostly cattle, between farms, saleyards, and abattoirs. This often involved driving long distances, including interstate, and cleaning trucks after cattle were unloaded.
3.Prior to the incorporation of the first respondent, the second respondent and her late husband commenced the business of livestock transportation in about 1955 as a partnership trading as Robert F and Leslie A Edyvane.
4.The first respondent was incorporated on 24 October 1968 and carried on the business of livestock transportation. Since its incorporation the second respondent has been a director of the first respondent, and she has had the responsibility of running the office and administration for the first respondent. The second respondent organised the applicant’s jobs, and advised him of what he was required to do the following day, and where he had to be and when.
5.Prior to the Employment, the applicant worked as a contractor for the first respondent from about September 1976 until about 1981 or 1982.
6.From 1 January 2010, the Road Transport and Distribution Award 2010 (“RTD Award”), and the Road Transport (Long Distance Operations) Award 2010 (“RTDLO Award”) (collectively, “Modern Awards”) alternatively applied to the Employment according to their respective terms and the nature of the work performed on any given day.
7.Under the RTD Award, the applicant was a transport worker grade 8, and a grade 6 worker under the RTLDO Award. Clause 16.2(b)(vi) shows that the applicant was entitled to an allowance of 2.59 per cent of the standard rate because he was a livestock carter, and to an allowance of 2.42 per cent of the standard rate under clause 14.1(c)(v) of the RTLDO Award. Even if these grade classifications are incorrect, the applicant does not allege that he was underpaid or paid below the award rate. If, however, the Court finds that he was on a lower grade level than 8 and 6, then an adjustment will have to be made to Mr Hull’s calculations referred to in his affidavit.
8.Throughout the Employment, the applicant often worked long days of 10 to 12 plus hours, and often six days per week. He would often work on weekends, and public holidays, such as New Year’s Day, but was never required to work on Christmas Day, Good Friday, or Easter Saturday. The applicant did not have fixed meal times, and would usually eat when taking a break by reason of the fatigue management rules and/or when his truck was being loaded or unloaded. The applicant was never given a roster, and his work hours were dictated by livestock availability and determined by the second respondent or her husband or children who work for the first respondent.
9.From about 17 January 2006, except for the periods 7 March 2007 to 10 September 2007 and 6 March 2012 to 11 September 2012, the applicant kept work diaries or logbooks.
(footnotes omitted)
The respondents’ submissions filed on 25 July 2022 set out the background to this matter as follows:
1.The First Respondent, Edyvane’s Transport, is a livestock transport company based in Pakenham, Victoria. It is a family business that has been operating since around 1955. At the relevant time it employed ~9 staff, including 4 truck drivers (plus occasional use of subcontractor truck drivers).
2.The Second Respondent, Mrs Marianna Lynette Edyvane is one of two directors of the company. The other director is her daughter Jodie Beazley.
3.The Applicant, Mr Ronald Sutton, worked as a truck driver, carting livestock, for Edyvane’s Transport. He worked as a contractor from around 1975 to 1983, and then as an employee from 1985 until July 2019 when he retired.
4.The parties have agreed that two Awards apply to Mr Sutton’s employment:
a. Road Transport and Distribution Award 2010;
b. Road Transport (Long Distance Operations) Award 2010.
issues in dispute
The court resolved certain issues by way of preliminary rulings on the first day of trial. In the further amended joint statement of issues emailed to chambers on 16 August 2022, and in a further statement provided to the court on 9 September 2022, the parties agreed that the issues remaining in dispute were as follows:
(a)non-monetary claims:
(i)make and keep employment records for the period from 31 July 2014 until 31 July 2021;
(ii)provide employment records for the period 31 July 2014 until 31 July 2021;
(iii)set up and display the roster; and
(iv)provide copies of the Award and the NES;
(b)leave claims:
(i)annual leave;
(ii)long service leave; and
(iii)rostered days off; and
(c)allowances and reimbursements:
(i)reimbursement for work diaries;
(ii)reimbursement for protective clothing; and
(iii)allowances for carting livestock and long distance travel.
In addition, there were issues between the parties as to whether the contraventions were serious contraventions, as defined, and whether Ms Edyvane was accessorily liable under s.550 of the Act for some of the contraventions.
MATERIAL RELIED UPON
At the trial, Mr Sutton relied upon:
(a)his application filed on 30 July 2021;
(b)the statement of claim filed on 30 July 2021, amended on 27 September 2021 and further amended on 10 December 2021;
(c)his affidavit affirmed on 26 April 2022;
(d)his affidavit affirmed on 21 June 2022;
(e)the affidavit of his wife, Linda Sutton, affirmed on 26 April 2022;
(f)the affidavit of his solicitor, Peter Hull, affirmed on 26 April 2022;
(g)his written submissions filed on 29 July 2022;
(h)the court book filed on 8 August 2022; and
(i)the further amended statement of issues emailed to chambers on 16 August 2022.
At the trial, the respondents relied upon:
(a)the defence filed on 15 October 2021 and amended on 28 January 2022;
(b)the affidavit of Ms Edyvane affirmed on 24 May 2022;
(c)the affidavit of Ms Edyvane’s son, Adam Edyvane, affirmed on 24 May 2022;
(d)the affidavit of an employee, Stacey Wright, affirmed on 24 May 2022;
(e)the affidavit of Ms Edyvane’s daughter, Jodie Beazley, affirmed on 24 May 2022;
(f)the affidavit of Ms Edyvane affirmed on 29 July 2022;
(g)the affidavit of Ms Edyvane affirmed on 10 August 2022;
(h)the respondents’ written submissions filed on 25 July 2022;
(i)the court book filed on 8 August 2022; and
(j)the further amended statement of issues emailed to chambers on 16 August 2022.
On the last day of the hearing, orders were made for the parties to file and serve written closing submissions. The parties also rely on those submissions. Mr Sutton emailed chambers and served closing written submissions on 26 August 2022. The respondents filed and served closing written submissions on 3 September 2022. Mr Sutton filed and served closing written submissions in reply on 5 September 2022.
In addition, the parties very helpfully sent to chambers:
(a)on 17 August 2022, a joint statement of issues regarding rostered days off (exhibit 16); and
(b)on 9 September 2022, a statement of agreed facts regarding the award application and quantum (exhibit 17).
A: record keeping
Mr Sutton argued that, contrary to s.535(1) of the Act, Edyvane’s failed, in relation to Mr Sutton, to make, and keep for seven years, employee records of the kind prescribed by the regulations.
Section 535 of the Act relevantly provides that:
535     Employer obligations in relation to employee records
(1)An employer must make, and keep for 7 years, employee records of the kind prescribed by the regulations in relation to each of its employees.
Note: This subsection is a civil remedy provision (see Part 4-1).
(2)       The records must:
(a)       if a form is prescribed by the regulations—be in that form; and
(b)       include any information prescribed by the regulations.
Note: This subsection is a civil remedy provision (see Part 4-1).
The relevant regulations are regs.3.31 to 3.37 of the regulations. Mr Sutton submitted that Edyvane’s specifically breached regs.3.31, 3.32, 3.33, 3.34, 3.36 and 3.37 of the regulations.
It was common ground that Edyvane’s kept the following records in relation to Mr Sutton:
(a)the workbooks commencing at CB 4111;
(b)the operational day books and delivery dockets commencing at CB 4596;
(c)the tax books commencing at CB 4627;
(d)the annual leave spreadsheet commencing at CB 4645; and
(e)the long service leave spreadsheet commencing at CB 4680.
In addition, the respondents also claimed that the letter at CB 4611 (which, in fact, is at CB 4612) and the letter at CB 4697, were employee records. Mr Sutton submitted that these letters were not employee records, but letters setting out information that is contained in his employment records. In addition, Mr Sutton submitted that these letters were either requested by him or his wife or were provided to him following his retirement. Therefore, Mr Sutton submitted, the letters were not employee records.
The letter at CB 4612, is dated 29 March 1999. It is from Edyvane’s to the ANZ bank. It said that Mr Sutton had been employed at Edyvane’s for “many years” and earned an average weekly gross wage of $815. That letter is not an employee record as such. It was not produced for the purposes of reg.3.31 to 3.37, which is to enable an employer, an employee, or a fair work inspector to see at any particular point in time what a particular employee’s status and entitlements are.
The letter at CB 4697 is a letter dated 5 July 2019, being the date that Mr Sutton retired. It is from Edyvane’s to Mr Sutton. Leaving aside formal parts, it said:
Ron Sutton
Full time Employment – 1^st January 1985
Finished Employment – 5^th July 2019
Total Holidays for period employed 138 weeks
Payed holidays taken – 134 weeks 4 days
Holidays owed – 4 weeks
Long service leave owed 30 weeks (long serve leave calculator) see attached
1991 – 9 weeks paid long service leave (week ending 11/1/91 – 12/3/91)
2008 – 6 weeks paid long service leave (1/11/2008 pd $5600 less tax 6 weeks) [4000 has been added in handwriting]
2015 – 9 weeks 3 days paid long service (21/10/2015 – 1/1/2016 knee)
2016 – 5 weeks paid long service (wk ending 8/1/2016 – 5/2/2016 knee)
Long service leave paid 29 weeks
Payed (sic) days off – 253 days (51 weeks 1 day)
Payed (sic) sick days taken – 185 days
Paid public holidays – 326 days
Bonus’ (sic) $35,100.00
Ron if you have any queries re above please contact the office.
The long service leave calculator was not attached to the copy of the letter dated 5 July 2019 that was included in the court book. On 22 August 2019, Edyvane’s sent another letter to Mr Sutton. It is at CB 4699. It differed in some details from the letter dated 5 July 2019. The letter dated 22 August 2019 said, with the differences in bold and in square brackets:
Ron Sutton
Full time Employment – 1^st January 1985
Finished Employment – 5^th July 2019
Total Holidays for period employed 136 weeks           [5 July 2019: 138 weeks]
Payed (sic) holidays taken – 133 weeks 2 days            [5 July 2019: 4 days]
Holidays owed – 3 weeks 2 days   [5 July 2019: 4 weeks]
Last day paid - 4 weeks holidays (over paid 3 days)
[5 July 2019: this line was omitted]

1991 – 9 weeks (week ending 11/1/91 – 12/3/91) Now Workcare [5 July 2019: this line was omitted]

Long service leave owed 30 weeks [5 July 2019: the words “(long service leave calculator) see attached” omitted]
[5 July 2019: included: 1991 – 9 weeks paid long service leave …]
2008 – 6 weeks paid long service (11/7/2008 pd $5600 less tax 6 weeks) [5 July 2019: 1/11/2008]
2015 – 6 weeks 2 days paid long service (21/10/2015 – 4/12/2015) [5 July 2019: 9 weeks 3 days … (21/10/2015 to 1/1/2016 knee)]
2016 – 7 weeks paid long service (starting 15/12/2015 – 5/2/2016 knee)
2016 – 1 week paid long service (29/1/2016) paid twice
2016 – 1 week paid long service (5/2/2016) paid twice
2016 – 1 week paid long service (24/6/2016) still working
[5 July 2019: 2016 – 5 weeks paid long service leave wk ending 8/1/2016 – 5/2/2016 knee)]
2019 – 1 week paid long service in last wage (5/7/2019) [5 July 2019: this line was omitted]
Long service leave paid 23 week / 2 days [5 July 2019: 29 weeks]
Long service leave owed 6 weeks 3 days [5 July 2019: this line was omitted]
Payed (sic) days off – 253 days (51 weeks 1 day)
Payed (sic) sick days taken – 185 days
Paid public holidays – 326 days
Bonus’ (sic) $35,100.00

Edyvane’s sent another letter to Mr Sutton. It is at CB 4698 and is dated 27 September 2019. It differed in some details from the letter dated 22 August 2019. It said, with the differences in bold or in square brackets:
Ron Sutton
[The first seven lines of the letter dated 22 August 2019 were omitted from the letter dated 27 September 2019.]
Long service leave owed 30 weeks
2008 – 6 weeks paid long service (11/7/2008 pd $5600 less tax 6 weeks)
2015 – 6 weeks 2 days paid long service (21/10/2015 – 4/12/2015)
2016 – 7 weeks paid long service (starting 15/12/2015 – 5/2/2016 knee)
2016 – 1 week (extra) paid long service (29/1/2016) [22 August 2019: the word “extra” was omitted and the words “paid twice” were added]
2016 – 1 week (extra) paid long service (5/2/2016) [22 August 2019: the word “extra” was omitted and the words “paid twice” were added]
2016 – 1 week paid long service (24/6/2016) still working
2019 – 1 week paid long service in last wage (5/7/2019)
Long service leave paid 23 week / 2 days
Long service leave owed 6 weeks 3 days  $7,920.00
Less tax         $1,512.00
Owed Long Service Leave
(has (sic) stated during mediation on 23/8/2019)  $6,408.00
[22 August 2019: these calculations were omitted]
[The last four lines of the letter dated 22 August 2019 were omitted]
I do not consider that these letters are employee records within the meaning of reg.3.31 of the regulations. The letters are after-the-event summaries. Regulation 3.31 requires employers to keep running records of the matters required by the regulations. It is not open to an employer to say that it has complied with the regulations by producing a summary that relates to events of months or years earlier. The object of regs.3.31 to 3.37 is to enable an employer, an employee and an inspector to see exactly what the employee’s entitlements are at any particular point in time. That object would not be met by an employer constructing employee records subsequent to the events in question. The object would not be met by an employer constructing employee records only when an employee asks. The pitfalls in doing that are demonstrated by the differences between, most significantly, the letters dated 5 July 2019 and 22 August 2019.
Ms Edyvane explained the differences between the three letters dated 5 July 2019, 22 August 2019 and 27 September 2019 in her affidavit affirmed on 24 May 2022. She said that, by agreement with Mr Sutton, the nine weeks between 11 January 1991 and 12 March 1991, which had been treated as long service leave in the letter dated 5 July 2019, were excluded from the calculation of long service leave taken in the letter dated 22 August 2019. Ms Edyvane said that the letter dated 27 September 2019 showed that an additional payment had been made for long service leave, which seems to be the $6,408.
Ms Edyvane’s explanation does not address other discrepancies between the letters dated 5 July 2019 and 22 August 2019, namely:
Total Holidays for period employed 136 weeks           [5 July 2019: 138 weeks]
Payed (sic) holidays taken – 133 weeks 2 days            [5 July 2019: 4 days]
Holidays owed – 3 weeks 2 days   [5 July 2019: 4 weeks]
2008 – 6 weeks paid long service (11/7/2008 pd $5600 less tax 6 weeks) [5 July 2019: 1/11/2008]
2015 – 6 weeks 2 days paid long service (21/10/2015 – 4/12/2015) [5 July 2019: 9 weeks 3 days … (21/10/2015 to 1/1/2016 knee)]
2016 – 7 weeks paid long service (starting 15/12/2015 – 5/2/2016 knee)
2016 – 1 week paid long service (29/1/2016) paid twice
2016 – 1 week paid long service (5/2/2016) paid twice
2016 – 1 week paid long service (24/6/2016) still working
[5 July 2019: “2016 – 5 weeks paid long service leave wk ending 8/1/2016 – 5/2/2016 knee)
2019 – 1 week paid long service in last wage (5/7/2019) [5 July 2019: this line was omitted]
Long service leave paid 23 week / 2 days [5 July 2019: 29 weeks]
The letter dated 22 August 2019 clearly corrected errors perceived by Ms Edyvane in the letter dated 5 July 2019. The letter dated 22 August 2019 amounts to a concession by Ms Edyvane that the letter dated 5 July 2019 contained material inaccuracies. These inaccuracies are of such an extent that, in addition to the other point made above, the letter dated 5 July 2019 cannot be regarded as an employee record for the purposes of the regulations. To fulfil their purpose, employee records must be at least reasonably accurate. The letter dated 5 July 2019 was not reasonably accurate.
All in all, the letters at CB 4612 and CB 4697 are not employee records for the purposes of the regulations.
a. The form of the records
Regulation 3.31(1) of the regulations provides as follows:
3.31 Records – form
(1)For subsection 535(1) of the Act, an employee record made and kept by an employer for this Subdivision must be of the following kind:
(a)a record in a legible form and in the English language;
(b)a record in a form that is readily accessible to an inspector.
Note:Subsection 535(1) of the Act is a civil remedy provision. Section 558 of the Act and Division 4 of Part 4‑1 of the Act deal with infringement notices relating to alleged contraventions of civil remedy provisions.
The respondents claimed that the workbooks at CB 4111 to CB 4698 satisfied the requirements of reg.3.31 of the regulations. The respondents conceded that the workbooks had been handwritten by Ms Edyvane, and contained a form of shorthand invented by her. However, the respondents said that the workbooks were sufficiently legible, especially when the key to the shorthand had been provided, such as when the respondents’ counsel explained to the court how the shorthand worked. The respondents said this was demonstrated by the fact that Mr Sutton was able to cross-examine on the workbooks during the trial.
Mr Sutton argued that the workbooks did not meet the requirements of the regulations and were not legible. Mr Sutton said that the Macquarie Dictionary defines “legible” to mean “able to be read or deciphered, especially with ease”. The Australian Concise Oxford Dictionary, Third Edition, defines “legible” as meaning “clear enough to read; readable”.
The first substantive page of the workbooks, being CB 4113, is attached to these reasons as Annexure A. The first page is typical of the other pages. In my view, the workbooks are not legible, in the sense that they are clear enough to read. They are certainly not easy to read. With the assistance of the respondents’ counsel, it was possible to accept that some selected entries meant what he said they meant. However, unassisted, relatively few words and numbers in the workbooks can be deciphered. Unassisted, the overall meaning of the words and numbers in the workbooks cannot be discerned. That means that the workbooks are incomprehensible and therefore they are not legible, as required by reg.3.31 of the regulations.
Moreover, the records must be in a form that is readily accessible to a fair work inspector. It cannot be said that records that need someone to explain them are readily accessible. The workbooks are about six hundred pages long. The respondents’ counsel explained a relatively minor number of entries to the court. Even on the single page that is attached to these reasons, and even with the benefit of counsel’s explanations, I cannot decipher the majority of the entries. In these circumstances, it cannot be said that the approximately six hundred pages of the workbooks would be readily accessible to a fair work inspector.
I am satisfied that the workbooks do not meet the requirements of reg.3.31 of the regulations.
For the same reasons, I am not satisfied that the operational day books, commencing at CB 4596 meet the requirements of reg.3.31 of the regulations. On the other hand, the delivery dockets and tax books, although hand written, are clear enough. The annual leave spreadsheet and long service leave spreadsheet are typed and are clear.
Having said that, I do not consider that reg.3.31 of the regulations is a stand-alone obligation. Rather, I consider that reg.3.31 is meant to apply to all of the other regulations dealing with employee records, such that a pay record, for example, as required by reg.3.33 of the regulations, must be legible and readily accessible to an inspector.
b. The content of the records
Regulation 3.32 of the regulations provides as follows:
3.32     Records – content
For subsection 535(1) of the Act, a kind of employee record that an employer must make and keep is a record that specifies:
(a)      the employer’s name; and
(b)        the employee’s name; and
(c)      whether the employee’s employment is full‑time or part‑time; and
(d)whether the employee’s employment is permanent, temporary or casual; and
(e)       the date on which the employee’s employment began; and
(f) on and after 1 January 2010—the Australian Business Number (if any) of the employer.
Note:Subsection 535(1) of the Act is a civil remedy provision. Section 558 of the Act and Division 4 of Part 4‑1 deal with infringement notices relating to alleged contraventions of civil remedy provisions.
Mr Sutton, in his closing submissions, essentially argued that the employee records kept by Edyvane’s in respect of Mr Sutton did not meet the requirements of reg.3.32 of the regulations because they did not all specify all of the information required by reg.3.32 of the regulations. The respondents argued that it was unnecessary for all of the records to specify all of the information required by reg.3.32 of the regulations. That may be so. However, the respondents could not point to any record that meets the requirements of reg.3.32(d), regarding whether Mr Sutton’s employment was permanent, temporary or casual. The respondents argued that Mr Sutton was plainly employed as a permanent employee, as demonstrated by the letter dated 9 January 2007 at CB 4616, which was addressed to whom it may concern, and said that Mr Sutton had been a full-time employee for over twenty years.
For the reasons discussed above in relation to the letter dated 29 March 1999 at CB 4612, the letter dated 9 January 2007 is not an employee record that meets the requirements of reg.3.32. Moreover, it does not state in terms that Mr Sutton is a permanent employee. Patently, reg.3.32 requires the nature of the employment to be expressly stated.
In relation to reg.3.32(e) of the regulations, the respondents argued that the records evidencing Mr Sutton’s start date were lost in a flood, so it was impossible for Edyvane’s to comply with the requirement. On the other hand, Edyvane’s said that it was treating Mr Sutton as having started on 1 January of the year he did commence employment with Edyvane’s. If that is so, all Edyvane’s had to do was point to a record which showed that as his start date. Edyvane’s did not do so.
In relation to the requirement for the employer to maintain a record showing its name, the employee’s name and whether the employee is full-time or part-time, the respondents could only point to letters of the type at CB 4616. For the reasons discussed above, I do not accept that they are employee records as required by reg.3.32 of the regulations.
I am satisfied that Edyvane’s has not met the requirements of reg.3.32(a), (b), (c), (d) or (e) of the regulations.
c. The details of pay
Regulation 3.33 of the regulations provides as follows:
3.33 Records – pay
(1)For subsection 535(1) of the Act, a kind of employee record that an employer must make and keep is a record that specifies:
(a)the rate of remuneration paid to the employee; and
(b)the gross and net amounts paid to the employee; and
(c)any deductions made from the gross amount paid to the employee.
…
(3) If the employee is entitled to be paid:
(a)an incentive‑based payment; or
(b)a bonus; or
(c)a loading; or
(d)a penalty rate; or
(e)another monetary allowance or separately identifiable entitlement;
the record must set out details of the payment, bonus, loading, rate, allowance or entitlement.
Note:Subsection 535(1) of the Act is a civil remedy provision. Section 558 of the Act and Division 4 of Part 4‑1 deal with infringement notices relating to alleged contraventions of civil remedy provisions.
The respondents asserted that Edyvane’s paid Mr Sutton $30 per hour, which was a rate inclusive of certain allowances. For that assertion, the respondents relied, firstly, on the workbooks. However, they are not available for that purpose, as they are not legible and readily accessible to an inspector.
The respondents also relied on CB 4620, which is an undated note described as a weekly pay slip for the “Pay week 28^th [presumably, October] to 1^st November 2013.” That document does not state the rate of remuneration paid to Mr Sutton, but it does state the gross and net amounts of his pay for that week and the deductions from the gross amount. It is typed and entirely legible and no doubt would have been readily accessible to an inspector.
The respondents also relied on the tax books at CB 4628. They do not specify the rate of remuneration paid to Mr Sutton. They are handwritten but legible and no doubt would have been readily accessible to an inspector.
All in all, Edyvane’s did not comply with reg.3.33(1)(a) of the regulations because it did not make and keep records specifying the rate of remuneration paid to Mr Sutton.
In relation to penalty rates, it was common ground that Mr Sutton sometimes worked on Sundays. He was entitled to a penalty rate on those days. The respondents were silent on whether there was any record relating to Mr Sutton being paid penalty rates. However, they argued that Duncan v Kelly Logistics Pty Ltd [2021] FedCFamC2G 330 applied. In that case, Judge Kirton said at [97]:
…because the Applicant was paid a flat rate, being the Hourly Rate and the Additional Payment, which compensated the Applicant for all of his entitlements, the Applicant was not ‘entitled to be paid’ any other amounts for shift allowances; penalty rates; and meal allowances.
Mr Sutton argued that Duncan was readily distinguishable, because the flat rate that Mr Sutton was allegedly paid, being $30 per hour, did not cover the amount that he should have been paid for working on a Sunday. Under the Road Transport and Distribution Award 2010 (“the RTD”), the lowest grade driver (which Mr Sutton was not) was entitled to be paid $41.30 per hour for work on a Sunday. Edyvane’s did not point to any record showing that Mr Sutton was paid Sunday penalty rates, and, indeed, the evidence was that he was not paid them because the respondents considered that he was paid more than enough to cover Sunday penalty rates. Clearly, he was not.
Regulation 3.33 requires the employer to make and keep a record of the amounts that should have been paid to an employee. In other words, even if Edyvane’s did not pay Mr Sutton penalty rates, the employee records had to show the details of the entitlement, but did not.
The same can be said for the livestock carter’s allowance to which Mr Sutton was entitled. Ms Edyvane said that Edyvane’s, for some trips, paid Mr Sutton trip expenses. However, she was unclear in her oral evidence which award allowances the trip expenses covered. Regulation 3.33 of the regulations required the employee record to set out the details of any separately identifiable entitlement. For example, the employee record had to say:
Livestock carter allowance: $21.08 per week (2.59% of $814.20)
Long distance allowance: $10.53 per trip
In summary, Edyvane’s breached reg.3.33 of the regulations because it did not make and keep a record of Mr Sutton’s rate of pay, penalties or other entitlements. Even if the trip expenses were in fact more than Mr Sutton was entitled to for his long distance trips, the employee records had to set out the name and amount of his actual entitlements.
d. Records – overtime
Regulation 3.34 of the regulations provides as follows:
3.34 Records – overtime
For subsection 535(1) of the Act, if a penalty rate or loading (however described) must be paid for overtime hours actually worked by an employee, a kind of employee record that the employer must make and keep is a record that specifies:
(a)the number of overtime hours worked by the employee during each day; or
(b)when the employee started and ceased working overtime hours.
Note:Subsection 535(1) of the Act is a civil remedy provision. Section 558 of the Act and Division 4 of Part 4‑1 deal with infringement notices relating to alleged contraventions of civil remedy provisions.
It was not disputed that Mr Sutton worked overtime. The RTD provided for penalty rates for overtime hours. It follows that Edyvane’s was required to make and keep a record of the number of overtime hours Mr Sutton worked, and the times when he started and ceased overtime. The respondents did not suggest any such record was kept. Rather, they said that Edyvane’s paid Mr Sutton more than enough to cover any such overtime penalties. That is beside the point. Edyvane’s was required to keep a record of the number of overtime hours worked and the start and finish times of overtime, irrespective of whether Mr Sutton was adequately paid for that overtime. Consequently, Edyvane’s breached reg.3.34 of the Regulations.
e. The details of leave
Regulation 3.36 of the regulations provides as follows:
3.36 Records – leave
(1)For subsection 535(1) of the Act, if an employee is entitled to leave, a kind of employee record that the employer must make and keep is a record that sets out:
(a)any leave that the employee takes; and
(b)the balance (if any) of the employee’s entitlement to that leave from time to time.
(2)If an employer and employee agree to cash out an accrued amount of leave:
(a)a copy of the agreement is a kind of employee record that the employer must make and keep; and
(b)a kind of employee record that the employer must make and keep is a record that sets out:
(i)the rate of payment for the amount of leave that was cashed out; and
(ii)when the payment was made.
Note:Subsection 535(1) of the Act is a civil remedy provision. Section 558 of the Act and Division 4 of Part 4‑1 deal with infringement notices relating to alleged contraventions of civil remedy provisions.
It was common ground that Mr Sutton was entitled to personal (sick) leave, annual leave and long service leave.
The documents at CB 4646 and CB 4682 are spread sheets setting out the annual leave Mr Sutton took. However, neither those documents nor any others set out the balance of leave owing to Mr Sutton from time to time or at all. The respondents argued that they were a small operation, and the balance was readily calculable. That is not sufficient. Regulation 3.36(1)(b) of the regulations required Edyvane’s to keep a record of the amount of annual leave owing to Mr Sutton from time to time. Edyvane’s did not do so, and thereby breached reg.3.36(1)(b) of the regulations in relation to annual leave.
The document at CB 4681 is a spreadsheet setting out the long service leave Mr Sutton has taken. It does not set out the balance of long service leave owing to Mr Sutton. Therefore, Edyvane’s breached reg.3.36(1)(b) of the regulations in relation to long service leave.
Edyvane’s did not have a similar spreadsheet in relation to Mr Sutton’s personal leave. The respondents could only point to the workbooks in relation to personal leave. As discussed above, they are not adequate as employee records. Consequently, Edyvane’s breached reg.3.36(1)(a) and (b) of the regulations in relation to personal leave.
In relation to reg.3.36(2) of the regulations, it was common ground that Mr Sutton did sometimes cash out his leave. Edyvane’s conceded that it did not make and keep a copy of any agreement it entered into with Mr Sutton for cashing out leave, contrary to reg.3.36(2)(a) of the regulations.

Regarding reg.3.36(2)(b) of the regulations, the respondents relied on the workbooks (which are not legible or readily accessible to an inspector so cannot be relied upon) and the tax books. The respondents said that cashed out leave was recorded there. The only entry I can see in relation to cashed out leave in the tax books is at CB 4636, where there is an extra entry for the week beginning 1 July 2016 which states:

Date

Gross

Tax

Net

Chq

Chq No

Super

July 1st

1200

246

954

954

24308

114

From that entry, there is an arrow that leads to a blank space above the table, where it is stated in handwriting:
Re: 1 week (long service) 24/6/16
That record does not comply with reg.3.36(2)(b)(i) of the regulations, because it does not set out the rate of pay, or reg.3.36(2)(b)(ii) of the regulations, because it does not state when the payment was made. Consequently, Edyvane’s breached those provisions.
The tax book also has a column headed “H/P”, which stands for holiday pay. That column has some entries in it. However, it is not clear that any of those entries relate to cashed out holiday pay. Moreover, those entries do not comply with reg.3.36(2)(b)(i) of the regulations, because they do not set out the rate of pay, or reg.3.36(2)(b)(ii) of the regulations, because they do not state when the payments were made.
f. The details of superannuation contributions
Regulation 3.37(1) of the regulations provides as follows:
3.37 Records – superannuation contributions
(1)For subsection 535(1) of the Act, if an employer is required to make superannuation contributions for the benefit of an employee, a kind of employee record that the employer must make and keep is a record that specifies:
(a)the amount of the contributions made; and
(b)the period over which the contributions were made; and
(c)the date on which each contribution was made; and
(d)the name of any fund to which a contribution was made; and
(e)the basis on which the employer became liable to make the contribution, including:
(i)a record of any election made by the employee as to the fund to which contributions are to be made; and
(ii)the date of any relevant election.
Mr Sutton accepted that the tax books recorded the amount of superannuation paid on his behalf. However, Mr Sutton argued that Edyvane’s records failed to specify the name of the fund to which it paid superannuation on his behalf, contrary to reg.3.37(1)(d) of the regulations, and failed to specify the basis on which Edyvane’s became liable to make the contributions, contrary to reg.3.37(1)(e) of the regulations.
The respondents relied on the tax books, and also the documents at CB 4966 to CB 4976. None of those documents address the points raised by Mr Sutton. The document at CB 4971 is an employee statement made by the Australian Taxation Office. It lists payments made by Edyvane’s for Mr Sutton to the MLC Super Fund between 9 August 2018 and 16 May 2019. The document at CB 4971 was not made by Edyvane’s, so Edyvane’s cannot rely on it as a document that it made and kept. It also only covers a few months.
The document at CB 4973 was made by Norwich Union and concerns payments for the period 1 July 1995 to 14 December 1995. The document at CB 4975 was made by Norwich Union and concerns payments for the period 1 July 2005 to 19 June 2006. It suffers from the same deficiencies as CB 4971.
The respondents did not point to any other documents that might satisfy reg.3.37(1)(d) of the regulations. Consequently, I am satisfied that Edyvane’s breached that provision.
In relation to reg.3.37(1)(e) of the regulations, the respondents said the basis on which Edyvane’s became liable to pay the contributions was made plain in the tax book, namely, the wages paid to Mr Sutton. The respondents said further that Mr Sutton did not make a relevant election, as Mr Sutton’s employment pre-dated the introduction of reg.3.37(1)(e) of the regulations.
To my mind, the requirement that an employer record the basis on which it became liable to make a superannuation contribution at least requires a record that the employer made a contribution on the employee’s behalf of, presently, 10.5% of the employee’s gross wages, and a record of whether that the contribution was paid to a fund of the employer’s or the employee’s choosing. If the latter, the employer must retain a record of the employee’s election and its date.
Even if Edyvane’s has lost Mr Sutton’s election, it was still required to keep a record of whether the choice of superannuation fund was the employer’s or the employee’s, and the percentage of gross earnings paid for superannuation. As Edyvane’s did not do so, it breached reg.3.37(1)(e) of the regulations.
B: Make available employment records
Regulation 3.42 of the regulations provides as follows:
3.42 Records – inspection and copying of a record
(1)For subsection 535(3) of the Act, an employer must make a copy of an employee record available for inspection and copying on request by the employee or former employee to whom the record relates.
Note:Subregulation (1) is a civil remedy provision to which Part 4‑1 of the Act applies. Division 4 of Part 4‑1 of the Act deals with infringement notices relating to alleged contraventions of civil remedy provisions.
(2)The employer must make the copy available in a legible form to the employee or former employee for inspection and copying.
Note:Subregulation (2) is a civil remedy provision to which Part 4‑1 of the Act applies. Division 4 of Part 4‑1 of the Act deals with infringement notices relating to alleged contraventions of civil remedy provisions.
(3)If the employee record is kept at the premises at which the employee works or the former employee worked, the employer must:
(a)make the copy available at the premises within 3 business days after receiving the request; or
(b)post a copy of the employee record to the employee or former employee within 14 days after receiving the request.
Note: Subregulation (3) is a civil remedy provision to which Part 4‑1 of the Act applies. Division 4 of Part 4‑1 of the Act deals with infringement notices relating to alleged contraventions of civil remedy provisions.
(4)If the employee record is not kept at the premises at which the employee works or the former employee worked, the employer must, as soon as practicable after receiving the request.
(a)make the copy available at the premises; or
(b)post a copy of the employee record to the employee or former employee.
Note 1: Subregulation (4) is a civil remedy provision to which Part 4‑1 of the Act applies. Division 4 of Part 4‑1 of the Act deals with infringement notices relating to alleged contraventions of civil remedy provisions.
Note 2:Under the Act, an inspector is also permitted to inspect and copy an employee record for the purposes of the Act. The inspector may also require the production of the employee record.
By letter dated 1 July 2020 addressed to Ms Edyvane as a director of Edyvane’s, Mr Hull, who was Mr Sutton’s solicitor, told Ms Edyvane that he wished to inspect and copy as required the employee records that Edyvane’s was required to make and keep in respect of Mr Sutton pursuant to Division 3 of Part 3-6 of the regulations. As there were COVID-19 pandemic restrictions in force at the time, Mr Hull asked Ms Edyvane or her representatives to contact him to discuss suitable arrangements.
The respondents implicitly accepted that they received Mr Hull’s letter dated 1 July 2020. Ms Edyvane said that she gave a copy of the letter to her solicitor the day after receiving it. Neither the respondents nor their solicitor responded to it.
The respondents took issue with the letter being sent directly to Ms Edyvane, when the respondents were legally represented at the time. Mr Hull conceded in cross-examination that he did not enquire whether the respondents were legally represented. I do not consider that these circumstances make Mr Hull’s request a nullity. In any event, the letter was anodyne, and could not be regarded as an abuse of power.
The respondents also argued that, shortly prior to Mr Hull’s letter, they had provided Mr Sutton’s employee records to him, and therefore did not need to provide him with any further records. I do not accept that submission. I consider that reg.3.42 of the regulations allows employees to make multiple requests for their records. There could be good reason for making multiple requests. For example, an employee might lose their records, or engage a new legal representative. There may be limits to how many requests an employee could make, but I do not consider that Mr Sutton had got anywhere near that.
Moreover, the records that Ms Edyvane said that she had provided were the letters dated 5 July 2019, 22 August 2019 and 27 September 2019. As discussed above, those letters were not employee records. Ms Edyvane also said at [9] of her affidavit affirmed on 29 July 2022 that the records she had previously provided were “leave and holidays records and pay information such as cheque numbers”. In oral evidence, Ms Edyvane confirmed that by “leave and holidays records”, she meant the annual leave and long service leave spreadsheets. However, for the purposes of this proceeding, the respondents subsequently produced an array of other records, many of which were captured by Mr Hull’s request, such as the tax books. The subsequent production of those records demonstrated that the respondents had records that they did not provide to Mr Sutton within the time limited by reg.3.42 of the regulations that they could have provided in response to Mr Hull’s request in 2020.
The respondents also argued that Mr Hull’s request was not specific enough. They argued that it was open to them to interpret Mr Hull’s request as relating only to the issue that Mr Sutton had then taken to the Fair Work Commission, being an issue about leave entitlements. I reject that submission. The request clearly and expressly stated that Mr Hull sought all of the employee records that Edyvane’s was required to keep under Division 3 of Part 3-6 of the regulations. The request did not say that Mr Hull only sought employee records required to be kept under reg.3.36 of the regulations, which deals with records of leave. There was no justification for interpreting the request as if it had such a narrow basis.
The respondents also made various arguments in mitigation, which are not presently relevant. The requirement to provide records upon request was not subject to the various circumstances prevailing at the time, though those circumstances might be relevant to penalty.
I am satisfied that Edyvane’s breached reg.3.42 by not making Mr Sutton’s employee records available for inspection and copying in response to the request made by Mr Hull on 1 July 2020.
Mr Sutton also said that Mr Hull made another request for his employee records by telephone on 27 July 2020. However, he conceded that, while he telephoned Ms Edyvane, he was not able to speak to her, and, although a receptionist said that she would call back, she never did. This did not amount to a request for the employee records because, whatever Mr Hull’s intention, the request was not communicated.
On 27 September 2021, the court made orders in chambers by consent including the order that:
By 4pm on 5 October 2021, the first respondent make available to the applicant’s lawyers for inspection and copying by them all records pertaining to the applicant’s employment the first respondent has in its possession or control that it was required to make and keep pursuant to div.3 of pt.3-6 of the Fair Work Act 2009 and div.3 of pt.3-6 of the Fair Work Regulations 2009.
That amounted to another request by Mr Sutton for all of his employee records. (I note that the respondents did not say the order was not specific enough. On the contrary, they consented to it.) In response to the order of 27 September 2021, the respondents made available to Mr Hull on 13 October 2021 the workbooks and the tax book. As discussed above, the workbooks were not employee records. The tax book was. However, the respondents at that point did not provide the annual leave spreadsheet or the long service leave spreadsheet. The fact that they might have provided them to Mr Sutton previously, for the purposes of the Fair Work Commission proceedings, was not to the point. They were employee records and should have been provided on or about 13 October 2021.
Additionally, Mr Sutton said that the respondents failed to provide the operational day books and delivery dockets, that were subsequently produced by the respondents for the purposes of these proceedings. As discussed above, the operational day books are not sufficiently legible to be employee records within the meaning of the regulations, so they did not have to be produced. The respondents argued that the delivery dockets were not employee records as such, but were merely produced to bolster the accuracy of the workbooks. That is correct. The delivery dockets do not fall within any of the particular requirements of Division 3 of Part 3-6 of the regulations. Consequently, it was not necessary for Edyvane’s to produce them upon request.
In any event, I am satisfied that Edyvane’s breached reg.3.42 of the regulations by not making the annual leave spreadsheet or the long service leave spreadsheet available for inspection and copying in response to the request impliedly made by Mr Sutton in the consent orders made on 27 September 2021.
C: set up and display roster
Mr Sutton did not address this issue in his closing submissions. The respondents noted this silence in their closing submissions, and said that it was unclear whether Mr Sutton pressed the point. Mr Sutton did not mention the issue in his closing submissions in reply. I conclude therefore that Mr Sutton did not press the point.
D: make available a copy of the award and the nes
Section 45 of the Act provides:
45 Contravening a modern award
A person must not contravene a term of a modern award.
Note 1: This section is a civil remedy provision (see Part 4-1).
Note 2:A person does not contravene a term of a modern award unless the award applies to the person: see subsection 46(1).
Both of the awards to which Mr Sutton’s employment was subject, being the RTD and the Road Transport (Long Distance) Operation Award 2010 (“the RTLDO”) (“the awards”), stated in cl.5 that:
The employer must ensure that copies of this award and the NES are available to all employees to whom they apply either on a noticeboard which is conveniently located at or near the workplace or through electronic means, whichever makes them more accessible.
Ms Edyvane said that both of the awards were kept in the Pakenham office. She conceded that they were not displayed on a noticeboard. Ms Edyvane said that the awards could be viewed by employees on request. That arrangement does not comply with the alternative requirement of cl.5 of the awards that the awards be displayed on a noticeboard.
Ms Edyvane did not claim that a physical copy of the NES was kept in the office in Pakenham or elsewhere.
The respondents noted that the wording of cl.5 of the awards was changed in the Fair Work Commission’s four yearly review of modern awards in 2019. The words “or through electronic means, which ever makes them more accessible” were deleted, and replaced with the words “or through accessible electronic means”. That change is irrelevant, as it did not come into effect until October 2019, after Mr Sutton had retired.
The respondents noted that Mr Sutton did not work in the office, so using an online resource may have made the awards and the NES more accessible for him. That is also irrelevant. Although Mr Sutton did not work in the office, he sometimes went there. Moreover, cl.5 of the awards imposed an obligation on the employer to ensure that the awards and the NES were available through electronic means. To meet that requirement, the employer had to take positive steps. The employer cannot simply say that the awards and the NES are available for all to see on the internet if they look.
In Farrell v Choosewell Health Link Proprietary Limited [2021] FCCA 910 at [122] to [123], Judge Kirton said that an employer giving an employee internet access was not sufficient to discharge the obligation in cl.5 of the awards, but putting the awards and the NES on an intranet could comply with that obligation.
In the present case, Mr Sutton was not an office worker, with regular access to a computer with an office intranet. In his case, to provide online access, Edyvane’s would have needed to provide a computer in the office which employees could access for the purposes of looking at the awards and the NES, together with a notice on the noticeboard that the computer was available for that purpose. I do not suggest that Edyvane’s should have created an intranet. It would have been sufficient for Edyvane’s to provide instructions on how to access the awards and the NES on the internet using the computer provided by the employer for that purpose. Of course, a simpler alternative was to put hard copies of the awards and the NES on the noticeboard.
For these reasons, Edyvane’s breached cl.5 of the awards and therefore s.45 of the Act.
e. pay slips
The respondents admitted that Edyvane’s did not provide pay slips to Mr Sutton that were fully compliant with s.536 of the Act and reg. 3.46 of the regulations. Section 536 of the Act relevantly provided as follows:
536 Employer obligations in relation to pay slips
(1)An employer must give a pay slip to each of its employees within one working day of paying an amount to the employee in relation to the performance of work.
…
(2) The pay slip must:
(a)if a form is prescribed by the regulations—be in that form; and
(b)include any information prescribed by the regulations.
…
Regulation 3.46 of the regulations provided as follows:
3.46     Pay slips – content
(1) For paragraph 536(2)(b) of the Act, a pay slip must specify
(a)       the employer’s name;
(b)       the employee’s name;
(c)       the period to which the pay slip relates; and
(d)the date on which the payment to which the pay slip relates was made;   and
(e)       the gross amount of the payment; and
(f)        the net amount of the payment; and
(g)any amount paid to the employee that is a bonus, loading, allowance, penalty rate, incentive‑based payment or other separately identifiable entitlement; and
(h) on and after 1 January 2010—the Australian Business Number (if any) of the employer.
(2)If an amount is deducted from the gross amount of the payment, the pay slip must also include the name, or the name and number, of the fund or account into which the deduction was paid.
(3)If the employee is paid at an hourly rate of pay, the pay slip must also include:
(a)the rate of pay for the employee’s ordinary hours (however described); and
(b)the number of hours in that period for which the employee was employed at that rate; and
(c)the amount of the payment made at that rate.
(4)If the employee is paid at an annual rate of pay, the pay slip must also include the rate as at the latest date to which the payment relates.
(5)If the employer is required to make superannuation contributions for the benefit of the employee, the pay slip must also include:
(a)the amount of each contribution that the employer made during the period to which the pay slip relates, and the name, or the name and number, of any fund to which the contribution was made; or
(b)the amounts of contributions that the employer is liable to make in relation to the period to which the pay slip relates, and the name, or the name and number, of any fund to which the contributions will be made.
…

The respondents admitted that the pay slips that Edyvane’s provided to Mr Sutton did not include all of the information required, including the name and ABN of the employer, the name of the employee, the date and period to which the pay slip related, the rate of pay and the number of hours worked.
In these circumstances, I am satisfied that Edyvane’s breached s.536 of the Act and reg.3.46 of the regulations.
F: Long service leave
a. 1991
It was common ground that Mr Sutton was entitled to long service leave during his employment with Edyvane’s. Mr Sutton raised an issue about payment for some leave that he took in 1991. It had been treated as long service leave, with the result that Mr Sutton was not paid out for that leave when he retired. However, following his retirement, Edyvane’s accepted that the relevant period of leave was not long service leave, and Edyvane’s reinstated Mr Sutton’s long service leave entitlement for that period.
b. 2008
Mr Sutton also raised an issue about a payment of $4,000 that Edyvane’s made to him in 2008. Edyvane’s treated this as a payment of long service leave, although it was common ground that Mr Sutton in fact worked during the relevant period of six weeks. Edyvane’s long service leave spreadsheet at CB 4681 described the $4,000 as “Money advanced as requested for personal matters”. Ms Edyvane said that the $4,000 was paid to Mr Sutton pursuant to an arrangement between her late husband and Mr Sutton. Mr Sutton acknowledged that he received the $4,000, but maintained that he did not, at the time of trial, know what it was for, and maintained that it was not for long service leave.
Mr Sutton noted that, in 2008, the Long Service Leave Act 1992 (Vic) (“LSLA”) applied to him. He also noted that, at the relevant time, s.74 of the LSLA provided that:
(1) An employer must not give an employee a payment in lieu of long service leave, or in lieu of any part of long service leave, except as permitted by this Division.
(2) An employee must not accept any payment in lieu of long service leave, or in lieu of any part of long service leave, except as permitted by this Division.
Penalty: 20 penalty units.
Mr Sutton further noted that the circumstances in which long service leave could be paid out were:
(a)under s.66(1) of the LSLA, when the employer and employee agreed when leave is to be taken;
(b)under s.72(2) of the LSLA, when the employer paid the employee accrued long service leave upon termination; and
(c)under s.73(1) of the LSLA, when the employer paid the employee’s personal representative upon the employee’s death.
That is, Mr Sutton argued that there was no circumstance in which long service leave could be cashed out, as appeared to have occurred in the present case. Subsection 66(1) of the LSLA only permits payment for long service leave when it is actually taken as leave, pursuant to an agreement between the employer and the employee.
Mr Sutton argued that Edyvane’s committed an offence by paying Mr Sutton for long service leave in lieu of him taking that leave. Mr Sutton said that he did not commit an offence because he did not know that he was being paid in lieu of long service leave.
The respondents argued that there was some uncertainty about whether the $4,000 was a loan. However, Edyvane’s included it in CB 4681 as a long service leave payment, so I consider that they cannot now maintain it was a loan. There was certainly no suggestion that the $4,000 would ever be repaid.
The respondents also argued that the $4,000 was in effect an advance on the long service leave payout that Mr Sutton was entitled to on his retirement. However, that type of arrangement is exactly what was prohibited under the LSLA.
The respondents argued that Mr Sutton’s claim in respect of the $4,000 was time barred, because the claim arose in 2008. However, that is not the way Mr Sutton put his case. He said that he had to be paid for the six weeks of long service leave from 2008 on his retirement in 2019. Therefore, time began to run in 2019.
In my view, Edyvane’s payment of $4,000 in 2008 was an unlawful cashing out of long service leave entitlements. Being unlawful, the payment did not reduce his long service leave entitlements. He must be paid out for the six weeks of long service leave that he did not take in 2008.
The $4,000 was a windfall for Mr Sutton. Subject to the parties’ submissions, it seems to me that this circumstance might be a relevant matter in assessing penalty. However, for now, I accept that Edyvane’s breached s.323 of the Act by not paying Mr Sutton on his retirement for the six weeks of accrued annual leave that Edyvane’s treated him as having taken in 2008. In addition, Edyvane’s underpaid Mr Sutton $7,200, which it should now be required to pay him.
c. 2015 to 2016
The parties agreed that Mr Sutton took nine weeks of long service leave from about 21 October 2015 to 1 January 2016 and a further five weeks of long service leave from about 8 January 2016 to 5 February 2016. That adds up to 70 days. Mr Sutton requested these periods of leave as long service leave. However, he took the leave for the purposes of having knee surgery. The respondents were well aware of that. Mr Sutton now says that the nine weeks and five weeks in 2015 and 2016 should be treated as personal leave. He says his long service leave balance should be recredited with 14 weeks of leave, and, as he has retired, he should be paid for the outstanding balance.
The respondents said firstly that Mr Sutton requested long service leave, and he should not now be permitted to change his mind about the type of leave he took. They said that he well knew that he was entitled to personal leave, because he took personal leave on numerous occasions. Mr Sutton said that he knew that personal leave was available in general, but he did not know it was available for his knee operations. Mr Sutton argued that Edyvane’s had a positive obligation to ensure Mr Sutton was aware of his entitlements. I accept that submission. Edyvane’s should have told Mr Sutton that he had an entitlement to personal leave for reasons such as knee operations, if indeed he had any personal leave owing.
However, the respondents submitted that, as of the dates of Mr Sutton’s leave for his knee operations, he was not owed any sick leave. That argument was based on the limitation period of six years applying to the claim. The respondents noted that the statement of claim was filed on 30 July 2021, and six years prior was 30 July 2015. The respondents said that, when Mr Sutton took leave for his knee operation between October 2015 and February 2016, he could only have accrued, after 30 July 2015, about five or 1.6 days’ leave, depending on the limitation period.
This is not the correct analysis. If Edyvane’s had complied with reg.3.36 of the regulations, on 21 October 2015 it would have had a clear record of the personal leave that Mr Sutton had accrued at that time. At any given moment, he was entitled to all of the personal leave that he had accrued from previous years. The limitation period only began to run when he should have been paid out his personal leave on his retirement.
In 2015, Mr Sutton was entitled to 10 days per year of paid personal leave. He had had that right since at least 1 January 2010, when the National Employment Standards started. Unused personal leave accrues from one year to the next. If Mr Sutton had used no personal leave since 1 January 2010, by October 2015, he would have been owed about 48 days personal leave.
The respondents submitted that there was no evidence before the court about what Mr Sutton’s personal leave entitlements might have been prior to 1 January 2010. However, we can be confident that, from 1 January 1985, when Mr Sutton is taken to have commenced full time employment with Edyvane’s, until 1 January 2010, he would have been entitled to at least five days personal leave each year and possibly 10 days. If he had taken no personal leave, between 1 January 1985 and 1 January 2010, he would have accrued at least 125 days of personal leave and possibly 250 days of personal leave. That is additional to the 48 days mentioned above, that would have accrued between 1 January 2010 and October 2015, if Mr Sutton had taken no leave during that period.
The respondents relied on the workbooks to support their claim that Mr Sutton took 46 days of personal leave in the four and a half years between 2015 and April 2019. That may be so. He was about 60 years old in 2015 and doing a physically demanding job. It is not surprising that he would have needed to take sick leave now and then. However, that says nothing about the personal leave that he had accrued from earlier years.
Moreover, on the respondents’ own figures, in 2015, Mr Sutton took only four days of sick leave between January and October 2015. That means, on the respondents’ analysis, he had at least six days’ of personal leave owing to him by the end of the year.
Mr Sutton claimed that he was entitled to enough accrued sick leave in 2015 and 2016 to cover the leave he took for his knee operations. He conceded that he had taken sick leave, and that he took more sick leave as he approached retirement. The respondents have pointed to some sick leave that Mr Sutton took late in the piece.
However, I consider that it is more probable than not that Mr Sutton had ample personal leave in 2015 and 2016 to cover his 70 days absence for knee surgery. Edyvane’s had a positive obligation to advise Mr Sutton of his entitlement to personal leave. Edyvane’s also had a positive obligation to keep accurate running records of how much personal leave Mr Sutton had taken and how much he had accrued. If Edyvane’s had complied with those obligations, this issue would not have arisen. As Edyvane’s did not keep Mr Sutton apprised of his correct personal leave entitlements, Edyvane’s cannot now rely on the fact that Mr Sutton asked for his leave for knee surgery to be long service leave. Edyvane’s took advantage of Mr Sutton’s ignorance and vulnerability.
I am satisfied that Edyvane’s breached s.323(1) of the Act by not paying Mr Sutton on his retirement for the 14 weeks of accrued long service leave that Edyvane’s treated him as having taken in 2015 and 2016.
G: Annual leave
Upon termination, employees are required to be paid for any untaken annual leave. Edyvane’s paid Mr Sutton for four weeks untaken annual leave when he retired. Mr Sutton alleged that he was owed for an additional 56 weeks of untaken annual leave. Edyvane’s disputed that.
The parties also disputed who had the burden of proof on this issue. Section 557C of the Act provides that:
557C   Presumption where records not provided
(1)       If:
(a)in proceedings relating to a contravention by an employer of a civil remedy provision referred to in subsection (3), an applicant makes an allegation in relation to a matter; and
(b)the employer was required:
(i)by subsection 535(1) or (2) to make and keep a record; or
(ii)by regulations made for the purposes of subsection 535(3) to make available for inspection a record; or
(iii)by subsection 536(1) or (2) to give a pay slip;
in relation to the matter; and
(c)       the employer failed to comply with the requirement;
the employer has the burden of disproving the allegation.
(2)Subsection (1) does not apply if the employer provides a reasonable excuse as to why there has not been compliance with subsection 557C(1)(b).
…
The applicant argued that s.557C of the Act applied, and Edyvane’s bore the onus, because the payment for untaken annual leave was required to be made on the date of Mr Sutton’s retirement, being 5 July 2019, which was after the date of commencement of s.557C of the Act, being 16 September 2017. Edyvane’s argued that Mr Sutton bore the onus of proving the amount of his untaken annual leave up to the date of the commencement of s.557C of the Act, being 16 September 2017. For that proposition, Edyvane’s relied on a decision of the Magistrates’ Court of the Australian Capital Territory, Dormer v Relocation Laws Pty Ltd [2019] ACTMC 33. That decision is not binding on this court. The point does not appear to have been substantially argued in Dormer. Edyvane’s also relied on Jess v Cooloola Milk Pty Ltd [2021] FCCA 1526. That case dealt with underpayments, which are an entirely different point. Jess is distinguishable. I consider that the better view is that Mr Sutton’s entitlement to be paid for his untaken annual leave arose on the date of his retirement, being 5 July 2019, which was after the commencement of s.557C of the Act. Therefore, from a timing point of view, s.557C of the Act applies to this case.
Edyvane’s then argued that s.557C of the Act did not apply to this case because it only moved the burden to Edyvane’s if it had not kept or provided the required records. Edyvane’s said that they had kept and provided the required records. Mr Sutton argued that Edyvane’s had not kept or provided the required records.
Most significantly, reg.3.36 of the regulations required Edyvane’s to keep a record that set out the balance of Mr Sutton’s annual leave entitlement from time to time. Edyvane’s records did not include the balance of Mr Sutton’s annual leave entitlement from time to time or at all. Therefore, s.557C of the Act applies to this case. There were other arguments about the quality of the records and whether they were provided. However, it is unnecessary to address them because there has been a clear breach of reg.3.36 of the regulations.
Edyvane’s then argued that the burden did not shift to it in this case because Mr Sutton had not provided evidence to the contrary. For that proposition, Edyvane’s relied on Ghimire v Karriview Management Pty Ltd (No 2) (2019) 290 IR 331; [2019] FCA 1627 at [14] where Colvin J said of s.557C of the Act that:
… it is not a provision, for example, that operates to deem a matter to be proved in the absence of evidence to the contrary.
It is worth setting out Colvin J’s whole discussion of this issue in Ghimire. His Honour said:
13.Section 557C of the Fair Work Act states in terms that where in proceedings relating to a contravention by an employer of a civil remedy provision an applicant makes an allegation in relation to a matter and the employer was required (by specified provisions) to keep a record in relation to the matter and the employer failed to comply with the requirement (and there is no reasonable excuse as to why there has not been compliance) then 'the employer has the burden of disproving the allegation'. The civil remedy provisions include s 45 which provides that a person must not contravene a term of a modern award.
14.Section 557C provides for more than an evidentiary burden on the defaulting employer when it comes to an absence of records. It is not a mere reversal of the evidentiary onus. Further, it is not a provision, for example, that operates to deem a matter to be proved in the absence of evidence to the contrary. In such cases, an issue may arise as to whether the obligation is to adduce some evidence which raises a genuine issue as to whether the matter occurred or whether the burden of disproving the matter falls on the party who disputes the matter. Rather, s 557C states expressly that the defaulting employer bears the burden of disproving the allegation. It is a provision concerned with the overall burden of proof.
15.In that context, the reference by the magistrate to the view that the same result would have been reached on the same evidence 'absent the reversal of the burden', assumes some significance. It suggests that the magistrate had in mind a view that the provision effected a reversal of the evidentiary burden only. It indicated an evaluation of the evidence as a whole on the basis that Karriview had to adduce some persuasive evidence of its position. If it did, then the whole of the evidence was to be evaluated to determine whether the claims by Mr Ghimire and Ms Sharma had been made out.
16.However, s 557C required an employer who did not keep appropriate records to disprove the allegation. If the evidence adduced by the employer did not rise to the level necessary, on the balance of probabilities, to affirmatively prove that Mr Ghimire and Ms Sharma did not work the hours that they claimed, then the effect of s 557C was that those claims were to be upheld. In that context, it was not enough that there may be reasons to question the credibility of the account given by Mr Ghimire or Ms Sharma. Even if their evidence was not accepted, Karriview would not have thereby disproved the allegation made by them as to the hours that they worked.
17.It may be that in order for s 557C to apply, the relevant allegation must be made reasonably or bona fide before the provision applies. However, no issue of that kind was raised before the magistrate. The magistrate found expressly that Mr Ghimire and Ms Sharma were not paid anything for their work. They did undertake a considerable amount of work. Mr Quann accepted that they did work at the Lodge during the period alleged. In those circumstances, there was nothing to suggest that the claims were not bona fide.
Edyvane’s also relied on Gallagher v AG Labour Services Pty Ltd [2020] FCA 1753 at [18]. However, that paragraph concerned pleadings, rather than evidence, which is the point now under consideration.
Ghimire raised in obiter the question of whether an allegation of a breach of a civil remedy provision must be made reasonably and bona fide. However, in the present case, those points were not disputed. It is unnecessary to consider them further.
Leaving aside those issues, Ghimire means that, provided that an applicant produces some evidence that a breach of a civil remedy provision has occurred, then, if an employer has failed to keep or provide records as required, then the employer has the burden of disproving the allegation.
In the present case, Mr Sutton did produce some evidence that he was entitled on his retirement to payment for 56 weeks of untaken annual leave additional to the four weeks that he was paid. Edyvane’s criticised that evidence, noting inconsistencies between Mr and Mrs Sutton’s evidence, and Mr Sutton’s concession that, in addition to the annual leave he acknowledged to attend horse shows each year, he also went with a friend to the high country and took leave between Christmas and New Year. However, as Colvin J said in Ghimire at [16],
… it was not enough that there may be reasons to question the credibility of the account given by Mr Ghimire or Ms Sharma. Even if their evidence was not accepted, Karriview would not have thereby disproved the allegation made by them as to the hours that they worked.
The same may be said in the present case. It is therefore necessary to examine the evidence provided by Edyvane’s. Under s.535 of the Act, the employer was only required to keep records going back seven years. Edyvane’s produced workbooks and tax books in respect of Mr Sutton going back to 2012, being seven years before his retirement. I accept that while the workbooks might not be records as required by the regulations, they might still be adequate evidence for the purposes of proving Mr Sutton’s annual leave entitlement upon his retirement. However, Edyvane’s records did not include the presently crucial required entries about the annual leave balance that Mr Sutton was owed from time to time.
If Edyvane’s had proper records from 2012 that showed the annual leave balance owed to Mr Sutton from 2012, it may have been possible to believe that Edyvane’s records accurately stated his actual entitlements accrued over the previous years. However, contrary to the law, Edyvane’s records do not contain the annual leave balance owed to Mr Sutton from time to time or at all.
Additionally, Edyvane’s claimed that Mr Sutton sometimes cashed out his annual leave. However, Edyvane was unable to produce any agreement in relation to cashing out annual leave. That is contrary to reg.3.36(2) of the regulations.

Edyvane’s did produce a spreadsheet of annual leave, which they claimed was based on contemporaneous records from the beginning of Mr Sutton’s employment. However, Edyvane’s did not produce to the court or Mr Sutton records prior to 2012. The spreadsheet is a secondary document that is of little evidentiary weight.
If Edyvane’s had kept records that showed Mr Sutton’s untaken annual leave entitlement from time to time, if there were any errors in the records, Mr Sutton could have questioned them at the time, and, if need be, the records could have been corrected.
Ms Edyvane and an employee, Ms Wright, gave oral evidence about these matters. However, as leave balances are very detailed issues going back over many years, it is not the sort of thing that one could remember with any certainty. The question can realistically only be determined by contemporaneous records.
All in all, Edyvane’s records and other evidence are insufficient to discharge the burden. I am therefore satisfied that Edyvane’s owes Mr Sutton for 56 weeks untaken annual leave. Mr Sutton calculated that to be worth $67,200. Edyvane’s did not dispute that figure and I accept it.
H. rostered days off
Mr Sutton argued that he was entitled to a rostered day off (“RDO”) once per month but he did not receive any. Edyvane’s argued that Mr Sutton was not entitled to rostered days off, but he did receive paid days off notwithstanding that he had no entitlement to them.
There was an entitlement to RDOs under the RTLDO but not under the RTD. Clause 20.5 of the RTLDO provided that:
20.5 Rostered days off
(a) Each full-time employee, in addition to days off elsewhere provided, is entitled to a rostered day off on the basis of one day for each month of employment (subject to suspension of the entitlement during any period of annual leave, sick leave, compassionate leave, workers compensation and long service leave, as elsewhere provided).
(b) Rostered days off must be taken by employees in accordance with the roster, but may, in order to meet the requirements of work, be accumulated and taken consecutively.
Alternatively, subject to mutual agreement in writing between the employer and an individual employee, any number of accrued rostered days off may be cashed out at the time the employee accesses annual leave. Any payment for a rostered day off will be at 20% of the applicable minimum weekly rate.
(c) In the event that rostered days off are so accumulated, employees are entitled to one rostered day off for each month of employment on and after two months’ employment provided that the maximum accumulation of rostered days off will be 10 over a period of 10 months’ employment, exclusive of periods of leave as provided.
(d) Employees must be paid for rostered days off at the rate prescribed by clause 13.1.
(e) Rostered days off may be changed by agreement between the employer and the employee or, in the absence of such agreement, by the giving of 48 hours’ notice of such alteration by the employer to the employee.
…
The only mention of RDOs in the RTD was in cl.22.5, which provided that:
Ordinary hours of work may be worked in the following ways:
(a) providing for a rostered day off:
(i)      by employees taking a rostered day off in accordance with the roster implementing the work cycle in the depot, yard or garage;
(ii)     an employee’s normal rostered day off may be changed by agreement between the employer and employee. In the absence of agreement, 48 hours’ notice of such alteration must be given to the employee; or [22.5(a)(iii) substituted by PR546558 ppc 07Jan14]
(iii)    rostered days off may be accumulated to a maximum of 10 days and taken or paid out at the applicable base rate of pay in any combination agreed in writing between the employer and employee;
…
The term “full-time employee” was not defined in the RTLDO. It was common ground that Mr Sutton did not work exclusively under the RTLDO. The parties agreed that he worked 70% of the time under the RTD and 30% of the time under the RTLDO. That sort of arrangement was expressly contemplated by both the RTD and the RTLDO. Clause 4 of the RTLDO provided that:
4 Coverage
4.1 This industry award covers employers throughout Australia in the private transport industry engaged in long distance operations and their employees ...
4.2 The award does not cover an employee while they are temporarily required by their employer to perform driving duties which are not on a long distance operation, provided the employee is covered by the Road Transport and Distribution Award 2010 while performing such duties.
…
Similarly, cl.4 of the RTD provided that:
4 Coverage
4.1 This industry award covers employers throughout Australia in the road transport and distribution industry and their employees ...
4.2 This award does not cover employers and employees covered by the following awards:
…
• Road Transport (Long Distance Operations) Award 2010 whilst undertaking long distance operations;
…
…
Mr Sutton was a full-time employee of Edyvane’s. However, he was not employed full-time as a long distance driver. In fact, he worked less than one third of the time on long distance driving. I consider therefore that cl.20.5 of the RTLDO did not apply to him, and he was not entitled to RDOs.
There could be an argument that a person who normally worked under the RTD, but who worked for one month continuously and full-time under the RTLDO, would be entitled to an RDO for that month. However, it was not suggested that Mr Sutton ever had that work pattern.
Edyvane’s argued that Mr Sutton did receive paid days off, typically when he showed up for work but there was no work available for him so he was sent home. This would not have met an entitlement to RDOs. As a full-time employee, Mr Sutton was entitled to be paid a full-time wage, whether Edyvane’s had any work for him to do on a particular day or not. Moreover, the essence of an RDO is that it is rostered. The rostering enables the employee to know in advance when the day off will be, so he or she can properly utilise it for personal purposes.
i: reimbursement for work diaries
Mr Sutton argued that he was entitled to be reimbursed by Edyvane’s for his work diaries, which he was obliged to keep. The respondents did not dispute that, but argued that Edyvane’s was only required to reimburse the cost of work diaries if and when the employee asked to be reimbursed.
Paragraph 16.4(a) of the RTD, and cl.14.2(a) of the RTLDO, said that:
Where an employee is required to possess a work diary, the cost of such diary must be reimbursed by the employer. (emphasis added)
Edyvane’s knew, or should have known, that Mr Sutton, and all of its truck drivers, were required to keep work diaries, and knew, or should have known, that it, as the employer, was required to reimburse Mr Sutton and all of its other truck drivers for the cost of work diaries. A corollary of that knowledge was that Edyvane’s was required to ensure that Mr Sutton, and all of its other truck drivers, were aware of their entitlement to be reimbursed for work diaries. This is particularly salient in circumstances where Edyvane’s was required to, but did not, make the awards available for inspection.
Edyvane’s said that Mr Sutton claimed the work diaries as a tax deduction. That does not absolve Edyvane’s of its responsibilities in relation to work diaries.
In summary, Edyvane’s breached its obligation to reimburse Mr Sutton for his work diaries. The parties agreed that the relevant sum, within the relevant limitation period, was $160.
J: reimbursement for protective clothing
Mr Sutton argued that he was entitled to, but did not, receive reimbursement from Edyvane’s for the purchase of protective clothing. He said he bought new protective clothing every two years at a total cost, within the limitation period, of $1,950.
Paragraph 16.4(b)(ii) of the RTD and cl.14.2(b)(i) of the RTLDO provided that:
Where the employee is required by the employer to work continuously in conditions in which, because of their nature, the employee’s clothing would otherwise become saturated, the employer must reimburse the employee for the cost of purchasing protective clothing. The provisions of this clause do not apply where the protective clothing is provided by the employer.
The respondents did not dispute that the nature of Mr Sutton’s work was such that he required protective clothing when hosing out the truck. The respondents conceded that Mr Sutton used his own protective clothing for that purpose. However, they said that he did not produce any invoices for the protective clothing or claim a reimbursement.
Unlike the work diaries, where the parties agreed on the sum in issue, the parties did not agree on the sum Mr Sutton incurred for protective clothing. In the absence of invoices, or other documentary evidence of the amount to be reimbursed, I am not able to fix an amount that should have been reimbursed for protective clothing, and that Edyvane’s should now pay Mr Sutton for protective clothing. Mr Sutton’s estimate of $1,950 was not substantiated, and I am simply not able to rely on it.
However, that does not mean that there was not a breach of the RTD, the RTLDO and s.45 of the Act. It was not suggested that Mr Sutton was given, borrowed or stole his protective clothing. It follows that his protective clothing must have cost him something. Edyvane’s was obliged to reimburse Mr Sutton for his protective clothing, unless Edyvane’s provided protective clothing for Mr Sutton’s use. Ms Edyvane said in paragraph 40 of her affidavit affirmed on 24 May 2022 that:
There was protective clothing supplied in the depot shed if a driver needed it.
Mr Sutton said that he was not aware of any protective clothing being available. In any event, merely having protective clothing available is not the same as providing it. The concept of providing an item to a person requires the item to actually be supplied to that person, not kept in a shed. There was no suggestion that Edyvane’s actually supplied protective clothing to Mr Sutton. Therefore the exception in cl.16.4(b)(ii) of the RTD and cl.14.2(b)(i) of the RTLDO does not apply to the present case.
Ms Edyvane, and, through her, Edyvane’s, knew that Mr Sutton had bought protective clothing. Edyvane’s was obliged to reimburse Mr Sutton for it. By failing to do so, Edyvane’s breached s.45 of the Act and cl.16.4(b)(ii) of the RTD and cl.14.2(b)(i) of the RTLDO.
Mr Sutton did not present Edyvane’s with invoices for his protective clothing and did not seek reimbursement. However, that is at least partly because that Edyvane’s did not comply with its obligation to display the RTD and the RTLDO. Edyvane’s cannot shelter behind its own breach of one legal obligation to excuse its breach of another.
K: allowances
Mr Sutton submitted that he was entitled under the RTD and the RTLDO to a livestock carting allowance, and under the RTLDO to a long distance operation allowance. He said that he was not paid either of those allowances. The respondents did not dispute that Mr Sutton was entitled to those allowances. However, they said that Edyvane’s paid Mr Sutton allowances in the form of “trip expenses” which, they said, more than covered all of the allowances to which Mr Sutton was entitled. Mr Sutton said that, while there were book entries for trip expenses, he was not actually paid them.
This issue has arisen partly because Edyvane’s did not comply with its obligation under reg.3.33(3) of the regulations to make and keep a record that details the allowances that Mr Sutton was entitled to be paid and was paid. Ms Edyvane said this was because the accountant told her to just pay a flat sum of $80 for trip expenses. However, the accountant’s advice obviously did not reflect the law. The respondents were obliged to comply with the law, and any failure in that regard is not excused by poor advice from an accountant.
a. The amount of the livestock carting allowance
Under clause 16.2(b)(vi) of the RTD, Mr Sutton was entitled to an allowance for carting livestock. That provision was as follows:
16.2 Allowances for responsibilities or skills that are not taken into account in rates of pay:
…
(b) Miscellaneous
…
(vi) Any employee who is a recognised livestock carter carting livestock—2.59% of the standard rate per week.
…
Under cl.14.1(c)(v) of the RTLDO, Mr Sutton was entitled to an allowance for carting livestock in long distance operations. That provision was substantially the same as cl.16.2(b)(vi) of the RTD, except that the percentage of the standard rate was 2.42% per week. The standard rates, as I understand it, are higher under the RTLDO. However, Mr Sutton argued, without the respondents disputing the point, that the calculation should be based on the RTD. Since 1 July 2018, the RTD provided for a minimum weekly rate for Grade 3 truck drivers, such as Mr Sutton, of $814.20. That led to a figure of $21.08 per week, for the period after 1 July 2018. The respondents did not dispute those figures and I accept them.
b. The amount of the long distance operation allowance
Under cl.14.1(c)(i) of the RTLDO, Mr Sutton was entitled to be paid a long distance operation allowance for any round trip that exceeded 500km. That provision was as follows:
An employee who is engaged as a local driver under the terms and conditions of the Road Transport and Distribution Award 2010 and who is required by the employer to temporarily transfer to duties covered by this award must be paid an allowance of 1.24% of the standard rate on each occasion.
Mr Sutton said that the standard rate for a Grade 4 truck driver, such as Mr Sutton, was $839.60 starting on 1 July 2018. Mr Sutton calculated that he was entitled to $10.41 for each round trip exceeding 500km. As mentioned previously, Mr Sutton did such trips about 30% of the time. These figures were not disputed by the respondents and I accept them.
c. Was Mr Sutton paid for trip expenses?
It was common ground that Mr Sutton was paid $30 per hour, which Ms Edyvane erroneously claimed was above the award rates for standard hours. Mr Sutton referred to CB 4580 and CB 4581 as an example of what he was paid. These pages show that Mr Sutton was paid:
(a)$360 for Monday 18 March 2019, which was a 12 hour day, and included overtime;
(b)$300 for Tuesday 19 March 2019, which was a 10 hour day and included overtime;
(c)$360 for Wednesday 20 March 2019, which was a 12 hour day, and included overtime;
(d)$360 for Thursday 21 March 2019, which was a 12 hour day, and included overtime; and
(e)$90 for Friday 22 March 2019, which was a three hour day, and I don’t understand, because Mr Sutton was a full-time employee, and should have been paid for the day whether work was available for him or not.
In any event, that totals gross wages of $1,470 for the week. The workings on CB 4581 show that $80 was taken from $1,470, leaving $1,390, and that tax (and superannuation) were calculated on the figure of $1,390, rather than the gross wages of $1,470. That left net wages of $1,072. Then, $80 was added back, presumably for trip expenses, to give the amount of $1,152 as net wages. From that, $20 was deducted as an extra personal contribution for superannuation. The cheque provided to Mr Sutton was for $1,132. The tax book at CB 4641 confirms that is how Mr Sutton’s wages were calculated.
The flaw in this calculation is that the first $80 should not have been taken from Mr Sutton’s gross wages at all. While it may be the case that tax and super were not payable on the trip expenses, that was not a justification for taking $80 from Mr Sutton’s gross wages in the first place. The $80 was eventually added back, but that just brought Mr Sutton back to zero. In this example, he was not paid $80 for trip expenses. He was paid nothing at all.
Granted, this is just one example. However, the respondents did not suggest that it was not typical of their approach to trip expenses. Indeed, Ms Edyvane’s evidence was to the effect that this is how it was always done. I accept that evidence.
On this basis, I conclude that Edyvane’s did not in fact pay Mr Sutton any trip expenses. That is because the $80 for trip expenses that Edyvane’s records assert was paid to Mr Sutton was more than offset by the $80 that was initially taken from Mr Sutton’s gross pay for no proper reason.
d. The amount of the allowances payable
The only basis upon which Edyvane’s said that it was not liable to pay the allowances was that it had paid the trip expenses instead. It did not do so. It follows that Edyvane’s breached s.45 of the Act and cl.16.2(b)(vi) of the RTD, cl.14.1(c)(v) of the RTLDO and cl.14.1(c)(i) of the RTLDO. The parties agreed that the amount payable for the livestock carting allowance was $4,321.40 and the amount payable for the long distance operations was $1,800.64.
l: whether the contraventions were serious
Mr Sutton argued that the contraventions detailed above constituted serious contraventions as defined in s.557A of the Act. That section provides that:
557A   Serious contravention of civil remedy provisions
(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)he person’s conduct constituting the contravention was part of a systematic pattern of conduct relating to one or more other persons.
…
Systematic pattern of conduct
(2)In determining whether the person’s conduct constituting the contravention of the provision was part of a systematic pattern of conduct, a court may have regard to:
(a)the number of contraventions (the relevant contraventions) of this Act committed by the person; and
(b)the period over which the relevant contraventions occurred; and
(c)the number of other persons affected by the relevant contraventions; and
(ca)the person’s response, or failure to respond, to any complaints made about the relevant contraventions; and
(d)except if the provision contravened is section 535—whether the person also contravened subsection 535(1), (2) or (4) by failing to make or keep, in accordance with that section, an employee record relating to the conduct constituting the relevant contraventions; and
(e)except if the provision contravened is section 536—whether the person also contravened subsection 536(1), (2) or (3) by failing to give, in accordance with that section, a pay slip relating to the conduct constituting the relevant contraventions.
(3)Subsection (2) does not limit the matters that a court may have regard to.
(4)Subsection 557(1) does not apply for the purposes of determining whether the person’s conduct was part of a systematic pattern of conduct.
(5)Subsection (4) does not otherwise affect the operation of subsection 557(1) in relation to serious contraventions of civil remedy provisions.
Involvement in a serious contravention
(5A)A person (the involved person) who is involved in a contravention of a civil remedy provision by another person (the principal) commits a serious contravention of the provision only if:
(a)the principal’s contravention was a serious contravention; and
(b)the involved person knew that the principal’s contravention was a serious contravention.
Application for a serious contravention order and alternative orders
(6)If a person is applying for an order in relation to a serious contravention of a civil remedy provision, the person’s application under subsection 539(2) must specify the relevant serious contravention.
(7)If, in proceedings for an order in relation to a serious contravention of a civil remedy provision, the court:
(a)is not satisfied that the person has committed a serious contravention against that provision; and
(b)is satisfied that the person has contravened that provision;
the court may make a pecuniary penalty order against the person not for the serious contravention but for the contravention of that provision.

Section 557B of the Act provides:
557B Liability of bodies corporate for serious contravention
(1)For the purposes of subsection 557A(1), a body corporate knowingly contravenes a civil remedy provision if the body corporate expressly, tacitly or impliedly authorised the contravention.
(2)This section does not limit section 793.
Pursuant to s.557A(6) of the Act, the further amended statement of claim filed on 10 December 2021 specified that all of Edyvane’s contraventions were serious contraventions.
The test under s.557A(1) is twofold. The contravenor must have knowingly contravened the provision and the contravenor’s conduct must have been part of a systematic pattern of conduct.
In the present case, the contravenor was a corporation. Under s.557B of the Act, it is taken to have knowingly contravened the provision if it expressly, tacitly or impliedly authorised the contravention. Authorisation is sufficient. For the purposes of s.557B of the Act, it is not necessary that corporations act deliberately in addition to expressly, tacitly or impliedly authorising the contravention.
Section 557B of the Act excludes cases where an employee of a corporation acted as a rogue agent or simply made a mistake. That is not the present case. In this case, all of the contraventions occurred under the direction of Ms Edyvane, who at all material times was a director of Edyvane’s and its office administrator. It is beyond doubt that Edyvane’s expressly, tacitly and impliedly authorised the actions of Ms Edyvane, including the contraventions.
In relation to the requirement for a systemic pattern of conduct, the respondents noted Fair Work Ombudsman v IE Enterprises Pty Ltd [2020] FCA 848 at [53]. In that paragraph, Anderson J cited part of the explanatory memorandum (“EM”) for s.557A of the Act where it said at [24]:
The reference to a ‘systematic pattern of conduct’ is to a recurring pattern of methodical conduct or a series of coordinated acts over time. It does not encompass ad hoc or inadvertent conduct. […]
The respondents did not draw to the court’s attention the balance of paragraph 24 of the EM, and paragraph 25, which stated:
24.… A contravention is more likely to be considered part of a systematic pattern of conduct if:
•there are concurrent contraventions of the Fair Work Act occurring at the same time (e.g. breaches of multiple award terms and record-keeping failures);
•the contraventions have occurred over a prolonged period of time (e.g. over multiple pay periods) or after complaints were first raised;
•multiple employees are affected (e.g. all or most employees doing the same kind of work at the workplace, or a group of vulnerable employees at the workplace); and
•accurate employee records have not been kept, and pay slips have not been issued, making alleged underpayments difficult to establish.
25. These factors are intended to be indicative only, and a ‘serious contravention’ may still be established if one or more of these factors are not present. …
The first, second and fourth of those factors all applied in the present case. The respondents particularly emphasised that the contraventions only concerned one employee. Obviously, Mr Sutton was the only employee involved in this proceeding. However, Ms Edyvane’s evidence was to the effect that her approach applied to all employees. Indeed, it would be outrageous if Edyvane’s had complied with its legal obligations in relation to all other employees, but singled out Mr Sutton for special and deleterious treatment. More importantly, as the EM said, contraventions can be part of a systematic pattern of conduct even if one of the factors mentioned in the EM does not apply.
In my view, it is beyond doubt that the contraventions in the present case were part of a systematic pattern of conduct. The contraventions continued over a long period and were simply the way Edyvane’s did things. That is the very definition of a systematic pattern of conduct.
The respondents put forward various arguments to support their claim that the contraventions were not deliberate and were not part of a systematic pattern of conduct. They do not really address the matters discussed above, and would perhaps be better directed to the penalty aspect of the proceeding.
I am satisfied that the contraventions in the present case were serious contraventions as defined in s.557A of the Act.
m: accessorial liability
Mr Sutton argued that Ms Edyvane was liable as an accessory for Edyvane’s contraventions in:
(a)failing to display the awards and the NES;
(b)failing to provide appropriate payslips;
(c)failing to reimburse Mr Sutton for his work diaries and protective clothing; and
(d)failing to pay the allowances.
In oral submissions, Mr Sutton said that he relied on s.550(2)(a) and (c) of the Act, which are as follows:
550Involvement in a contravention treated in same way as actual contravention
…
(2)A person is involved in a contravention of a civil remedy provision if, and only if, the person:
(a) has aided, abetted, counselled or procured the contravention; or
…
(c) has been in any way, by act or omission, directly or indirectly, knowingly concerned in or party to the contravention; or
…
In Fair Work Ombudsman v Grouped Property Services Pty Ltd (2016) 152 ALD 209; [2016] FCA 1034, Katzmann J said at [957]:
… where an alleged accessory is aware of a system producing certain outcomes, and those outcomes constitute contraventions of the Act, it is unnecessary to show that the alleged accessory knew the details of each particular instance of those outcomes in order to show the requisite knowledge.
That passage was cited with approval by the Full Court of the Federal Court in EZY Accounting 123 Pty Ltd v Fair Work Ombudsman (2018) 360 ALR 26; |(2018) 282 IR 86; [2018] FCAFC 134 at [34]. Applying that passage to the present case, it is clear that Ms Edyvane was aware of all of Edyvane’s systems in relation to the employment of Mr Sutton. Accordingly, she had the requisite knowledge to satisfy s.550 of the Act in relation to payslips, reimbursements and allowances.
The failure to display the awards and the NES is in a different category. It cannot properly be described as the outcome of a system. In Yorke v Lucas (1985) 158 CLR 661; (1985) 61 ALR 307; (1985) 59 ALJR 776; (1985) ATPR 40-622; [1985] HCA 65, the High Court considered s.75B of the Trade Practices Act 1974, including a part of that section which was relevantly identical to s.550(2)(c) of the Act. In Yorke, the plurality said:
16. ... The appellants also rely upon par.(c) of the same section which extends the definition of a person involved to a person who has been in any way, directly or indirectly, knowingly concerned in, or party to, the contravention. There can be no question that a person cannot be knowingly concerned in a contravention unless he has knowledge of the essential facts constituting the contravention. ... It might be thought possible to construe the express requirement of knowledge as extending not only to being "concerned in" but also to being "party to" a contravention. However, there are two reasons, in our view, why it is inappropriate to do so.
17. First, the natural construction of par.(c) is to regard the word "knowingly" as qualifying only the words "concerned in" which immediately follow it. The punctuation strongly suggests such a construction. Secondly, the word "knowingly" would be an unnecessary qualification of the words "party to". In the context of the paragraph, a person could only properly be said to be "party to" a "contravention" if his participation was in the context of knowledge of the essential facts constituting the particular contravention in question. Whilst it is not a contradiction in terms to speak of a person being "party to" something of which he is unaware, some indication is needed to convey such a meaning. There is nothing in the paragraph itself which would point to any conclusion other than that the words "party to" are used to refer to a participant in the nature of an accessory. Moreover, the wider context of the whole section leads to the same conclusion. We have already indicated why par.(a) requires knowledge. Paragraph (b), which speaks of inducing a contravention by threats, promises or otherwise, and par.(d), which speaks of conspiring with others to effect a contravention, both clearly require intent based upon knowledge and there is force, we think, in the observation made in the judgment of the Full Court below that there is
" ... no reason why Parliament would have intended that a section which renders natural persons liable for a contravention by a corporation should require some mental element or absence of innocence in every case to which it refers except one which itself requires in its first limb that the person was 'knowingly' concerned in the contravention."
In our view, the proper construction of par.(c) requires a party to a contravention to be an intentional participant, the necessary intent being based upon knowledge of the essential elements of the contravention.
What that means is that a person may be liable under s.550(2) of the Act as an accessory if that person was party to the contravention and had knowledge of the essential elements of the contravention. It is abundantly clear that Ms Edyvane was party to the failure to display the awards and the NES in that she was a director of Edyvane’s and its office administrator. It was her responsibility to make the awards and the NES available and she failed to do so.
The next question is whether Ms Edyvane had knowledge of the essential elements of the contravention. The obligation in relation to making the awards and the NES available arose under the awards themselves. They relevantly required that:
The employer must ensure that copies of this award and the NES are available to all employees to whom they apply either on a noticeboard which is conveniently located at or near the workplace or through electronic means, whichever makes them more accessible.
Ms Edyvane knew that the awards and the NES were not available to all employees on a noticeboard which was conveniently located at or near the workplace or through electronic means, whichever made them more accessible. It follows that Ms Edyvane had knowledge of the essential elements of the contravention. It was not necessary that Ms Edyvane knew that the omission constituted a contravention: FairWork Ombudsman v Devine Marine Group Pty Ltd [2014] FCA 1365 at [176]. More particularly, it was not necessary that Ms Edyvane knew that s.45 of the Act made it an offence to fail to comply with a term of an award.
It follows that Ms Edyvane was accessorily liable for Edyvane’s contraventions in:
(a)failing to display the awards and the NES;
(b)failing to provide appropriate payslips;
(c)failing to reimburse Mr Sutton for his work diaries and protective clothing; and
(d)failing to pay the allowances.
I do not accept the respondents’ submission that it was necessary for Mr Sutton to separately plead that Ms Edyvane’s contraventions were serious. She was an accessory. It was Edyvane’s contraventions that needed to be pleaded as being serious. Ms Edyvane’s accessorial liability simply follows.
conclusion
There will be orders accordingly. I will deal with penalties and costs separately.

I certify that the preceding one hundred and ninety-three (193) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Riley.
Associate:
Dated: 12 October 2022
ANNEXURE A

File number:	MLG 1870 of 2021
Judgment of:	JUDGE RILEY
Date of judgment:	12 October 2022
Catchwords:	INDUSTRIAL LAW – failure to keep records, provide payslips, provide employment records for inspection, display the applicable awards and the National Employment Standards, pay on retirement outstanding sums for annual leave and long service leave, pay for work diaries and protective clothing, and failure to pay livestock carting allowance and long distance transport allowance – contraventions serious – company director involved in the contraventions – RDOs not required to provided.
Legislation:	Fair Work Act 2009 ss.45, 90(2), 323, 535, 536, 545(2), 546(1), 547, 550, 557A, 557B, 557C Fair Work Regulations 2009 reg.3.31, 3.32, 3.33, 3.34, 3.36, 3.37(1), 3.42 and 3.46 Long Service Leave Act 1992 (Vic) (repealed) ss. 66(1), 72(2), 73(1), 74.
Other material:	Road Transport and Distribution Award 2010 cl. 4, 5, 16.2(b)(vi), 16.4(a),(b)(ii), 22.5 Road Transport (Long Distance) Operation Award 2010 cl. 4, 5, 14.1(c),(i),(v), 14.2(a),(b),(i), 20.5.
Cases cited:	Dormer v Relocation Laws Pty Ltd [2019] ACTMC 33 Duncan v Kelly Logistics Pty Ltd [2021] FedCFamC2G 330 EZY Accounting 123 Pty Ltd v Fair Work Ombudsman (2018) 360 ALR 26; (2018) 282 IR 86; [2018] FCAFC 134 Fair Work Ombudsman v Devine Marine Group Pty Ltd [2014] FCA 1365 Fair Work Ombudsman v Grouped Property Services Pty Ltd (2016) 152 ALD 209; [2016] FCA 1034 Fair Work Ombudsman v IE Enterprises Pty Ltd [2020] FCA 848 Farrell v Choosewell Health Link Proprietary Limited [2021] FCCA 910 Gallagher v AG Labour Services Pty Ltd [2020] FCA 1753 Ghimire v Karriview Management Pty Ltd (No 2) (2019) 290 IR 331; [2019] FCA 1627 Jess v Cooloola Milk Pty Ltd [2021] FCCA 1526 York v Lucas (1985) 158 CLR 661; (1985) 61 ALR 307; (1985) 59 ALJR 776; (1985) ATPR 40-622; [1985] 158 CLR 661.
Division:	Division 2 General Federal Law
Number of paragraphs:	193
Date of last submission:	5 September 2022
Dates of hearing:	15, 16, 17 and 18 August 2022
Place:	Melbourne
Counsel for the Applicant:	Alan Ford
Solicitor for the Applicant:	Peter Hull & Associates
Counsel for the Respondents:	Stephen Bunce
Solicitor for the Respondents:	Wakefield Vogrig & Boote Lawyers

MLG 1870 of 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:	RONALD SUTTON Applicant
AND:	EDYVANE'S TRANSPORTS PTY LTD (ACN 004 749 759) First Respondent MARIANNA LYNETTE EDYVANE Second Respondent

order made by:	JUDGE RILEY
DATE OF ORDER:	12 October 2022