Vonarx v Telluride Pty Ltd

[2008] FMCA 213

FEDERAL MAGISTRATES COURT OF AUSTRALIA

VONARX v TELLURIDE PTY LTD [2008] FMCA 213

INDUSTRIAL LAW – Award – breach – civil penalty – consideration of matters relevant to penalty – totality principle – admission of breach and appropriate reduction of penalty.

Workplace Relations Act 1996, ss.167, 185, 342, 347, 349, 717, 719
Acts Interpretation Act 1901, s.8
Workplace Relations Regulations 2006, reg.7.2.19
Workplace Relations Amendment (Work Choices) Act 2005
Workplace Relations Amendment (Transition to Forward with Fairness) Act 2008
Workplace Relations Amendment (Codifying Contempt Offences) Act 2004

Jarvis v Imposete Pty Ltd [2007] FMCA 1825
Kelly v Fitzpatrick [2007] FCA 1080
Mason v Harrington Corporation Pty Limited [2007] FMCA 7
Sharpe v Dogma Enterprises Pty Limited [2007] FCA 1550
CPSU, Community and Public Sector Union v Telstra Corporation Limited [2001] FCA 1364
Financial Sector Union v Commonwealth Bank of Australia [2005] FCA 1847
Trade Practices Commission v CSR Limited (1991) ATPR 41-076
Gibbs v Mayor, Councillors and Citizens of the City of Altona (1992) 37 FCR 216
Printing & Kindred Industries Union v Vista Paper Products Pty Ltd (1994) 127 ALR 673
Australian Competition and ConsumerCommission v Australian Safeway Stores Pty Limited (1997) 145 ALR 36
Australian Ophthalmic Supplies Pty Ltd v McAlary-Smith [2008] FCAFC 8

Applicant: NICHOLAS VONARX

Respondent: TELLURIDE PTY LTD TRADING AS THE HOLY GRAIL – CITY ACN 097 636 087

File Number: CAG 59 of 2006

Judgment of: Cameron FM

Hearing dates: 10, 11 September 2007, 14, 31 March 2008 & 14 April 2008

Date of Last Submission: 14 April 2008

Delivered at: Canberra (by video-link from Sydney)

Delivered on: 12 June 2008

REPRESENTATION

Counsel for the Applicant: Ms C. Dowsett

Solicitors for the Applicant: Australian Government Solicitor

Counsel for the Respondent: Mr A. Anforth

Solicitors for the Respondent: Hansteins Lawyers

ORDERS

1. In respect of each of the admitted breaches of the Liquor and Allied Industries Catering, Café, Restaurants (ACT) Award 1998 (“Award”) and the Workplace Relations Act 1996 (“Act”) the respondent pay the Commonwealth a penalty as follows:

   (a)$2,100 for breach of clause 16.2.1 of the Award;

   (b)$700 for breach of clause 16.2.2 of the Award;

   (c)$700 for breach of clause 16.2.3 of the Award;

   (d)$350 for breach of clause 16.2.4 of the Award;

   (e)$350 for breach of clause 16.3.1 of the Award;

   (f)$350 for breach of clause 19 and Schedule A of the Award;

   (g)$2,100 for breach of clause 28.1 of the Award;

   (h)$700 for breach of clause 28.2 of the Award;

   (i)$350 for breach of clause 29.1.1 of the Award;

   (j)$2,800 for breach of clause 29.2.1 of the Award; and

   (k)$700 for breach of s.185 of the Act.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
CANBERRA

CAG 59 of 2006

NICHOLAS VONARX

Applicant

And

TELLURIDE PTY LTD TRADING AS THE HOLY GRAIL – CITY ACN 097 636 087

Respondent

REASONS FOR JUDGMENT

Introduction

1. The applicant is a workplace inspector, appointed under s.167(2) of the Workplace Relations Act 1996 (“Act”) who was responsible for investigations relating to the respondent (“Telluride”).

2. Telluride operates a bar and restaurant in Civic in the Australian Capital Territory (“ACT”) known as The Holy Grail. Telluride’s managing director, Ian William Meldrum, is also the managing director of Squaw Valley Pty Limited (“Squaw Valley”) which operates a restaurant and bar in Kingston, ACT, also known as The Holy Grail. Squaw Valley’s hours of operation can extend very late into the night but Telluride’s do not as its business is weak. Many of the employees of Squaw Valley and Telluride are students and individuals for whom work at The Holy Grail is a second job. These employees work various, flexible shifts sometimes at times in respect of which penalty rates have traditionally been applicable.

3. The applicant has brought these proceedings against Telluride because, as is now agreed between the parties, Telluride breached provisions of the Liquor and Allied Industries Catering, Café, Restaurant, etc. (ACT) Award 1998 (“Award”) and s.185 of the Act, which deals with the guarantee of casual loadings under the Australian Fair Pay and Conditions Standard. Essentially identical proceedings have been brought against Squaw Valley for essentially identical conduct.

4. The interlocutory stages of the two cases proceeded in tandem and both were heard at the same time. The evidence given at the hearing by Mr Meldrum and the submissions made at the hearing were largely relevant to both proceedings. Subject to differences in detail, both matters presented the same issues for consideration. Consequently, these reasons are, subject to a small number of necessary variations, the same as my reasons for judgment in the Squaw Valley proceedings with the exception of the following sections:

   ·Agreed statement of facts [31] – [33];

   ·Nature and extent of any loss or damage [69];

   ·Considerations as to penalty – further matters [94] – [106]; and

   ·Penalties [107] – [113].

Background

1. Because of the perceived complexity of the Award, Squaw Valley and Telluride decided to introduce Australian Workplace Agreements (“AWAs”) in their businesses so that the operation of those businesses would be more straightforward. By implementing a flat hourly rate for each individual, and different individuals were paid different rates according to their levels of skills and seniority, the respondent companies’ evidence was that this had the effect that, during standard hours, rates of pay were higher under the AWAs than under the Award but, in respect of hours when penalty rates would otherwise have applied, were lower than the Award.

2. It should be noted that most of the conduct the subject of these proceedings occurred prior to the amendments made by the Workplace Relations Amendment (Work Choices) Act 2005 (“Work Choices”) which commenced on 27 March 2006 and thus the statutory provisions which were in force before those amendments must be considered in addition to the Work Choices amendments.

3. Squaw Valley, Telluride and some of their respective employees (“AWA employees”) entered into AWAs. Squaw Valley and Telluride forwarded the executed AWAs to their industry association, the NSW Restaurant and Catering Industry Association (“Restaurant and Catering NSW”), for filing with the Employment Advocate as the Workplace Authority Director was then known. Restaurant and Catering NSW appears to have been overwhelmed by the number of AWAs submitted by its members and not all, possibly few, of the AWAs forwarded by the respondents were actually filed with the Employment Advocate. Further, when it became apparent to Mr Meldrum, the principal manager of both companies, that there was a difficulty in getting the AWAs filed, he decided not to send some executed AWAs to Restaurant and Catering NSW for filing.

4. It should also be noted that the respondent companies did not keep copies of AWAs signed by employees who subsequently left their employment. Consequently, documentary evidence that AWAs were signed by a number of the respondents’ employees has not been put before the Court and Mr Meldrum himself has not been able to recall much more than a handful of particular instances where he specifically recalls an AWA being signed.

5. The consequence of the failure to file the AWAs with the Employment Advocate, whether because of inefficiencies of Restaurant and Catering NSW or because the signed documents had not been sent for filing, was that those AWAs were ineffective for the purpose intended: vide the then s.170VJ of the Act. In turn, this meant that the Award continued to apply to Squaw Valley and Telluride’s AWA employees whose AWAs had not been filed. When the Office of Workplace Services (“OWS”), now the Workplace Ombudsman, conducted an audit of the restaurant and catering industry in the ACT in 2006, it became apparent that Squaw Valley and Telluride were not paying these employees in accordance with the Award.

6. It has also emerged that some employees did not sign AWAs at all. In his evidence at the hearing, Mr Meldrum said that about 20% of employees did not sign AWAs. Initially in this regard, not every employee agreed to be employed under an AWA. For instance, some employees only ever worked a short trial shift and were not hired.

7. Secondly, a number of employees had agreed to undergo training which entitled the respondent companies to pay them a training wage, once the relevant training agreements were put in place. Although it took some time for these training agreements to be executed the employees were employed by the respondent companies in the interim. The basis on which they were paid was not clearly identified by the applicant.

8. Thirdly, Squaw Valley employed a handicapped person at wages which, it was said, were reduced by reason of that disability but without undertaking the necessary assessment of that person’s disability as required by the Award.

9. However, and notwithstanding the matters set out in the second and third points at [11] and [12] respectively, Ivor Harold Nyman deposed in his two affidavits affirmed on 10 September 2007, one of which was filed by the respondent companies in each of the proceedings, that he had analysed information provided by the applicant concerning the employees’ underpayments and found that the hourly rate paid to those employees was consistent with the rates of pay contained in the pro-forma AWA used by the respondents, copies of which were annexed to affidavits affirmed by Mr Meldrum on 7 September 2007. Mr Nyman was not cross-examined and I accept what he says.

10. Consequently, even non-AWA employees were being paid at AWA rates and were so paid regardless of the circumstances in which they were employed.

11. The Award provided in relation to permanent part-time employees that:

    15.2 A regular part-time employee is an employee who:

    15.2.1 works less than full-time hours of 38 per week; and

    15.2.2 has reasonably predictable hours of work; and

    15.2.3receives, on a pro-rata basis, equivalent pay and conditions to those of full-time employees who do the same kind of work.  

    15.3 At the time of engagement the employer and the regular part-time employee will agree in writing on a regular pattern of work, specifying at last the hours worked each day, which days of the week the employee will work and the actual starting and finishing times each day.

12. The Award also provided:

    15.6 An employee who does not meet the definition of a regular part-time employee and who is not a full-time employee must be paid as a casual employee in accordance with clause 16 – Casual employees of this award.

13. It was conceded on behalf of the respondent companies that the employees the subject of these proceedings did not meet the definition of permanent part-time employees.

14. As a consequence of the respondents not paying their employees as casuals in accordance with the Award and, in respect of the period from 27 March 2006, in accordance with the Australian Fair Pay and Conditions Standard, the two sets of proceedings were brought.

Relevant legislation

1. With the exception of two Squaw Valley employees, all the employees the subject of these proceedings commenced their employment with the relevant respondent company prior to the commencement of Work Choices.

2. Prior to Work Choices, s.170VN of the Act provided that if an AWA had been agreed, the employer was to file it with the Employment Advocate within 21 days after the AWA’s date, otherwise a filing receipt would not be issued. Section 170VJ provided, in respect of new employees, that AWAs operated no earlier than the day after a filing receipt was issued and, in respect of existing employees, the day after an approval notice was issued. Subject to immaterial exceptions, s.170VQ provided that an award had no effect in relation to an employee while an AWA operated in relation to that employee.

3. From the commencement of Work Choices until the commencement of the Workplace Relations Amendment (Transition to Forward with Fairness) Act 2008 on 28 March 2008, s.342 of the Act provided that if an AWA was executed, the employer was to lodge it with the Employment Advocate within 14 days and s.347 provided that an AWA came into operation on the day it was lodged. Subject to recent amendments of no relevance to these proceedings, s.349 still provides that an award has no effect in relation to an employee while an AWA operates in relation to that employee. Section 185 does not apply to an employee whose employment is covered by an AWA.

4. Therefore, an AWA entered into during any part of the period the subject of these proceedings would only operate to exclude the operation of the Award and s.185 if that AWA had been lodged with the Employment Advocate.

5. It is conceded by Telluride in relation to the employees listed in Annexure A to these reasons, as will be discussed in more detail below, that it was bound by the terms of the Award and was in breach of certain of its provisions. It is conceded by the respondent companies in respect of many of the employees who worked for them after the commencement of Work Choices that they were also bound by the terms of the Australian Fair Pay and Conditions Standard and were in breach of it.

6. The provision of the Act relevant to such breaches is s.719, which was previously numbered as s.178. In respect of the pre-Work Choices breaches, the section provided:

   178 Imposition and recovery of penalties

   (1) Where an organisation or person bound by an award, an order of the Commission (whether under this Act, the Registration and Accountability of Organisations Schedule or otherwise) or a certified agreement breaches a term of the award, order or agreement, a penalty may be imposed by the Court or by a court of competent jurisdiction.

   (2) Subject to subsection (3), where:

   (a) 2 or more breaches of a term of an award, order or agreement are committed by the same organisation or person; and

   (b) the breaches arose out of a course of conduct by the organisation or person;

   the breaches shall, for the purposes of this section, be taken to constitute a single breach of the term.

   …

   (4) The maximum penalty that may be imposed under subsection (1) for a breach of a term of an award, order or agreement is:

   (a) where the penalty is imposed by the Court:

   ...

   (ii)     in any other case – 300 penalty units for a body corporate or 60 penalty units in other cases; and

   (b) where the penalty is not imposed by the Court – 300 penalty units for a body corporate or 60 penalty units in other cases.

7. By virtue of s.8 of the Acts Interpretation Act 1901, the changes to the Act’s provisions effected by Work Choices subsequent to the conduct in question do not affect the operation of the Act and a penalty may be imposed as if the amendments had not occurred. This is also made clear by reg.7.2.19 of ch.7 of the Workplace Relations Regulations 2006 which provides:

   Enforcement of rights and obligations

   (1) Unless the contrary intention appears in a provision of:

   (a) the Act; or

   (b) the Work Choices Act; or

   (c)regulations made under the Act or the Work Choices Act;

   the amendments made by the Work Choices Act do not affect the enforcement in a court of rights and obligations that arose under the pre-reform Act.

   (2) Sub-regulation (1) applies whether or not proceedings had been commenced in a court before the reform commencement.

8. The old s.178(4)(a) provided for the imposition of penalties by the Federal Court and the old s.178(4)(b) provided for the imposition of penalties by other courts of competent jurisdiction, as that term was defined in old s.177A. Although the Federal Magistrates Court was not included as one of those courts and thus had no jurisdiction before the Work Choices amendments, it has not been submitted that this Court does not have jurisdiction to hear and determine these proceedings to the extent that they arise out of breaches occurring before Work Choices. Such a challenge to the Court’s jurisdiction was made in Jarvis v Imposete Pty Ltd [2007] FMCA 1825 and was rejected by Smith FM. Were it necessary to consider such an issue in these proceedings I would follow his Honour’s decision on this point.

9. The provisions of the Act relevant to breaches after the commencement of Work Choices are:

   Section 719  Imposition and recovery of penalties

   (1)An eligible court may impose a penalty in accordance with this Division on a person if:

   (a)the person is bound by an applicable provision; and

   (b)the person breaches the provision.

   (2)Subject to subsection (3), where:

   (a) 2 or more breaches of an applicable provision are committed by the same person; and

   (b)the breaches arose out of a course of conduct by the person;

   the breaches shall, for the purposes of this section, be taken to constitute a single breach of the term.

   (3)…

   (4)The maximum penalty that may be imposed under subsection (1) for a breach of an applicable provision is:

   (a)60 penalty units for an individual; or

   (b)300 penalty units for a body corporate.…

10. Section 717 provides:

    In this Part:

    “applicable provision”, in relation to a person, means:

    (a)  a term of one of these that applies to the person:

    (i)  …

    (ii)   the Australian Fair Pay and Conditions Standard;

    (iii) an award …

11. Recent amendments to these two sections are not relevant to these proceedings and did not affect the passages quoted.

12. As to the quantum of the maximum penalties, the relevant penalty has been in force since 10 August 2004: Workplace Relations Amendment (Codifying Contempt Offences) Act 2004. Thus it was in force at all relevant times and presents no issue of retrospectivity. It should also be noted that the amendments to the penalties made by that amending Act represented a significant increase in the penalties for the conduct in question.

Agreed statement of facts

1. These proceedings were listed for hearing on 10 September 2007 and a statement of facts was agreed by the parties that morning. Telluride agrees that it breached the following provisions of the Award and the Act:

   a)clause 16.2.1 of the Award (rates of pay for casual employees, Monday to Friday);

   b)clause 16.2.2 of the Award (rates of pay for casual employees on a Saturday);

   c)clause 16.2.3 of the Award (rates of pay for casual employees on a Sunday);

   d)clause 16.2.4 of the Award (rates of pay for casual employees on public holidays);

   e)clause 16.3.1 of the Award (pro rata holiday pay);

   f)clause 19 and Schedule A of the Award (classifications and wage rates);

   g)clause 28.1 of the Award (overtime payable for full-time employees for work performed outside ordinary hours);

   h)clause 28.2 of the Award (overtime payable for full-time employees for work performed between midnight Friday and midnight Sunday);

   i)clause 29.1.1 of the Award (penalty rates for full-time employees for work performed between midnight Friday and midnight Saturday);

   j)clause 29.2.1 of the Award (penalty rates for full-time employees for work performed between 7:00pm and midnight, Monday to Friday); and

   k)s.185 of the Act (the guarantee of casual loadings).

2. Annexure A to these reasons sets out the parties’ agreement as to which provisions were breached in respect of which employee and the amount by which each employee was underpaid.

3. Additional facts which were agreed included:

   a)on 18 January 2006 OWS requested Telluride to provide time    and wage records for certain Award employees for “the previous six weeks”;

   b)on 27 February 2006 OWS notified Telluride that its audit had revealed a number of contraventions of the Award and issued a “summary of breaches” in respect of the pay period W/E 4 December 2005 to the pay period W/E 22 January 2006 and requested Telluride to rectify each of the alleged breaches for not just that period but also for the period from 2 July 2005 to 27 February 2006;

   c)on 8 May 2006 OWS sent an email to Telluride withdrawing the summary of breaches issued on 27 February 2007;

   d)also on 8 May 2006, OWS issued a notice to produce documents in respect of the period 1 January 2005 to 5 May 2006 inclusive (“the audit period”) – although para.18 of the Agreed Statement of Facts incorrectly refers to 8 May 2006 – requiring production by 23 May 2006;

   e)after production of those documents in accordance with the Notice to Produce, OWS issued a fresh breach notice nearly two months later, on 12 July 2006. Two days later Telluride requested OWS to allow it two further weeks to recalculate the employees’ entitlements for the duration of the audit period;

   f)on 28 July 2006 OWS advised Telluride that it was in the process of conducting its own audit of the records which Telluride had provided which it estimated would take a further week to complete;

   g)between August 2006 and October 2006 Mr Meldrum requested of OWS details of the calculations of the employees’ entitlements but

   Consistent with the practice adopted by OWS at the time, Mr Meldrum was not supplied with these calculations prior to the commencement of these proceedings. (Agreed Statement of Facts, para.24);

   h)on 17 November 2006, following completion of its investigations, these proceeding were commenced;

   i)on 29 June 2007 Telluride rectified underpayments in respect of forty-four employees and made a payment to a further employee which was subsequently agreed to be less than that employee’s entitlement. Telluride agreed to make up the balance within five days of the making of the agreed statement of facts; and

   j)at the time that the parties agreed on the statement of facts, entitlements owing to six further employees remained outstanding. The parties agreed that the total value of underpayments owed by Telluride to those employees was $13,887.03.

Consent orders

1. At the parties’ request and following consideration of the agreed statement of facts, the Court made declarations and orders that:

   a)Telluride had contravened the terms of the Award and the Act by failing to pay certain identified employees in accordance with the provisions of the Award and the Act identified above at [31]; and

   b)Telluride was to pay any sums outstanding to employees, with interest, by 14 September 2007.

The evidence

The applicant

1. The applicant’s affidavits were limited to facts supporting the allegation that the respondents were in breach of the Award and identified the employees who were underpaid and the amounts of those underpayments.

2. Affidavits of Alison Louise Spivey affirmed 27 August 2007 and 10 September 2007 deposed to the course of the proceedings and to discussions and negotiations between the parties. These details are referred to in more details below at [81].

The respondents – affidavit evidence

1. Mr Meldrum affirmed two almost identical affidavits on 24 April 2007. One was filed in each of the proceedings. In those affidavits Mr Meldrum said:

   a)although the Civic and Kingston businesses are operated by separate companies, to a significant extent they are operated as one business in that staff might be requested on occasions to attend their shift at the other premises to cover temporary staffing shortages. When this happens, the employee is paid by the company at whose premises they worked on that day. The rates of pay were the same at both premises;

   b)before 1 January 2005 the respondents had commenced retaining employees under AWAs using an industry pro-forma AWA obtained from Restaurant and Catering NSW;

   c)although Mr Meldrum had attended a number of seminars relating to changes to workplace conditions he had formed the belief that if an AWA had been “registered” for a particular level of employee and had passed the No Disadvantage Test then other AWAs containing the same terms were, in effect, “certified” as well;

   d)during the relevant period when the respondents were registering signed agreements through Restaurant and Catering NSW, a number were not registered and some others were lost by that association. Even so, Mr Meldrum received acknowledgment that some of the AWAs had been “registered”. All employees retained during the relevant period were employed by the respondents on the basis that they were subject to an AWA worded in accordance with the pro-forma;

   e)in all cases, except possibly those employees who only lasted for one trial shift, the employee was shown a copy of the AWA and a number of them were signed but not subsequently registered;

   f)Mr Meldrum relied on the statement contained within the written advice of “registration” of those AWAs which were “registered” to conclude that the AWA had passed the No Disadvantage Test. He believed that the respondents were paying their employees an amount greater than their permanent part-time work Award entitlements and although he had attempted to “register” most of the AWAs which had been signed, he was not particularly concerned that some of them had not been “registered”; and

   g)when engaging prospective employees with no stated experience in the industry, the respondent companies employed them for one shift on a trial basis which Mr Meldrum described as a probationary period permitted under the Award. If the employee was offered employment after the trial period, he or she was placed on a one-month’s trial and received intensive training which, Mr Meldrum asserted, would have been classified under the Award as introductory level, permanent part-time. During the first trial shift and any subsequent introductory period, the respondents paid employees at an hourly rate above the Award rate.

2. In his affidavits of 24 April 2007 Mr Meldrum disputed the Award classification of some of the employees as casuals, contending that most of them would be more correctly classified as permanent part-time employees. He said that the respondent companies’ staff were overwhelmingly part-time employees, working fewer than 38 hours per week, most of them being students or having other day jobs and seeking additional employment.

3. In his affidavit affirmed 7 September 2007 and filed in the Squaw Valley proceedings, Mr Meldrum said:

   a)once the AWA system started, he provided new and existing staff with copies of the proposed AWA relevant to each of them and they signed the AWAs readily. He said:

   I have paid all staff for all hours that they have worked in accordance with the signed Agreements and in doing so believed I was complying with the Respondent’s obligations as an employer. (para.28);

   b)once the AWA system was adopted by Squaw Valley, Mr Meldrum did not believe he needed to give, and did not give, any further consideration to whether an employee would be classified as a casual or a part-time employee as the Award understood those terms;

   c)copies of AWAs sent to Restaurant and Catering NSW for filing were not kept;

   d)although not every AWA sent for filing was actually filed with the Employment Advocate, some were filed and, apparently, approved. This indicated to Mr Meldrum that they had passed the No Disadvantage Test. He said:

   The fact that the AWA’s for employees doing an identical job being paid an identical hourly rate had been registered, I understood to mean that I had complied with the requirements of the law in that I was paying people in accordance with an AWA which had passed the “no disadvantage” test. What I failed to do on behalf of the Respondent was to register each of the signed Agreements. (para.33);

   e)because some AWAs had been approved by the Employment Advocate, Mr Meldrum decided, given that Restaurant and Catering NSW was failing to file all of the signed AWAs which he was sending them, that he would not send all the signed AWAs to Restaurant and Catering NSW for filing but would nevertheless apply them to the employment of the relevant employees. As he said in his affidavit:

   I then considered the registration of the AWA’s a formality rather than a necessity. (para.35);

   f)most of those signed agreements had subsequently been lost because Mr Meldrum did not believe that he had to retain an employee’s AWA once the employee left Squaw Valley’s employment. A large number of them were recycled as scrap paper;

   g)Mr Meldrum characterised the respondents’ failure as being:

   … not ensuring registration of all AWA’s, although identical documents for other employees had been registered. (para.42);

   h)as to the way the AWA pay rates were derived, Mr Meldrum said that he relied on the rates which had been calculated by Restaurant and Catering NSW:

   I believed that … if I paid the suggested hourly rate I would be paying employees over the Award for the first part of their shift but under their maximum entitlement for the latter part of the shift but overall more than the Award with no prospect of offending against the legislation. I also took the view that most employees were permanent part time employees and in any comparison with the Award I was relying on a classification of the employees as permanent part time employees rather than casual employees. (para.26);

   i)Mr Meldrum deposed to the difficulty of recalculating many months of employees’ entitlements, in terms of the detailed provisions of the Award. He also deposed to a lack of assistance and co-operation he received from the OWS when he was attempting to calculate what the various employees were owed. In this regard, Mr Meldrum says:

   In response to the notices received in May and June 2006, I made a number of attempts to contact the officers from the Applicant’s Department. … The meeting requested by me never occurred prior to the commencement of the prosecution.

   I agree that an undertaking was given in June 2006 to rectify these apparent shortfall payments. In response to that undertaking I produced a document on 14 July 2006. The document I provided was my best endeavour to understand and comply with the notice received.

   The Applicant developed a software application that initially resulted in the list of breaches referred to in the Affidavit of Nicholas Vonarx filed in November 2006 but which was subsequently recalculated and that the final calculations are in accordance with the Affidavit of March 2007. The Applicant clearly did not find it an easy task to calculate notwithstanding the resources of the OWS and their expertise in this area.

   I was not given access to, nor was it ever suggested to me, that I use the spreadsheet program that they set up for the calculation of these amounts as a means of assisting me to make the calculations required. I accept now that the calculations of the Applicant as to the correct entitlements of the named employees in the prosecution, whilst based on the most favourable interpretation of the Award in favour of the employees, are accurate. I personally did not have access to the spreadsheet program used for these calculations, prior to the commencement of these proceedings. (paras.46, 47, 48, 49).

4. In his affidavit affirmed 7 September 2007 and filed in these proceedings Mr Meldrum adopts the above evidence for the purposes of these proceedings.

5. To each of his affidavits affirmed 7 September 2007 Mr Meldrum annexed a list of employees who were primarily employed by one of the relevant respondent companies but who worked some shifts for the other respondent company. He pointed out that both companies were being prosecuted in relation to the shared employees although the breaches arose out of the same circumstances.

6. The respondent companies also relied on the affidavits of Ivor Harold Nyman referred to above at [13].

The respondents – oral evidence

1. In his evidence at the hearing on 10 September 2007, Mr Meldrum said:

   a)he had been operating businesses for over thirty years and had always believed a casual employee was somebody employed on a very casual basis, not on a regular basis. As a consequence he paid the employees the subject of these proceedings as permanent part-time employees under the Award or paid them the rate under the AWA;

   b)there were four people taken on as trainees, one of whom worked with Telluride (Jessica Altmann) and three others who worked for Squaw Valley (Katherine Hoag, Nicole Woodwood and Danielle Sykes). There was also Mr Meldrum’s daughter Danielle Meldrum. Their trainee positions were arranged in co-operation with a training organisation, Workways, which did all the necessary paperwork, all the organisation and the signing up of the employees. Workways had telephoned Mr Meldrum inquiring about whether he had any suitable applicants for traineeships and he identified four, possibly five, employees. Workways arranged a time, came in and sat down with the employees, had them fill out the paperwork, gave Mr Meldrum an amount of paperwork to complete and returned a week or so later saying that they would set up a training program. They said they would advise Mr Meldrum of the relevant salary or hourly pay rates and eventually did so;

   c)one of the other employees in respect of whom a breach is alleged was a Down’s syndrome sufferer. An organisation approached Mr Meldrum and asked if he would hire the employee in question which he did, although he really did not have any work for a disabled person. The organisation said that Mr Meldrum would be able to pay the employee a percentage of the normal adult hourly rate because of the fact of his disability, and told him what that percentage was to be. Although under the Award a payment of a supported wage required an assessment of the individual’s work capacity to be done, Mr Meldrum said that he believed that all he needed was proof from the organisation in question that the employee was to have his wage reduced by a certain percentage because of his inability to do most jobs. However, Mr Meldrum did not have evidence of the assessment of that individual’s capacity to work because the placement company disappeared and did not provide this information at any time prior to the cessation of the individual’s employment;

   d)as to the continued employment of this employee Mr Meldrum said that he did not put him off pending receipt of the work assessment as his parents had gone to some effort to drive him to work each day and he looked forward to it. The employee remained employed although he did not do much work at all. Because of his disability this employee was not allowed to serve customers and was restricted to setting and clearing tables and generally helping out. Sometimes there was so little work for him to do that he simply accompanied Mr Meldrum when the latter travelled between the two Holy Grail premises;

   e)Mr Meldrum believed the precedent AWAs would pass the No Disadvantage Test because the agreement had been put together by Restaurant and Catering Australia whose legal representatives were on loan from the Department of Employment and Workplace Relations and, in conjunction with that Department, the AWA was drawn up and approved. The pay rates in the AWAs were set by Restaurant and Catering NSW in consultation with “industrial relations”. Mr Meldrum said that Restaurant and Catering Australia had represented to him that the AWAs had passed the No Disadvantage Test.;

   f)as to the filing of the AWAs, Mr Meldrum said that he believed that he had followed the appropriate process because, having had the AWAs completed, they were then sent to the Sydney office of Restaurant and Catering NSW. Conceding that he had been wrong in his affidavit when he said that he considered the “registration” of AWAs a formality rather than a necessity, Mr Meldrum said that he knew the AWAs had to be filed and presumed that they had been until, some considerable time after the AWAs had first started to be sent to Restaurant and Catering NSW, he realised that a lot of them had not been;

   g)other than ones in respect of which specific queries were received from Restaurant and Catering NSW, Mr Meldrum did not know why some of the AWAs were not filed. He did not follow up the non-filing of the documents. Restaurant and Catering NSW had nothing in place to confirm receipt of the agreements;

   h)some of the employees the subject of the breaches the subject of these proceedings were paid under the Award because not all employees signed AWAs (“Award employees”). About 80% signed AWAs;

   i)new employees were tested for a trial shift of two to four hours. For that day they would be paid the introductory rate and thereafter stay on the introductory rate for six to eight weeks, unless their skills justified a higher pay, and would then move through grade one and grade two depending on their skills and the work performed;

   j)the AWA had an introductory rate and if a worker had been paid at the reduced rate it would have been at the introductory rate unless they were skilled enough and went straight onto normal work. If they were paid under the Award and had not signed an AWA they would have been paid under the Award’s introductory rate, the AWA rate not being applicable until such time as they had signed it and it had been filed. Under the Award they could be paid at the introductory rate for around six to eight weeks. When Mr Meldrum placed a new prospective employee on a trial he would tell them that they would be paid for that trial but would not be in a position to tell them at what rate they would be paid;

   k)initially in the proceedings Mr Meldrum disputed the breaches of the casual employee provisions of the Award which were alleged in relation to a significant number of the employees because he believed that they were correctly paid as permanent part-time employees and should not have been classified as casuals. Mr Meldrum continued to hold the belief that the employees in question ought to have been classified as permanent part-time employees but was willing to concede that their correct classification was as casuals. He said that he had always been under the assumption that a casual was someone who worked fewer than 8 hours a week and somebody who was permanent part-time worked up to 38 hours per week; and

   l)by way of correction of the error, Mr Meldrum said that the companies had gone back through their records and checked to make sure that all pay rates were correct and even had the software company that provided the software to run the payroll programme correct some technical errors in that software.

The parties’ submissions

respondentsThe

1. The respondents submitted that as penalties were being sought against two associated companies engaged in the same conduct, it would not be fair to, in effect, double the penalty for offences where there was a high degree of overlap. It was also submitted that most of the breaches were breaches of cl.16 of the Award which, it was submitted, was only one clause and the offences should be considered in terms of their substance, rather than in terms of their form. It was submitted that it was unfair, on the totality principle, to multiply the penalties.

2. In respect of those workers concerning whom breaches of cl.19 (classification of employees under the Award) of the Award are conceded, the respondents’ counsel submitted that those breaches refer to misclassification of employees who were in training positions and to the employee with a disability.

3. As to the individuals on the training course, the respondents invited the Court to find that the breaches alleged in these categories were unfair and that it was unreasonable to expect these workers to be put off pending receipt of documents from Workways. As to the employee with Down’s syndrome, it was submitted that the balance of morality fell heavily on Mr Meldrum’s side for retaining the worker.

4. It was further submitted that:

   a)in terms of the moral dimensions of the case, Mr Meldrum genuinely held the belief that he was paying employees appropriate amounts, in that he genuinely believed that they were permanent part-time employees;

   b)in essence, Squaw Valley and Telluride were guilty only of inefficiency and inattention in not following up the filing of the AWAs and that every worker in question had been or would be paid, some in excess of their entitlements;

   c)had the AWAs been effective, there would have been no payment shortfall and the underpayments arose solely out of the fact that the AWAs had not been lodged; and

   d)there had been no deception and no one had been cheated, it was a misunderstanding on the part of the respondent.

5. Telluride submitted that it was operating at a significant loss and was being subsidised by Squaw Valley which, itself, did not enjoy a large profit. It was submitted that the companies had limited capacities to pay and a large penalty might lead to liquidation of the companies. It was submitted that any penalty which would be imposed should not put Telluride out of business.

applicantThe

1. The applicant opposed the respondents’ submission that the cl.16 breaches should be classified as one breach rather than as breaches of individual sub-clauses of cl.16. It was also submitted that although two proceedings shared the same set of circumstances, their interrelationship should not see the matters raised by the individual proceedings considered together for the purposes of penalty.

2. It was further submitted that, at the highest, 80% of the employees in question were intended to be on AWAs which meant that no fewer than 20% must not have signed AWAs. Therefore the “AWA defence” did not deal with people on the training scheme, the disabled employee and people who had not yet signed AWAs.

3. It was submitted that it could not be known how many employees were meant to be on AWAs or what the AWAs said. It was put that Mr Meldrum delegated the detail of compliance to various other people and that the proceedings evidenced a theme of abdication of responsibility.

1. It was submitted that there was no evidence that the AWAs had been sent for filing or could have passed the No Disadvantage Test.

2. The applicant submitted that, when considering any penalty discount for admissions and contrition, the Court should take note that the respondents’ admissions were only made on the day of the hearing and that negotiations had not been easy.

3. It was also submitted that Mr Meldrum had not demonstrated any real contrition and that the respondents’ admissions were simply a means to move the matter on.

4. As to the corrective action taken by the respondents, it was conceded that this had been undertaken to some extent and for periods outside the audit period.

Considerations as to penalty

Introduction

1. As Tracey J said in Kelly v Fitzpatrick [2007] FCA 1080 at [14], in Mason v Harrington Corporation Pty Limited [2007] FMCA 7 at [24] Mowbray FM identified “a non-exhaustive range of considerations to which regard may be had in determining whether particular conduct calls for the imposition of a penalty, and if it does the amount of the penalty”. Tracey J adopted those considerations and described them as follows:

   ·    The nature and extent of the conduct which led to the breaches.

   ·    The circumstances in which that conduct took place.

   ·    The nature and extent of any loss or damage sustained as a result of the breaches.

   ·    Whether there had been similar previous conduct by the respondent.

   ·    Whether the breaches were properly distinct or arose out of the one course of conduct.

   ·    The size of the business enterprise involved.

   ·    Whether or not the breaches were deliberate.

   ·    Whether senior management was involved in the breaches.

   ·    Whether the party committing the breach had exhibited contrition.

   ·    Whether the party committing the breach had taken corrective action.

   ·    Whether the party committing the breach had cooperated with the enforcement authorities.

   ·    The need to ensure compliance with minimum standards by provision of an effective means for investigation and enforcement of employee entitlements and

   ·    The need for specific and general deterrence.

2. As his Honour implied, such matters can only be a guide to the exercise of “the unrestrained statutory discretion”: Sharpe v Dogma Enterprises Pty Limited [2007] FCA 1550 per Gyles J at [11].

The nature and extent of the conduct

Generally

1. The detail of the conduct in question has been considered earlier in these reasons.

2. As already noted, the breaches admitted by Squaw Valley and Telluride have arisen because they paid their employees in accordance with the terms of the AWAs, although not all employees signed AWAs and not all signed AWAs were filed with and approved by the Employment Advocate. It is apparent that Squaw Valley and Telluride adopted a practice which preferred substance to form and which disregarded the detail of statutory requirements. It is also apparent that this conduct would have continued had it not been for the OWS audit.

3. Nevertheless, I found that Mr Meldrum was a forthright and credible witness who accepted that he did not know the details of how the AWAs were processed by the respondent companies’ administrative staff, did not fully understand the legal scheme in which AWAs operated at the relevant time and did not make up the pays himself. I formed this view of Mr Meldrum at the hearing on 10 September 2007. It was confirmed at the hearing on 31 March 2008. Although the applicant described Mr Meldrum’s conduct as an abdication of responsibility, a more realistic characterisation would be as a delegation of tasks. It should also be noted in this regard that Mr Meldrum accepted freely that he had to accept ultimate responsibility for the respondents’ failings.

4. I accept Mr Meldrum when he says that, as a small business owner, he relied on the advice and support of his industry association in order to understand and apply relevant industrial law. As a consequence, I also accept that he believed that the AWAs which his employees signed, and the pay scales which they contained, could not lead to a practical diminution of the employees’ earnings on average. I also accept that Mr Meldrum genuinely held the belief that the Award classified his employees as permanent part-time workers, rather than as casual workers. However, notwithstanding these findings, the respondent companies:

   a)paid no attention to whether their AWAs they sent for filing were, actually, filed and approved;

   b)failed to send for filing every signed AWA although Mr Meldrum knew that they had to be filed in order to be effective;

   c)paid non-AWA workers wages based on the AWA rates; and

   d)failed to understand a comparatively simple aspect of the Award which identified the circumstances in which an employee would be classified as permanent part-time rather than as casual.

5. This case is characterised by a failure on the part of the respondent companies to pay proper attention to the detail of their employment obligations. Much of their current difficulties would not have occurred had they simply ensured that the signed AWAs were filed with the Employment Advocate.

6. However, the payment of non-AWA employees (i.e. Award employees) according to the AWA rate is in a different category. These employees did not agree to be paid on that basis and they were entitled to be paid under the Award. Mr Meldrum’s failure to understand that the Award employees should have been paid as casual workers rather than as permanent part-time workers is not relevant to this issue. This issue is simply one of the respondent companies seemingly taking a broad-brush approach to all employees regardless of the basis of their employment. Because the respondent companies’ records were so poorly kept or retained it cannot be identified how many of the employees in question fell into this category. It might be said that practically all of them did but I accept Mr Meldrum when he says that 20% of his employees did not sign AWAs as this was a concession he volunteered in cross-examination in a statement whose frankness, in my view, characterised his evidence.

7. Consequently, although the conduct of the respondent companies in paying all their employees wages based on the AWA rates must attract a penalty, because Mr Meldrum impressed me as a witness I accept that the respondent companies did not intend to underpay their workers. In this connection, I have regard to and accept Mr Meldrum’s evidence concerning the tight nature of the relevant employment market in Canberra and the probability that, were the respondent companies to underpay their waiting, bar and kitchen employees, then the respondent companies would not be able to retain them.

8. For the period 1 January 2005 to 5 May 2006 inclusive, in respect of which OWS had required Telluride to produce documents, it has been agreed that Telluride underpaid the 49 employees listed in Annexure A to these reasons a total of $20,337.03. 

Circumstances in which the conduct took place

1. The respondent companies operate from morning until night and they can be open after midnight. They are open on weekdays and on weekends. Their employees can be permanent full-time, permanent part-time or casual. Also, employees would swap shifts without consultation or notice which could trigger unexpected entitlements to penalty rates as the substituted employee might have worked more hours than the original employee. The multiplicity of wage entitlements and obligations can easily be appreciated. In those circumstances, Squaw Valley and Telluride wished to retain their employees on a contractual basis rather than in accordance with the Award and, I accept, obtained agreement from most of them to the terms of AWAs which were based on the precedent supplied by Restaurant and Catering NSW. Clearly a significant, possibly the significant, element of the appeal of AWAs to the respondent companies was their simplified pay provisions.

2. Relevantly for these proceedings, the simplified pay scales which the AWAs provided were applied to:

   a)employees whose signed AWAs had not been filed with the Employment Advocate by Restaurant and Catering NSW;

   b)employees whose signed AWAs had not been sent to Restaurant and Catering NSW for filing with the Employment Advocate; and

   c)employees who had not signed AWAs.

3. The circumstances surrounding the payment of the employees who signed AWAs has been explained but how the non-AWA employees came to be paid according to AWA rates has not. It appears that the appealing simplicity of the AWA pay rates saw them applied indiscriminately.

Nature and extent of any loss or damage

1. The agreed loss and damage suffered by the 49 employees in question is set out in Annexure A to these reasons and total $20,337.03, being, on average, an underpayment of 17% of each employee’s entitlements under the Award.

Similar previous conduct

1. It has not been suggested by the applicant that the respondents have previously been involved in conduct of this nature.

Whether the breaches were properly distinct or arose out of the one course of conduct

1. Prior to Work Choices, and in the form of s.178(2), s.719 provided:

   (2)     Subject to subsection (3), where:

   (a)2 or more breaches of an award, order or agreement are committed by the same organisation or person; and

   (b)the breaches arose out of a course of conduct by the organisation or person;

   the breaches shall, for the purposes of this section, be taken to constitute a single breach of the term.

   The form of the section applicable in these proceedings is not relevantly different.

2. Both Squaw Valley and Telluride admit numerous breaches of various Award conditions and of s.185 of the Act which I am satisfied arose out of a single course of conduct, namely their payment of their employees in accordance with the terms of the AWAs rather than in accordance with the Award’s provisions. In this regard it should be noted that the applicant did not submit that the conduct which led to the underpayments amounted to distinct courses of conduct. The applicant submitted that in the Squaw Valley case there were 14 breaches in respect of 92 employees, that in the Telluride case there were 11 breaches in respect of 49 employees and that the breaches arose out of one course of conduct.

Size of the business enterprise involved

1. Each of the respondents is a small proprietary limited company which operates a restaurant and bar. Each is under the supervision of Mr Meldrum who personally operates the Squaw Valley business on a day to day basis while his wife operates the Telluride business on a day to day basis. It is clear that each of them has a large number of responsibilities in each business and both work many hours every working day.

Whether or not the breaches were deliberate

1. The only conclusion open is that the respondent companies intended not to pay their AWA employees casual rates in accordance with the Award. I accept that the breaches represented by the failure of the respondent companies to pay their employees in accordance with the Award were inadvertent to the extent that they arise out of the AWAs not being filed because of the inefficiencies of Restaurant and Catering NSW. I accept that Mr Meldrum assumed, with some justification, that his industry association would not so fail to attend to its tasks that it might cause its members, the respondent companies included, the sort of major problems which these proceedings represent.

2. With regard to the AWA employees whose agreements were not sent to Restaurant and Catering NSW, I conclude that the decision not to observe the law’s requirements was deliberate although I also am satisfied that the respondent companies believed they were not acting unfairly in relation to those employees.

3. As to the non-AWA employees, there is insufficient evidence before the Court for any conclusion to be reached as to the relevant deliberateness of their wages being calculated in accordance with the AWA pay rates rather than in accordance with the Award.

Whether senior management was involved in the breaches

1. In his affidavits affirmed 24 April 2007 Mr Meldrum stated that he was engaged in day to day management issues of the respondent companies’ businesses and was directly involved in the selection of staff. It is clear he is involved in the day to day management and control of both of the respondent companies and was involved in the execution and handling of the AWAs.

2. There is no evidence as to who caused the Award employees to be paid in accordance with the AWA rates.

3. While it is clear that some of the decisions which resulted in the agreed underpayments were made at the highest management levels of the respondent companies, as to the remainder the evidence does not permit the Court to reach a conclusion.

Contrition, corrective action and co-operation with the enforcement authorities

1. It is apparent that once Squaw Valley and Telluride understood that they had mistaken their position under the Act and were not entitled to pay the employees in question pursuant to the ineffective AWAs they set about correcting their error. They did not seek to escape the financial consequences of their mistakes, although the process of corrective action was not straightforward. It appears that there was a disagreement between the companies and the OWS regarding the proper classification of the employees and whether they were permanent part-time employees or casuals and thus the basis on which payments to those individuals were to be made.

2. The relevant chronology drawn from the Court records (concerning when documents were filed), the agreed statements of facts, Ms Spivey’s affidavits of 27 August 2007 and 10 September 2007 and Mr Meldrum’s affidavits, is as follows:

   ·18/01/06   OWS requested Squaw Valley and Telluride to provide time and wage records for “the previous six weeks”. The records were supplied.

   ·27/02/06   OWS issued each of Squaw Valley and Telluride a “summary of breaches” and requested them to voluntarily rectify each of the alleged breaches for the period 2 July 2005 up to 27 February 2006.

   ·8/05/06     OWS withdrew Telluride’s summary of breaches and issued to Squaw Valley and Telluride notices to produce documents for the period 1 January 2005 to 5 May 2006. Documents were subsequently produced.

   ·24/05/06 OWS issued Squaw Valley a revised breach notice in respect of contraventions of the Award and the Act.

   ·29/06/06   OWS and Mr Meldrum met, the latter advising that he intended to rectify all identified underpayments although it would take four weeks to organise what those payments should be.

   ·12/07/06 OWS issued Telluride a revised breach notice in respect of contraventions of the Award and the Act.

   ·14/07/06   Telluride requested two weeks to recalculate entitlements.

   ·14/07/06   Squaw Valley provided OWS with a recalculation of employees’ entitlements for 01/07/05-30/06/06 and advised that if OWS accepted the calculations a cheque would be made out for the affected employees by the end of that week.

   ·28/07/06   OWS advised Squaw Valley and Telluride that it was undertaking its own calculations of entitlements owed to employees.

   ·08/06-10/06 Squaw Valley and Telluride requested OWS to provide details of its calculations of employee entitlements. OWS did not do so.

   ·31/10/06   Proceedings against Squaw Valley commenced.

   ·17/11/06   Proceedings against Telluride commenced.

   ·23/11/06   Responses filed by the respondent companies sought the following orders:

   1.           A declaration that the Respondent has paid all entitlements of its employees in compliance with a workplace agreement and that no monies are owed to any of the employees referred to …

   2.           A declaration that the Liquor and Allied Industries Catering, Café, Restaurant, etc (Australian Capital Territory) Award 1998 did not apply to the employees …

   ·01/12/06   The parties met to discuss the methodology applied by the applicant and the respondent companies identified apparent errors in those calculations.

   ·05/12/06   The applicant provided CD-ROMs containing copies of spreadsheets used to calculate the underpayments alleged in the original application.

   ·21/12/06   Mr Meldrum provided undertakings regarding the retention of such of the respondents’ assets as would be required to make good any underpayments as were found by the Court to have occurred.

   ·05/02/07       At a directions hearing, the respondents’ solicitor explained their positions as follows:

   i)       some underpayments were conceded;

   ii)     some employees were on registered AWAs;

   iii)    some employees were retained on the same terms as the previously registered AWAs but the agreements were not registered whether because they had been lost by Restaurants and Catering NSW or otherwise;

   iv)     once an employee had signed an AWA, Squaw Valley and Telluride regarded the Award to be irrelevant and paid the employee in accordance with the AWA; and

   v)      in some cases, OWS had incorrectly classified employees’ levels under the Award.

   ·26/02/07   The applicant advised the Court that a number of errors had been discovered in its calculations of the employee’s entitlements and a review of those calculations would be undertaken.

   ·02/03/07   The applicant’s solicitor advised the Court that the review process had been more lengthy and complex than anticipated and sought further time in which to file an amended application and accompanying affidavits.

   ·09/03/07   Amended applications and further affidavits filed.

   ·22/03/07   The applicant provided the respondents with a CD-ROM containing copies of the spreadsheets used to calculate the underpayments alleged in the amended application.

   ·04/07        Mr Meldrum spent some time overseas and the preparation of the respondents’ responses was delayed as a consequence;

   ·24/04/07   Amended responses filed in each proceeding conceded an obligation to pay outstanding entitlements but pleaded:

   1.      … The Respondent denies the allegations made by the Applicant on the basis that each and every one of the employees were casuals. Save where otherwise stated in the affidavit of Ian William Meldrum the employees were retained on a permanent part time basis. As such they are not entitled to the casual entitlements as claimed …

   ·26/04/07   It appears that at a case management conference the respondent companies conceded that unless subject to AWAs, their employees were employed under the Award and they agreed to provide the applicant with material including a list of employees covered by AWAs and a list of employees who should probably have been classified as Introductory Level employees under the Award.

   ·30/05/07   At a case management conference the respondents indicated that they would not contest that they had breached the Award in a large number of the cases alleged by the applicant. They proposed to clarify the basis of their disagreement with the applicant’s allegations in relation to a small number of employees.

   The parties would co-operate in order that the respondent companies could make good all the underpayments by 29 June 2007.

   ·15/06/07   The applicant provided the respondent companies with draft agreed statements of facts.

   ·29/06/07   Cheques for most employees provided to the applicant’s solicitors but some reservations expressed in relation to the terms of the proposed agreed statement of facts.

   ·09/07/07   The respondents indicated that the issue of breach in respect of some employees was still in dispute.

   ·27/07/07   Applicant filed affidavit amending calculations in respect of certain Squaw Valley employees.

   ·03/08/07   The applicant’s solicitor wrote to the respondents clarifying his position in respect of the remaining employees in dispute.

   ·09/08/07   Respondents provided with revised draft agreed statements of facts.

   ·28/08/07   Respondents’ solicitors suggested amendments to proposed agreed statements of facts.

   ·06/09/07   Respondents’ solicitors proposed to the applicant draft amendments to the proposed agreed statements of facts in accordance with their letter of 28 August 2007.

   ·07/09/07   The parties conferred with a view to finalising the agreed statements of facts and further drafts were provided to the respondents.

   ·09/09/07   Negotiations between the parties continued.

   ·10/09/07   Statement of facts agreed and consent orders sought.

   ·11/09/07   Orders made in accordance with the consent orders filed in Court on 10 September 2007, as amended, requiring, amongst other things, that remaining unpaid entitlements be paid.

1. While the process of reaching an agreement might have been frustrating for the applicant, I do not conclude that the respondents were seeking to be evasive or to escape their responsibilities. It is apparent that the respondents, for a long time, misunderstood their rights and obligations, first in relation to the applicability of many of the AWAs and latterly in relation to the basis of the employees’ Award-based remuneration. Given that these positions were articulated in the responses filed in the Court and were presumably fortified by legal advice to this effect, I conclude that they were views maintained in good faith by the respondent companies, notwithstanding that they were mistaken.

2. Further, I note that the applicant had some difficulty and took some time to arrive at the figures which have ultimately formed the basis of the agreed facts. I also note the unco-operative approach shown by the OWS in August – October 2006 when Mr Meldrum sought assistance in calculating the amounts which were owed. I appreciate that most of Mr Meldrum’s views were wrongheaded but, given the complexity of the issues he was confronting, coupled with the actions of a regulator which was unhelpful yet pressing him to make payments which it, itself, could not calculate accurately for a lengthy period, I think the respondent companies may be forgiven some delay.

3. However, after the Court made the orders of 11 September 2007, further delays followed.

4. Notwithstanding the order that outstanding wages be paid by 14 September 2007, following reconciliation of payments made on 17 September 2007, it was apparent to the applicant that a cheque remained outstanding for Michelle Cavanaugh as well as amounts owed to Squaw Valley employees.

5. On 16 November 2007 the applicant’s solicitors wrote to the respondents’ solicitors requiring payment of outstanding wages for Michelle Cavanaugh and the outstanding Squaw Valley employees as well as a cheque for the value of wages cheques held by the applicant on behalf of the employees which had, at that point, not been collected. In that letter, the applicant’s solicitors sought a cheque of $15,237.32 in respect of Squaw Valley and $10,974.51 in respect of Telluride.

6. On 5 December 2007 the applicant’s solicitors wrote to the respondents’ solicitors demanding payment of the amounts set out in the letter of 16 November 2007 and threatening an application to the Court in default. The respondents’ solicitors replied on 10 December 2007 asking for a list of uncollected cheques. The applicant’s solicitors provided this by their letter of 11 December 2007 and requested payment of the outstanding amounts by 14 December 2007.

7. On 18 January 2008 the applicant’s solicitors wrote to the respondents’ solicitors because they had received no response to their letter of 11 December 2007 nor had they received the cheques sought in that letter. An application to the Court was threatened if a response was not received by 25 January 2008. On 19 February 2008 the applicant’s solicitors wrote again to the respondents’ solicitors complaining that they had received no response to their letters of 11 December 2007 and 18 January 2008 and enclosing a draft application in a case, a draft supporting affidavit which they foreshadowed would be filed if the Court’s orders of 11 September 2007 were not complied with by the close of business on 22 February 2008.

8. No response being received, in each of the proceedings the applicant filed an application in a case for orders that the outstanding amounts be paid within 14 days together with a quantified amount for interest. The applications in a case were served on the respondents’ solicitors under cover of the applicant’s solicitors’ letter dated 29 February 2008. The applicant’s solicitors endeavoured to speak by telephone to the respondents’ solicitor on 12 March 2008 but he was unavailable. As at 13 March 2008 the telephone call had not been returned and so the applicant’s solicitors wrote to the respondents’ solicitors on 13 March 2008 confirming the hearing date of the application in a case.

9. When the applications in a case in the two proceedings were called on for hearing on 14 March 2008 the respondents’ solicitor applied for an adjournment as he had not noted the date in his diary and was unprepared to deal with the matters at that time. It should be noted that the applications in a case had originally been listed for hearing on Tuesday 18 March 2008 but the hearing date had been moved forward to 14 March 2008. The respondents’ solicitor had not noted the change in listing. Given the circumstances, the proceedings were adjourned to 31 March 2008.

10. At the adjourned hearing, the amount for uncollected cheques in respect of the Squaw Valley matter was delivered to the respondents’ solicitors although the amounts outstanding for the three underpaid employees and the unpresented cheques in the Telluride matter were not provided. The matter was adjourned for a further fourteen days and on 14 April 2008 the parties were able to inform the Court that all outstanding amounts, including the interest, had been paid and it was agreed that the applicant’s applications in a case would be amended and orders made by consent other than the application for an order for costs.

Deterrence

1. As I accept that the respondents did not set out to breach the law but generally to observe it in an informal manner, I also accept that the question of specific deterrence does not figure largely in the consideration of penalty. The respondent companies submitted that the defence of the proceedings had been very expensive, in some cases they had overpaid their employees, had made compensatory payments to most of their employees and had given undertakings to pay the remainder. Since those submissions were made, all amounts owing, including interest, have been paid.

2. To the extent that specific deterrence is appropriate I am satisfied that the considerable expense and distraction caused by these proceedings will deter the respondents from such inattention to the law’s requirements in the future. However, general deterrence does need to be considered in order that the law’s disapproval of the conduct in question should be marked and a penalty serve as a warning to others not to engage in similar conduct: CPSU, Community and Public Sector Union v Telstra Corporation Limited [2001] FCA 1364 at [9]. For a penalty to have the desired effect it must be imposed at a meaningful level: Financial Sector Union v Commonwealth Bank of Australia [2005] FCA 1847 at [41]. A price should be put on contravention that is sufficiently high to deter repetition by the contravener and by others who might be tempted to contravene the Act: Trade Practices Commission v CSR Limited (1991) ATPR 41-076 per French J at 52,152.

Further matters

1. As to the respondents’ submission that the breaches of the various paragraphs of cl.16 of the Award should be considered as one issue, regard should be had to what Gray J said in Gibbs v Mayor, Councillors and Citizens of the City of Altona (1992) 37 FCR 216 at 223:

   The object of s.178(2) appears to be that a party bound by an award and pursuing a course of conduct involving repeated acts or omissions, which would ordinarily be regarded as giving rise to a series of separate breaches, should not be punished separately for each of those breaches. If such a party has pursued a course of conduct which gives rise to breaches of several different obligations, there is no reason why it should be treated as immune in respect of its breach of one obligation, merely because it has acted in breach of another. This reasoning leads to the conclusion that each separate obligation found in an award is to be regarded as a “term”, for the purposes of s.178 of the Act. The ascertainment of what is a term should depend not on matters of form, such as how the award maker has chosen to designate by numbers or letters the various provisions of an award, but on matters of substance, namely the different obligations which can be spelt out.

2. Consequently, it would be incorrect to accept the respondents’ submission that all breaches of all sub-clauses of cl.16 of the Award, which arise out of a particular course of conduct, amount to one breach only. The breaches should be considered in terms of the individual sub-clauses of cl.16 with the consequence that all breaches of each sub-clause of cl.16 of the Award, to the extent that they arise out of a particular course of conduct, amount to a single breach of that sub-clause.

3. In this case I find that each breach of the Award and the Act set out above at [31] arose out of the one course of conduct, with the consequence that there have been eleven breaches in respect of which penalites must be considered. In respect of each of those breaches the maximum penalty is 300 penalty units or $33,000.

4. The respondent companies also submitted in relation to breaches of cl.19 of the Award that these simply arose out of a misclassification of employees and that had the employees been put off until their classifications had been clarified then that would have penalised the employees. However, contrary to these submissions, none of the employees in respect of whom a cl.19 breach is admitted was on a training course and no cl.19 breach is alleged or admitted in relation to the disabled employee. A consideration of the details of the allegations concerning those breaches, found in the annexures to Mr Vonarx’s affidavits, reveals allegations that the employees were entitled to be paid for work done on particular days or during specified periods which necessarily implies that they were not paid for that work at all. In each case the particular day was the employee’s first day with Squaw Valley or the specified period was the employee’s first period of work with Squaw Valley. Although Mr Meldrum’s evidence was that the respondent companies’ prospective employees who did a work trial were paid, the allegations of breach of cl.19 of the Award imply otherwise, at least in relation to those individuals. Mr Meldrum’s evidence does not otherwise address those breaches and the particular allegations and admissions were not investigated at the hearing.

5. In one of his affidavits affirmed 7 September 2007 Mr Meldrum deposed to the business difficulties and trading losses sustained by Telluride. His evidence that Telluride’s trading figures are very poor is borne out by its tax returns for the 2005 and 2006 financial years, by its profit and loss figures and its balance sheets for the same period and for the 2007 financial year (Exhibits F, G and H). The company’s accumulated losses over a number of years are substantial and Mr Meldrum deposes in his affidavit that as well as he can tell it, it was a problem being experienced by many businesses in Civic because the after-hours trade in Civic has declined generally. He deposes that were it not for lease obligations, the business would simply close but it is better to keep the business running at a loss than to leave the premises empty as there is no alternative tenant. Mr Meldrum deposes that Telluride is being supported financially by Squaw Valley. Mr Meldrum’s wife works ten hours a day in the business without remuneration.

6. Mr Meldrum updated some of this information in his affidavit filed on 31 March 2008.

7. Notwithstanding Telluride’s submissions concerning ability to pay a significant penalty, any such difficulty should not deflect the Court from imposing whatever penalties are otherwise appropriate even though it is usual for a court to take into account an offender’s capacity to pay: Printing & Kindred Industries Union v Vista Paper Products Pty Ltd (1994) 127 ALR 673 at 688 and 686.

8. Submissions were made concerning the totality principle and its proper application. Tracey J in Kelly v Fitzpatrick [2007] FCA 1080 described the orthodox position as being:

   … that the starting point is the determination of appropriate penalties for each contravention of the statutory norm. The aggregate figure is then considered with a view to ensuring that it is an appropriate response to the conduct which led to the breaches. (at [30])

9. His Honour’s comments reflect what was said by Goldberg J in Australian Competition and ConsumerCommission v Australian Safeway Stores Pty Limited (1997) 145 ALR 36 at 53:

   The totality principle is designed to ensure that overall an appropriate sentence or penalty is appropriate and that the sum of the penalties imposed for several contraventions does not result in the total of the penalties exceeding what is proper having regard to the totality of the contravening conduct involved: McDonald v R (1994) 48 FCR 555; 120 ALR 629. But that does not mean that a court should commence by determining an overall penalty and then dividing it among the various contraventions. Rather the totality principle involves a final overall consideration of the sum of the penalties determined. In Mill v R (1988) 166 CLR 59; 83 ALR 1 the High Court accepted the following statement as correctly describing the totality principle:

   The effect of the totality principle is to require a sentencer who has passed a series of sentences, each properly calculated in relation to the offence for which it is imposed and each properly made consecutive in accordance with the principles governing consecutive sentences, to review the aggregate sentence and consider whether the aggregate is “just and appropriate”. The principle has been stated many times in various forms: “when a number of offences are being dealt with and specific punishments in respect of them are being totted up to make a total, it is always necessary for the court to take a last look at the total just to see whether it looks wrong”; “when … cases of multiplicity of offences come before the court, the court must not content itself by doing the arithmetic and passing the sentence which the arithmetic produces. It must look at the totality of the criminal behaviour and ask itself what is the appropriate sentence for all the offences”.

10. This approach has recently been endorsed by the Full Court of the Federal Court in Australian Ophthalmic Supplies Pty Ltd v McAlary-Smith [2008] FCAFC 8.

11. This is a matter in which the totality principle is relevant in determining penalty.

12. In his affidavits affirmed 7 September 2007 Mr Meldrum identified 15 Squaw Valley employees who were also employed by Telluride and 11 Telluride employees who were also employed by Squaw Valley. Telluride has admitted breaches in respect of 10 of the Squaw Valley employees and Squaw Valley has admitted breaches in respect of 13 of the Telluride employees. The consequences of the breaches has been magnified for those who are shareholders in both of the respondent companies and it was submitted on behalf of the respondent companies that to impose penalties on both companies in respect of the same employees would be unfair and would represent a doubling of the penalty. I cannot accept that submission. The respondent companies are different corporate entities and they must be considered individually.

13. As to the admission of liability, although final agreement was not reached until the parties had passed the steps of the Court on the first listed day of hearing, it is also clear that substantial agreement had been reached well before then. It is very apparent that these are matters which have taxed all parties with difficulties of detail and interpretation. The fact that much had been agreed well before the hearing should be taken into account when observing that a concluded agreement came late. In the circumstances of this case, I consider that a deduction of 30% gives appropriate recognition to the admissions made by the respondent companies.  

Penalties

1. The parties did not suggest what quantum of penalty would be appropriate in these proceedings.

2. I find that Telluride breached:

   a)clause 16.2.1 of the Award (rates of pay for casual employees, Monday to Friday);

   b)clause 16.2.2 of the Award (rates of pay for casual employees on a Saturday);

   c)clause 16.2.3 of the Award (rates of pay for casual employees on a Sunday);

   d)clause 16.2.4 of the Award (rates of pay for casual employees on public holidays);

   e)clause 16.3.1 of the Award (pro rata holiday pay);

   f)clause 19 and Schedule A of the Award (classifications and wage rates);

   g)clause 28.1 of the Award (overtime payable for full-time employees for work performed outside ordinary hours);

   h)clause 28.2 of the Award (overtime payable for full-time employees for work performed between midnight Friday and midnight Sunday);

   i)clause 29.1.1 of the Award (penalty rates for full-time employees for work performed between midnight Friday and midnight Saturday);

   j)clause 29.2.1 of the Award (penalty rates for full-time employees for work performed between 7:00pm and midnight, Monday to Friday); and

   k)s.185 of the Act (the guarantee of casual loadings).

3. I further find that eleven breaches have occurred.

4. I have taken into account the matters considered above when arriving at my decision as to penalty. In the circumstances, I consider the appropriate penalties in this matter to be:

   a)$3,000 for breach of clause 16.2.1 of the Award (rates of pay for casual employees, Monday to Friday);

   b)$1,000 for breach of clause 16.2.2 of the Award (rates of pay for casual employees on a Saturday);

   c)$1,000 for breach of clause 16.2.3 of the Award (rates of pay for casual employees on a Sunday);

   d)$500 for breach of clause 16.2.4 of the Award (rates of pay for casual employees on public holidays);

   e)$500 for breach of clause 16.3.1 of the Award (pro rata holiday pay);

   f)$500 for breach of clause 19 and Schedule A of the Award (classifications and wage rates);

   g)$3,000 for breach of clause 28.1 of the Award (overtime payable for full-time employees for work performed outside ordinary hours);

   h)$1,000 for breach of clause 28.2 of the Award (overtime payable for full-time employees for work performed between midnight Friday and midnight Sunday);

   i)$500 for breach of clause 29.1.1 of the Award (penalty rates for full-time employees for work performed between midnight Friday and midnight Saturday);

   j)$4,000 for breach of clause 29.2.1 of the Award (penalty rates for full-time employees for work performed between 7:00pm and midnight, Monday to Friday); and

   k)$1,000 for breach of s.185 of the Act (the guarantee of casual loadings).

5. The total penalty before the reduction which will be given for co-operation is therefore $16,000. I am satisfied that this is a just and appropriate amount as an aggregate figure. After a reduction of 30% for co-operation, the total penalty is $11,200 and the individual penalties are:

   a)$2,100 for breach of clause 16.2.1 of the Award (rates of pay for casual employees, Monday to Friday);

   b)$700 for breach of clause 16.2.2 of the Award (rates of pay for casual employees on a Saturday);

   c)$700 for breach of clause 16.2.3 of the Award (rates of pay for casual employees on a Sunday);

   d)$350 for breach of clause 16.2.4 of the Award (rates of pay for casual employees on public holidays);

   e)$350 for breach of clause 16.3.1 of the Award (pro rata holiday pay);

   f)$350 for breach of clause 19 and Schedule A of the Award (classifications and wage rates);

   g)$2,100 for breach of clause 28.1 of the Award (overtime payable for full-time employees for work performed outside ordinary hours);

   h)$700 for breach of clause 28.2 of the Award (overtime payable for full-time employees for work performed between midnight Friday and midnight Sunday);

   i)$350 for breach of clause 29.1.1 of the Award (penalty rates for full-time employees for work performed between midnight Friday and midnight Saturday);

   j)$2,800 for breach of clause 29.2.1 of the Award (penalty rates for full-time employees for work performed between 7:00pm and midnight, Monday to Friday); and

   k)$700 for breach of s.185 of the Act (the guarantee of casual loadings).

1. The applicant made no submissions as to whom any penalty should be paid. In the circumstances, as the proceedings had been brought by the Commonwealth, the aggregate penalty of $11,200 is to be paid to the Commonwealth.

I certify that the preceding one-hundred and twelve (112) paragraphs are a true copy of the reasons for judgment of Cameron FM

Associate:

Date: 12 June 2008

ANNEXURE A

AWARD AND ACT BREACHES AND UNDERPAYMENT CALCULATED IN RESPECT OF EACH EMPLOYEE

Employee	Clause of Award/section of Act breached	Underpayment calculated
AGUIS, Emily (Casual, Level 2)	clause 16.2.1 (first paragraph) clause 16.2.1 (second paragraph) clause 16.3.1	$40.60
ALTMANN, Jessica (Casual, Level 2)	clause 16.2.1 (first paragraph) clause 16.2.1 (second paragraph) clause 16.3.1	$158.17
ANDERSON, James (Casual, Level 2)	clause 16.2.1 (first paragraph) clause 16.3.1	$19.51
AUZMENDI, Anthony (Casual, Level 2)	clause 16.2.1 (first paragraph) clause 16.2.1 (second paragraph) clause 16.3.1	$14.51
BEATTIE, Samuel (Casual, Level 2)	clause 16.2.1 (first paragraph) clause 16.2.1 (second paragraph) clause 16.2.1 (third paragraph) clause 16.2.2 clause 16.2.3 clause 16.2.4 clause 16.3.1	$1179.97
BOSTOCK, Jonathan (Casual, Level 2)	clause 16.2.1 (first paragraph) clause 16.2.1 (second paragraph) clause 16.3.1	$20.46
CAMPBELL, Nicole (Casual, Level 2)	clause 16.2.1 (first paragraph) clause 16.2.1 (second paragraph) clause 16.2.2 clause 16.2.3 clause 16.2.4 clause 16.3.1 section 185	$624.59
CAROLAN, Ellie (Casual, Level 2)	clause 16.2.1 (first paragraph) clause 16.2.1 (second paragraph) clause 16.2.1 (third paragraph) clause 16.2.2 clause 16.2.3 clause 16.3.1 section 185	$192.43
CAVANAUGH, Michelle (Casual, Level 2)	clause 16.2.1 (first paragraph) clause 16.2.1 (second paragraph) clause 16.2.2 clause 16.2.3 clause 16.3.1	$58.10
CHARCHALIS, Iona (Casual, Level 2)	clause 16.2.2 clause 16.3.1	$25.93

CLARKE, Natasha (Casual, Level 2)	clause 16.2.1 clause 16.3.1	$6.27
CLIFFE, Jodie (Casual, Level 2)	clause 16.2.1 (first paragraph) clause 16.2.1 (second paragraph) clause 16.2.1 (third paragraph) clause 16.2.2 clause 16.2.3 clause 16.3.1	$825.48
COOPER, Abby (Casual, Level 2)	clause 16.2.1 (first paragraph) clause 16.2.1 (second paragraph) clause 16.2.2 clause 16.3.1	$40.98
COPE, Tim (Casual, Level 1)	clause 16.2.1 (first paragraph) clause 16.2.1 (second paragraph) clause 16.2.2 clause 16.2.3 clause 16.3.1	$36.74
GOODE, Stacey (Casual, Level 2)	clause 16.2.1 (first paragraph) clause 16.2.1 (second paragraph) clause 16.3.1	$12.13
GOODWIN, Tim (Permanent, Level 4)	Schedule A clause 28.1 clause 28.2 clause 29.1.1 clause 29.2.1	$631.18
GRAY, Annaleisha (Casual, Level 2)	clause 16.2.1 (first paragraph) clause 16.2.1 (second paragraph) clause 16.3.1	$34.94
GREENTREE, Jamie (Casual, Level 2)	clause 16.2.1 (first paragraph) clause 16.2.1 (second paragraph) clause 16.2.1 (third paragraph) clause 16.2.2 clause 16.2.3 clause 16.3.1	$2287.90
HOLCOMBE, Todd (Casual, Level 2)	clause 16.2.1 (first paragraph) clause 16.3.1	$14.94
HUNT, Greg (Casual, Level 2)	clause 16.2.1 (first paragraph) clause 16.2.1 (second paragraph) clause 16.2.1 (third paragraph) clause 16.2.2 clause 16.2.3 clause 16.3.1 section 185	$4194.61

INGHAM, Ross (Casual, Level 2)	clause 16.2.1 (first paragraph) clause 16.2.1 (second paragraph) clause 16.2.1 (third paragraph) clause 16.2.2 clause 16.2.3 clause 16.3.1 section 185	$2598.37
JAUREGUI, Beimar (Casual, Level 2)	clause 16.2.1 (first paragraph) clause 16.2.1 (second paragraph) clause 16.3.1	$205.20
JENSEN, Kristy (Casual, Level 2)	clause 16.2.1 (first paragraph) clause 16.2.1 (second paragraph) clause 16.3.1	$31.24
JESSOP, Tara (Casual, Level 2)	clause 16.2.1 (first paragraph) clause 16.2.1 (second paragraph) clause 16.2.2 clause 16.3.1	$20.70
KIRKWOOD, John (Casual, Level 2)	clause 16.2.1 (first paragraph) clause 16.2.1 (second paragraph) clause 16.3.1	$40.40
LeFLAY, Andrew (Casual, Level 2)	clause 16.2.1 (first paragraph) clause 16.2.1 (second paragraph) clause 16.2.2 clause 16.2.3 clause 16.3.1	$504.29
LeFLAY, Daniel (Casual, Level 2)	clause 16.2.1 (first paragraph) clause 16.2.1 (second paragraph) clause 16.2.2 clause 16.2.3 clause 16.3.1	$98.43
LIMBRICK, Hayley (Casual, Level 2)	clause 16.2.1 (first paragraph) clause 16.2.1 (second paragraph) clause 16.2.1 (third paragraph) clause 16.2.2 clause 16.2.3 clause 16.3.1 section 185	$291.14
LITTLE, Angela (Casual, Level 2)	clause 16.2.1 (first paragraph) clause 16.2.1 (second paragraph) clause 16.3.1	$19.89
MANKIS, Benjamin (Casual, Level 1)	clause 16.2.1 (first paragraph) clause 16.2.1 (second paragraph) clause 16.3.1	$13.16

MCLEOD, Lauren (Casual, Level 2)	clause 16.2.1 (first paragraph) clause 16.2.1 (second paragraph) clause 16.2.1 (third paragraph) clause 16.2.2 clause 16.2.3 clause 16.2.4 clause 16.3.1	$572.08
MIHALIC, Cathryn (Casual, Level 2)	clause 16.2.1 (first paragraph) clause 16.2.1 (second paragraph) clause 16.2.2 clause 16.2.3 clause 16.3.1	$52.16
NAVARRO, John (Casual, Level 4)	clause 16.2.1 (first paragraph) clause 16.2.1 (second paragraph) clause 16.3.1 section 185	$67.21
PAPASIDERO, Vanessa (Casual, Level 2)	clause 16.2.1 (first paragraph) clause 16.2.1 (second paragraph) clause 16.2.1 (third paragraph) clause 16.2.2 clause 16.2.3 clause 16.2.4 clause 16.3.1	$3603.16
PHENGRASMY, Thongrachan (Casual, Level 2)	clause 16.2.1 (first paragraph) clause 16.2.1 (second paragraph) clause 16.2.2 clause 16.2.3 clause 16.3.1	$521.43
RADINGER, Monika (Casual, Level 2)	clause 16.2.1 (first paragraph) clause 16.2.1 (second paragraph) clause 16.2.2 clause 16.2.3 clause 16.3.1	$103.32
RIGHTON-STAPLEY, Jayne (Casual, Level 2)	clause 16.2.1 (first paragraph) clause 16.2.1 (second paragraph) clause 16.2.2 clause 16.2.3 clause 16.3.1	$81.97
ROBERTS, Brendan (Casual, Level 2)	clause 16.2.1 (first paragraph) clause 16.2.1 (second paragraph) clause 16.2.2 clause 16.3.1	$52.95
SNEDDON, Jacqueline (Casual, Level 2)	clause 16.2.1 (first paragraph) clause 16.2.1 (second paragraph) clause 16.3.1	$32.14

SOUTHAM, Kurt (Casual, Level 2)	clause 16.2.1 (first paragraph) clause 16.2.1 (second paragraph) clause 16.2.1 (third paragraph) clause 16.2.2 clause 16.3.1	$80.22
SUMMERFIELD, Todd (Casual, Level 2)	clause 16.2.1 (first paragraph) clause 16.3.1	$13.29
THOMAS-BARTER, Maggie (Casual, Level 2)	clause 16.2.1 (first paragraph) clause 16.2.1 (second paragraph) clause 16.2.2 clause 16.2.3 clause 16.3.1	$135.36
THOMPSON, Alex (Casual, Level 2)	clause 16.2.1 (first paragraph) clause 16.2.1 (second paragraph) clause 16.2.1 (third paragraph) clause 16.2.2 clause 16.3.1	$35.48
THORNE, Hermione (Casual, Level 4)	clause 16.2.1 (first paragraph) clause 16.2.1 (second paragraph) clause 16.2.2 clause 16.3.1	$119.87
TOBIN, Joshua (Casual, Level 2)	clause 16.2.1 (first paragraph) clause 16.2.1 (second paragraph) clause 16.3.1	$19.89
TREACY, Bronwyn (Casual, Level 2)	clause 16.2.1 (first paragraph) clause 16.2.1 (second paragraph) clause 16.2.2 clause 16.2.3 clause 16.3.1	$526.49
TROY, Daniel (Casual, Level 2)	clause 16.2.2 clause 16.2.3 clause 16.3.1	$30.41
VELDHUIZEN, Peter (Casual, Level 1)	clause 16.2.2 clause 16.3.1	$13.80
VISSER, Matthew (Casual, Level 2)	clause 16.2.1 (first paragraph) clause 16.2.1 (second paragraph) clause 16.2.2 clause 16.3.1	$33.56
TOTAL UNDERPAYMENTS	$20,337.03