Yang v China Australia Travel Group Pty Ltd (No 2)
[2024] FedCFamC2G 1228
•20 November 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Yang v China Australia Travel Group Pty Ltd (No 2) [2024] FedCFamC2G 1228
File number(s): SYG 1071 of 2021 Judgment of: JUDGE OBRADOVIC Date of judgment: 20 November 2024 Catchwords: FAIR WORK – PENALTY – Contravention of minimum standards – Specific and general deterrence – Lack of corrective action – Small business – Ignorance not ameliorating factor – Penalty paid to applicant Legislation: Fair Work Act 2009 (Cth) ss 45, 536, 546, 550, 557
Passenger Vehicle Transport Award 2010
Cases cited: Australian Building and Construction Commission v Construction, Forestry, Mining and Energy Union [2018] HCA 3
Australian Building and Constructions Commissioner v Pattinson [2022] HCA 13
Australian Meat Industry Employees Union v Dick Stone Pty Ltd (No 2) [2022] FCA 1263
Australian Ophthalmic Supplies Pty Ltd v McAlary-Smith [2008] FCAFC 8
Commonwealth of Australia v Director, Fair Work Building Industry Inspectorate [2015] HCA 46
Construction, Forestry, Mining and Energy Union v Hail Creek Coal Pty Ltd (No 2) [2018] FCA 480
CPSU v Telstra Corporation Ltd [2001] FCA 1364
Fair Work Ombudsman v Grouped Property Services Pty Ltd (No 2) [2017] FCA 557
Fair Work Ombudsman v Ho [2024] FCAFC 111
Fair Work Ombudsman v Kentwood Industrial Pty Ltd (No.3) [2011] FCA 579
Fair Work Ombudsman v Lohr [2018] FCA 5
Fair Work Ombudsman v NSH North Pty Ltd trading as New Shanghai Charlestown [2017] FCA 1301
Fair Work Ombudsman v Promoting U Pty Ltd & Anor [2012] FMCA 58
Flight Centre Ltd v Australian Competition and Consumer Commission (No 2) [2018] FCAFC 53
Kelly v Fitzpatrick [2007] FCA 1080
Mason v Harrington Corporation Pty Ltd t/as Pangaea Restaurant & Bar [2007] FMCA 7
Rocky Holdings Pty Limited v Fair Work Ombudsman [2014] FCAFC 62
Shanka v Employment National (Administration) Pty Ltd [2001] FCA 1623
Singtel Optus Pty Ltd v Australian Competition and Consumer Commission (2012) 287 ALR 249
Trade Practices Commission v CSR Ltd [1990] FCA 521
Division: Division 2 General Federal Law Number of paragraphs: 76 Date of hearing: 1 November 2024 Place: Parramatta Counsel for the Applicant: Mr Latham Solicitor for the Applicant: Zhang Shijing Lawyers Counsel for the Respondents: Mr O’Connor Solicitor for the Respondents: Origo Law ORDERS
SYG 1071 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: XIJIE YANG
Applicant
AND: CHINA AUSTRALIA TRAVEL GROUP PTY TD ACN 168 460 268
First Respondent
XIAOLEI ZHAO
Second Respondent
JINZI HUANG
Third Respondent
ORDER MADE BY:
JUDGE OBRADOVIC
DATE OF ORDER:
20 NOVEMBER 2024
THE COURT ORDERS THAT:
1.Pursuant to s 546 of the Fair Work Act 2009 (Cth) (‘the Act’), the first respondent pay a pecuniary penalty in the sum of $145,000, with such amount to be paid to the applicant within 28 days of the date of this Order.
2.Pursuant to s 546 of the Act, the second respondent pay a pecuniary penalty in the sum of $20,500, with such amount to be paid to the applicant within 28 days of the date of this Order.
3.Pursuant to s 546 of the Act, the third respondent pay a pecuniary penalty in the sum of $20,500, with such amount to be paid to the applicant within 28 days of the date of this Order.
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 OBRADOVIC:
On 10 November 2023, the Court delivered its Reasons for Judgment in Yang v China Australia Travel Group Pty Ltd [2023] FedCFamC2G 1023 (‘liability judgment’).
In the liability judgment, the Court determined that the applicant, Mr Xijie Yang (‘Mr Yang’), was an employee of the first respondent, China Australia Travel Group Pty Ltd (‘CAT’) and covered by the Passenger Vehicle Transport Award 2010 (‘Award’).
The Court determined that CAT contravened ss.45 and 536 of the Fair Work Act 2009 (Cth) (‘FW Act’), and that the second respondent, Mr XiaoLei Zhao (‘Mr Zhao’), and the third respondent, Ms JinZi Huang (‘Ms Huang’), were, for the purposes of s.550 of the FW Act, involved in CAT’s contraventions.
The contraventions relate to a failure by CAT:
(a)To pay Mr Yang the minimum hourly rate for ordinary hours for casual employees as required by cl.10.5 of the Award;
(b)To pay Mr Yang overtime payments as required by cl.23.1 of the Award;
(c)To pay Mr Yang penalty rates on Saturday and Sunday as required by cl.23.2 of the Award;
(d)To pay Mr Yang penalty rates on public holidays as required by cl.23.4 of the Award;
(e)To make superannuation contributions on behalf of Mr Yang as required by cl.20.2 of the Award; and
(f)To provide pay slips to Mr Yang within one working day of paying amounts to him in relation to the performance of work.
These are the Reasons for Judgment in respect of the penalty to be imposed on the respondents in respect of the contraventions as found.
This judgment should be read together with the liability judgment.
Explanation as to length of time in finalising proceedings
As noted in the liability judgment, proceedings were commenced in the then Federal Circuit Court of Australia by Mr Yang on 15 June 2021, more than 3 years ago.
The proceedings were case managed through the latter parts of the COVID-19 pandemic, and while the applicant was overseas.
In August 2022, the matter was listed for a four-day hearing in April 2023, when it proceeded to be heard over three days. The delay between August 2022 and the final hearing in April 2023, is a reflection of the case load of this Court. Closing written submissions were filed on 20 June 2023.
From the start of June to early October 2023, the trial judge was not sitting, due to extenuating personal circumstances. The liability judgment was delivered on 10 November 2023.
Following the delivery of the liability judgment, the respondents filed a Notice of Appeal in the Federal Court of Australia on 7 December 2023, which was accepted for filing on 8 December 2023.
On 31 January 2024, by consent, these proceedings were stayed pending the determination of the appeal. However, no stay was sought nor granted in respect of the orders made on 10 November 2023.
On 21 June 2024, Bromwich J dismissed the application for extension of time and leave to appeal. The proceedings were remitted to this Court to the trial judge for determination of pecuniary penalties.
The matter was next before this Court on 16 July 2024, when the proceedings were listed on 1 November 2024 for further evidence and oral submissions in respect of the determination of pecuniary penalties.
The applicant did not put on any evidence-in-chief but did run a case in reply. He was cross-examined by the respondents. Ms Huang is the only witness in the respondents’ case on penalty. She was cross-examined by the applicant.
On 1 November 2024, the hearing concluded and judgment was reserved.
PRINCIPLES RELEVANT TO THE DETERMINATION OF PENALTY
The primary purpose of a pecuniary penalty is to promote the public interest in compliance. It is ‘to put a price on contravention that is sufficiently high to deter repetition by the contravener and by others who might be tempted to contravene the Act.’[1] The ‘price’ must be such that it is not regarded by the contravener as an ‘acceptable cost of doing business.’[2]
[1] Commonwealth of Australia v Director, Fair Work Building Industry Inspectorate [2015] HCA 46 (‘FW Building Industry Inspectorate’) at [55], citing Trade Practices Commission v CSR Ltd [1990] FCA 521.
[2] FW Building Industry Inspectorate at [55] and [110], citing Singtel Optus Pty Ltd v Australian Competition and Consumer Commission (2012) 287 ALR 249.
The greater the impact of the penalty on the contravener, the more potent will be the example that the penalty sets for other potential contraveners. Likewise, it will be more likely that the contravener will seek to avoid the risk of subjection to further penalties and be deterred from further contravention.[3]
[3] Australian Building and Construction Commission v Construction, Forestry, Mining and Energy Union [2018] HCA 3 at [116].
Penalties should however be just and appropriate,[4] and a penalty should not be oppressive or crushing.[5]
[4] Australian Ophthalmic Supplies Pty Ltd v McAlary-Smith [2008] FCAFC 8 (‘McAlary-Smith’) at [95] citing CPSU v Telstra Corporation Ltd [2001] FCA 1364.
[5] Kelly v Fitzpatrick [2007] FCA 1080 (‘Kelly’) at [30].
An appropriate method to determine the question of penalty may be summarised as follows:[6]
(a)Identify the separate contraventions;
(b)Consider whether each separate contravention should be dealt with independently or whether separate contraventions constitute a single course of conduct within the meaning of s.557(1) FW Act;
(c)Consider whether the contraventions should be further grouped;
(d)Consider an appropriate penalty as to each contravention (i.e. each final individual group of contraventions, taken in isolation); and
(e)Review the aggregate penalty by application of the ‘totality principle’.
[6] Fair Work Ombudsman v Kentwood Industrial Pty Ltd (No.3) [2011] FCA 579 at [10]; Fair Work Ombudsman v NSH North Pty Ltd trading as New Shanghai Charlestown [2017] FCA 1301 (‘NSH North’) at [36].
Factors Relevant to Penalty
The relevant factors going to penalty have been identified as follows:[7]
[7] Kelly at [14] adopting Mason v Harrington Corporation Pty Ltd t/as Pangaea Restaurant & Bar [2007] FMCA 7 at [26]-[59].
(a)The nature and extent of the conduct which led to the breaches;
(b)The circumstances in which that conduct took place;
(c)The nature and extent of any loss or damage sustained as a result of the breaches;
(d)Whether there had been similar previous conduct by the respondent;
(e)Whether the breaches were properly distinct or arose out of the one course of conduct;
(f)The size of the business enterprise involved;
(g)Whether or not the breaches were deliberate;
(h)Whether senior management was involved in the breaches;
(i)Whether the party committing the breach had exhibited contrition;
(j)Whether the party committing the breach had taken corrective action;
(k)Whether the party committing the breach had cooperated with the enforcement authorities;
(l)The need to ensure compliance with minimum standards by provision of an effective means for investigation and enforcement of employee entitlements; and
(m)The need for specific and general deterrence.
Consideration of the well-known penalty factors is to be undertaken within the overarching consideration of what penalty will achieve the principal object of deterrence, both specific and general. These factors are well-settled, but not a ‘rigid catalogue of matters for attention.’[8]
[8] McAlary-Smith at [88] to [91].
The identified factors, while a convenient checklist, do not restrict the Court in the exercise of its discretion.
The penalty should be no more and no less than is necessary to achieve the purpose to deter the wrongdoer from engaging in contraventions of a like kind and to deter others who might be tempted to contravene. The penalty should be no more than might be considered to be reasonably necessary to deter further contraventions of a like kind.[9]
[9] Australian Meat Industry Employees Union v Dick Stone Pty Ltd (No 2) [2022] FCA 1263 at [25] (‘Dick Stone’), citations omitted.
The imposition of the maximum penalty is appropriate where it is considered necessary for the purpose of deterrence even if the nature of the conduct does not fall into the most serious category of wrongdoing.[10]
CONSIDERATION
[10] Dick Stone at [29] citing Australian Building and Constructions Commissioner v Pattinson [2022] HCA 13.
Findings
CAT was incorporated in or around March 2014. CAT was at all relevant times a small business and employed less than 15 people.
At the relevant time, CAT operated a souvenir shop in Dawes Point, NSW. Mr Zhao is the husband of Ms Huang who is and has been at all material times, the sole director, secretary and shareholder of CAT.
Mr Yang was an employee of CAT between June 2015 and October 2017, driving bus loads of Chinese tour groups to various sites in and around Sydney and New South Wales.
The findings of fact set out in the liability judgment at [25] to [69] are adopted in these Reasons for Judgment. Of particular relevance, inter alia, the Court notes that:
(a)Mr Yang never received payslips, was not paid superannuation, and never took any paid leave;[11]
(b)Mr Yang received very little payment from CAT between September 2015 and October 2017 and when he asked for payment, which he did many times in 2015 and 2016, was told he would be paid later as a lump sum;[12]
(c)Mr Yang received one payment of $7,900.39 in or about July 2016, and $5,000 on 17 July 2017 from CAT;[13]
(d)In October 2017, Mr Yang told Ms Huang that he quit as his wages had not been paid;[14] and
(e)In November 2020, Mr Zhao replied to a WeChat message from Mr Yang that he could not check the company’s records for such a long period to establish what wages Mr Yang was owed.[15]
[11] Liability judgment at [36].
[12] Liability judgment at [44].
[13] Liability judgment at [45].
[14] Liability judgment at [46].
[15] Liability judgment at [47].
CAT ceased trading in 2020, but it remains registered.
Ms Huang explains that during the time it traded, CAT had been paying its employees’ salaries on time and in accordance with relevant awards. She was not able to identify in her oral evidence what the applicable awards are. Ms Huang further explains that it was her belief that Mr Yang was not an employee and that this is why she did not pay him in accordance with the applicable award. The respondents, however, never sought any legal advice about the arrangement they imposed on Mr Yang.
Ms Huang apologises for her ignorance on the subject. She further says that had she known that Mr Yang was an employee, she would have paid him in accordance with the applicable award. She says she is genuinely remorseful.
Despite the Orders of this Court on 10 November 2023, Mr Yang is still to be paid his entitlements pursuant to the Award. The Court’s Orders are that each of the respondents is jointly and severally liable for the payment due to Mr Yang. It is now 7 years since Mr Yang ceased working for CAT and he is still to be paid his entitlements.
Mr Yang is still owed $84,460.71 plus superannuation.
Ms Huang explains that the reason why she has not paid the money due to Mr Yang pursuant to Court Orders is ‘because I am advised that the decision is appealable’, and that she understands that there is a significant risk that the money paid to the applicant will be taken out of the jurisdiction and be unrecoverable on appeal. No explanation is offered by Mr Zhao, or specifically on behalf of CAT.
As noted earlier, no stay of the Orders has ever been sought nor granted.
Ms Huang’s apology rings hollow.
While CAT is no longer trading, Ms Huang is not retired. She continues to work and operate a separate business on the Gold Coast, in Queensland. Mr Zhao is a director of a different business, which the Court understands is operated by Ms Huang’s daughter.
The evidence of Mr Yang
Tendered in the respondents’ case is a paragraph of an affidavit which was filed and served in the penalty hearing,[16] but not relied upon by Mr Yang. That paragraph reads:
Despite these long hours, I received a daily payment of $150 plus occasional commissions of 5% on sales, amount to an average of approximately $180 per day. This payment was significantly below the minimum wage set by the government.
[16] Exhibit 1 being paragraph 19 of Affidavit of Xijie Yang affirmed 22 July 2024, filed 29 July 2024.
Mr Yang was called to give evidence-in-reply and was cross-examined. He says that the affidavit was drafted by his lawyer, and that this particular paragraph is incorrect. He says that he did not receive such payments, and if he had received such payments he would not have sued. He explains that his evidence should not have been about payments received, which he did not receive, but rather that this is what he was told by the respondents that he would be receiving.
The Court accepts the oral evidence given by Mr Yang on 1 November 2024.
DETERMINATION OF APPROPRIATE PENALTY
The Contraventions
Following the liability judgment, the Court declared as follows:
1. The first respondent contravened the following civil penalty provisions:
(a)Section 45 of the Fair Work Act 2009 (Cth) (“Act”) by failing to pay the applicant the minimum hourly rate for ordinary hours for casual employees as required by clause 10.5 of the Passenger Vehicle Transport Award 2010 (“Award”);
(b)Section 45 of the Act by failing to pay the applicant overtime payments as required by clause 23.1 of the Award;
(c)Section 45 of the Act by failing to pay the applicant penalty rates on Saturday and Sunday as required by clause 23.2 of the Award;
(d)Section 45 of the Act by failing to pay the applicant penalty rates on public holidays as required by clause 23.4 of the Award;
(e)Section 45 of the Act by failing to make superannuation contributions on behalf of the applicant as required by clause 20.2 of the Award; and
(f)Section 536 of the Act by failing to provide pay slips to the applicant within one working day of paying amounts to him in relation to the performance of work.
2.The second respondent was, for the purposes of s.550 of the Act, involved in the first respondent’s contraventions of the Act set out in declaration 1 above.
3.The third respondent was, for the purposes of s.550 of the Act, involved in the first respondent’s contraventions of the Act set out in declaration 1 above.
And the Court ordered:
4.Pursuant to ss.545 and 550 of the Act, within 28 days the First, Second and Third Respondents jointly and severally pay:
(a) To the Applicant the amount of $84,460.71;
(b)On behalf of the Applicant to such superannuation fund as nominated by him within 7 days, such superannuation contributions the First Respondent was required to make pursuant to clause 20.2 of the Award.
Section 557 FW Act does not apply to the present circumstances.[17] It is not appropriate to otherwise group the contraventions.[18]
[17] Rocky Holdings Pty Limited v Fair Work Ombudsman [2014] FCAFC 62; cited with approval in Fair Work Ombudsman v Ho [2024] FCAFC 111 at [16]-[27], [33] (‘FWO v Ho’).
[18] Fair Work Ombudsman v Lohr [2018] FCA 5; cited with approval in FWO v Ho at [28]-[32], [33].
Appropriate Penalty
At first glance, the evidence contained in Exhibit 1 is contrary to the Court’s findings in the liability judgment, and not unlike some of the evidence given by Ms Huang in the respondents’ case, appears to go behind the Court’s findings. It is apposite to be reminded that the respondents called almost no evidence in the liability hearing. No further application has been made to this Court. The respondents cannot now quibble with those findings, and any evidence and submissions which may attempt to do so, have been given no weight.
Nature and extent and circumstances of the conduct
All contraventions relate to CAT’s engagement of Mr Yang purportedly as an independent contractor, when in reality he was a casual employee covered by the Award. While the contraventions relate to only one employee, this is not a one-off incident in the sense that it related to one underpayment. The respondents’ contraventions were ongoing for a period of over two years.
Not only was Mr Yang denied his entitlements pursuant to the Award, he was also not provided with payslips nor was superannuation paid on his behalf.
The Court accepts that the respondents’ contraventions arose as a result of an ignorance and/or misunderstanding of the law. However, the respondents did not seek any legal advice prior to Mr Yang commencing to work for them, and the Court accepts the submission that the respondents’ evidence as to an arguable but erroneous construction is scant.
English is a second language for Mr Yang, as well as Ms Huang and Mr Zheng.
Nature and extent of loss or damage suffered as a result of the breaches
Mr Yang was underpaid for over more than two years, in the amount of $84,460.71. The reason he ceased working is because CAT did not pay him his wages.[19]
[19] Liability Judgment at [46].
No superannuation entitlements were paid on his behalf over the course of his employment.
These are significant amounts.
The size of the business enterprise involved
All employers, regardless of size and financial circumstance, have an obligation to comply with minimum labour rights and entitlements. However, CAT is no longer trading. At all relevant times it employed less than 15 employees and was a small business.
Whether or not the breaches were deliberate
The respondents’ breaches arose because of an ignorance of the law. Such ignorance, however, arose as a result of a lack of appropriate enquiry, which for those conducting a business and engaging workers, is rather a poor explanation. A belief in the innocence of the conduct that is a contravention of a statute is usually not an ameliorating factor.[20]
Whether senior management was involved in the breaches[21]
[20] Flight Centre Ltd v Australian Competition and Consumer Commission (No 2) [2018] FCAFC 53 at [64].
[21] Liability Judgment at [104]-[105].
Ms Huang is the sole director and sole shareholder of CAT, who engaged Mr Yang on behalf of CAT and was well aware that he was not remunerated as an employee and/or pursuant to the Award. She had knowledge of the directions given to Mr Yang of the hours and the days he was to work and that he did work.
Mr Zhao, Ms Huang’s husband, was present and party to Ms Huang engaging Mr Yang on behalf of CAT. He too was well aware that Mr Yang was not remunerated as an employee and/or pursuant to the Award. Mr Zhao had intimate knowledge of the directions given to Mr Yang of the hours and the days he was to work and that he did work.
Contrition and Corrective Action
The findings in the liability judgment are that the only payments Mr Yang received from the first respondent in respect of the work he performed for a period of over two years totalled just under $13,000 plus an unquantified amount of commission.[22]
[22] Liability Judgment at [79], [99].
As noted earlier, Mr Yang is still to be paid his entitlements, some 7 years after he ceased working for CAT. He is owed $84,460.71 plus superannuation.
The respondents have not demonstrated any contrition, except by way of a hollow apology to the Court in Ms Huang’s affidavit. No apology has ever been offered to Mr Yang.
The respondents have not taken any corrective action.
Deterrence
While both Ms Huang and Mr Zheng continue to be involved in operating and/or running unrelated businesses, CAT is no longer trading. As such, the need for specific deterrence is limited.
The need for general deterrence is readily apparent. The terms of the Award provide for minimum standards, they protect vulnerable and low-paid workers.
Penalty Imposed
The contravention concerned contravention of minimum standards. Generally speaking, contravening a term of an award will almost always be a serious matter.[23]
[23] Dick Stone at [37]-[38].
While a contravention of a civil penalty provision that has arisen from the contravener’s honest and reasonable, but erroneous, construction of a relevant instrument is a powerful factor favouring the exercise of the discretion to decline to impose any penalty, or to limit the amount of any penalty,[24] the Court has not been so persuaded on the evidence in these proceedings.
[24] Construction, Forestry, Mining and Energy Union v Hail Creek Coal Pty Ltd (No 2) [2018] FCA 480 at [15].
The second respondent simply relied on her own personal experience, and that of the third respondent, without taking any active steps to ascertain what the first respondent’s legal obligations towards Mr Yang might be. This is all the more potent given that she was the sole director and shareholder of the first respondent. Having one’s head buried in the sand is not a plausible explanation for failing to comply with one’s legal obligations.
Taking all of the relevant considerations into account, the Court finds that the failure to pay Mr Yang in accordance with the Award was a serious matter and warrants a penalty which reflects the seriousness of the conduct. Noting that each contravention is similar, a lesser penalty will be imposed in respect of those contraventions which have had a lesser impact on the loss suffered by Mr Yang.
The maximum pecuniary penalties which may be imposed for contraventions of ss.45 and 536 are 300 units for the corporation and 60 penalty units for an individual for each contravention.
During the period of the contravention the penalty unit increased from $170 to $180 to $210. The maximum penalty for each contravention is therefore $63,000 for a corporation and $12,600 for an individual.
Where a contravention of the FW Act involves conduct which begins before an amendment which increases the amount of penal units and continues after the increase comes into effect, the higher penalty applies for the entire contravention period. However, it is appropriate for the Court to have regard to the fact that a lower penalty unit applied for part of the period.[25]
[25] Fair Work Ombudsman v Grouped Property Services Pty Ltd (No 2) [2017] FCA 557 at [394]-[401].
Most of the contraventions took place during the period when the applicable penalty unit was $180.
The totality principle seeks to ensure that whilst the penalty imposed must not be crushing or oppressive, it must be proportionate to the conduct engaged in by the respondents and not have the effect of exonerating the conduct.[26]
[26] Kelly at [30]; McAlary-Smith at [23] per Gray J, at [66]-[73] per Graham J, at [98]-[102] per Buchanan J; Fair Work Ombudsman v Promoting U Pty Ltd & Anor [2012] FMCA 58 at [55]- [57].
In respect of the first respondent, the appropriate penalties are determined as follows:
First Respondent Contravention Penalty Section 45 of the FW Act by failing to pay the Applicant the minimum hourly rate required by cl.10.5 of the Award. $40,000 Section 45 of the FW Act by failing to pay the Applicant overtime payments as required by cl.23.1 of the Award. $25,000 Section 45 of the FW Act by failing to pay the Applicant penalty rates on Saturday and Sunday as required by cl.23.2 of the Award. $10,000 Section 45 of the FW Act by failing to pay the Applicant penalty rates on public holidays as required by cl.23.4 of the Award. $10,000 Section 45 of the FW Act by failing to make superannuation contributions on behalf of the Applicant as required by cl.20.2 of the Award. $35,000 Section 536 of the FW Act by failing to provide pay slips to the Applicant within one working day of paying amounts to them in relation to the performance of work. $25,000 TOTAL: $145,000
The aggregate penalty is just and proportionate having regard to the contravening conduct and the surrounding circumstances. CAT is therefore to pay a pecuniary penalty of $145,000.
In respect of the second and third respondents each, the appropriate penalties are determined as follows:
Second and Third Respondent Each Contravention Penalty Section 45 of the FW Act by failing to pay the Applicant the minimum hourly rate required by cl.10.5 of the Award. $8,000 Section 45 of the FW Act by failing to pay the Applicant overtime payments as required by cl.23.1 of the Award. $3,000 Section 45 of the FW Act by failing to pay the Applicant penalty rates on Saturday and Sunday as required by cl.23.2 of the Award. $1,500 Section 45 of the FW Act by failing to pay the Applicant penalty rates on public holidays as required by cl.23.4 of the Award. $1,500 Section 45 of the FW Act by failing to make superannuation contributions on behalf of the Applicant as required by cl.20.2 of the Award. $3,500 Section 536 of the FW Act by failing to provide pay slips to the Applicant within one working day of paying amounts to them in relation to the performance of work. $3,000 TOTAL each: $20,500
The aggregate penalty is just and proportionate having regard to the contravening conduct and the surrounding circumstances. As such, each of Ms Huang and Mr Zheng is to pay a pecuniary penalty of $20,500.
The penalties will be paid to Mr Yang, in accordance with established authority for the payment to the person applying for penalty.[27]
[27] Shanka v Employment National (Administration) Pty Ltd [2001] FCA 1623 at [78].
The Court so orders.
I certify that the preceding seventy-six (76) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Obradovic. Associate:
Dated: 20 November 2024
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