FEDERAL COURT OF AUSTRALIA

Fair Work Ombudsman v Grouped Property Services Pty Ltd (No 2)

[2017] FCA 557

ORDERS

THE COURT ORDERS THAT:

Compensation

1.    Pursuant to s 545(2) of the Fair Work Act 2009 (Cth) (the Act), within 28 days of these orders coming into effect, the first respondent, Grouped Property Services Pty Ltd (GPS), pay compensation to the applicant, the Fair Work Ombudsman, in the sum of $223,244.66.

2.    Within 60 days of receipt of the sum mentioned in order 1, the Ombudsman distribute to the persons named in Annexure 1 to these orders the amounts appearing beside their names.

3.    Pursuant to s 547(2) of the Act, within 28 days of these orders coming into effect, GPS pay the Ombudsman interest on the amounts set out in Annexure 1.

4.    For the purpose of order 3, interest be calculated from the end of the employment of each of the persons named in Annexure 1 at the rates specified in cl 2.2 of Practice Note GPN-INT, namely:

(a)    in respect of the period from 1 January to 30 June in any year, the rate that is 4% above the cash rate last published by the Reserve Bank of Australia before that period commenced; and

(b)    in respect of the period from 1 July to 31 December in any year, the rate that is 4% above the cash rate last published by the Reserve Bank of Australia before that period commenced.

5.    Within 60 days of receipt, the Ombudsman distribute the sum paid under order 3 to the persons named in Annexure 1.

6.    In the event that the Ombudsman receives a partial payment of the amount due under orders 1 and/or 3, the amount received be distributed to the persons listed in Annexure 1 in accordance with the percentages set out in that annexure.

7.    Pursuant to s 545(2) of the Act, within 28 days of these orders coming into effect, GPS and the fourth respondent, Enrico Pucci, pay the Ombudsman the sum of $307.68 as compensation for the contravention of s 340 of the Act.

8.    Within 28 days of receipt of the sum mentioned in order 7, the Ombudsman pay the sum to Moona Hasan.

9.    Pursuant to s 547(2) of the Act, within 28 days of these orders coming into effect, GPS and Enrico Pucci pay the Ombudsman interest on the sum set out in order 7 from 26 March 2013, being the date Ms Hasan’s employment ended, and at the rates specified in cl 2.2 of Practice Note GPN–INT, specifically by reference:

(a)    in respect of the period from 1 January to 30 June in any year — to the rate that is 4% above the cash rate last published by the Reserve Bank of Australia before that period commenced, and

(b)    in respect of the period from 1 July to 31 December in any year — to the rate that is 4% above the cash rate last published by the Reserve Bank of Australia before that period commenced.

10.    Within 28 days of receipt of the interest payment referred to in order 9, the Ombudsman pay the sum to Moona Hasan.

11.    In the event that within 60 days of receipt of the above sums the Ombudsman cannot locate any of the persons to whom compensation is payable in accordance with these orders, within a further 14 days GPS publish, at its own expense, a notice:

(a)    in the following newspapers:

(i)    The Sunday Telegraph;

(ii)    The Sun Herald;

(iii)    The Sunday Mail (Queensland);

(iv)    The Sunday Mail (South Australia);

(v)    The Sunday Times (Western Australia);

(vi)    The Herald Sun;

(vii)    The Sunday Age; and

(viii)    The Canberra Times,

(b)    which:

(i)    notifies the readers of the Court’s orders;

(ii)    bears the GPS company name and logo;

(iii)    appears on any of pages 3, 5 or 7 of the relevant newspaper; and

(iv)    measures at least 10 centimetres high by 5 centimetres wide.

12.    In the event that a person to whom compensation is payable in accordance with these orders cannot be located, within 28 days of the publication of the advertisements the Ombudsman pay the amount due to that person to the Consolidated Revenue Fund.

Penalties

13.    Pursuant to s 546(1) of the Act, GPS pay the penalties referred to in Annexure 2 to these orders.

14.    Pursuant to s 546(1) of the Act, the third respondent, Rosario Pucci, pay the penalties referred to in Annexure 3 to these orders.

15.    Pursuant to s 546(1) of the Act, Enrico Pucci pay a penalty of $3,000 for his involvement in the contravention by GPS of s 340 of the Act.

16.    Within 28 days of these orders coming into effect, pursuant to s 546(3) of the Act, GPS, Rosario and Enrico Pucci respectively pay the penalties set out in orders 13, 14 and 15 to the Consolidated Revenue Fund.

Variations to earlier orders and judgment

17.    Pursuant to sub-rule 39.05(f) of the Federal Court Rules 2011 (Cth) (the Rules), with the consent of the Ombudsman, the declarations made on 26 August 2016 be varied by:

(a)    substituting the number “31” for the number “32” in declaration 1.2;

(b)    substituting “s 99” for “s 97” in declaration 1.3;

(c)    substituting the number “21” for the number “23” in declaration 2.15;

(d)    substituting the number “17” for the number “19” in declaration 2.16;

(e)    substituting “six” for “seven” in declaration 2.19;

(f)    substituting the number “49” for the number “50” in declaration 4;

(g)    substituting “one” for “two” in declaration 10.4;

(h)    substituting the number “8” for the number “11” in declaration 10.12;

(i)    substituting “21” for “23” in declaration 10.16; and

(j)    substituting the number “51” for “one” in declaration 10.23.

18.    Pursuant to sub-rules 39.05(e), (f), (g) and/or (h) of the Rules, the orders and judgment in Fair Work Ombudsman v Grouped Property Services Pty Ltd [2016] FCA 1034 be varied by:

(a)    inserting the word “free” after the words “award/agreement” in declaration 3;

(b)    replacing the references to “s 97” in [33](3) and [995] and the third row of each of the two tables in Annexure B with “s 99”;

(c)    substituting “Juliana Botero Hernandez” for “Jessica Alvarado Palma” in [268] and “Jessica Alvarado Palma” for “Juliana Botero Hernandez” in [269];

(d)    substituting “2012” for “2013” in the first sentence of [339];

(e)    replacing the words “dated 12 January 2013” in [394] with the phrase “received by the Ombudsman on 14 February 2013”;

(f)    substituting “s 117(2)” for “s 90(2)” in [399] and [405];

(g)    substituting “cl 27.1(b)” for “cl 27.2(b)” in [706];

(h)    inserting after “18 January 2013” in [762] the words: “save for one payment of $500”;

(i)    removing the third sentence from [767];

(j)    substituting “Boxing Day 2011” for “Boxing Day 2012” in [775];

(k)    substituting “5 April 2012” for “15 April 2012” in [812];

(l)    substituting “s 90(2)” for “s 87(1)” in [986];

(m)    substituting “2012” for “2013” and “$15.96” for “16.37” in the penultimate sentence of [879]; and

(n)    substituting the male pronoun for the female pronoun in all references to Wendy Bong.

Costs

19.    Costs be reserved.

Procedural matters

20.    By 5.00pm on 31 May 2017, the parties inform the Court of any agreed arithmetical or clerical errors or slips in the orders or reasons for judgment published today or, in default of agreement, notify the Court of any such error(s) in submissions not exceeding 5 pages.

21.    Unless the Court otherwise orders, orders 1–19 above come into effect on 1 June 2017.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

ANNEXURE 1

Compensation

ANNEXURE 2

Penalties to be paid by Grouped Property Services Pty Ltd

ANNEXURE 3

Penalties to be paid by Rosario Pucci

REASONS FOR JUDGMENT

Table of Contents

1    On 26 August 2016 I found that Grouped Property Services Pty Ltd (GPS) contravened the Fair Work Act 2009 (Cth) (FW Act) in numerous respects, that Enrico Pucci, a director of GPS, was involved in one of those contraventions, and that his brother Rosario Pucci, a former director, in a large number of them: Fair Work Ombudsman v Grouped Property Services Pty Ltd [2016] FCA 1034; (2016) 152 ALD 209 (the Liability Judgment). The vast majority of the contraventions consisted of failures to adhere to minimum employment standards, including by not paying award wages and other entitlements under the operative industrial awards. GPS had denied liability. Indeed, it disputed that it was the employer of any of the employees in respect of whom the allegations had been made, claiming that they were either independent contractors or employees of another company established by the Pucci family — National Contractors Pty Limited — which it maintained contracted with GPS to supply labour. Yet, none of the respondents offered any evidence to support these claims, challenged the Ombudsman’s evidence, or filed any submissions, and none of them appeared at the hearing.

2    GPS’s position was untenable in the light of the Ombudsman’s evidence. On the basis of that evidence, I found that the so-called independent contractors were employees of GPS and that the alleged labour hire arrangement was a sham. I proceeded to make declarations and a number of other orders.

3    At the time of publication of the Liability Judgment, three matters remained outstanding. They were the questions of compensation, penalties, and costs. This judgment is primarily concerned with the questions of compensation and penalties. It should be read with the Liability Judgment. For reasons of clarity and convenience, consistently with the approach I took in the Liability Judgment and without intending any disrespect, I shall refer to each of the Pucci respondents by his first name.

4    On 7 October 2016 I made orders for the filing and service of evidence and submissions on the outstanding matters and appointed hearing dates. Those orders were made with Rosario’s consent and without opposition from Enrico. The timetable was varied by consent on 21 November 2016 to afford the Ombudsman additional time to file and serve her evidence. The Ombudsman’s evidence and submissions were filed and served on 2 December 2016. The respondents’ evidence and submissions were due to be filed and served by 20 January 2017. But once again, none of the respondents filed any evidence or submissions. This time, however, both Rosario and Enrico attended the hearing and made submissions. There was no appearance for GPS. At the hearing Enrico was advised that he might apply for leave to make submissions on behalf of GPS but he did not make any such application.

The application to vary the judgment and declarations

5    Before dealing with the questions of compensation and penalties, there is a preliminary matter which requires attention.

6    The Ombudsman applied to vary some of the declarations and to correct some clerical and other errors in the Liability Judgment.

7    The application was supported by an affidavit sworn by Eric Leahy, a Principal Lawyer in the Ombudsman’s office and the lawyer supervising the conduct of the proceeding on the Ombudsman’s behalf.

8    Rule 39.05 of the Federal Court Rules 2011 (Cth) relevantly provides that the Court may vary a judgment or order after it has been entered in a number of circumstances including if:

(e)    it does not reflect the intention of the Court; or

(f)    the party in whose favour it was made consents; or

(g)    there is a clerical mistake in [the] judgment or order; or

(h)    there is an error arising in [the] judgment or order from an accidental slip or omission.

9    The application to vary the judgment and declarations was made, not only with the consent, but at the behest, of the Ombudsman. As the Ombudsman is the party in whose favour they were made, there can be no doubt that the Court has the power to do as the Ombudsman asks — provided, in the case of the application to vary the judgment, that it involves a variation of the kind contemplated by the rule. Nevertheless, it is well-established that this power should only be exercised “where it is just and appropriate to do so”: Perre v Apand [2004] FCA 1220 (Selway J at [11]).

10    To the extent that the Ombudsman seeks variations of the declarations, I am satisfied that in all but two cases it is indeed just and appropriate to make them.

11    The first matter raised by the Ombudsman concerns the erroneous inclusion of one particular employee in declaration 1.2. That declaration related to the contravention of s 44 of the FW Act by failing to pay 32 employees for their accrued untaken annual leave as prescribed by s 90(2) of the Act. The right to be paid for accrued annual leave is a right conferred on all employees except for casuals: FW Act, s 86. The employee whom the Ombudsman contended was wrongly included in this declaration was Bibek Luitel (see Liability Judgment at [292]). The Ombudsman characterised Mr Luitel as a part-time employee. Later in my reasons (at [496]), however, I found that Mr Luitel was not a part-time employee but a casual. I was not conscious of the discrepancy and I regret to say that it was not detected during the proof-reading process. I am indebted to the Ombudsman for drawing it to my attention. It was an obvious oversight. The declaration should be varied to reduce the number of employees from 32 to 31.

12    The Ombudsman also sought a variation of the judgment relating to Rosario’s involvement in contravention 23, which concerns the failure to pay employees the applicable penalty rate for working permanent night shifts contrary to cl 27.1(b) of the Cleaning Services Award 2010 (Cleaning Services Award).

13    In the Liability Judgment (at [1087]), I observed that, in order to find that Rosario was “involved in” GPS’s contravention, it must be established that Rosario had knowledge that:

(1)    an employee was covered by the Cleaning Services Award;

(2)    the employee worked a shift finishing after midnight and at or before 8.00am;

(3)    the shift did not alternate or rotate with another shift or day work; and

(4)    the employee was not paid an additional 30% of the ordinary hourly rate for the appropriate classification.

14    The error resulted from my consideration of elements (2) and (3).

15    I found that Rosario was involved in this contravention because of his knowledge of the shift rosters for Alfonso Alcuitas. Yet, I did not find that GPS had contravened the award in respect of Mr Alcuitas. Indeed, the Ombudsman had made no such allegation. This was an undoubted error.

16    The Ombudsman submitted that this was a slip and I could amend the reasons to correct the error. I reject the submission.

17    This was not a slip because it was not an error arising from a clerical mistake or omission and it was not unintentional because the reasons reflected my intention at the time, misconceived though it was, to find that Rosario was culpable because of his knowledge of the elements of a contravention involving Alfonso Alcuitas. The slip rule, which is reflected in r 39.05 (formerly O 35 r 7 of the Federal Court Rules 1979 (Cth)), does not extend to mistakes that result from deliberate decisions: Elyard Corporation Pty Ltd v DDB Needham Sydney Pty Ltd (1995) 61 FCR 385 at 391 (Lockhart J). Furthermore, I do not consider that it is open to me to amend the reasons to correct the error as an error in reasoning is not “an error arising in a judgment or order”: Austal Ships Sales Pty Ltd v Stena Rederi Aktiebolag (2009) 263 ALR 384; [2009] FCAFC 179 at [25]. As Finn and Dowsett JJ went on to explain in that case:

The court may be in error in its reasoning, but a judgment or order which reflects the consequences of that error is, itself, free from error, although appealable. We do not understand these propositions to have ever been doubted, although it may be, that from time to time, the operation of the rule has been stretched to accommodate a hard case.

18    While reasons may always be revised to correct errors of form, they may not be revised to correct errors of substance: Todorovic v Moussa (2001) 53 NSWLR 463 at [47]–[48] (Beazley JA, Powell JA agreeing at [1] and Sperling J at [61]).

19    The only relevant order that this error affects is declaration 10.14, which was to the effect that Rosario was involved in the contravention by GPS of s 45 of the FW Act in failing to pay penalty rates prescribed by cl 27.1(b) of the Cleaning Services Award in relation to one employee. The employee was not named. The order requires no correction because, as the Ombudsman submitted, there is an independent foundation for it. That independent foundation consists of the evidence and findings concerning Robert Wilkey. Rosario did not argue otherwise. Nor, as the following exposition indicates, could he have done so.

20    Rosario (together with a woman named only as “Rosie”) interviewed Mr Wilkey for a cleaning job. They offered him a permanent part-time cleaning position “for 2.5 hours a night Monday to Thursday, and Friday” and three hours on Saturday and Sunday. When Mr Wilkey told them that he had other work and that it would be better for him to come in “between 1am and 1:30am”. He received the following reply:

That's good. Everyone will be gone by then. You will just need to do the alarm and clock on. It’s no problem.

21    These, then, were some of the terms of his employment. They were negotiated either by Rosario or in his presence. He plainly knew of them.

22    Mr Wilkey’s evidence was that he finished every shift between midnight and 8.00am from 29 March 2012 onwards but was paid a flat rate of $17.95 with no allowances (Liability Judgment [718]). I accepted this evidence and found the contravention proved against GPS in this respect, amongst others (at [711]). As I noted at [259] of the Liability Judgment, on 12 July 2012 Mr Wilkey complained to Janil (also known as “Jay”) Modi, the assistant accountant, that he had received no pay for a few months. Over the next few days he received $200 but nothing since. From this evidence it is apparent that he was not paid a shift allowance. After numerous futile efforts to contact the payroll office to chase up the rest of his pay, on 1 August 2012 he telephoned Rosario. Rosario did not answer but Mr Wilkey left him a message “on his message bank” asking him when he was getting his money. Rosario did not return his call. Mr Wilkey decided that the only way he would get a response from Rosario was if he called him at 1am. So this is what he did. He then told Rosario that “payroll keeps saying to me that they will pay the money owed to me but they haven’t paid it”. Rosario assured him that he would make sure someone looked into it in the morning and “someone will get back to you”. Later that day, however, Rosario called him and abused him for ringing him, saying:

You are a fucking idiot. You are a fucking cunt. How dare you ring me at 1am.

23    Mr Wilkey said that he could not remember anything else he said during the three-minute tirade that followed because he was in shock and unable to get a word in. Then, either Rosario hung up or the connection was lost. Rosario rang back, saying:

Don't you fucking call me up when my wife’s sleeping, I'm going to call Yvette [an obvious reference to Yvette Cooley, the then South Australian State Manager of GPS] and you're out. I'm not going to have you ringing me like that when my wife's there, give me the keys, you're done.

24    When Mr Wilkey inquired about his outstanding pay, Rosario replied:

You will see nothing. You can do what you like you won't be getting your money. Go to Fair Work, I'll leave the paperwork on the desk and it will be there for 3-4 months and you won't get anything.

25    Regrettably, eloquent though it is, my attention was not drawn to this evidence in the context of any of the submissions the Ombudsman made on the subject of Rosario’s liability. Having regard to this evidence, Rosario unquestionably had the requisite knowledge to make him liable as an accessory to GPS’s contravention of cl 27.1(b) of the Cleaning Services Award in relation to Mr Wilkey. In these circumstances, there is no reason to vary the terms of declaration 10.14.

26    The Ombudsman also drew my attention to an error at [318] in the context of discussing contravention 2 (the failure to pay untaken accrued annual leave) where I mistook the hours that Wen Yang worked for the hours of his friend, Xiao Teng, whose details were in the email annexed to Mr Yang’s affidavit to which I referred. To correct this error would also involve a correction to the reasons. Yet, nothing turns on it. That is because the evidence shows that Mr Yang, who was employed for only two and a half weeks in November 2012, did not take annual leave and was not paid for his untaken leave.

27    Most of the variations that the Ombudsman sought, however, did concern slips or clerical errors. Apart from the slip concerning Mr Luitel, they are set out in Appendix A to these reasons.

28    Otherwise, the variations the Ombudsman sought resulted from a review conducted by the Ombudsman after the publication of the Liability Judgment, which allegedly disclosed that certain underpayments affecting four employees had been the subject of inadvertent double-counting and that the claims in these cases should never have been made. They are said to affect the findings and declarations in relation to contraventions 25, 26, 28 and 29.

29    The Ombudsman submitted that, notwithstanding the case it ran at the liability hearing, the findings that Alyson Hellyer and Helen Pakas were not paid the applicable penalty rates for working on a Sunday (contraventions 25) and the finding that Ms Pakas was not paid overtime rates for overtime worked on a Sunday (contravention 28) should not have been made. In Ms Hellyer’s case, this is because her hours worked on a Sunday are classified as overtime hours and are wholly captured by contravention 28. Therefore to claim these hours again under contravention 25 would be “double-counting”.

30    In Ms Pakas’s case, the Ombudsman applied for both contraventions 25 and 28 to be varied to undo the findings that GPS failed to pay Ms Pakas both penalty rates and overtime rates for Sunday work. This is because the Ombudsman is only claiming compensation for the hours Ms Pakas worked between 16 April 2012 and 19 April 2013. During this period Ms Pakas only worked on one Sunday: 24 June 2012. In the Liability Judgment at [733] and [808], however, I found that Ms Pakas also worked on six Sundays on 24 and 31 July 2011 and 7, 14, 21, and 28 August 2011. While these findings were not erroneous, the hours worked on these Sundays were all overtime hours. I accept the Ombudsman’s submission that an employee who must be paid overtime rates for working on a Sunday is not also entitled to Sunday penalty rates in relation to the overtime hours. I therefore accept that the declaration in respect of contravention 25 should be varied to exclude Ms Pakas. But I see no reason to vary contravention 28.

31    The Ombudsman also submitted that the finding that Ms Hellyer was not paid for working overtime on the Queen’s Birthday public holiday in 2012 (contravention 29) should not have been made and there should be a consequential amendment to the relevant declaration. The Ombudsman submitted that, because the hours she worked that day were covered under contravention 26, which concerns the failure to pay cleaners the applicable penalty rate for work on a public holiday, GPS did not contravene the Cleaning Services Award in this respect. I accept the Ombudsman’s submission. The Ombudsman further submitted that a similar kind of error affected contravention 26 and the declaration relating to it in that Tammy May and Thomas Sung Hong were wrongly included. I accept this submission too. The declarations relating to this contravention should therefore be amended to correct those errors.

32    I regret to say that there are a number of other slips and clerical errors that I have since picked up and brought to the parties’ attention. First there is an additional clerical error in one of the declarations where the wrong section of the FW Act was referred to and I will vary that declaration to rectify that error. There are also two slips in the penultimate sentence of [879] in which I referred to the National Minimum Wage Order 2013 instead of the National Minimum Wage Order 2012 and a national minimum wage of $16.37 per hour instead of $15.96. These slips should be corrected.

33    Finally, I will vary four declarations to correct slips or clerical errors so as to accurately reflect my findings concerning contravention 32 in respect of GPS and contraventions 6, 19 and 21 in respect of Rosario. In declaration 4, which concerns contravention 32, “49” should replace “50”; in declaration 10.4, which concerns contravention 6, “one” should replace “two”; in declaration 10.12, which concerns contravention 19, “eight” should replace “11”; and in declaration 10.23, which also concerns contravention 32, “51” should replace “one”. The Ombudsman consents to all these variations and neither GPS nor Rosario raised an objection to them being made.

34    To the extent that the declarations are varied, corresponding changes will be made to the table of contraventions in Annexure B to the Liability Judgment. I omitted to record the outcome in one instance — relating to Rosario’s culpability for contraventions 17 and 18 insofar as they concerned Paul Bacon — and I will rectify that omission at the same time.

35    With only one possible exception (the case of declaration 10.23), the alterations to the declarations I intend to make are either neutral or favour the respondents. I am satisfied that it is in the interests of justice that they all be made.

Compensation

The legal parameters

36    Where the Court is satisfied that a person has contravened a civil remedy provision, the Court may make any order it considers appropriate, including an order awarding compensation for loss suffered by a person because of the contravention: FW Act, s 545. The only express limitation on this power is that an order in relation to an underpayment may not be made in relation to a period earlier than six years before the proceeding commenced: s 545(5). The limitation is of no consequence in the present case as all the conduct with which it is concerned took place within six years before the filing of the originating application on 1 July 2014. The conduct in question occurred between 1 July 2011 and 14 September 2013, a period referred to by the Ombudsman as “the Audit Period”.

37    An order for compensation is undoubtedly appropriate in the present case.

The Ombudsman’s application

38    The compensation orders are sought against GPS in relation to contraventions 1, 2, 3, 4, 6, 7, 8, 10, 13, 14, 16, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32 and 33. These contraventions concern the company’s failure to afford minimum standards of employment prescribed by the National Employment Standards (NES) contained in Pt 2–2 of the FW Act and to comply with its obligations under two modern awards, including by failing to pay minimum wages. The Ombudsman seeks an order that GPS pay the amount of the underpayments by way of compensation to the employees concerned or, if they cannot be found, to the Consolidated Revenue Fund.

39    I found that Enrico was involved in contravention 33 and the Ombudsman asks that the order for compensation for this contravention be made against him as well as GPS.

40    No compensation order is sought from Rosario because, as an undischarged bankrupt, an order for compensation would be a provable debt in his bankruptcy, and the Ombudsman made no application for leave to proceed against him in respect of the debt: see Bankruptcy Act 1966 (Cth), ss 58(3), 82.

41    The Ombudsman relied on the evidence upon which the findings in the Liability Judgment were made and those findings, subject to the variations mentioned above. In addition, the Ombudsman read a further affidavit from a GPS employee, Abraham Arguello, sworn on 29 November 2016, touching upon the amount of annual leave owing to him on termination. At the hearing, Rosario objected to the evidence, but only because he quarrelled with its contents, despite not having filed any evidence or required Mr Arguello’s attendance for cross-examination. The evidence was admitted over his objection.

The problem of classification

42    Rates of pay under the relevant awards are determined by reference to the job classifications set out in the awards. It is therefore impossible to determine the amount of the underpayments without first ascertaining the relevant classifications for the relevant employees.

43    In the Liability Judgment I made findings as to the awards governing the employment of the relevant employees and as to whether they were employed on a part-time, full-time, or casual basis and the classifications in which the cleaners were employed. I did not, however, make findings about the job classifications of the clerical employees, described by the Ombudsman and in the Liability Judgment as the administrative employees. Their employment was covered by the Clerks–Private Sector Award 2011 (Clerks Award). The Clerks Award stipulates that employees be classified according to the structure set out in Schedule B to the award. Clause B.2.1 of Schedule B lists “indicative typical duties and skills”. Having regard to the terms of the Schedule, the Ombudsman contended that the administrative employees came within the following classifications:

44    In her written submissions the Ombudsman explained in detail, by reference to the evidence, why these classifications were the appropriate ones. In the absence of any argument to the contrary, I accept the Ombudsman’s submissions. Accordingly, I find that the employees listed in the above table were within the classifications recorded alongside their names. Consequently, they will be compensated at the rates applicable to those classifications.

Calculation of the underpayments

45    The calculation of the appropriate rates and the extent of the underpayments is complicated by several matters.

46    First, the employees in question worked for GPS in six jurisdictions (NSW, Victoria, Queensland, South Australia, Western Australia, and the Australian Capital Territory) and the rates vary between the jurisdictions. This is because, during the period in question, transitional rates were set in each modern award as part of the award modernisation process. In that process similar awards operating in different states and territories were consolidated into a single instrument, using transitional provisions to phase in changes in wages, loadings, and penalties until they were consistent across all jurisdictions. Transitional increases differed in the various jurisdictions and changed annually between July 2011 and July 2013. These variations affect the majority of employees covered by the Cleaning Services Award, but not the five employees covered by the Clerks Award, as they all worked in NSW.

47    Secondly, the rates of pay vary according to the periods in which the employees worked. Under the Cleaning Services Award, the transitional rates changed annually between 2011 and 2014, with incremental increases to wages, loadings and penalties coming into force at the start of each financial year. The rates of pay for employees covered by the Clerks Award also changed at the start of each financial year between 2011 and 2013.

48    Thirdly, on the assumption that GPS and National Contractors produced all the documents they were required to produce in answer to the various notices to produce issued by the Ombudsman, the records kept by the companies were in a very poor state. One example is the records generated by the computer system GPS used to record the start and finish times for the cleaners. As I observed in the Liability Judgment at [228], this system, referred to in the evidence as “Praxeo”, would often fail to record log on or log off times. On some occasions it would record that an employee had logged in one minute and logged off the next. As it is inconceivable that any employee would work for one minute, the records generated by the system are an incomplete record of the hours the employees worked. To the extent that the Ombudsman is forced to rely on this information, the result is that in most, if not all, of these cases employees will be undercompensated for their losses.

49    The Ombudsman tendered 13 lever arch files of material. This material comprised extracts of the evidence adduced during the liability hearing and copies of the relevant sections of the FW Act and the relevant awards. Included with them were 102 “summary sheets” for each employee affected by each contravention. Those summary sheets set out the employee’s relevant classification, state or territory in which he or she was employed, hours worked, and applicable rates of pay, including the minimum award rates, loadings, allowances, and penalties, cross-referenced to the evidence, the relevant sections of the Act, the relevant awards, and the relevant findings. I was informed that this material was served on Rosario and Enrico in both hard copy and electronic form on 5 December 2016. Where accurate, these summary sheets were of great assistance.

50    These summary sheets were revised, however, on 17 February 2017 to correct several errors in the figures conceded by the Ombudsman during the course of oral argument, and upon a review conducted after the hearing concluded which uncovered some “double-counting” errors. 46 of the 102 summary sheets were amended by this review and a number of others since. At no time did the respondents contend that any of the references were incorrect or that the rates upon which the calculations were made were not the correct award rates for the relevant classifications of employee. Nor did they contend that the hours recorded in the summary sheets were an inaccurate record of what they purported to be.

51    Rosario was given the opportunity to make submissions concerning the amendments. He provided submissions on 13 March 2017. The submissions were accompanied by an affidavit he swore on 11 March 2017, which he was not invited, or given leave, to file. Be that as it may, none of the matters raised in the affidavit or the submissions was to the point. Instead, Rosario took issue with a number of the findings made in the Liability Judgment. As on this occasion no leave was given for the filing of an affidavit and as it is irrelevant to the remaining issues, it must be rejected and, to the extent that the submissions relied on the statements in the affidavit or dealt with the same or similar matters, I give them no weight.

52    Rosario submitted that the Ombudsman’s calculations should reflect the terms of an enterprise bargaining agreement made by RPEP Holdings Pty Ltd and to which GPS was not a party. As I found that all the individuals in question were employed by GPS, the enterprise bargaining agreement is also irrelevant.

53    Unless otherwise indicated, in the absence of any relevant challenge to the Ombudsman’s calculations, I accept the figures in the summary sheets and, where revised, in the revised summary sheets. Where I refer in these reasons to hours or shifts worked by the employees in question, I have relied on the Ombudsman’s summary sheets in which the sources are identified. There were, however, some errors and inconsistencies in the summary sheets, even after the Ombudsman’s review. The most notable inconsistency was that in some cases, the Ombudsman assumed (often despite findings to the contrary) that a particular employee was paid a flat rate of pay throughout his or her employment, yet in other cases assumed (correctly) that the same employee was unpaid, or paid at different rates, in different periods.

The extent of the underpayments

Contravention 1: Failing to pay annual leave, contrary to s 90(1) of the Act

54    Contravention 1 was proved in relation to two part-time employees: Tammy May and Robert Wilkey.

55    Section 90(1) of the FW Act provides:

If, in accordance with this Division, an employee takes a period of paid annual leave, the employer must pay the employee at the employee’s base rate of pay for the employee’s ordinary hours of work in the period.

56    “Base rate of pay” is defined in s 16(1) in this way:

The base rate of pay of a national system employee is the rate of pay payable to the employee for his or her ordinary hours of work, but not any of the following:

(a)    incentive-based payments and bonuses;

(b)    loadings;

(c)    monetary allowances;

(d)    overtime or penalty rates;

(e)    any other separately identifiable amounts.

57    Tammy May took 10 days of annual leave in August 2011 for which she was not paid. The Ombudsman claims, however, only 7.53 hours, rightly or wrongly ignoring the hours accrued before the commencement of the Audit Period. Ms May’s minimum rate of pay as a level 1 cleaner under the Cleaning Services Award was $16.57 per hour. Multiplying that figure by 7.53 hours gives a base rate of pay within the meaning of s 16(1) of the Act of $124.77.

58    Robert Wilkey took annual leave over the period from 7 to 20 May 2012. His leave entitlement is restricted to his ordinary hours of work of which there are 30 in this period. His minimum hourly rate under the award as a level 1 cleaner was $16.57. That figure multiplied by 30 gives a base rate of $497.10.

59    The Ombudsman also claimed additional amounts referable to the part-time allowance of 15% of the hourly rate to which the employees were entitled under cll 29.3(d) and 12.4(b)(iii) of the award. Having regard to the definition of “base rate of pay”, however, to which the Ombudsman did not refer in her submissions, the allowance should not be taken into account in the calculation of annual leave entitlements under s 90(1). It is either a monetary allowance or another separately identifiable amount. Accordingly, Ms May was underpaid $124.77 and Mr Wilkey $497.10.

Contravention 2: Failing to pay accrued annual leave on termination, contrary to s 90(2) of the Act

60    This contravention was proved in relation to 31 employees: Alfonso Alcuitas, Abraham Arguello, Paul Bacon, Juliana Botero Hernandez, Rangana Dissanayake, Barry Dowling, Fawaz El Rahman, Marissa Hall, Freddy Herrera, Fiona Holland, Michael Kallee, Charles Mascarenhas, Tammy May, Christine Meager, Kian Mu, Jose Pena, Barbara Piper, Mariana de Queiroz, Tuula Rintala, Linda Robinson, Sumit Salhotra, Baljinder Singh, Dianne Sjoberg, Cheryl Sorrell, Thomas Sung Hong, Tui Tane, Xiao Teng, Sekson Thinathin, Tashi Wangchuck, Robert Wilkey, and Wen Yang.

61    Section 90(2) provides that:

If, when the employment of an employee ends, the employee has a period of untaken paid annual leave, the employer must pay the employee the amount that would have been payable to the employee had the employee taken that period of leave.

62    The amount that would have been payable to each of these 31 employees had they taken leave would have included any allowances and loadings provided for under a modern award: see Centennial Northern Mining Services Pty Ltd v Construction, Forestry, Mining and Energy Union (2015) 231 FCR 298. In Centennial at [38] the Full Court held that:

Section 90(1) creates the minimum standard: payment at the base rate for ordinary hours worked. The effect of s 90(2) is that if that is the rate at which the employee is paid when he or she takes annual leave, then that is the minimum amount that must be paid for any accrued untaken annual leave. If, on the other hand, there is a modern award or enterprise agreement which provides for payment at a higher rate for annual leave that is taken, then s 90(2) stipulates that that is the rate which is payable where annual leave has accrued but has not been taken. This is the natural way to read the section and there is nothing in the legislative context which would require a different interpretation.

63    The Cleaning Services Award is a modern award which provides for payment at a higher rate for annual leave than the minimum rate of pay. Clause 29.3 provides that:

For the purposes of payment of annual leave, an employee’s ordinary pay means remuneration for the employee’s normal weekly number of hours or work calculated at the ordinary time rate of pay and in addition will include:

(a)    leading hand allowance;

(b)    first aid allowance;

(c)    penalty rates paid for shiftwork or rostered ordinary hours of work on Saturday and/or Sunday; and

(d)    part-time allowance for part-time employees working shiftwork (Monday to Friday) or rostered ordinary hours on a Saturday and/or a Sunday.

64    All but one of the 31 employees affected by this contravention were covered by the Cleaning Services Award. Accordingly, in all but that one case, accrued but untaken annual leave owing to those 30 employees must be paid in accordance with cl 29.3 of the Cleaning Services Award. These 30 employees are also entitled to a 17.5% annual leave loading under cll 29.4(a) and 29.7 of the award. Clause 29.4(a) relevantly provides that:

The terms of the NES prescribed the basis for payment for annual leave, including payment for untaken leave upon the termination of employment. In addition to the terms of the NES an employer is required to pay an additional leave loading of 17.5% calculated on an employee’s ordinary time rate of pay.

65    Clause 29.7 is in substantially the same terms as cl 29.4(a).

66    There is no definition in the Cleaning Services Award of “ordinary time rate of pay”. As the Ombudsman submitted, however, the meaning of the phrase can be gleaned by comparison with the term “ordinary pay”, which is defined in cl 29.3 to include various allowances and penalties in addition to the employee’s ordinary time rate of pay. Consequently, an employee’s ordinary time rate of pay refers to the employee’s rate of pay excluding the allowances and penalties mentioned in cl 29.3.

67    The only employee not covered by the Cleaning Services Award, Christine Meager, was covered by the Clerks Award. This award similarly provides for a 17.5% annual leave loading. Clause 29.3 of the Clerks Award relevantly states:

(a)    During a period of annual leave an employee will receive a loading calculated on the rate of wage prescribed in clause 16—Minimum weekly wages. Annual leave loading payment is payable on leave accrued.

(b)    The loading is as follows:

(i)    Day work

Employees who would have worked on day work only had they not been on leave—17.5% or the relevant weekend penalty rates, whichever is the greater but not both.

68    Christine Meager was employed throughout on day work.

69    Each of the 31 employees covered by this contravention is therefore entitled to a 17.5% loading on top of his or her ordinary pay. No claim was made that Ms Meager was entitled to any greater amount.

70    Of these 31 employees, 22 were part-time cleaners who the Ombudsman submitted, and I accept, were entitled to the 15% part-time allowance as they worked shiftwork (Monday to Friday) or were rostered on ordinary hours on weekends: see cll 29.3(d) and 12.4(b)(iii) of the Cleaning Services Award. No account is taken, however, of shift or weekend penalties, notwithstanding the terms of cl 29.3 of the Cleaning Services Award. When this omission was drawn to the Ombudsman’s attention, she acknowledged the error but did not seek to vary her claim, in substance because she considered that, the costs of the exercise could not be justified.

71    The underpayments for which compensation is sought for GPS’s failure to pay untaken accrued annual leave on termination for the 22 part-time employees are as follows:

(1)    $2,962.40 for Alfonso Alcuitas.

    Mr Alcuitas had accrued 131.13 hours of untaken annual leave. His minimum award rate of pay at the time his employment ended was $17.05 per hour. His accrued annual leave entitlement was $2,235.77 (131.13 hours x $17.05), the 15% allowance of $335.37 and the 17.5% loading of $391.26. The total is $2,962.40.

(2)    $566.00 for Rangana Dissanayake.

    Mr Dissanayake accrued 25.78 hours of untaken annual leave. At the time his employment ended the minimum rate of pay for his position under the award was $16.57 per hour. Over 25.78 hours that amounts to $427.17. When the 15% allowance of $64.08 and the 17.5% loading of $74.75 are added, he should have been paid $566.

(3)    $1,167.06 for Barry Dowling.

    Mr Dowling accrued 51.66 hours of untaken annual leave. His minimum award rate of pay at the time his employment ended was $17.05 per hour. Over 51.66 hours that amounts to $880.80. When the 15% allowance of $132.12 and the 17.5% loading of $154.14 are added, he should have been paid $1,167.06.

(4)    $959.01 for Fawaz El Rahman.

    Mr El Rahman accrued 43.68 hours of untaken annual leave. His minimum award rate of pay at the time his employment ended was $16.57 per hour. Over 43.68 hours that amounts to $723.78. When the 15% allowance of $108.57 and the 17.5% loading of $126.66 are added, he should have been paid $959.01.

(5)    $3,777.93 for Freddy Herrera.

    Mr Herrera accrued 167.23 hours of untaken annual leave. His minimum award rate of pay at the time his employment ended was $17.05 per hour. Over 167.23 hours that amounts to $2,851.27. When the 15% allowance of $427.69 and the 17.5% loading of $498.97 are added, he should have been paid $3,777.93.

(6)    $307.24 for Fiona Holland.

    Ms Holland accrued 13.60 hours of untaken annual leave. Her minimum award rate of pay at the time her employment ended was $17.05 per hour. Over 13.60 hours that amounts to $231.88. When the 15% allowance of $34.78 and the 17.5% loading of $40.58 are added, she should have been paid $307.24.

(7)    $225.26 for Michael Kallee.

    Mr Kallee accrued 10.26 hours of untaken annual leave. His minimum award rate of pay at the time his employment ended was $16.57 per hour. Over 10.26 hours that amounts to $170.01. When the 15% allowance of $25.50 and the 17.5% loading of $29.75 are added, he should have been paid $225.26.

(8)    $350.62 for Charles Mascarenhas.

    Mr Mascarenhas accrued 15.52 hours of untaken annual leave. His minimum award rate of pay at the time his employment ended was $17.05 per hour. Over 15.52 hours that amounts to $264.62. When the 15% allowance of $39.69 and the 17.5% loading of $46.31 are added, he should have been paid $350.62.

(9)    $1,950.99 for Tammy May.

    Ms May accrued 86.36 hours of untaken annual leave. Her minimum award rate of pay at the time her employment ended was also $17.05 per hour. Over 86.36 hours that amounts to $1,472.44. When the 15% allowance of $220.87 and the 17.5% loading of $257.68 are added, she should have been paid $1,950.99.

(10)    $708.91 for Jose Pena.

    Mr Pena accrued 31.38 hours of untaken annual leave. His minimum award rate of pay at the time his employment ended was $17.05 per hour. Over 31.38 hours that amounts to $535.03. When the 15% allowance of $80.25 and the 17.5% loading of $93.63 are added, he should have been paid $708.91.

(11)    $66.65 for Barbara Piper.

    Ms Piper accrued 2.95 hours of untaken annual leave. Her minimum award rate of pay at the time her employment ended was $17.05 per hour. Over 2.95 hours that amounts to $50.30. When the 15% allowance of $7.55 and the 17.5% loading of $8.80 are added, she should have been paid $66.65.

(12)    $1,342.47 for Mariana De Queiroz.

    Ms De Queiroz accrued 59.38 hours of untaken annual leave. Her minimum award rate of pay at the time her employment ended was $17.05 per hour. Over 59.38 hours that amounts to $1,012.43. When the 15% allowance of $151.86 and the 17.5% loading of $178.18 are added, she should have been paid $1,342.47.

(13)    $222.40 for Tuula Rintala.

    Ms Rintala accrued 10.13 hours of untaken annual leave. Her minimum award rate of pay at the time her employment ended was $16.57 per hour. Over 10.13 hours that amounts to $167.85. When the 15% allowance of $25.18 and the 17.5% loading of $29.37 are added, she should have been paid $222.40.

(14)    $919.48 for Sumit Salhotra.

    Mr Salhotra accrued 41.88 hours of untaken annual leave. His minimum award rate of pay at the time his employment ended was $16.57 per hour. Over 41.88 hours that amounts to $693.95. When the 15% allowance of $104.09 and the 17.5% loading of $121.44 are added, he should have been paid $919.48.

(15)    $88.57 for Baljinder Singh.

    Mr Singh accrued 3.92 hours of untaken annual leave. His minimum award rate of pay at the time his employment ended was $17.05 per hour. Over 3.92 hours that amounts to $66.84. When the 15% allowance of $10.03 and the 17.5% loading of $11.70 are added, he should have been paid $88.57.

(16)    $600.70 for Dianne Sjoberg.

    Ms Sjoberg accrued 27.36 hours of untaken annual leave. Her minimum award rate of pay at the time her employment ended was $16.57 per hour. Over 27.36 hours that amounts to $453.36. When the 15% allowance of $68.00 and the 17.5% loading of $79.34 are added, she should have been paid $600.70.

(17)    $432.52 for Cheryl Sorrell.

    Ms Sorrell accrued 19.70 hours of untaken annual leave. Her minimum award rate of pay at the time her employment ended was also $16.57 per hour. Over 19.70 hours that amounts to $326.43. When the 15% allowance of $48.96 and the 17.5% loading of $57.13 are added, she should have been paid $432.52.

(18)    $3,655.96 for Thomas Sung Hong.

    Mr Hong accrued 157.76 hours of untaken annual leave. His minimum award rate of pay at the time his employment ended was $17.49 per hour. Over 157.76 hours that amounts to $2,759.22. When the 15% allowance of $413.88 and the 17.5% loading of $482.86 are added, he should have been paid $3,655.96.

(19)    $243.92 for Tui Tane.

    Ms Tane accrued 11.11 hours of untaken annual leave. Her minimum award rate of pay at the time her employment ended was $16.57 per hour. Over 11.11 hours that amounts to $184.09. When the 15% allowance of $27.61 and the 17.5% loading of $32.22 are added, she should have been paid $243.92.

(20)    $751.31 for Sekson Thinathin.

    Mr Thinathin accrued 34.22 hours of untaken annual leave. His minimum award rate of pay at the time his employment ended was $16.57 per hour. Over 34.22 hours that amounts to $567.03. When the 15% allowance of $85.05 and the 17.5% loading of $99.23 are added, he should have been paid $751.31.

(21)    $1,214.96 for Robert Wilkey.

    Mr Wilkey accrued 53.78 hours of untaken annual leave. His minimum award rate of pay at the time his employment ended was $17.05 per hour. Over 53.78 hours that amounts to $916.95. When the 15% allowance of $137.54 and the 17.5% loading of $160.47 are added, he should have been paid $1,214.96.

(22)    $109.11 for Wen Yang.

    Mr Yang accrued 4.83 hours of untaken annual leave. His minimum award rate of pay at the time his employment ended was also $17.05 per hour. Over 4.83 hours that amounts to $82.35. When the 15% allowance of $12.35 and the 17.5% loading of $14.41 are added, he should have been paid $109.11.

72    The Ombudsman submitted that the remaining nine employees were not entitled to the 15% part-time allowance. No explanation was offered, but, save in one case, I take it that this was because these employees were employed full-time, did not work shiftwork during the week or rostered ordinary hours on a Saturday and/or a Sunday, or were not covered by the Cleaning Services Award. The one exception is Xiao Teng, who was a part-time employee and regularly worked shiftwork within the meaning of cl 27.1(a) of the award. I cannot fathom why she was excluded.

73    Abraham Arguello worked full-time as a building supervisor/manager and was found to be a level 3 cleaning services employee under the Cleaning Services Award. He accrued 190.94 hours of untaken annual leave. His ordinary rate of pay at the time his employment ended was $50.61 per hour, calculated by reference to his salary. Over 190.94 hours that amounts to $9,663.47. When the 17.5% annual leave loading of $1,691.11 is added, he should have been paid $11,354.58.

74    Paul Bacon was a part-time cleaner. He accrued 19.33 hours of untaken annual leave. His minimum award rate of pay at the time his employment ended was $17.05 per hour. Over 19.33 hours that amounts to $329.58. When the 17.5% loading of $57.68 is added, he should have been paid $387.26.

75    Juliana Botero Hernandez was also a part-time employee who accrued 4.21 hours of untaken annual leave. Her minimum award rate of pay at the time her employment ended was $17.05 per hour. Over 4.21 hours that amounts to $71.78. When the 17.5% loading of $12.56 is added, she should have been paid $84.34.

76    Marissa Hall accrued 4.14 hours of untaken annual leave. Her minimum award rate of pay at the time her employment ended was $17.05 per hour. Over 4.14 hours that amounts to $70.59. When the 17.5% loading of $12.35 is added, she should have been paid $82.94.

77    Christine Meager worked part-time in a customer service role. She accrued 3.76 hours of annual leave. Her minimum award rate of pay at the time her employment ended was $19.23 per hour. Over 3.76 hours that amounts to $72.30. When the 17.5% loading of $12.65 is added, she should have been paid $84.95.

78    Kian Mu worked as a level 1 Cleaning Services Employee, part-time for the first two months of his employment and full-time thereafter. He accrued 102.98 hours of annual leave. His minimum award rate of pay at the time his employment ended was $17.05 per hour. Over 102.98 hours that amounts to $1,755.81. When the 17.5% loading of $307.27 is added, he should have been paid $2,063.08.

79    Linda Robinson worked full-time as a level 3 Cleaning Services Employee. She accrued 44.31 hours of annual leave. Her minimum award rate of pay at the time her employment ended was $18.06 per hour. Over 44.31 hours that amounts to $800.24. When the 17.5% loading of $140.04 is added, she should have been paid $940.28.

80    Xiao Teng was a part-time cleaner. Ms Teng accrued 17.47 hours of untaken annual leave. Her minimum award rate of pay at the time her employment ended was $17.05 per hour. Over 17.47 hours that amounts to $297.86. When the 17.5% loading of $52.13 is added, she should have been paid $349.99.

81    Tashi Wangchuck was also a part-time cleaner. Ms Wangchuck accrued 4.68 hours of untaken annual leave. Her minimum award rate of pay at the time her employment ended was $17.05 per hour. Over 4.68 hours that amounts to $79.79. When the 17.5% loading of $13.96 is added, she should have been paid $93.75.

Contravention 3: Failing to pay basic rates for personal leave, contrary to s 99 of the Act

82    Section 99 of the FW Act relevantly provides that, if an employee takes a period of paid personal leave in accordance with Subdivision A of Division 7 of Part 2–2 of the Act, the employer must pay the employee at the employee’s minimum award rate of pay for the employee’s ordinary hours of work in the period.

83    I found that one employee, Linda Robinson, took such a period of paid personal leave and was not paid for it. Her minimum rate of pay under the Cleaning Services Award was $18.06 per hour. She took 21.66 hours of personal leave. Accordingly, she was entitled to be paid $391.18. That is the extent of the underpayment for this contravention.

Contravention 4: Failing to pay employees for public holidays or part thereof when they would ordinarily have worked, contrary to s 116 of the Act

84    Section 116 of the FW Act requires an employer to pay an employee who was absent from his or her employment on a public holiday (or part thereof) at the employee’s base rate of pay for the employee’s ordinary hours of work on that day (or part-day).

85    Contravention 4 was proved in relation to six employees: Jessica Alvarado Palma, Angela Bustos Alvarado, Robin Malla, Helen Pakas, Thomas Sung Hong, and Xiao Teng. None of them received payment in accordance with the section.

86    Jessica Alvarado Palma was a part-time employee who worked three hours a day, seven days a week. She was absent from her employment on 25 December 2012 and 1 January 2013. Her base rate of pay at that time was $17.05 per hour. Six hours at $17.05 per hour is $102.30. This is the amount she should have been, but was not, paid.

87    Angela Bustos Alvarado was a part-time employee generally worked an average of 2.85 hours a day seven days a week. She did not work on Christmas Day or Boxing Day in 2012. Her base rate of pay at that time was $17.05 per hour. She was paid nothing. Her loss then is $17.05 x (2.85 hours x 2 days) or $97.19.

88    Robin Malla did not work on Christmas Day and Boxing Day 2012 or on New Year’s Day 2013. He was also a part-time employee who worked seven days a week. Christmas Day 2012 was a Tuesday, Boxing Day 2012 a Wednesday, and New Year’s Day 2013 a Tuesday. On Tuesdays Mr Malla worked five hours and on Wednesdays two hours. His base rate of pay at the relevant time was $17.05 per hour. Accordingly, he should have been paid $204.60 ($17.05 per hour over 12 hours). Instead he was paid $153.12. The shortfall in his wages was therefore $51.48.

89    At the time of this contravention, Helen Pakas was a full-time employee. Full-time hours are 38 per week or 7.6 hours a day. But for the public holidays, Ms Pakas would have worked on 25 December 2012, 26 December 2012, and 1 January 2013. Her base rate of pay was $17.05. For 7.6 hours each day for three days, she should have been paid $388.74 but she was paid nothing.

90    Thomas Sung Hong was absent on New Year’s Day, 2012. That was a Sunday. Mr Hong ordinarily worked four hours each Sunday. His Sunday rate (at double time) was $33.37 per hour. He should have received $133.48 but was paid nothing.

91    Xiao Teng worked three hours a day, Monday to Friday. She did not work on Monday 1 October 2012, as it was the Labour Day public holiday. Her base rate of pay was $17.05 per hour. She should have been paid $51.15 for the three hours she otherwise would have worked but she, too, was paid nothing.

Contravention 5: Failing to give written notice of termination of employment, contrary to s 117(1) of the Act

92    No claim is made for compensation for this contravention.

Contravention 6: Failing to give adequate notice or payment in lieu, contrary to s 117(2) of the Act

93    Section 117(2) provides that an employer must not terminate an employee’s employment unless at least the minimum period of notice worked out under subs (3) is given (para (a)) or the employer has paid to the employee (or someone on the employee’s behalf) payment in lieu of notice of at least the amount the employer would have been liable to pay at the full rate of pay for the hours the employee would have worked had the employment continued until the end of the minimum notice period (para (b)).

94    Contravention 6 concerns 10 employees: Abraham Arguello, Wendy Bong, Angela Bustos Alvarado, Rangana Dissanayake, Barbara Piper, Linda Robinson, Lara Satchell, Xiao Teng, Robert Wilkey, and Wen Yang. None of these employees was given adequate notice or payment in lieu. Except in the case of Mr Arguello, the Ombudsman does not contend that the amount of compensation should exceed the extent of the employee’s entitlements under the FW Act.

95    I start, then, with Abraham Arguello. The Ombudsman claims that the underpayment in his case is with respect to a failure to pay him in lieu of four weeks’ notice and seeks compensation, based, it appears, on his contract of employment. But the claim for compensation is not brought for breach of contract. It is brought because of a contravention of s 117(2).

96    Under the terms of s 117(2), GPS was not entitled to terminate Mr Arguello’s employment unless it had given him at least three weeks’ notice or payment in lieu. He was entitled to a minimum of three weeks’ notice because he had worked for GPS for two years and 10 months, which entitled him to a minimum of two weeks’ notice under item 2 in the table to s 117(3)(a) plus an additional week because he was over 45 (he was then 51) and had completed at least two years of continuous service with GPS when his employment was terminated: see s 117(3)(b). Mr Arguello received an annual salary of $100,000 (or $1,923.08 per week). Consequently, the extent of the underpayment for the contravention in his case is three times $1,923.08 or $5,769.24, not four times or $7,692.32 as the Ombudsman contended.

97    Wendy Bong was employed full-time in NSW as a level 1 Cleaning Services Employee. He worked a total of 13 days in February 2013. He was entitled to one week’s notice (see item 1 of the table to s 117(3)) and payment in lieu of $17.05 an hour. The underpayment in his case is $647.90.

98    Angela Bustos Alvarado was a part-time employee in NSW with less than a year’s continuous service. She was a level 1 Cleaning Services Employee on permanent part-time night shift who generally worked seven days a week and an average of 2.85 hours a day. Her hourly rate of pay for ordinary hours of work was $22.17 and her base rate was $17.05 at the time her employment was terminated in October 2011. She should have been given a week’s notice or payment in lieu.

99    As she worked a seven day week, she was entitled to overtime rates on the weekend at time and a half for the first two hours on a Saturday ($25.58) and double time thereafter, and double time for all work on a Sunday ($34.10): see Cleaning Services Award, cll 28.2 and 28.3. Accordingly, the underpayment in her case was $493.25, made up of $315.92 ($22.17 x 2.85 hours x 5 days) for Monday to Friday, $51.16 ($25.58 x 2 hours) for the first two hours on a Saturday, and $126.17 for the excess 0.85 hour on a Saturday and the 2.85 hours on a Sunday ($34.10 x 3.7 hours).

100    Rangana Dissanayake was a part-time level 1 Cleaning Services Employee working in Queensland. He had completed less than six months employment when his employment was terminated, so he should have received a minimum of one week’s notice or payment in lieu. As he worked four hours a day seven days a week, his entitlement is also complicated by the need to take into account overtime rates for weekend work. What is more, he too was a permanent night shift worker. His base rate was $16.57. His rate for ordinary hours was $21.54. The overtime rate for the first two hours on Saturday was $24.86, and for the excess and also Sunday overtime $33.14. Consequently, the underpayment in his case is $679.36 (($21.54 x 20 hours) + ($24.86 x 2 hours) + ($33.14 x 6 hours)).

101    Barbara Piper was a part-time level 1 Cleaning Services Employee who was employed for only a month when her employment was terminated. She worked in NSW. Her base rate was $17.05 at the time her employment ended. Her ordinary rate was $21.77 because she worked afternoon shifts. Her working hours were 13.5 a week, made up of 2.5 hours a day Monday to Friday and one hour on a Sunday, the latter at double time rates of $34.10 per hour. She should have been paid $306.23 in lieu of one week’s notice (($21.77 x 12.5 hours) + ($34.10 x 1 hour)).

102    Linda Robinson was dismissed in March 2012 after three and a half months service, so she, too, was entitled to a minimum of one week’s notice. Her hourly rate of pay, as a level 3 Cleaning Services Employee in NSW, was $18.06 and for 38 hours $686.28, which is the extent of the underpayment in her case.

103    Lara Satchell was employed for about five months in 2012, so she was also entitled to a minimum of one week’s notice. As a full-time administrative employee in NSW, classified as level 4 under the Clerks Award, her hourly rate at the time was $19.54 and her weekly base rate $742.52. The extent of the underpayment in her case, then, is $742.52.

104    Xiao Teng was employed in the ACT for two months in 2012. It follows that she should have been given a minimum of one week’s notice. Her working hours averaged 25.8 hours per week spread over five days (Monday to Friday). She worked afternoon shifts. Her hourly rate as a level 1 Cleaning Services Employee at the time her employment was terminated was $22.17, so one week’s pay was $571.99 and that is the extent to which she was underpaid for this contravention.

105    Robert Wilkey was a part-time level 1 Cleaning Services Employee working permanent night shifts in South Australia. He was summarily dismissed on or about 2 August 2012 after approximately a year and a half in the employ of GPS. He was therefore entitled to a minimum of two weeks’ notice. Mr Wilkey had given notice of his resignation on 25 July, effective 12 August 2012. He was dismissed in a telephone conversation with Rosario when he asked to be paid his outstanding wages. On this basis the Ombudsman claims 10 days’ pay.

106    Mr Wilkey worked three hours a day seven days a week at the time his employment was terminated. His pay rate for ordinary hours was $21.14 and his minimum award rate $17.05. His rate of pay for overtime hours worked on Saturdays and Sundays was $25.58 for the first two hours worked on Saturdays and $34.10 for subsequent hours worked on Saturdays and for hours worked on Sundays. He should have been paid a total of $755.64 in lieu of notice (($21.14 x 18 hours) + ($25.58 x 4 hours) + ($34.10 x 8 hours)). He was paid $650 in mid-September 2012 which he, himself, did not attribute to pay in lieu of notice but which the Ombudsman did. Accordingly, the Ombudsman claims the difference of $105.64. I am prepared to treat this amount as the limit of the employer’s unfulfilled obligation. Thus, the extent of the underpayment in this case is only $105.64.

107    Wen Yang was entitled to one week’s pay in lieu of notice as he had worked for two weeks when he was dismissed in November 2012. He was a part-time employee in the ACT. He worked a total of 62.95 hours over 13 days (none of which fell on a weekend) which amounts to an average of 4.84 hours a day. His rate of pay as an afternoon shift worker was $22.17. He should have been paid $536.51.

Contravention 7: Failing to pay the minimum rate prescribed by cl 16.1 of the Cleaning Services Award

108    This contravention is only concerned with Abraham Arguello. I found that Mr Arguello was paid less than the award rate for a period of six weeks before his termination in September 2013. His base rate of pay under the Cleaning Services Award was $724.50 per week. Over six weeks his minimum entitlement, then, was $4,347.00. He received two payments totalling $3,413.00 during that period. As in Mr Wilkey’s case above (in contravention 6), it is far from clear whether those payments related to wages due at that time or to longstanding entitlements. As in Mr Wilkey’s case, however, the Ombudsman has taken a conservative approach and attributed the payments to wages for work done in the last six weeks of Mr Arguello’s employment. Consequently, the Ombudsman contends that the underpayment for contravention 7 is only $934.00. In the circumstances, I accept that this is the extent of the underpayment.

Contravention 8: Failing to pay administrative employees at a rate of pay at least equal to the Level 1 rate of pay prescribed by cl 16 and item A.2.5 of the Clerks Award

109    This contravention was proved in respect of four administrative employees: Aisling Dunn, Moona Hasan, Christine Meager, and Md Shamsuzzoha.

110    Aisling Dunn was employed full-time by GPS from 4 March 2013 until 19 April 2013. Her minimum rate of pay under the award was $18.23 per hour. I found that she was not paid at all for the period 1–19 April 2013. When she was paid, her pay slips show that she was paid at an hourly rate of $14.42 per hour. Based on a 5-day working week (a 38 hour week and so a 7.6 hour day) and assuming that she did not work the two public holidays in this period (Good Friday and Easter Monday), this means she worked 250.8 hours. She should therefore have received $4,572.08. In fact, she was only paid $2,179.85, leaving a shortfall of $2,392.23.

111    Moona Hasan’s minimum rate under the award was $19.23 per hour. In her affidavit she said that she was hired to work every Tuesday and Wednesday from 9am to 5pm. In the period from 5 February 2013, when she started work for GPS, until 6 March 2013, there are records showing that she worked 92.25 hours. No records were produced of hours worked after that, although it is clear from Ms Hasan’s affidavit that she did do some work after 6 March 2013 and her employment was not terminated until 26 March 2013 when she informed Enrico that she would not come into work until she had been paid her “past due salary/pay”.

112    In her affidavit Ms Hasan deposed to sending Enrico a text message (which she annexed) at 5.59pm on 20 March 2013 (a Wednesday), asking him to approve the payment of her invoice “today so that I get my pay on time this time”. The inference to be drawn from that evidence is that she worked on 20 March 2013. Moreover, Ms Hasan also said that the next time she was at work after 14 March 2013 she spoke to Enrico in his office asking him why she had not been paid and from then on she was required to sign “a log” when she arrived and left the office. Nevertheless, the Ombudsman makes no claim for the period after 6 March 2013. Based on her award rate of $19.23 per hour, and excluding any consideration of work performed after 6 March, Ms Hasan should have been paid a total of $1,773.97 for 92.25 hours worked up until that date. The only money she received, however, was $600, deposited in her bank account on 13 March 2013. It follows that she was underpaid at least $1,173.97.

113    Christine Meager worked a total of 49 hours between 27 November and 20 December 2012. Her minimum rate of pay under the award was $19.23, which means that she should have received a minimum of $942.27. She only received $612. So the extent of the underpayment in her case is $330.27.

114    Md Shamsuzzoha worked a total of 135 hours, of which 123 were ordinary hours, made up of 85 hours over the period from 15 to 30 June 2012 and 38 hours from 1 to 6 July 2012. He should have been paid at the rate of $17.52 in the first period and $18.23 in the second. It follows that he should have received a total of $2,181.94 ($1,489.20 + $692.74). Yet he was paid a total of just $398. The underpayment in his case, then, is $1,783.94.

Contravention 9: Failing to pay superannuation to administrative employees, contrary to cl 24.2 of the Clerks Award

115    No claim is made for compensation for this contravention.

Contravention 10: Failing to pay for overtime, contrary to cl 25 of the Clerks Award

116    Contravention 10 was proved in respect of two administrative employees who were not paid for working overtime: Lara Satchell and Md Shamsuzzoha.

117    Lara Satchell worked 10 overtime hours for which she should have been paid at the rate of $29.31 per hour, being one and a half times her minimum hourly rate of $19.54 and 13.35 overtime hours for which she should have been paid $39.08 per hour, being double the minimum rate. Thus, she should have been paid $293.10 for 10 hours and $521.72 for 13.35 hours, giving a total of $814.82.

118    Md Shamsuzzoha worked 6.5 hours overtime in the first two weeks of his employment (from 15 June until 30 June 2012) and 5.5 hours in the last week (1 to 6 July 2012). In the first period the overtime rates for his classification under the award (level 2, year 1) were $26.29 per hour for the first two hours and $35.05 per hour thereafter. In the second period they rose to $27.34 per hour in the first two hours and $36.45 thereafter.

119    Mr Shamsuzzoha worked four hours overtime in the first period which should have been paid at the lower rate of $26.29 per hour and 2.5 hours which should have been paid at the higher rate of $35.05 per hour. Thus, in the first period the underpayment was $192.79. In the second period he worked two hours overtime for which he should have been paid at the lower rate of $27.34 per hour and 3.5 hours for which he should have been paid at the higher rate of $36.45 per hour. So in the second period the underpayment in his case was $182.26. The total underpayment is $375.05.

Contravention 12: Failing to give part-time employees written agreements on patterns of work, contrary to cl 12.4(a) of the Cleaning Services Award

120    No compensation is sought for this contravention.

Contravention 13: Failing to pay 15% allowance to part-time employees, contrary to cl 12.4(b)(iii) of the Cleaning Services Award

121    This contravention was proved with respect to 15 employees: Paul Bacon, Juliana Botero Hernandez, Angela Bustos Alvarado, Mariana De Queiroz, Marco Diaz, Fawaz El Rahman, Marissa Hall, Freddy Herrera, Tammy May, Barbara Piper, Anna Plows, Dianne Sjoberg, Cheryl Sorrell, Tui Tane, and Tashi Wangchuck. When the revised summary sheets were provided, they showed that the Ombudsman did not press her claims for compensation under this head in relation to Ms May and Ms Tane, on the stated basis that their claims were captured under contraventions 22, 24 and 25. The Ombudsman also requested that the corresponding declaration 2.6 in the Liability Judgment be varied to remove these two employees from this contravention. But no claims for compensation were made under contravention 22 for these two employees. When I pointed this out to the Ombudsman, she asked that her claims for compensation in these respects be reinstated. She said that it had been a mistake to remove them and to request a consequential variation of declaration 2.6. I accept that this is so. The Ombudsman then provided further revised versions of the summary sheets for these two employees under this contravention to which I have had regard.

122    Paul Bacon’s minimum rate of pay under the award was $16.57 per hour in the first year (to 30 June 2012) and $17.05 thereafter. To these sums a 15% allowance should have been added, which means that he should have been paid $19.06 per hour in the first period and $19.61 in the second. The Ombudsman’s claim for this contravention is limited to 167 hours in the first period and 86.02 hours in the second.

123    In her summary sheet for this contravention the Ombudsman stated that Mr Bacon was paid a flat rate of $17.95 per hour throughout the Audit Period.

124    Mr Bacon was paid at the rate of $17.95 per hour when he was paid. But I found that he was not paid at all between 19 August and 6 November 2012 and that he never received back pay for most of this period. Liability Judgment [567]. The Ombudsman’s calculations fail to take this into account, presumably because of a lack of documentation disclosing the extent of the arrears he said he had received.

125    Based on the assumption that Mr Bacon was paid $17.95 per hour throughout the Audit Period, the shortfall in his allowance is $1.11 per hour in the first period and $1.66 in the second. The limit of the underpayment claimed, then, is $185.37 for the first period and $142.79 for the second, a total of $328.16.

126    Juliana Botero Hernandez should have been paid at the hourly rate of $19.61, as her minimum rate under the award was $17.05 to which the 15% part-time allowance should have been added. In fact she received nothing for the 18 days (54.85 hours) she worked for GPS. The value to her of the 15% allowance was $2.56 per hour. Accordingly, the underpayment in this case is $140.42.

127    Angela Bustos Alvarado worked in NSW. In her case, compensation is claimed for this contravention in respect of 376.48 hours. Ms Bustos’s minimum award rate increased from $16.57 per hour in the first two weeks of her employment (from 14 June to 30 June 2012) to $17.05 thereafter (to 24 December 2012). With the addition of the 15% allowance, she should have been paid an hourly rate of $19.06 rising to $19.61. Instead, she was paid $17.95 per hour from 14 June to 10 September 2012, $19.03 per hour from 21 September to 9 December 2012 and nothing thereafter. The difference in the figures means that she was underpaid the allowance by a total of $425.49.

128    Mariana de Queiroz worked in Western Australia from 7 February until 6 October 2012. From 1 July 2011 onwards her minimum rate of pay under the award was $16.57 per hour, rising to $17.05 per hour on 1 July 2012. With the addition of the 15% allowance, she should have been paid $19.06 per hour until 30 June 2012 inclusive and thereafter $19.61 per hour. In fact, she was paid $17.95 per hour from the time she started until 2 September 2012 and thereafter she was paid nothing. The value of the allowance that was not paid to her was $1.11 per hour until 30 June 2012, $1.66 per hour from 1 July 2012 until 2 September 2012, and $2.56 per hour from 3 September 2012 until 6 October 2012. The compensation claim for this contravention in relation to this employee is confined to 69.12 hours in the first period, 4.88 in the second, and 2.78 in the third. On that basis, the underpayment in her case is $91.94.

129    Marco Diaz, who worked in Queensland, should have been paid at the minimum award rate of $17.05 per hour. With the addition of the 15% allowance of $2.56, this sum rises to $19.61 per hour. Mr Diaz worked a total of 346.5 hours but was only paid $10.38 per hour. It follows that, the extent to which the allowance was underpaid is $887.04 ($2.56 x 346.5 hours).

130    Fawaz El Rahman’s minimum rate under the award was $16.57 per hour and his ordinary rate incorporating the 15% allowance of $2.49 was $19.06 per hour. He was paid from 1 August to 29 November 2011 at the rate of $17.95 per hour and thereafter, until 19 December 2011 when his employment came to an end, he was paid nothing. He was therefore underpaid the allowance by $1.11 per hour until 29 November 2011 and $2.49 per hour thereafter. The Ombudsman does not claim compensation for all the hours worked, apparently to avoid double-counting. Instead, she claims for 177.89 hours in the period up to 29 November 2011 and 6.66 hours thereafter. On this basis Mr El Rahman was underpaid $214.04 (($1.11 x 177.89 hours) + ($2.49 x 6.66 hours)).

131    Marissa Hall’s minimum rate of pay under the award was $17.05 per hour. The 15% allowance is $2.56. Ms Hall worked 54 hours and was paid nothing. The extent of the underpayment of her allowance is therefore $138.24.

132    Freddy Herrera’s minimum award rate was $16.57 per hour rising to $17.05 on 1 July 2012. His ordinary rate under the award incorporating the 15% allowance was $19.06 in the first period and $19.61 in the second. His actual rate of pay was $17.95 per hour, except for the period from 4 January to 8 March 2013, when he was not paid at all. This means that his allowance was underpaid by $1.11 per hour until 30 June 2012, $1.66 between 1 July 2012 and 4 January 2013, and $2.56 thereafter. The number of hours he worked for which compensation is claimed in relation to this contravention is 47.71 in the first period, 5.89 in the second, and 3.96 in the third. Taking into account the period in which he was not paid (which the Ombudsman overlooked in her calculations), Mr Herrera was underpaid a total of $72.87 (($1.11 x 47.71 hours) + ($1.66 x 5.89 hours) + ($2.56 x 3.96 hours)).

133    Tammy May worked in South Australia, seven days a week, between 21 August 2010 and 22 January 2013. Her minimum rate under the award during the Audit Period was $16.57 until 30 June 2012 and $17.05 thereafter. Taking into account the 15% allowance, she should therefore have been paid at the hourly rate of $19.06 in the first period and $19.61 in the second. Instead, she received a flat rate of $17.95 per hour until 6 January 2013, after which she was not paid at all. The Ombudsman claims compensation for 666.42 hours of work up until 30 June 2012 and 287.73 hours after 1 July 2012. In calculating the underpayment under this contravention, the Ombudsman did not include any hours worked in the period from 6 to 22 January 2013 when Ms May was not paid. This is because — rightly or wrongly — in the absence of Praxeo records, the Ombudsman relied on pay slips to identify the hours of work. As Ms May did not receive any pay for her work between 6 and 22 January 2013, there is no pay slip referable to this period. The value of the claim is $1,217.36. Ms May was underpaid her allowance at least to this extent.

134    Barbara Piper received $12.90 per hour from 10 July 2012 until 3 August 2012 and nothing after that. With a minimum award rate of $17.05 per hour and the 15% allowance of $2.56, she should have been paid $19.61 per hour. Compensation for the 15% allowance is only sought in respect of 3.5 hours’ work in the period after 3 August 2012, so the value of this claim is just $8.96.

135    The position with Anna Plows is more complicated because of periodic variations in both the hours she worked and the hourly rates. Her minimum rate under the award during the Audit Period was $16.57 until 30 June 2012 and $17.05 thereafter. Her ordinary rate of pay including the 15% allowance was $19.06 per hour until 20 June 2012 and $19.61 thereafter. Ms Plows was never paid at or above these rates. I accept the figures in the Ombudsman’s summary sheet (pp 1869–1871) and, on the basis of those figures, the amount Ms Plows was underpaid for this contravention is $282.74.

136    Dianne Sjoberg was employed in South Australia. Her minimum rate of pay under the award during the Audit Period was $16.57 per hour. Her ordinary rate of pay including the 15% allowance was $19.06 per hour. But she was only paid $17.95 per hour. Accordingly, she was underpaid the allowance at the rate of $1.11 per hour. The Ombudsman seeks compensation with respect to 58.72 hours of work. I conclude that in this respect Ms Sjoberg was underpaid $65.18.

137    Cheryl Sorrell is in almost exactly the same position. She was paid at the same hourly rate as her sister and co-worker, Ms Sjoberg, and her hourly underpayment was therefore the same. The Ombudsman claims compensation for 45.04 hours of work. At $1.11 per hour, this means that Ms Sorrell was underpaid the allowance by $49.99.

138    Tui Tane worked in Western Australia, seven days a week, between 18 November 2011 and 5 February 2012. Her minimum rate under the award was $16.57. When the 15% allowance is taken into account, she should have been paid $19.06 per hour. Instead, she was paid a flat rate of $17.95 per hour. The Ombudsman is claiming compensation with respect to 18 hours of work. The difference is $1.11. It follows that she was underpaid the allowance to the extent of $19.98.

139    Tashi Wangchuck worked in the ACT from 3 to 31 July 2012. She was paid $17.95 per hour until 9 July 2012 and nothing thereafter. As her minimum award rate of pay was $17.05 per hour and her ordinary rate, incorporating the 15% allowance of $2.56, was $19.61 per hour, I conclude that the allowance was underpaid by $1.66 per hour up until 9 July 2012 and $2.56 thereafter. The Ombudsman claims compensation with respect to 18 hours of work in the period to 9 July 2012 and 46 hours thereafter. I find that the underpayment in the first period is $29.88 and in the second $117.76, giving a total of $147.64.

Contravention 14: Failing to pay broken shift allowance, contrary to cl 17.1 of the Cleaning Services Award

140    The broken shift allowance is 0.458% of the standard rate per day up to a maximum of 2.29% of the standard rate per week (calculated from the minimum weekly wage for a level 1 Cleaning Services Employee in cl 16). Up to and including 30 June 2012, the minimum weekly wage was $629.50 and the allowance was $2.88 per day. From 1 July 2012 onwards, the minimum weekly wage was $647.80 and the allowance was $2.97 per day.

141    This contravention was proved in relation to six employees: Angela Bustos Alvarado, Fawaz El Rahman, Helen Pakas, Dianne Sjoberg, Cheryl Sorrell, and Xiao Teng. None of these employees received any allowance for working broken shifts.

142    According to the Praxeo records, Angela Bustos Alvarado worked a broken shift on 24 December 2012. The broken shift allowance at the time was $2.97 per day. This is the extent of the underpayment in her case.

143    Fawaz El Rahman worked broken shifts on 47 days in the period between 3 August and 26 November 2011. The allowance then was $2.88 per day, which means that in this respect he was underpaid $135.36.

144    While it is likely that the underpayment for Helen Pakas is much greater than the amount claimed, the Ombudsman’s claim is limited to the period from 16 April 2012 to 28 April 2013 because of a lack of documentation. In this period, the records show that Ms Pakas worked broken shifts on a total of 205 days, 43 days in the period from 17 April to 30 June 2012, and 162 days from 1 July 2012 to 19 April 2013. The broken shift allowance in the first period was $2.88 per day and in the second $2.97 per day. The underpayment, then, in the first period was $123.84 and in the second $481.14, resulting in a total underpayment of at least $604.98.

145    According to the Praxeo records, during the period from 2 August to 31 October 2011 Dianne Sjoberg worked a broken shift on 31 days. The broken shift allowance at the time was $2.88 per day. Ms Sjoberg was therefore underpaid in this respect by $89.28.

146    Cheryl Sorrell is recorded as having worked a broken shift on three days: 9, 10 and 11 August 2011. Her broken shift allowance for these days was $2.88 per day, which means that her unpaid entitlement is $8.64.

147    Xiao Teng is recorded as having worked 25 days of broken shifts from 15 October to 16 November 2012. The broken shift allowance at this point was $2.97 per day. Her unpaid entitlement is therefore $74.25.

Contravention 16: Failing to pay for travel time, contrary to cl 17.10 of the Cleaning Services Award

148    Contravention 16 concerns only Anna Plows, who was a part-time level 1 Cleaning Services Employee working in NSW between 3 May 2012 and 31 January 2013. She received no payment for travel time during her employment. Her minimum award rate was $16.57 per hour, rising to $17.05 per hour on 1 July 2012. She should have been paid for 1.71 hours’ travel at the lower rate and 5.67 hours at the higher rate. It follows that GPS underpaid her a total of $125.00 in travel time.