Federal Court of Australia
Basi v Namitha Nakul Pty Ltd (No 2) [2023] FCA 671
ORDERS
Applicant | ||
AND: | First Respondent VAISAKH MOHANAN USHA Second Respondent | |
DATE OF ORDER: |
THE COURT DECLARES THAT:
1. The first respondent contravened the following civil remedy provisions:
(a) s 45 of the Fair Work Act (Cth) (Act) by failing to arrange the applicant’s hours of work in a manner consistent with cl 31.2(a), cl 31.2(e) and cl 34.1 of the Restaurant Industry Award 2010 (Award), being a serious contravention within the meaning of s 557A of the Act;
(b) s 45 and s 323 of the Act by failing to pay the amounts due to the applicant under the Award, in contravention of cl 20 of the Award, being a serious contravention within the meaning of s 557A of the Act;
(c) s 323, s 325, s 343 and s 344 of the Act by demanding the applicant make payments to the first respondent from his wages, of approximately $511 each fortnight, by way of cashback payments, being a serious contravention within the meaning of s 557A of the Act;
(d) s 45 of the Act by failing to pay the applicant’s superannuation contributions, in contravention of cl 30.2(a) of the Award;
(e) s 45 of the Act by failing to display the Award and National Employment Standards (NES) at the first respondent’s restaurants at 166 Keira St Wollongong, NSW and 78 Junction St Nowra, NSW, in contravention of cl 5 of the Award; and
(f) s 44(1) and s 45 of the Act by failing to pay the applicant for his untaken annual leave at the end of his employment, in contravention of the NES and by failing to pay the applicant’s annual leave loading of 17.5% in contravention of cl 35.2(b) of the Award.
2. The first respondent was involved, within the meaning of s 793(1) of the Act, in the contraventions of the second respondent the subject of Declarations 3(a) to 3(b) below.
3. The second respondent has contravened the following civil remedy provisions:
(a) s 343 and s 345 of the Act by the second respondent demanding between May and August 2017 that Mr Basi pay the first respondent the sum of approximately $6,000 to defray its tax liability in respect of Mr Basi; and
(b) s 325, s 343 and s 345 of the Act by the second respondent demanding in December 2017 and January 2018 that Mr Basi pay the first respondent the sum of $1,710 to defray its PAYG tax liability in respect of Mr Basi.
4. The second respondent was involved:
(a) within the meaning of s 557A(5A) of the Act, in the contraventions of the first respondent the subject of Declarations 1(a) to 1(c) above; and
(b) within the meaning of subsection 550(2) of the Act, in the contraventions of the First Respondent the subject of Declarations 1(d) to 1(f) above.
THE COURT ORDERS THAT:
5. Pursuant to s 545(1) of the Act, the respondents pay:
(a) $90,963.59 to the applicant, Midhun Basi, by way of compensation for unpaid wages and annual leave entitlements: and
(b) $2,685.64 to a superannuation fund in the name of Midhun Basi, to be nominated by him, in respect of unpaid superannuation,
by Friday, 21 August 2023.
6. Pursuant to s 546(1) of the Act, the first respondent pay pecuniary penalties in the sum of $75,000 for its contraventions of the Act.
7. Pursuant to s 546(1) of the Act, the second respondent pay pecuniary penalties in the sum of $25,000 for his contraventions of the Act.
8. Pursuant to s 546(3)(a) of the Act, the pecuniary penalties imposed on the first respondent be paid to the applicant, Midhun Basi, by Friday, 21 August 2023.
9. Pursuant to s 546(3)(a) of the Act, the pecuniary penalties imposed on the second respondent be paid to the applicant, Midhun Basi, by Friday, 21 August 2023.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
ORDERS
NSD 730 of 2019 | ||
BETWEEN: | SYED HAIDER Applicant | |
AND: | NAMITHA NAKUL PTY LTD First Respondent VAISAKH MOHANAN USHA Second Respondent | |
order made by: | HALLEY J |
DATE OF ORDER: | 22 June 2023 |
THE COURT DECLARES THAT:
1. The first respondent contravened the following civil remedy provisions:
(a) s 45 of the Fair Work Act (Cth) (Act) by failing to arrange the applicant’s hours of work in a manner consistent with cl 31.2(a), cl 31.2(e) and cl 34.1 of the Restaurant Industry Award 2010 (Award), being a serious contravention within the meaning of s 557A of the Act;
(b) s 45 and s 323 of the Act by failing to pay the amounts due to the applicant under the Award, in contravention of cl 20 of the Award, being a serious contravention within the meaning of s 557A of the Act;
(c) s 45 of the Act by failing to display the Award and National Employment Standards (NES) at the first respondent’s restaurants at 166 Keira St Wollongong, NSW and 78 Junction St Nowra, NSW, in contravention of cl 5 of the Award;
(d) s 44(1) and s 45 of the Act by failing to pay the applicant for his untaken annual leave at the end of his employment, in contravention of the NES and by failing to pay the applicant’s annual leave loading of 17.5% in contravention of cl 35.2(b) of the Award;
(e) s 45 of the Act by failing to pay the applicant’s superannuation contributions, in contravention of cl 30.2(a) of the Award; and
(f) s 44(1) of the Act by failing to give the applicant notice or payment in lieu thereof on his termination, being a breach of the NES.
2. The first respondent was involved, within the meaning of s 793(1) of the Act, in the contraventions of the second respondent the subject of Declaration 3 below.
3. The second respondent has contravened s 325 of the Act by the second respondent demanding that Mr Haider pay the amount of $1,400 in respect of the first respondent’s sponsorship of Mr Haider’s Temporary Work (Skilled) visa (subclass 457).
4. The second respondent was involved:
(a) within the meaning of s 557A(5A) of the Act, in the contraventions of the first respondent the subject of Declarations 1(a) to 1(b) above; and
(b) within the meaning of subsection 550(2) of the Act, in the contraventions of the first respondent the subject of Declarations 1(c) to 1(f) above.
THE COURT ORDERS THAT:
5. Pursuant to s 545(1) of the Act, the respondents pay:
(a) $89,687.34 to the applicant, Syed Haider, by way of compensation for unpaid wages, annual leave entitlements and the quantum meruit claim: and
(b) $10,617.32 to a superannuation fund in the name of Syed Haider, to be nominated by him, in respect of unpaid superannuation,
by Friday, 21 August 2023.
6. Pursuant to s 546(1) of the Act, the first respondent pay pecuniary penalties in the sum of $75,000 for its contraventions of the Act.
7. Pursuant to s 546(1) of the Act, the second respondent pay pecuniary penalties in the sum of $25,000 for his contraventions of the Act.
8. Pursuant to s 546(3)(a) of the Act, the pecuniary penalties imposed on the first respondent be paid to the applicant, Syed Haider by Friday, 21 August 2023.
9. Pursuant to s 546(3)(a) of the Act, the pecuniary penalties imposed on the second respondent be paid to the applicant, Syed Haider, by Friday 21 August 2023.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
HALLEY J:
A. Introduction
1 This is a penalty determination for egregious and flagrant contraventions of civil penalty provisions of the Fair Work Act 2009 (Cth) (Act) by the respondents in the restaurant industry. The contravening conduct displayed a profound disregard for the obligations of employers under the Restaurant Industry Award 2010 (Award) and the National Employment Standards (NES). The conduct included failures to pay wages and weekend and public holiday penalty rates, failures to pay superannuation and other award entitlements and failures to arrange hours of work consistently with the Award. The conduct also extended to the making of coercive threats which took advantage of the inherent vulnerabilities of employees on temporary immigration visas.
2 On 21 June 2022, I delivered judgment in the joint liability hearing of separate proceedings brought by two applicants, Mr Midhun Basi and Mr Syed Haider, against the respondents, Namitha Nakul Pty Ltd (Namitha Nakul) and Mr Vaisakh Usha: Basi v Namitha Nakul Pty Ltd [2022] FCA 712 (Liability Judgment or J).
3 I directed that the parties provide agreed draft declarations and orders to give effect to the Liability Judgment, as well as submissions and any evidence directed at the appropriate penalty to impose on the respondents.
4 These reasons for judgment are to be read concurrently with my reasons in the Liability Judgment.
5 Mr Basi and Mr Haider filed separate submissions as to penalty on 12 July 2022 and joint submissions in reply as to penalty on 15 August 2022. The applicants filed joint submissions on proposed orders and declarations on 5 August 2022 and joint submissions in reply on proposed orders and declarations on 26 August 2022.
6 The applicants relied on the following affidavits:
(a) the affidavit of Meritxell Ayala Alonso affirmed on 5 August 2022; and
(b) the affidavit of Olivia Badger affirmed on 26 August 2022.
7 The respondents filed submissions on penalty on 29 July 2022 and submissions on declarations and orders on 19 August 2022.
8 The respondents relied on the following affidavits:
(a) the affidavits of Mr Usha affirmed on 7 September 2020 and 9 September 2021;
(b) the affidavits of Andrea Wykoff affirmed on 29 July 2022 and 19 August 2022;
(c) Exhibit A3, being the affidavit of Mr Basi sworn on 20 April 2020; and
(d) Exhibit A5, being the affidavit of Mr Haider affirmed on 21 April 2020.
9 The parties have largely agreed on the form of the proposed declarations to give effect to my reasons in the Liability Judgment.
10 In addition, the parties have agreed that orders should be made requiring Namitha Nakul and Mr Basi to pay, on the basis that each is jointly and severally liable, (a) $90,963.58 to Mr Basi for unpaid wages and annual leave entitlements, (b) $81,818.94 to Mr Haider for unpaid wages and annual leave entitlements, (c) $2,685.64 to Mr Basi for outstanding superannuation guarantee payments owing to him, and (d) $10,617.32 to Mr Haider for outstanding superannuation guarantee payments owing to him.
11 The remaining issues to be determined are:
(a) the amount of any civil penalties to be imposed on the respondents;
(b) to whom should any civil penalties be paid;
(c) whether Mr Basi and Mr Haider are also entitled to compensation for the loss of growth in their superannuation funds; and
(d) whether Mr Haider is entitled to recover on his quantum meruit claim all amounts that would have been payable under the National Minimum wage as a casual employee.
12 I address each of these issues below.
B. Penalty
13 Namitha Nakul operated two Indian restaurants, the “Adithya Kerala” restaurant at 166 Keira St Wollongong, NSW (Wollongong Restaurant) and the “Adithya Kerala” restaurant at 78 Junction St Nowra, NSW (Nowra Restaurant). The applicants were employed as cooks by Namitha Nakul at the Wollongong Restaurant and the Nowra Restaurant (together, the Restaurants).
14 The applicants contended that throughout their employment, they were (a) required to work excessive hours without any formal breaks, (b) not paid their award entitlements, and (c) unlawfully required to pay a significant proportion of their wages back to the respondents as either repayments of alleged loans made to them by Mr Usha or to cover Pay as You Go (PAYG) tax liabilities on their wages and visa application costs.
15 The respondents admitted, prior to the joint liability hearing of these two proceedings, that they had contravened the following provisions of the Act, with respect to the Award and the NES (either directly, or being involved in the contravention pursuant to s 557A(5A) or s 550(2) of the Act):
(a) s 45, being a breach of cl 5 of the Award, by failing to display the Award and NES at the Restaurants;
(b) s 44(1) and s 90(2), being contraventions of the NES, by failing to pay the applicants for their untaken annual leave at the end of their employment;
(c) s 45, being a breach of cl 35.2(b) of the Award, by failing to pay the applicants additional leave loading of 17.5%;
(d) s 45, being a breach of cl 30.2(a) of the Award, by failing to pay Mr Haider superannuation contributions;
(e) s 323 in relation to method and frequency of payment but limited to the payment of entitlements regarding annual leave and leave loading; and
(f) s 44(1) and s 117, being a breach of the NES, by failing to give Mr Haider notice or payment in lieu thereof on his termination,
(together, the Admitted Contraventions).
16 In respect of the applicant in proceedings NSD 523 of 2019, Mr Basi, I concluded in the Liability Judgment that the respondents had contravened the following provisions of the Act (either directly, or being involved in the contravention pursuant to s 557A(5A), s 550(2) or s 793(1) of the Act):
(a) s 45, by failing to arrange Mr Basi’s hours of work consistently with cl 31 of the Award, including failing to give required days off, giving rise to a serious contravention under s 557A of the Act: at J [291]-[292], [340(b)], [341]-[342], [428];
(b) s 45 and s 323, by failing to pay Mr Basi the amount required under cl 20 of the Award between 19 July 2016 and 24 July 2018 (noting that Mr Basi took annual leave from 24 July 2018 until his resignation on 27 August 2018), including weekend penalty rates, giving rise to a serious contravention under s 557A of the Act: at J [299]-[327], [340(a)], [341]-[342], [428];
(c) s 45, by failing to pay Mr Basi’s superannuation contributions consistently with cl 30.2(a) of the Award: at J [151];
(d) s 323 and s 325, by the requirement for payment of cashbacks between February 2017 and July 2018: at J [417], [428];
(e) s 343 and s 344, by the threats made by Mr Usha about Mr Basi’s employment to make Mr Basi compliant with the workplace arrangements: at J [453]-[455];
(f) s 343 and s 345, by the demand in August 2017 for $6000 for the PAYG tax: at J [456]-[470]; and
(g) s 325, s 343 and s 345, by the demand in December 2017/January 2018 for $1710 for PAYG tax: at J [478]-[481].
17 In respect of the applicant in proceedings NSD 730 of 2019, Mr Haider, I concluded in the Liability Judgment that the respondents had contravened the following provisions of the Act (either directly, or being involved in the contravention pursuant to s 557A(5A), s 550(2) or s 793(1) of the Act):
(a) s 45, by failing to arrange Mr Haider’s hours of work consistently with cl 31 of the Award, including failing to give required days off, giving rise to a serious contravention under s 557A of the Act: at J [291], [340(d)], [341]-[342], [428]; and
(b) s 45, by failing to pay Mr Haider the amounts required under the Award between 31 October 2016 and 14 August 2018, including weekend penalty rates, giving rise to a serious contravention under s 557A of the Act: at J [331]-[335]; [340(c)], [341]-[342], [428];
(c) s 325, by demanding payment of $1400 in respect of Mr Usha’s sponsorship of Mr Haider’s Temporary Work (Skilled) visa (subclass 457): at J [490]-[495].
B.2. Statutory provisions
18 Section 546(1) of the Act provides that the Court may order a person to pay a pecuniary penalty that it considers appropriate if it is satisfied that the person has contravened a civil remedy provision.
19 The civil remedy provisions of the Act are identified in Column 1 of the table at s 539(2) of the Act and relevantly include, s 44(1), 45, s 323, s 325, s 340, s 343 and s 345 of the Act.
20 Section 556 of the Act provides that:
556 Civil double jeopardy
If a person is ordered to pay a pecuniary penalty under a civil remedy provision in relation to particular conduct, the person is not liable to pay a pecuniary penalty under some other provision of a law of the Commonwealth in relation to that conduct.
21 Section 556 precludes penalties from being imposed for the contravention of multiple civil remedy provisions in respect of the same particular conduct: Australian Building and Construction Commissioner v Huddy (No 2) [2017] FCA 1088 at [55] (White J).
22 Section 557(1) of the Act provides:
557 Course of conduct
For the purposes of this Part, 2 or more contraventions of a civil remedy provision referred to in subsection (2) are, subject to subsection (3), taken to constitute a single contravention if:
(a) the contraventions are committed by the same person; and
(b) the contraventions arose out of a course of conduct by the person.
23 The civil remedy provisions listed at s 557(2) relevantly include, s 44(1), s 45, s 323 and s 325 of the Act.
B.3. Legal principles
24 The legal principles governing the imposition of civil penalties are well settled and were not relevantly in dispute.
25 First, civil penalties, unlike criminal sentences, are imposed primarily, if not solely, for the purpose of deterrence: Australian Building and Construction Commissioner v Pattinson [2022] HCA 13 at [15] (Kiefel CJ, Gageler, Keane, Gordon, Steward and Gleeson JJ); Construction, Forestry, Maritime, Mining and Energy Union v Australian Building and Construction Commissioner (The Non-Indemnification Personal Payment Case) (2018) 264 FCR 155; [2018] FCAFC 97 at [19] (Allsop CJ, White and O’Callaghan JJ). Although criminal penalties import notions of retribution and rehabilitation, the purpose of a civil penalty is primarily, if not wholly, protective in promoting the public interest in compliance: Trade Practices Commission v CSR Ltd [1990] FCA 762 at 43-44 (French J, as his Honour then was); Commonwealth v Director, Fair Work Building Industry Inspectorate (2015) 258 CLR 482; [2015] HCA 46 at [55] (French CJ, Kiefel, Bell, Nettle and Gordon JJ).
26 The principal object of a pecuniary penalty is to put a price on contravention that is sufficiently high to deter repetition by the specific contravener and generally deter others who might be tempted to contravene the Act: The Non-Indemnification Personal Payment Case at [19]; Australian Building and Construction Commissioner v Construction, Forestry and Mining and Energy Union (2017) 254 FCR 68; [2017] FCAFC 113 (Queensland Children’s Hospital Case) at [98] (Dowsett, Greenwood and Wigney JJ) citing Australian Securities and Investments Commission, in the matter of Chemeq Limited (ACN 009 135 264) v Chemeq Limited (ACN 009 135 264) [2006] FCA 936 at [90] (French J, as his Honour then was); Ponzio v B & P Caelli Constructions Pty Ltd (2007) 158 FCR 543; [2007] FCAFC 65 at [93] (Lander J).
27 Second, concepts familiar to criminal sentencing such as totality, parity and course of conduct may assist in determining the amount of a civil penalty that is reasonably necessary to deter further contraventions of the Act: Pattinson at [45].
28 Third, civil penalties should be fixed at a level that strikes a reasonable balance between deterrence and oppressive severity: Pattinson at [41]. In this regard, it should not be regarded by the contravener or others as an acceptable cost of doing business: Singtel Optus Pty Ltd v Australian Competition and Consumer Commission [2012] FCAFC 20 at [62] (Keane CJ, Finn and Gilmour JJ); Australian Competition and Consumer Commission v TPG Internet Pty Ltd (2013) 250 CLR 640; [2013] HCA 54 at [66] (French CJ, Crennan, Bell and Keane JJ); Pattinson at [17]. At the same time, the civil penalty should not be fixed at a level so high as to be oppressive: NW Frozen Foods Pty Ltd v Australian Competition and Consumer Commission (1996) 71 FCR 285 at 293 (Burchett and Kiefel JJ).
29 Fourth, the fixing of a pecuniary penalty involves the identification and balancing of all the factors relevant to the contravention and the circumstances of the defendant, and making a value judgment as to what is the appropriate penalty in light of the protective and deterrent purpose of a pecuniary penalty. The process should not be approached as a mathematical exercise: Queensland Children’s Hospital Case at [100] citing Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64 at [74]-[76] (Gaudron, Gummow and Hayne JJ). Determining an appropriate penalty remains a process of “instinctive synthesis”, notwithstanding the High Court’s statements in Pattinson at [10], [14] and [39] that principles derived from the criminal law sentencing process must not be uncritically applied in the context of imposing civil penalties under the Act: Fair Work Ombudsman v Construction, Forestry, Maritime, Mining and Energy Union (Kiama Aged Care Centre Appeal) [2023] FCAFC 63 at [47] (Logan, Thomas and Raper JJ) referring to Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [37] (Gleeson CJ, Gummow, Hayne and Callinan JJ); Wong at [75]; Stanley v Director of Public Prosecutions (NSW) [2023] HCA 3 at [59] (Gordon, Edelman, Steward and Gleeson JJ).
30 Fifth, there is no exhaustive list of factors on which to rely in fixing the amount of a civil penalty under the Act. In Fair Work Ombudsman v HSCC Pty Ltd [2020] FCA 655, Flick J stated at [30]:
The process of assessing a penalty, accordingly, remains a process guided by a consideration of a number of well-accepted factors. In Kelly v Fitzpatrick [2007] FCA 1080 at [14], (2007) 166 IR 14 at 18 to 19 (“Kelly v Fitzpatrick”), Tracey J was called upon to quantify penalties for admitted contraventions of the Transport Workers Award 1998 and in doing so adopted the following as a “non-exhaustive range of considerations” to be taken into account:
• the nature and extent of the conduct which led to the breaches;
• the circumstances in which that conduct took place;
• the nature and extent of any loss or damage sustained as a result of the breaches;
• whether there had been similar previous conduct by the respondent;
• whether the breaches were properly distinct or arose out of the one course of conduct;
• the size of the business enterprise involved;
• whether or not the breaches were deliberate;
• whether senior management was involved in the breaches;
• whether the party committing the breach had exhibited contrition;
• whether the party committing the breach had taken corrective action;
• whether the party committing the breach had cooperated with the enforcement authorities;
• the need to ensure compliance with minimum standards by provision of an effective means for investigation and enforcement of employee entitlements; and
• the need for specific and general deterrence.
See also: Australian Ophthalmic Supplies Pty Ltd v McAlary-Smith [2008] FCAFC at [89], (2008) 165 FCR at 579–580 per Buchanan J; Plancor Pty Ltd v Liquor, Hospitality and Miscellaneous Union [2008] FCAFC 170 at [57] –[58] , (2008) 171 FCR 357 at 374 –376 per Branson and Lander JJ; Patrick Stevedores Holdings Pty Ltd v Construction, Forestry, Maritime, Mining and Energy Union [2019] FCA 1647 at [30] per Flick J. In addition to these considerations not being an exhaustive list of matters that may be taken into account when fixing a penalty, it should be further recognised that the facts and circumstances of relevance to one consideration may overlap with another. Contravening conduct which has been deliberately pursued may well occasion greater concern as to the need for specific deterrence.
31 These factors effectively mirrored the factors identified by French J (as his Honour then was) in a trade practices context in CSR Ltd at 45. Following the High Court’s decision in Pattinson, consideration of these factors must be directed towards the fixing of a civil penalty at a level that is sufficiently high to achieve specific and general deterrence. The achievement of specific and general deterrence is not an independent factor to be considered alongside a consideration and weighing of the significance of other factors.
32 Sixth, the maximum penalty is not reserved for contravening conduct of the most serious character: Pattinson at [50]. Considerations of deterrence and the protection of the public interest may justify the imposition of the maximum penalty where it is apparent that any lesser penalty would not be effective to deter similar contraventions. It is not appropriate to focus on the objective seriousness or gravity of the contravention and to then apply a “yardstick” approach to fix the amount of the civil penalty: Pattinson at [51].
B.4. Submissions
33 The applicants submit that in order to deter the respondents and other employers from engaging in similar contraventions in the future, the Court should not impose an aggregate penalty of less than $100,000 on Namitha Nakul and $50,000 on Mr Basi.
34 The applicants submit that the following specific matters are relevant to a determination of the amount of the penalties to be imposed in relation to the conduct of the respondents with respect to Mr Basi:
a. Mr Basi’s vulnerable position and his dependence on Mr Usha ([450]);
b. The lengthy period over which the contravening conduct occurred;
c. The deliberate and calculated nature of the cashback contraventions, which involved creating the appearance of payment in accordance with the agreed salary and demanding monies back in cash ([317] – [327]);
d. The objectively very serious character of the contraventions involving coercion, misrepresentation and demands for payment;
e. Mr Usha’s attempt to have Mr Haider provide backdated timesheets and a false statement to conceal his conduct ([60] – [61], [427]);
f. Mr Usha’s creation and maintenance of a fabric of lies about loans, even before the Court, to conceal the contraventions ([57]). That determination to deceive provides a firm basis to conclude that the quantum of penalties should be such that Mr Usha could never in the future contemplate that non-compliance is an available option;10
g. The extent of the harm and loss caused to Mr Basi;
h. Namitha Nakul’s manifest failure to comply with or appreciate its legal obligations ([59], [151]) – in the face of which the Court would not be satisfied that there was a culture of compliance within Namitha Nakul;
i. Mr Usha operating Namitha Nakul as effectively his alter ego, as the sole director, secretary, shareholder and controlling mind ([336] – [339]);
j. The admissions made by the respondents as to some of the contraventions; however, given the respondents’ other conduct, the Court would not regard those admissions as evidence of contrition;
k. Mr Usha’s previous involvement in Nostalgic, which is relevant to the need for specific deterrence
35 The applicants submit that the following matters, many of which they contend are also relied upon in relation to the respondents’ conduct with respect to Mr Basi, are relevant to determining penalty amounts to be imposed on the respondents in relation to their conduct with respect to Mr Haider:
a. Mr Haider’s dependence on Mr Usha for work and sponsorship and Mr Usha’s exploitation of that relationship.
b. The lengthy period over which the contravening conduct occurred;
c. The deliberate and calculated nature of the contraventions;
d. The objectively serious character of the contravention of s.325;
e. Mr Usha’s attempt to have Mr Haider provide backdated timesheets and a false statement to conceal his conduct ([60] – [61], [427]);
f. Mr Usha’s creation and maintenance of a fabric of lies about loans, even before the Court, to conceal the contraventions ([57]). That determination to deceive provides a firm basis to conclude that the quantum of penalties should be such that Mr Usha could never in the future contemplate that non-compliance is an available option;[citing Fair Work Ombudsman v HSCC Pty Ltd [2020] FCA 655, at [32]]
g. The extent of the harm and loss caused to Mr Haider;
h. Namitha Nakul’s manifest failure to comply with or appreciate its legal obligations ([59], [151]) – in the face of which the Court would not be satisfied that there was a culture of compliance within Namitha Nakul;
i. Mr Usha operating Namitha Nakul as effectively his alter ego, as the sole director, secretary, shareholder and controlling mind ([336] – [339]);
j. The admissions made by the respondents as to some of the contraventions; however, given the respondents’ other conduct, the Court would not regard those admissions as evidence of contrition;
k. Mr Usha’s previous involvement in Nostalgic, which is relevant to the need for specific deterrence ([156]).
36 The respondents make the following submissions in relation to the single course of conduct and common elements provisions in the Act:
a. First, the Respondents ought to have the benefit of section 557(1) of the FW Act in relation to each contravention of the FW Act and Restaurant Award 2010 (Award) as it relates to separate employees. It is immaterial that the Applicants brought separate proceedings. The terms and conditions of employment were effectively decided in July 2016 and the employment of the Applicants is best characterised as arising out of a single course of conduct. The Respondents gave evidence of reliance on the advice of their Migration Agent.
b. Secondly, the contraventions in respect of clause 5 of the Award (displaying the Award and National Employment Standards) should be reduced to a single contravention. The Respondents operated the ‘Kerala’ restaurant at two locations. The decision, or lack thereof, to not display the Award arises out of a single course of conduct when the Wollongong Restaurant was opened. This ‘decision’ was then applied to the Nowra Restaurant.
c. Thirdly, contraventions of sections 325, 343, 344 and 345 of the FW Act, so far as they arise out of the same conduct, should be limited to a single contravention: see section 556 of the FW Act. The Respondents breaches of these civil remedy provisions arise from four distinct decisions: the cashback payments, the August 2017 PAYG demand, the December 2017 PAYG demand and the visa payments. The contraventions should be limited accordingly.
d. Finally, in accordance with the approach taken by McKerracher J in Fair Work Ombudsman v Kentwood Industries Pty Ltd (No 3), the failure to pay accrued annual leave and failure to pay annual leave loading arise out of common elements and ought to be reduced to a single contravention.
(Footnotes omitted.)
37 The respondents submit that the following particular matters should be taken into account in determining the appropriate penalty amounts.
38 First, Mr Usha immediately took steps to rectify Mr Basi’s underpayment of annual leave when it was brought to his attention, is a demonstrably inexperienced operator and relied heavily on the advice and assistance provided by his migration and taxation agents. Further, they submit that Mr Basi operated a small family business and had not been involved in any similar previous conduct.
39 Second, the respondents admitted to several contraventions at the earliest available opportunity.
40 Third, the contraventions occurred over an 18 month period and only concerned two employees.
41 Fourth, the respondents have suffered adverse publicity that ultimately contributed to the Restaurants failing and closing down. The respondents submit that the media coverage included claims that the applicants worked 72 hour weeks in “slave like conditions” and were underpaid “about $500,000” and was responsible for the Restaurants’ closure, the loss of good will and income earning capacity.
42 Fifth, for a substantial proportion of the relevant period, the value of a penalty unit was $180 and s 557A of the Act only came into effect on 15 September 2017.
43 Sixth, the respondents are entitled to a discount on the penalties to be imposed for the Admitted Contraventions. They submit that a discount of 30% would be appropriate, given the dicta of Mowbray FM in Mason v Harrington Corporation Pty Ltd [2007] FMCA 7 at [58], or alternatively, a discount of 20% by reference to the approach taken by Judge Cameron in Fair Work Ombudsman v Little Vienna Pty Ltd & Anor [2017] FCCA 916 at [93].
44 The respondents annexed to their written submissions a table of proposed penalties to be imposed on the respondents (Proposed Penalties Table). The table grouped the various contraventions that were either admitted or found to have been committed by the respondents into ten categories. For each category of provisions contravened, maximum penalties, discounts sought, maximum penalties after discount and a total penalty sought (expressed as a range) were identified for each respondent. The total penalties sought for Namitha Nakul was in a range from $152,500 to $195,000. The total penalties sought for Mr Usha was in a range from $30,500 to $44,500.
45 Finally, the respondents submitted that after applying the totality principle and having regard to the matters identified above at [38] to [43], penalties should be reduced to between $80,000 and $100,000 for Namitha Nakul and between $20,000 and $25,000 for Mr Usha.
B.5. Overview of approach to determination of penalties
46 In Fair Work Ombudsman v NSH North Pty Ltd [2017] FCA 1301, Bromwich J summarised the approach to be taken in determining appropriate civil penalties, which I respectfully embrace, as follows:
(1) Identify the separate contraventions, with each breach of each obligation being a separate contravention, and each breach of a term of the Award being a separate contravention.
(2) Consider whether each separate contravention should be dealt with independently or with some degree of aggregation for those contraventions arising out of a course of conduct, noting that s 557 of the FW Act provides that two or more contraventions of a given civil remedy provision are to be taken to be a single contravention if committed by the same person and arising out of a course of conduct by that person.
(3) Consider whether there should be further adjustment to ensure that, to the extent of any overlap between groups of separate aggregated contraventions, there is no double penalty imposed, and that the penalty is an appropriate response to what each respondent did.
(4) Consider the appropriate penalty in respect of each final individual group of contraventions, taken in isolation.
(5) Consider the overall penalties arrived at, including by reference to those which may be proposed by the FWO (as permitted by Commonwealth v Director, Fair Work Building Industry Inspectorate [2015] HCA 46; 258 CLR 482 (CFMEU Civil Penalties Case) at [64]) and what is proposed by the respondents, and apply the totality principle, to ensure that the penalties for each respondent are appropriate and proportionate to the conduct viewed as a whole, making such adjustments as are necessary: see Kelly v Fitzpatrick [2007] FCA 1080; 166 IR 14 at [30]; Australian Ophthalmic Supplies Pty Ltd v McAlary-Smith [2008] FCAFC 8; 165 FCR 560 at [23]. [71] and [102].
47 It is convenient given the identification of the separate contraventions of the Act at [15]-[17] above, to consider the first three steps together.
48 On balance, I am satisfied that the ten categories of contraventions identified by the respondents in the Proposed Penalties Table, are an appropriate foundation to determine penalties prior to consideration of the totality principle. In reaching this conclusion, I have had regard to the need to identify single courses of conduct, avoid double jeopardy under s 556 of the Act and have regard to common elements of the contraventions,
49 I set out below a description of each category identified in the Proposed Penalties Table and the provisions of the Act and the Award relevantly contravened by the respondents:
(a) Arrangement of Hours and Rates: failure to arrange the applicants’ hours of work consistently with cl 31.2(a), cl 31.2(e) and cl 34.1 of the Award, being a contravention of s 45 of the Act and a serious contravention within the meaning of s 557A of the Act;
(b) Minimum Pay: failure to pay the applicants the amounts due and payable under cl 20 of the Award, being a contravention of s 45 and s 323 of the Act and a serious contravention within the meaning of s 557A of the Act;
(c) Cashback Payments: unreasonable requirements to spend or pay money, being a contravention of s 323, s 325, s 343 and s 344 of the Act and a serious contravention within the meaning of s 557A of the Act;
(d) Award Display: failure to display the Award and the NES at the Restaurants contrary to cl 5 of the Award, being a contravention of s 45 of the Act;
(e) Annual Leave & Leave Loading: failure to pay the applicants for untaken annual leave at the end of their employment in contravention of the NES, including additional leave loading of 17.5% as required under by cl 35.2(b) of the Award, being contraventions of s 44(1), s 45 and s 90(2) of the Act;
(f) Superannuation Contribution: failure to pay the applicants’ superannuation contributions under cl 30.2(a) of the Award, being a contravention of s 45 of the Act;
(g) Payment in Lieu: failure to give Mr Haider notice or payment in lieu thereof on his termination in breach of the NES and in contravention of s 44(1) and s 117 of the Act;
(h) PAYG Demand (August 2017): demand by Mr Usha that Mr Basi pay $6,000 to defray Namitha Nakul’s PAYG liability, in contravention of s 343 and s 345 of the Act and being contraventions which Namitha Nakul was involved in under s 793(1) of the Act;
(i) PAYG Demand (January 2018): demand by Mr Usha that Mr Basi pay $1,710 to defray Namitha Nakul’s PAYG liability, in contravention of s 325, s 343 and s 345 of the Act and being a contravention which Namitha Nakul was involved in under s 793(1) of the Act; and
(j) Visa Sponsorship Costs: demand by Mr Usha that Mr Haider pay $1,400 for sponsorship of Mr Haider’s visa, being an unreasonable requirement to spend or pay money under s 325 of the Act and a contravention which Namitha Nakul was involved in under s 793(1) of the Act.
50 I have referred to the contraventions by “the respondents” for two reasons. First, for all practical purposes, Mr Usha was the alter ego of Namitha Nakul. He was the sole director and shareholder of Namitha Nakul. He did not appear to draw any material distinctions between conduct that he might have engaged in his personal capacity and conduct that he might have engaged in on behalf of Namitha Nakul. Second, I found that Mr Usha contravened the Act as “a person involved in” each of the contraventions of Namitha Nakul summarised at [49(a)] to [49(g)] by reason of either s 550(2) or s 557A(5A) of the Act. I also found that Namitha Nakul was, within the meaning of s 793(1) of the Act, involved in each of Mr Usha’s contraventions summarised at [49(h)] to [49(j)].
B.6. Consideration of relevant factors
51 The consideration below of relevant factors, is directed to the assessment of the overarching consideration, which is determining the penalty amount necessary to achieve appropriate levels of both specific and general deterrence.
52 The conduct of the respondents in this proceeding requires the imposition of significant penalties to deter both the respondents and other restaurant operators and owners from engaging in similar conduct in the future. The conduct of the respondents was reprehensive. The respondents engaged in conduct that exploited workers on temporary immigration visas through cash back arrangements, underpayments and failures to make superannuation payments combined with demands for money to meet PAYG liabilities and visa sponsorship costs enforced by threats of withdrawing visa sponsorship.
53 I am satisfied that it in light of the factors considered below, it is necessary for substantial penalties to be imposed in order to deter the respondents and other employers, particularly in the restaurant industry, from engaging in similar conduct in the future.
B.6.1. Nature and extent of the conduct
54 The conduct of the respondents occurred over an 18 month period. It could fairly be described as deliberate and systemic.
55 The contraventions demonstrated a profound disregard of the fundamental obligations of an employer under both the Act and the Award. It included persistent and sustained failures to pay wages and entitlements and arrange hours of work consistently with the provisions of the Award and comply with Award notification requirements.
56 More significantly, the respondents’ conduct extended to the making of demands for repayments of wages under cash back arrangements and payments to cover the PAYG obligations of Namitha Nakul and visa sponsorship costs. The respondents’ conduct in the course of operating the Restaurants took advantage of the inherent vulnerabilities of employees on temporary immigration visas who are reliant on the goodwill and sponsorship of their employers.
B.6.2. Nature and extent of any loss or damage
57 Both Mr Basi and Mr Haider were deprived of significant income and entitlements because of the contraventions by the respondents. The extent of this loss and damage is to be reflected in the compensation orders that are to be made.
58 There was no suggestion that any third party had suffered any loss or damage by reason of the respondents’ contraventions.
B.6.3. Similar previous conduct of the respondents
59 There was no evidence that the respondents had previously engaged in conduct similar to the conduct giving rise to the contraventions.
B.6.4. Size of the business involved
60 The business of the respondents was limited to the operation of the Restaurants in Wollongong and Nowra. Other than family members and close friends, the only persons employed by the respondents were Mr Basi and Mr Haider. The financial statements of Namitha Nakul only disclosed trading income of $193,164 and a gross profit of trading of $125,985 for the financial year ending 30 June 2017 and trading income of $213,632 and a gross profit of trading of $141,483 for the financial year ending 30 June 2018.
B.6.5. Deliberateness of breaches
61 I accept that there may well have been a degree of inadvertence in the respondents’ contraventions in failing to display the Award and a genuine lack of knowledge as to the precise scope of annual leave loadings, payment of weekend and holiday rates, arrangement of hours and payments in lieu of notice.
62 I am satisfied, however, that the more serious contraventions, namely the cashback arrangements and the PAYG demands, were deliberate. They could not be attributed to any lack of knowledge, inexperience or oversight on the part of the respondents.
63 There was no evidence that these arrangements and demands were implemented pursuant to any advice or recommendation that Mr Usha may have received from his migration or taxation agents.
B.6.6. Contrition or remorse
64 The respondents have exhibited little substantive contrition or remorse for their conduct.
65 Mr Usha steadfastly maintained throughout the hearing that the money paid by Mr Basi under the cashback arrangements constituted regular repayments of alleged loans that he had made to Mr Basi. He also steadfastly denied throughout the hearing that he made the PAYG demands to Mr Basi and Mr Haider.
66 Further, the only contraventions that the respondents admitted were relatively minor and the evidence establishing the contraventions was compelling.
B.6.7. Corrective action
67 The only substantive corrective action taken by the respondents with respect to Mr Basi was in response to demands from the South Coast Labour Council. On 3 August 2018, a payment of $5,965.38 was made to Mr Basi for annual leave for the period from 2 August 2018 to 13 September 2018.
68 The only substantive corrective action taken by the respondents with respect to Mr Haider were payments made to him at or about the time that he resigned as an employee of the respondents. These comprised payments, characterised as “reimbursements”, of $576 and a subsequent transfer on 4 September 2018 to his bank account of the amounts of $800 and $1,000 on 4 September 2018.
69 There was no evidence of any other substantive corrective action undertaken by the respondents.
B.6.8. Compliance culture
70 The extent and seriousness of the contraventions of the Act and the Award by the respondents with respect to their employment of the applicants demonstrated a manifest failure to comply with their obligations under the Act and the Award. There was no evidence that the respondents had or recognised the need for any culture of compliance with those obligations.
B.6.9. Adverse publicity
71 I am satisfied that the respondents have been the subject of significant adverse publicity. At least some of that coverage has been emotive and inaccurate. The references to “slave like conditions” and the number of hours allegedly worked were not consistent with the evidence before me and the findings that I made in the Liability Judgment.
72 Nevertheless, the central theme of the press coverage was essentially correct. The respondents exploited the vulnerability of employees on temporary immigration visas. The respondents paid the applicants substantially less than the rates payable under the Award. The respondents failed to pay the applicants their statutory entitlements and impermissibly demanded substantial “repayments”, including through cashback arrangements and demands accompanied by coercive threats.
73 I do not accept that any significant weight should be given to the adverse publicity that the respondents received. The respondents can fairly be described as the architects of their own misfortune.
B.6.120. Co-operation
74 I am satisfied that it is appropriate to take into account the admissions made by the respondents in relation to each of the Award Display, Annual Leave & Leave Loading, Superannuation Contribution and Payment in Lieu contraventions in considering the imposition of penalties sufficient to achieve specific and general deterrence.
75 I do not consider, however, that it is appropriate to take admissions into account by applying a percentage discount to the maximum penalty for a contravention, particularly in the light of the High Court’s emphatic rejection in Pattinson of the use of maximum penalties as a yardstick to gauge the seriousness of contraventions. The decisions of the Federal Magistrates Court and the then Federal Circuit Court relied upon by the respondents as evidence of such an approach being taken, were decided well before the High Court’s decision in Pattinson.
B.7. Imposition of penalties
B.7.1. Overview
76 I now turn to consider, in the context of the factors that I have addressed above, the appropriate penalties to be imposed for each of the ten contraventions.
77 The maximum penalty that can be imposed on the respondents for each contravention of the Act, other than serious contraventions pursuant to s 557A, is 300 penalty units for Namitha Nakul and 60 penalty units for Mr Usha: s 539(1) and s 546(2) of the Act. For the period from 31 July 2015 to 30 June 2017, a penalty unit was $180: Sch 1 of the Crimes Legislation Amendment (Penalty Unit) Act 2015 (Cth). For the period from 1 July 2017 to 30 June 2020, a penalty unit was $210: Sch 1 of the Crimes Amendment (Penalty Unit) Act 2017 (Cth).
78 The maximum penalty for each contravention by the respondents that was a serious contravention for the purposes of s 557A is ten times these amounts. Section 557A came into effect on 15 September 2017: s 2 of the Fair Work Amendment (Protecting Vulnerable Workers) Act 2017 (Cth).
79 Section 12 of the Act provides that a penalty unit in the Act has the same meaning as in s 4AA of the Crimes Act 1914 (Cth). In the period between 31 July 2015 and 30 June 2017, a penalty unit was $180. In the period between 1 July 2017 and 30 June 2020, a penalty unit was $210.
80 The contraventions of the respondents took place at various times between 19 July 2016 and 27 August 2018. In Fair Work Ombudsman v Grouped Property Services Pty Ltd (No 2) [2017] FCA 557 at [394]-[401], Katzmann J considered that for contraventions spanning a period in which penalty units increased, the higher amount could apply but that the Court should take into account that a lower penalty amount was initially applicable: see also Ahmed v Al-Hussain Pty ltd t/as The Cheesecake Shop (No 3) [2019] FCA 848 at [35] (Rares J); Australasian Meat Industry Employees Union v Dick Stone Pty Ltd (No 2) [2022] FCA 1263 at [21] (Katzmann J). Her Honour stated at [396]-[398] that this was consistent, by parity of reasoning, with the approach to sentencing for criminal offences in R v White (unreported, Supreme Court of New South Wales Court of Criminal Appeal, Gleeson CJ, Lee CJ at CL and Hunt J, 25 July 1991).
81 With respect, I agree that this is an appropriate approach to adopt. Any attempt to apply a proportionate allocation between two or more periods would likely provide an illusory level of precision. It would be dependent on the acceptance of a series of implicit assumptions as to the relative seriousness and extent of the conduct giving rise to the contravention in each period. Moreover, it might well be said that higher penalty units applicable at the conclusion of the conduct, provide the best measure of the legislative assessment of the penalties necessary to achieve specific and general deterrence given the continuation of the conduct into that period.
82 The imposition of penalties in cases prior to the decision in Pattinson, for conduct that might be described as of an equivalent or similar character, provide little assistance. These cases have typically determined the relative seriousness of the contravention and then imposed a penalty by using a yardstick against the maximum penalty that can be imposed for the contravention.
83 It can readily be accepted that the imposition of a penalty on an employer with significant financial resources that was proportionate to a relatively minor and inadvertent contravention of the Act would be unlikely to achieve any material deterrent effect. At the same time, subject to questions of general deterrence, it is likely that the imposition of a relatively smaller penalty on an employer with limited financial resources may achieve significant deterrence.
84 The objective seriousness of a contravention, however, must nevertheless remain relevant for the purpose of determining what level of penalty is necessary to achieve specific and general deterrence and promote the public interest in compliance with the Act. The introduction and operation of a dishonest scheme to deprive employees of their statutory entitlements may well demand much greater penalties to deter an employer and other employees from engaging in similar conduct than inadvertent failures to pay employees all of their statutory entitlements. The inadvertent or careless contravening employer would likely need much less of a sanction to ensure future compliance than the dishonest or reckless contravening employer.
85 The respondents sought the imposition of penalties within a range for each of the ten contraventions.
86 In determining appropriate penalties to be imposed on the respondents for each of the ten contraventions, I have taken into account for each contravention the need for both specific and general deterrence. Relatively modest penalties may have been sufficient to achieve specific deterrence, given the respondents limited financial resources and the closure of the Restaurants. I am not satisfied, however, given the extent and seriousness of the respondents’ contraventions, that relatively modest penalties would sufficiently deter other employers from engaging in similar conduct.
87 After identifying specific penalties to be imposed for each contravention, I then consider the application of the totality principle and determine a single aggregate penalty for both Namitha Nakul and Mr Usha for the contravening conduct with respect to both Mr Basi and Mr Haider.
B.7.2. Arrangement of Hours and Rates contravention
88 The respondents’ failure to arrange the applicants’ hours of work and failure to pay weekend and holiday rates consistently with cl 31.2(a), cl 31.2(e) and cl 34.1 of the Award, gave rise to contraventions under s 45 of the Act. I am satisfied that these contraventions were serious contraventions for the purposes of s 557A of the Act.
89 The arrangement of hours of employment and the payment of weekend and holiday rates are fundamental aspects of the employment relationship. The failures by the respondents were material and extended over the length of the applicants’ employment. The provisions of the Award directed at the arrangement of hours of work for restaurant employees are designed to ensure that employees are given appropriate rest breaks. The provisions are not to be regarded as optional obligations. Nor can the payment of weekend and holiday rates be regarded as optional obligations.
90 The maximum penalty for the Arrangement of Hours and Rates Contravention is $630,000 for Namitha Nakul and $126,000 for Mr Usha. The conduct giving rise to the contravention included conduct that occurred in the period up to 30 June 2017 when the maximum penalty was $54,000 for Namitha Nakul and $10,800 for Mr Usha. It also included conduct in the period between 1 July 2017 and 14 September 2017 when the maximum penalty was $63,000 for Namitha Nakul and $12,600 for Mr Usha (that is the period prior to s 557A coming into effect). I have taken this into account in assessing appropriate penalties for this contravention.
91 The respondents sought a penalty for Namitha Nakul in the range of $25,000 to $30,000 and a penalty for Mr Usha in the range of $5,000 to $7,500.
92 I am satisfied that in order to achieve specific and general deterrence it is necessary to impose a penalty of $25,000 on Namitha Nakul and a penalty of $10,000 on Mr Usha for the Arrangement of Hours and Rates contravention.
B.7.3. Minimum Pay contravention
93 The respondents’ failure to pay the applicants the amounts due and payable consistently with cl 20 of the Award, gave rise to contraventions of s 45 and s 323 of the Act. I am satisfied that these contraventions were serious contraventions for the purposes of s 557A of the Act.
94 Ensuring that employers pay minimum amounts under industrial awards is central to the objectives sought to be achieved by the Act. Failures by restaurant industry employers to pay amounts due and payable under the Award requires the imposition of significant penalties to deter future failures to pay restaurant workers minimum amounts under the Award. Restaurant employees typically do not have the support of human resources departments and formal employment support structures. The imposition of significant penalties to encourage compliance and deter non-compliance by employers with minimum pay entitlements under the Award, is one means by which restaurant workers can be protected.
95 The maximum penalty for the Minimum Pay Contravention is $630,000 for Namitha Nakul and $126,000 for Mr Usha. The conduct giving rise to the contravention included conduct that occurred in the period up to 30 June 2017 when the maximum penalty was $54,000 for Namitha Nakul and $10,800 for Mr Usha. It also included conduct in the period between 1 July 2017 and 14 September 2017 when the maximum penalty was $63,000 for Namitha Nakul and $12,600 for Mr Usha (that is the period prior to s 557A coming into effect). I have taken this into account in assessing appropriate penalties for this contravention.
96 The respondents sought a penalty for Namitha Nakul in the range of $25,000 to $30,000 and a penalty for Mr Usha in the range of $5,000 to $7,500.
97 I am satisfied that in order to achieve specific and general deterrence it is necessary to impose a penalty of $25,000 on Namitha Nakul and a penalty of $10,000 on Mr Usha for the Minimum Pay contravention.
B.7.4. Cashback Payments contravention
98 The imposition of the cashback payments regime on Mr Basi was enforced by coercive threats and the application of undue influence and pressure. The conduct of the respondents with respect to the cashback payments regime contravened s 323, s 325, s 343 and s 344 of the Act. It constituted a serious contravention for the purposes of s 557A of the Act.
99 The cashback arrangements implemented by the respondents with respect to Mr Basi were deliberate and calculated. They can be best described as a cynical and reckless attempt to circumvent the conditions on which Mr Basi had been provided with a temporary visa. They enabled the respondents to erect a façade that Mr Basi was being paid the minimum wage necessary for his visa sponsorship and at the same time provided the mechanism by which his employer could obtain the benefit of his services for a substantially reduced amount. Mr Usha’s attempts to disguise the cashback arrangement by claims that they constituted repayments of implausible loans that he had made to Mr Basi further highlighted the need for a significant penalty. This will ensure that the respondents and other employers seeking to sponsor and employ vulnerable visa holders in the restaurant industry are deterred from engaging in similar conduct in the future.
100 As a serious contravention for the purposes of s 557A of the Act, the maximum penalty for the Cashback Payments contravention is $630,000 for Namitha Nakul and $126,000 for Mr Usha. The conduct giving rise to the contravention included conduct that occurred in the period up to 30 June 2017 when the maximum penalty was $54,000 for Namitha Nakul and $10,800 for Mr Usha. It also included conduct in the period between 1 July 2017 and 14 September 2017 when the maximum penalty was $63,000 for Namitha Nakul and $12,600 for Mr Usha (that is the period prior to s 557A coming into effect). I have taken this into account in assessing appropriate penalties for this contravention.
101 The respondents sought a penalty for Namitha Nakul in the range of $25,000 to $30,000 and a penalty for Mr Usha in the range of $5,000 to $7,500.
102 I am satisfied that in order to achieve sufficient specific and general deterrence it is necessary to impose a penalty of $50,000 on Namitha Nakul and a penalty of $20,000 on Mr Usha for the Cashback Payments contravention.
B.7.5. Award Display contravention
103 The respondents’ failure to display the Award and the NES at the Restaurants consistently with cl 5 of the Award, constituted a contravention of s 45 of the Act.
104 It is important for employers to display the Award and the NES at work premises. It is a practical means by which employees may have their rights and obligations brought to their attention. At the same time, it is relevant in determining an appropriate penalty to achieve specific and general deterrence to have regard to the early admission by the respondents of the Award Display contravention. I have taken this into account in determining appropriate penalties for this contravention.
105 The maximum penalty for the Award Display Contravention is $63,000 for Namitha Nakul and $12,600 for Mr Usha. The conduct giving rise to the contravention included conduct that occurred in the period when the maximum penalty was $54,000 for Namitha Nakul and $10,800 for Mr Usha. I have taken this into account in assessing appropriate penalties for this contravention.
106 The respondents sought a penalty for Namitha Nakul in the range of $15,000 to $20,000 and a penalty for Mr Usha in the range of $3,000 to $4,000.
107 I am satisfied that in order to achieve specific and general deterrence it is necessary to impose a penalty of $15,000 on Namitha Nakul and a penalty of $3,000 on Mr Usha for the Award Display contravention.
B.7.6. Annual Leave & Leave Loading contravention
108 The respondents’ failure to pay the applicants for untaken annual leave at the end of their employment, including the additional leave loading of 17.5%, as required by cl 35.2(b) of the Award, contravened s 44(1), s 45 and s 90(2) of the Act.
109 The provision of annual leave and leave loadings are important statutory entitlements of employees under the Act and the Award. At the same time, it is relevant in determining an appropriate penalty to achieve specific and general deterrence, to have regard to the early admission by the respondents of the Annual Leave & Leave Loading contravention. I have taken this into account in determining appropriate penalties for this contravention.
110 The maximum penalty for the Annual Leave & Leave Loading contravention is $63,000 for Namitha Nakul and $12,600 for Mr Usha. The conduct giving rise to the contravention included conduct that occurred in the period when the maximum penalty was $54,000 for Namitha Nakul and $10,800 for Mr Usha. I have taken this into account in assessing appropriate penalties for this contravention.
111 The respondents sought a penalty for Namitha Nakul in the range of $15,000 to $20,000 and a penalty for Mr Usha in the range of $3,000 to $4,000.
112 I am satisfied that in order to achieve specific and general deterrence it is necessary to impose a penalty of $15,000 on Namitha Nakul and a penalty of $3,000 on Mr Usha for the Annual Leave & Leave Loading contravention.
B.7.7. Superannuation Contribution contravention
113 The respondents failed to pay the applicants’ superannuation contributions contrary to cl 30.2(a) of the Award, giving rise to a contravention of s 45 of the Act.
114 The efficacy of the superannuation system is dependent on employers recognising and paying superannuation entitlements of their employees. The underpayment of superannuation entitlements undermines the viability of the superannuation scheme and successive governments’ efforts to provide sufficient financial support for retirees. Significant penalties are necessary to ensure that employers comply with their obligations to make superannuation contributions on behalf of their employees. At the same time, it is relevant in determining an appropriate penalty to achieve specific and general deterrence, to have regard to the early admission by the respondents of the Superannuation Contribution contravention. I have taken this into account in determining appropriate penalties for this contravention.
115 The maximum penalty for the Superannuation Contribution contravention is $63,000 for Namitha Nakul and $12,600 for Mr Usha. The conduct giving rise to the contravention included conduct that occurred in the period when the maximum penalty was $54,000 for Namitha Nakul and $10,800 for Mr Usha. I have taken this into account in assessing appropriate penalties for this contravention.
116 The respondents sought a penalty for Namitha Nakul in the range of $15,000 to $20,000 and a penalty for Mr Usha in the range of $3,000 to $4,000.
117 I am satisfied that in order to achieve specific and general deterrence it is necessary to impose a penalty of $25,000 on Namitha Nakul and a penalty of $5,000 on Mr Usha for the Superannuation Contribution contravention.
B.7.8. Payment in Lieu contravention
118 The failure of the respondents to give Mr Haider notice or a payment in lieu of notice on his termination contravened s 44(1) and s 117 of the Act.
119 The statutory entitlement to notice or payment in lieu of notice is an important practical safeguard for employees. Significant penalties would typically be expected to be necessary to achieve specific and general deterrence. At the same time, it is relevant in determining an appropriate penalty to achieve specific and general deterrence, to have regard to the early admission by the respondents of the Payment in Lieu contravention. I have taken this into account in determining appropriate penalties for this contravention.
120 The maximum penalty for the Payment in Lieu contravention is $63,000 for Namitha Nakul and $12,600 for Mr Usha. This maximum penalty was applicable for the whole of the period of the conduct giving rise to the contravention.
121 The respondents sought a penalty for Namitha Nakul in the range of $15,000 to $20,000 and a penalty for Mr Usha in the range of $3,000 to $4,000.
122 I am satisfied that in order to achieve specific and general deterrence it is necessary to impose a penalty of $15,000 on Namitha Nakul and a penalty of $3,000 on Mr Usha for the Payment in Lieu contravention.
B.7.9. PAYG Demand (August 2017) contravention
123 The respondents’ demand that Mr Basi make a payment of $6,000 to defray Namitha Nakul’s PAYG liability was enforced by coercive threats not to enforce his workplace rights. The respondents’ conduct in relation to the PAYG demand in August 2017 contravened s 343 and s 345 of the Act.
124 Demanding that an employee make a contribution to the payment of an employer’s PAYG liabilities for the employee seeks to impermissibly impose the employer’s tax obligations on the employee. It is conduct that requires a significant penalty to deter the respondents and other employers in the restaurant industry, and in other industries, seeking to defray or reduce their taxation obligations in this manner.
125 The maximum penalty for the PAYG Demand (August 2017) contravention is $63,000 for Namitha Nakul and $12,600 for Mr Usha. This maximum penalty was applicable for the whole of the period of the conduct giving rise to the contravention.
126 The respondents sought a penalty for Namitha Nakul in the range of $7,500 to $10,000 and a penalty for Mr Usha in the range of $1,500 to $2,000.
127 I am satisfied that in order to achieve specific and general deterrence it is necessary to impose a penalty of $15,000 on Namitha Nakul and a penalty of $5,000 on Mr Usha for the PAYG Demand (August 2017) contravention.
B.7.10. PAYG Demand (January 2018) contravention
128 The respondents’ demand for a payment of $1,710 from Mr Basi to defray Namitha Nakul’s PAYG liability contravened s 325, s 343 and s 345 of the Act.
129 As explained above, demanding that an employee make a contribution to the payment of an employer’s PAYG liabilities for the employee seeks to impermissibly impose the employer’s tax obligations the employee. It is conduct that requires a significant penalty to deter the respondents and other employers in the restaurant industry, and in other industries, seeking to defray or reduce their taxation obligations in this manner.
130 The maximum penalty for the PAYG Demand (January 2018) Contravention is $63,000 for Namitha Nakul and $12,600 for Mr Usha. This maximum penalty was applicable for the whole of the period of the conduct giving rise to the contravention.
131 The respondents sought a penalty for Namitha Nakul in the range of $5,000 to $7,500 and a penalty for Mr Usha in the range of $1,000 to $2,000.
132 I am satisfied that in order to achieve sufficient specific and general deterrence it is necessary to impose a penalty of $15,000 on Namitha Nakul and a penalty of $5,000 on Mr Usha for the PAYG Demand (January 2018) contravention.
B.7.11. Visa Sponsorship Costs contravention
133 The respondents’ conduct in demanding that Mr Haider make a contribution of $1,400 toward Namitha Nakul’s sponsoring costs constituted an unreasonable requirement to spend or pay money in contravention of s 325 of the Act. A retrospective demand by an employer to a vulnerable temporary visa holder for a contribution to the sponsorship costs of an employer is egregious conduct.
134 The maximum penalty for the Visa Sponsorship Costs contravention is $63,000 for Namitha Nakul and $12,600 for Mr Usha This maximum penalty was applicable for the whole of the period of the conduct giving rise to the contravention.
135 The respondents sought a penalty for Namitha Nakul in the range of $5,000 to $7,500 and a penalty for Mr Usha in the range of $1,000 to $2,000.
136 I am satisfied that in order to achieve specific and general deterrence to deter both the respondents and other employers from engaging in similar conduct, it is necessary to impose a penalty of $15,000 on Namitha Nakul and a penalty of $5,000 on Mr Usha for the Visa Sponsorship Costs contravention.
B.7.12. Conclusion
137 Finally, it is necessary to apply the totality principle to the aggregate of the penalties imposed on both respondents.
138 Turning first to Namitha Nakul, the aggregate of the penalties imposed for the ten contraventions is $215,000. In order to ensure that the penalties are proportionate and are not higher than necessary to achieve their object of deterrence, I am satisfied that the aggregate penalties to be imposed on Mr Usha should be reduced to $150,000. The business conducted by Namitha Nakul was relatively confined and the Restaurants it operated have closed. It does not currently appear to be generating any revenue or realistically be likely to generate any substantial revenue in the near future. Had it not been for the need for general deterrence, the reduction may well have been significantly greater.
139 Addressing next, Mr Usha, the aggregate of the penalties imposed for the ten contraventions is $69,000. Again, in order to ensure that the penalties are proportionate and are not higher than necessary to achieve their object of deterrence, I am satisfied that the aggregate penalties to be imposed on Mr Usha should be reduced to $50,000. I accept that penalty remains substantial given Mr Usha is currently earning little income following the closure of the Restaurants. It is possible, however, that his position may change in the future and in any event, general deterrence demands a significant aggregate penalty be imposed on Mr Usha given the need to deter other restaurant owners and employers from engaging in similar conduct in the future.
C. Orders and declarations
C.1. Quantum of compensation
140 The parties have agreed that the amount of compensation payable to Mr Basi for underpayment of wages and statutory entitlements is $90,963.59. This figure includes unpaid annual leave of $3,099.49 and pre-judgment interest of $17,582.89. It follows that an order should be made that the respondents pay compensation to Mr Basi in the amount of $90,963.59.
141 The parties have also agreed that the amount of compensation payable to Mr Haider for underpayment of wages and statutory entitlements is $81,818.94. This figure includes unpaid annual leave of $7,485.72 and pre-judgment interest of $17,820.07.There is a dispute between the parties, which I address below, as to the amount payable to Mr Haider by way of a quantum meruit claim for unpaid work between July and October 2016.
C.2. Superannuation
142 It is common ground that the superannuation guarantee amounts that should have been paid by the respondents for Mr Basi were $10,333.49 and for Mr Haider were $8,650.28. It is also agreed that the respondents paid superannuation guarantee amounts of $8,440.70 for Mr Basi, giving rise to a shortfall of $1,892.79.
143 Section 547(1) of the Act provides for the payment of interest on amounts payable under the Act or a fair work instrument.
144 The respondents submit that the outstanding amount of superannuation guarantee payments owing to Mr Basi is $2,685.64 ($1,892.79 plus pre-judgment interest of $792.85) and the outstanding amount owing to Mr Haider is $10,617.32 ($8,650.28 plus pre-judgment interest of $1,967.04).
145 The applicants submit that the applicants should also be compensated for the likely earnings on their outstanding superannuation over the period it should have been paid. They submit that the reported growth rate of 9.71% per annum in the hospitality superannuation fund Hostplus would be an appropriate assumed growth rate to employ for this purpose. If an assumed growth rate of 9.71% is utilised, the applicants submit that the superannuation guarantee amount payable to Mr Basi’s superannuation fund would increase to $7,858.40 and the amount payable to Mr Haider would increase to $16,587.59.
146 The applicants submit that the Hostplus growth rate would be a reasonable rate to adopt and noted that data from the Australian Prudential Regulation Authority showed that the average rate of return on Australian superannuation funds in the period to June 2021 was 8.9%. They submit that making an additional payment for lost superannuation growth is consistent with the approach taken by Deputy President Magistrate Cole in the South Australian Employment Tribunal in Bianca Strahan v John Christos Powis, trading as Blackwood Fitness [2019] SAET 229 at [15]-[16], [18], [38].
147 I am not satisfied that it is appropriate to include an additional amount for outstanding superannuation guarantee payments to reflect the Hostplus growth rate.
148 First, the applicants are already receiving the benefit of pre-judgment interest at rates between 4.10% and 5.75%.
149 Second, the relevance of the Hostplus specific growth rate to the positon of the applicants is not apparent.
150 Third, the decision in Strahan has not been cited in any jurisdiction outside the South Australian Employment Tribunal and in any event, the approach taken by the Tribunal in that case was fundamentally different to the approach advanced by the applicants in this case. In Strahan, the Tribunal divided an interest rate of 6.25% by two to “reflect the gradually accumulation loss” of unpaid superannuation and then applied that reduced rate for seven years. The interest rate of 6.25% appears to have been calculated by reference to the Federal Court Interest on Judgments Practice Note (GPN-INT) (18.9.17) (Practice Note) that provides that the pre-judgment interest rate set by the Federal Court is the Reserve Bank of Australia cash rate plus 4%. The Tribunal in effect used an interest rate of 3.125% to determine a figure for “interest on unpaid superannuation” pursuant to s 547 of the Act. It did not add to that interest calculation any additional amount for pre-judgment interest pursuant to the Practice Note.
C.3. Quantum meruit
151 In my primary reasons, I determined at J [202]-[205] that Mr Haider worked for 30 hours per week for the respondents between 10 July 2016 and 30 October 2016 and that he was entitled to payment by way of a quantum meruit for that work in an amount calculated by reference to the National Minimum Wage.
152 Mr Haider submits that the 25% loading for casual employees under the National Minimum Wage should be included in that calculation. He submits that in determining a reasonable amount to be paid to him by way of a quantum meruit for the work that he provided to the respondents between 10 July 2016 and 30 October 2016, the Court would not award anything less than the remuneration that an employee performing comparable work would receive. He submits that such an employee would receive either a 25% casual loading or accrued annual leave entitlements.
153 The respondents oppose the addition of the casual employee loading. They contend that the quantum meruit claim does not put Mr Haider in the position of an employee on either a part-time or a casual basis in the period between 10 July 2016 and 30 October 2016.
154 On balance, I am satisfied that it is appropriate to add a 25% casual loading to the hourly National Minimum Wage hourly rate for the purpose of quantifying Mr Haider’s quantum meruit claim. It is, of course, the case that a quantum meruit claim must focus on the value of the benefit that has been requested and conferred on the recipient. In the present case, the benefit conferred by Mr Haider on the respondents was assistance in preparing a restaurant for re-opening. It included services such as moving furniture, cleaning and painting. It did not extend to the production of any products. The only available approach to quantify the value of the benefits conferred by Mr Haider was to identify a reasonable proxy for the value of the services that he provided to the respondents: see Peet Ltd and Others v Richmond (2011) 33 VLR 465; [2011] VSCA 343 at [94]-[95] (Nettle JA with Neave JA and Judd AJA agreeing); Wilson Pastoral International Pty Ltd v George Street Steel Pty Ltd [2020] SASCFC 54 at [101] (Tilmouth AJ with Kourakis CJ and Parker J agreeing); Brenner and Another v First Artists’ Management Pty. Ltd. and Another [1993] 2 VR 221 at 223 (Byrne J).
155 I concluded that a reasonable proxy in the absence of any quantifiable value for the specific services that Mr Haider provided to the respondents was the minimum rate that would have been payable under the National Minimum Wage: see Nield v Mathieson [2014] FCAFC 74 at [76] (Tracey, Bromberg and Mortimer JJ). The amount payable under the National Minimum Wage by reference to hourly rates would have included either a 25% casual loading or accrued annual leave. In the circumstances, I am satisfied that it is appropriate to include the 25% casual loading in order to arrive at a reasonable compensation by way of a quantum meruit for the work performed by Mr Haider for the respondents between 10 July 2016 and 30 October 2016.
156 The National Minimum wage for the period between 10 July 2016 and 30 October 2016 was $17.70 per hour. There were 16 weeks in that period.
157 The amount to be paid by way of a quantum meruit by the respondents to Mr Haider is thus $10,620, being $17.70 ×1.25 × 480 hours (16 weeks × 30 hours).
C.4. Payment of penalties
158 The applicants submitted that orders should be made providing for the penalties to be paid directly to each of them, in equal amounts, pursuant to s 546(3)(c) of the Act.
159 The respondents submitted that orders should be made directing that the penalties be paid into the Consolidated Revenue Fund of the Commonwealth pursuant to s 546(3)(a) of the Act. The respondents submitted that given that compensation orders are to be made in favour of the applicants, it would not be appropriate to also make orders that the penalties be paid to them. They submitted that the Court should not exercise its discretion to make such orders, given (a) the quantum of the proposed penalties to be imposed, (b) the Fair Work Division is generally a no costs jurisdiction and payments of penalties to compensate for otherwise unrecoverable legal costs would be an illegitimate windfall, and (c) the applicants had failed to establish the “working 12 hour a day, six days a week” allegations that their counsel had submitted in opening was “one of the main issues” to be determined and in circumstances where Mr Basi had deleted data from a Fair Work Ombudsman mobile application.
160 The usual order when proceedings for contraventions of the Act are not brought by the Fair Work Ombudsman is that penalties are paid to the applicant: Seymour v Stawell Timber Industries Pty Ltd (1985) 9 FCR 241 at 245-246 (Northrop J); Gibbs v The Mayor, Councillors and Citizens of the City of Altona (1992) 37 FCR 216; [1992] FCA 553 at 223-224 (Gray J).
161 Section 546(3) of the Act provides that:
Payment of penalty
(3) The court may order that the pecuniary penalty, or a part of the penalty, be paid to:
(a) the Commonwealth; or
(b) a particular organisation; or
(c) a particular person.
162 Section 539(2) authorises persons named in the table to s 539(2) to apply for orders in relation to contraventions of the provisions identified in the table. These persons, relevantly, include for contraventions of s 44(1), s 45, s 323 and s 325, “an employee”, and for contraventions of s 343 and s 344, a “person affected by the contravention”.
163 In National Tertiary Education Union v Royal Melbourne Institute of Technology [2013] FCA 451, Gray J stated at [146]:
Pursuant to s 546(3)(b) of the Fair Work Act, the court has power to order that the pecuniary penalty, or part of it be paid to a particular organisation. In a case in which a union has instituted a proceeding to enforce the rights of one of its members, an order that a resulting penalty be paid to that union is the usual order. The scheme under which the enforcing party is the recipient of the penalty is designed to encourage the enforcement of provisions of the Fair Work Act and of agreements and other instruments made under it. Even though Professor Bessant is also an applicant in the proceeding, it is still appropriate to order that the whole of the penalty imposed be paid to the NTEU.
164 More recently, the Full Court of this Court in Sayed v Construction, Forestry, Mining and Energy Union (2016) 239 FCR 336; [2016] FCAFC 4 (Tracey, Barker and Katzmann JJ) confirmed that the application of the “usual order” was not limited to a union and was equally applicable in the case of an individual applicant. Their Honours stated:
72 One may begin to understand, therefore, why it is that s 546(3), in Pt 4.1, Div 2, Subdiv B, empowers the Court to order that a pecuniary penalty, or a part of the penalty, be paid to the Commonwealth, a particular organisation, or a particular person. If a proceeding for contravention of s 351(1) is brought by the inspector, the inspector being a public official of the Commonwealth, it may be expected that ordinarily the pecuniary penalty would be paid to the Commonwealth. If a union were to bring the proceeding successfully, for the benefit of its members, it may be expected that the penalty would be paid to the union. If the union brought the proceeding for the benefit of a particular member, there might be payment of the penalty to that member, on the basis he or she is a particular person to whom it should be paid; or part payment to that member and the balance to the union. If a person individually affected by a contravention brought the proceeding, then the penalty may be paid to him or her as a particular person. There is a certain symmetry between the person or entity authorised to prosecute an enforcement proceeding and the person or entity to whom the penalty, if imposed, might be paid. This symmetry is recognised by the Explanatory Memorandum and authority.
73 For example, the Explanatory Memorandum, by para 2157 (set out above) expressly notes that:
Ordinarily, any pecuniary penalty awarded by the court is paid to the applicant or, in the case of proceedings brought by a Commonwealth official such as an inspector, to the Commonwealth (on the basis that the applicant represents the Commonwealth).
165 Their Honours also addressed at length concerns about the usual order giving rise to a potential windfall in circumstances where a parties legal costs were otherwise not recoverable, observing at [119] that:
Accepting that legal expenses should not be taken into account in considering “the true cost” of bringing such a prosecution because of the stipulation in s 570 that a party’s legal costs are not recoverable except in circumstances not applicable here, there can be no doubt that Mr Sayed, in bringing and maintaining the prosecution of the union, and in dealing with the solicitors he instructed and the counsel they briefed, must have incurred considerable time, trouble and lost opportunity, not to mention the real risk to his career that Mr Sayed assumed in running the proceeding.
166 Their Honours then concluded:
120 To the extent that the primary judge appears to have drawn a distinction, at [88]–[89], between a case prosecuted by a union or other representative organisation and one prosecuted by the person directly affected by the contravention(s), we fail to see how that distinction, of itself, should lead to any immediate assumption or conclusion that the individual, by contrast to an organisation, has not, or has not necessarily, incurred significant time, trouble and lost opportunity costs in maintaining the prosecution, so that in the absence of some disentitling feature, the usual order for payment of the penalty to the prosecutor is appropriate.
121 Furthermore, it is not apparent to us why the receipt of a penalty should not operate as an incentive to an affected person to bring a prosecution like this under the FW Act. After all, as Wilcox J noted in Finance Sector Union, it ensures the enforcement of the legislative scheme. Moreover, as Jessup J put it in Murrihy, this incentive to bring and maintain such a proceeding makes it more likely that the applicable provisions of the FW Act “will be more than mere words on the statute book”. As Gray J said in Plancor, the question of “profit” does not arise on a proper construction of the power.
167 I am satisfied that the applicants are relevantly “employees” and “persons affected by the conduct” and that it is appropriate, consistently with the foregoing statements of principle in Sayed, that the pecuniary penalty orders be made payable, in equal amounts, to each applicant. I am not persuaded that the failure of the applicants to establish the “working 12 hours a day, six days a week” allegation relevantly should disentitle them to orders that the pecuniary penalties be paid to them. The applicants have established that the respondents engaged in egregious and flagrant contraventions of civil penalty provisions of the Act.
168 I have concluded that the payment of penalties, should be made in equal amounts to each applicant because the seriousness and extent of the contraventions on the applicants was broadly equivalent. Many but not all contraventions were common to both applicants. I am satisfied, however, that any attempt to separately assess the respective weight and seriousness of the contraventions that were bespoke to each applicant would be illusory and would not be supported by any principled or empirical rationale.
C.5. Instalment plan
169 The respondents sought orders permitting them to pay by instalments any penalties that may be imposed on them. They submitted, by reference to the affidavits of Mr Usha and Ms Wykoff, that Namitha Nakul is a $2.00 company. In respect of Mr Usha, the respondents submitted that he is currently working as a chef on a casual basis earning approximately $450 a week, he has several dependants, substantial liabilities of more than $100,000 and minimal assets. When pressed at the penalty and other relief hearing as to what instalment plan the respondents were offering, Mr Gillard, who appeared for the respondents, indicated that an instalment plan providing for the payment of $1,000 a month was being sought.
170 I am not satisfied that there is any utility in making orders permitting the respondents to pay the penalties imposed on each of them by an instalment plan providing for the payment of $1,000 per month. I accept that the respondents may have limited financial resources but impecuniosity is not a basis on which penalties may be foregone or instalment plans of inordinate length might be permitted. The aggregate amount of the penalties to be imposed on Namitha Nakul and Mr Usha is $150,000 and $50,000, respectively. If the penalties were to be paid at a rate of $1,000 per month, it would take more than 16 years for them to be paid in full. Allowing that period of time, particularly with no suggestion of any interest being paid to reflect reductions in the real value of those amounts in future years, would substantially undermine any deterrence that might otherwise have been achieved by the imposition of the penalties.
C.6. Declarations
171 I am satisfied that the declarations substantially in the form of the declarations proposed by the respondent should be made. I consider that the respondents’ formulation of the declarations accurately reflects and presents in a readily explicable manner the contraventions that I have found in the Liability Judgment.
D. Disposition
172 The declarations and orders set out prior to these reasons will be made.
173 The aggregate penalties to be imposed are $150,000 on Namitha Nakul and $50,000 on Mr Usha.
174 The penalties are to be paid by the respondents to the applicants in equal shares within 60 days of the date upon which the orders are made, that is, by Friday, 21 August 2023.
I certify that the preceding one hundred and seventy-four (174) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Halley. |
