Federal Court of Australia

Fair Work Ombudsman v Winit (AU) Trade Pty Ltd [2023] FCA 1200

ORDERS

THE COURT ORDERS THAT:

1.    The first respondent pay pecuniary penalties totalling $550,000.00.

2.    The second respondent pay pecuniary penalties totalling $8,190.00.

3.    The penalties referred to in orders 1 and 2 above be paid to the Commonwealth within 28 days.

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

REASONS FOR JUDGMENT

SNADEN J:

1    Over the period 1 July 2017 to 30 June 2018 (and at other times beyond it), the first respondent (“Winit”) operated a warehouse located in Regents Park, New South Wales, from which it provided storage and distribution services for merchants that sold products on online retail platforms such as eBay. The second respondent, Mr Cheng, was its general manager and sole director over that period. Ms Xiaodi Li (who was, at one point, the third respondent) served as Winit’s payroll and human resources manager.

2    Over the same period (or various parts of it), Winit engaged at least 30 employees to perform work at its warehouse. Their employment was, in each case, subject to requirements imposed by the Storage Services and Wholesale Award 2010 (the “Award”), which was an instrument made pursuant to (and that had force under) the Fair Work Act 2009 (Cth) (the “FW Act”).

3    By an originating application dated 24 February 2021, the applicant charges Winit with having breached obligations that the Award imposed upon it, as well as other obligations imposed by the FW Act. Additionally, she alleges that Mr Cheng was accessorily involved in some of the contraventions that are alleged against Winit (such that he may be understood himself to have committed them). She seeks relief primarily in the form of declarations and penalties.

4    For reasons that will shortly be made apparent, I am satisfied—indeed, it is not contested—that all of the contraventions that are alleged transpired. I consider that it is appropriate to impose pecuniary penalties in respect of those contraventions as follows, namely:

(1)    as against Winit, in an amount totalling $550,000.00; and

(2)    as against Mr Cheng, in an amount totalling $8,190.00.

5    There is no utility in granting declaratory relief and, for that reason, none will be granted.

Background facts

6    The relevant background facts emerge predominantly (and without controversy) from a statement of agreed facts dated 6 July 2021 (the “SOAF”) that was received into evidence by consent.

7    The applicant is the holder of an office established under the FW Act. She has standing to bring the present action.

8    Over the period 1 July 2017 to 30 June 2018 (the “Relevant Period”), or at various points within it, Winit employed each of the following people (to whom I shall refer, collectively, as the “Relevant Employees”) to work at its Regents Park warehouse, namely:

(1)    Bo-Yi Wu;

(2)    Chao-Wei Huang;

(3)    Cheng-Hsuan Chang;

(4)    Chia-Yu Hsu;

(5)    Chun Kit Kan;

(6)    Chun-Han Lin;

(7)    Chun-Yu Yao;

(8)    Guan-Lin Chen;

(9)    Han-Chang Chu;

(10)    Hung-Chuan Hung;

(11)    Jian-Hao Huang;

(12)    Jyun-Kai Luo;

(13)    Li Lin;

(14)    Li-Han Hsu;

(15)    Meng-Ying Lin;

(16)    Qi-Rui Li;

(17)    Rong-Fu Yan;

(18)    Shi Yuen Wong;

(19)    Wei-Cheng Huang;

(20)    Wei-Chieh Hsu;

(21)    Wei-Chih Hsu;

(22)    Wei-Chih Huang;

(23)    Wu-Hsiung Chen;

(24)    Yan-Jhang Su;

(25)    Ya-Wen Tu;

(26)    Yen-Han Chen;

(27)    Yi-Chen Lin;

(28)    Ying-Xuan Zhong;

(29)    Yu-Jia Lai; and

(30)    Zih Syuan You.

9    Each of the Relevant Employees was a “national system employee” within the meaning given to that term by s 13 of the FW Act. Winit was a “national system employer” within the meaning contemplated by s 14 of the FW Act.

10    The Relevant Employees were all employed to perform work in respect of which the Award applied. Most were engaged to perform work that sufficed to classify them as what the Award described as “Storeworker Grade 1”. One was properly classified as a “Storeworker Grade 4”; another as a “Storeworker Grade 2”; and three as “Storeworker Grade 3”.

11    As will be seen, the Award obliged Winit to pay each of the Relevant Employees certain rates of pay, as well as various other allowances and loadings. It didn’t do so. Instead, it paid the Relevant Employees flat amounts for each hour that they worked, without distinction as to the day or time of day on which that work was performed, nor as to the number of hours worked in any given weekly period. Additionally, the wages that were paid to the Relevant Employees were paid monthly and were calculated only by reference to completed quarter-hour blocks of work.

12    Those arrangements led to each of the Relevant Employees being paid less than what the Award entitled them to receive. Those underpayments are particularised in great detail in the SOAF. There, it is made clear that Winit failed to pay the Relevant Employees various amounts to which each was entitled on account of the work that he or she performed and the times that he or she performed it; including amounts referrable to overtime rates, weekend and public holiday penalty rates, casual loadings, minimum engagement periods, and shift and meal allowances.

13    The SOAF records that, relative to what was required under the Award, the Relevant Employees were underpaid over the Relevant Period a combined total of $368,684.23. That sum—and more—was ultimately paid to them (and others) prior to the commencement of this proceeding. Nonetheless, it is by reason of those underpayments that the applicant’s statement of claim charges Winit with having contravened various provisions of the Award; and, thereby, with having contravened s 45 of the FW Act. Further, she alleges that Mr Cheng was involved in some of those contraventions in ways that suffice to attract the operation of s 550(1) of the FW Act (such that he is taken also to have committed them). Additional accessorial claims that were initially pleaded against Ms Li were not pressed.

14    Three of the Award contraventions that are alleged against Winit (and that Winit concedes) are said to have been “serious contraventions” for the purposes of s 557A of the FW Act. In light of that seriousness, the applicant presses for the imposition of higher penalty amounts for those contraventions than might otherwise be warranted or available.

15    The statement of claim prosecutes other contraventions of the FW Act as well. It is said (and conceded) that Winit contravened s 44 of the FW Act by failing to provide its employees with Fair Work Information Statements (as s 125(1) of the FW Act requires). Further, the SOAF records that Winit failed to include prescribed information on the pay slips that were provided to its employees; and that, by that failure, it contravened s 536(2)(b) of the FW Act.

16    Perhaps more significant is what is alleged about Winit’s response once it was made (or became) apparent that it had underpaid some or all of the Relevant Employees. Upon appreciating that reality, Winit, via agents or employees other than Mr Cheng, took steps to compromise the scope for claims to be made against it. Those steps centred upon written agreements that it proposed to affected employees, by which it offered to pay substantially less than what it was obliged to pay pursuant to the Award. Some such agreements were executed, although Winit does not rely upon any of them now (and has never sought to take any enforcement action in respect of them). Some employees, however, did not agree to the terms that were proposed. Winit subsequently reduced their rostered hours relative to those who did agree; and it is conceded that it did so because of their refusal so to agree. The applicant alleges—and Winit accepts—that the relative reductions to those employees’ rostered hours amounted to adverse action for the purposes of pt 3-1 of the Act; and that it was visited upon those employees in contravention of s 340(1) of the FW Act.

17    In addition to the SOAF, both sides read affidavit evidence that was not the subject of cross-examination. The applicant relied upon the following, namely:

(1)    an affidavit sworn by Guan-Lin Chen on 16 July 2021;

(2)    an affidavit of Yan-Jhang Su dated 15 July 2021;

(3)    an affidavit sworn by Monica Zhang on 14 July 2021; and

(4)    an affidavit sworn by Ian Yick Yan Chan on 21 September 2021.

18    The respondents relied upon the following, namely:

(1)    affidavits affirmed by Mr Cheng on 30 July 2021, 1 September 2021 and 19 April 2022;

(2)    an affidavit affirmed by Yiming Hou on 28 April 2022; and

(3)    an affidavit sworn by Martin Joseph O’Connor on 4 May 2022.

19    The above suffices as a high-level summary of the matters that are alleged and conceded. Before describing them in the detail that is warranted, it is prudent to identify the statutory and award provisions that serve as the foundation upon which the applicant’s suit is erected.

The legislation and the Award

20    Section 45 of the FW Act provides, very simply:

45 Contravening a modern award

A person must not contravene a term of a modern award.

…

21    A modern award does not impose obligations upon a person—and a person cannot therefore contravene one of its terms—unless or until it “applies to the person”: FW Act s 46(1). The application of the Award to Winit is not controversial: it applied such that Winit was bound to honour its terms in respect of its employment of each of the Relevant Employees.

22    Contravention of the injunction for which s 45 provides attracts liability for remedies under pt 4-1 of the FW Act. Section 539 operates to deem s 45 a “civil remedy provision” and confers upon various classes of people (including, for present purposes, the applicant) standing to pursue in this court remedies pursuant to ss 545 and 546. The former relevantly provides as follows:

545 Orders that can be made by particular courts

Federal Court and Federal Circuit and Family Court of Australia (Division 2)

(1)     The Federal Court or the Federal Circuit and Family Court of Australia (Division 2) may make any order the court considers appropriate if the court is satisfied that a person has contravened, or proposes to contravene, a civil remedy provision.

…

23    Section 546 of the FW Act relevantly provides as follows:

546 Pecuniary penalty orders

(1)    The Federal Court, the Federal Circuit and Family Court of Australia (Division 2) or an eligible State or Territory court may, on application, order a person to pay a pecuniary penalty that the court considers is appropriate if the court is satisfied that the person has contravened a civil remedy provision.

…

Determining amount of pecuniary penalty

(2)    The pecuniary penalty must not be more than:

(a)     if the person is an individual—the maximum number of penalty units referred to in the relevant item in column 4 of the table in subsection 539(2); or

(b)     if the person is a body corporate—5 times the maximum number of penalty units referred to in the relevant item in column 4 of the table in subsection 539(2).

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.

…

24    Insofar as concerns s 45 of the FW Act, “the relevant item in column 4 of the table in subsection 539(2)” is 60 penalty units. At the times that are relevant, a penalty unit was equal to $210.00: Crimes Act 1914 (Cth), s 4AA.

25    Section 557(1) of the FW Act assumes some significance. It provides (and provided) as follows:

557 Course of conduct

(1)     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.

26    Section 45 of the FW Act is amongst those referred to in s 557(2). Section 340(1) is not. Section 557(3) is not presently relevant.

27    Section 557A of the FW Act establishes what are known as “serious contravention[s]” of civil remedy provisions. It provides (and provided) as follows:

557A Serious contravention of civil remedy provisions

(1)     A contravention of a civil remedy provision by a person is a serious contravention if:

(a)     the person knowingly contravened the provision; and

(b)     the person’s conduct constituting the contravention was part of a systematic pattern of conduct relating to one or more other persons.

…

Systematic pattern of conduct

(2)     In determining whether the person’s conduct constituting the contravention of the provision was part of a systematic pattern of conduct, a court may have regard to:

(a)     the number of contraventions (the relevant contraventions) of this Act committed by the person; and

(b)     the period over which the relevant contraventions occurred; and

(c)     the number of other persons affected by the relevant contraventions; and

(ca)     the person’s response, or failure to respond, to any complaints made about the relevant contraventions; and

(d)     except if the provision contravened is section 535—whether the person also contravened subsection 535(1), (2) or (4) by failing to make or keep, in accordance with that section, an employee record relating to the conduct constituting the relevant contraventions; and

(e)     except if the provision contravened is section 536—whether the person also contravened subsection 536(1), (2) or (3) by failing to give, in accordance with that section, a pay slip relating to the conduct constituting the relevant contraventions.

(3)     Subsection (2) does not limit the matters that a court may have regard to.

(4)     Subsection 557(1) does not apply for the purposes of determining whether the person’s conduct was part of a systematic pattern of conduct.

(5)     Subsection (4) does not otherwise affect the operation of subsection 557(1) in relation to serious contraventions of civil remedy provisions.

Involvement in a serious contravention

(5A)     A person (the involved person) who is involved in a contravention of a civil remedy provision by another person (the principal) commits a serious contravention of the provision only if:

(a)     the principal’s contravention was a serious contravention; and

(b)     the involved person knew that the principal’s contravention was a serious contravention.

Application for a serious contravention order and alternative orders

(6)     If a person is applying for an order in relation to a serious contravention of a civil remedy provision, the person’s application under subsection 539(2) must specify the relevant serious contravention.

(7)     If, in proceedings for an order in relation to a serious contravention of a civil remedy provision, the court:

(a)     is not satisfied that the person has committed a serious contravention against that provision; and

(b)     is satisfied that the person has contravened that provision;

the court may make a pecuniary penalty order against the person not for the serious contravention but for the contravention of that provision.

28    Section 557B of the FW Act is concerned with the proof of knowing contraventions committed by bodies corporate. It provides (and provided) as follows:

557B Liability of bodies corporate for serious contravention

(1)     For the purposes of subsection 557A(1), a body corporate knowingly contravenes a civil remedy provision if the body corporate expressly, tacitly or impliedly authorised the contravention.

(2)     This section does not limit section 793.

29    Section 550 of the FW Act is also of some significance presently. It serves to establish a form of accessorial liability that attaches to those who are “involved in” the contravention of civil remedy provisions. The section provides (and provided) as follows:

550 Involvement in contravention treated in same way as actual contravention

(1)     A person who is involved in a contravention of a civil remedy provision is taken to have contravened that provision.

…

(2)     A person is involved in a contravention of a civil remedy provision if, and only if, the person:

(a)     has aided, abetted counselled or procured the contravention; or

…

(c)     has been in any way, by act or omission, directly or indirectly, knowingly concerned in or party to the contravention…

…

30    As has been rehearsed, the Award was made pursuant to the FW Act and, at relevant times, applied to Winit’s employment of each of the Relevant Employees. Several of its requirements are the subject of agreement in the SOAF; and it is convenient now to outline them, beginning with those that are agreed were the subject of “serious contravention”.

31    The Award, by cl 24.1, contained what those familiar with modern awards would recognise as a standard overtime provision. It required, in respect of employees who worked outside of the ordinary hours of work prescribed elsewhere, that Winit pay rates of pay as follows, namely:

(1)    150% of the employee’s ordinary minimum rate of pay for the first two such hours; and

(2)    200% of that rate for successive such hours.

32    Clause 24.5(b) of the Award was concerned with Sunday penalty rates. It required that all employees who performed work on Sundays be paid for it at double their ordinary minimum rate of pay. By cl 24.5(b)(ii) of the Award, a minimum engagement period applied, such that any employee who worked on a Sunday was entitled to be paid (at that same Sunday penalty rate) the equivalent of at least four hours’ work.

33    Clause 24.5(c) of the Award pertained to public holiday penalty rates. It operated much as cl 24.5(b) did, save that its application arose in respect of work performed on public holidays (rather than Sundays). By cl 24.5(c)(ii) of the Award, an equivalent minimum engagement period of four hours applied in respect of employees who performed any work on public holidays.

34    Casual employees were, by cl 11.4 of the Award, entitled to be paid a casual loading of 25% of their ordinary minimum rate of pay. It is not controversial that the majority (although not all) of the Relevant Employees were employed on a casual basis.

35    Clause 24.4(c) of the Award prescribed penalties to be paid to employees who were not afforded a minimum rest break between shifts. When employees were required to commence a new shift less than 10 hours after finishing their last one, that clause required that they be paid at double their ordinary minimum rate of pay (and that they continue to be so paid until such time as they enjoyed 10 hours off duty).

36    Clause 24.5(a)(i) of the Award required that employees who performed work on Saturdays be paid at 150% of their ordinary minimum rate of pay. Again, a minimum engagement period of three hours applied by operation of cl 24.5(a)(ii).

37    Clause 25.4 of the Award prescribed certain shift loadings. In the case of shifts that commenced between 2:00am and 7:00am, employees were entitled to receive an allowance equivalent to 12.5% of their ordinary minimum rate of pay. In the case of shifts that finished after 6:00pm and at or before midnight, they were entitled to an allowance of 15%.

38    An additional allowance—styled a “meal allowance”—was prescribed by cl 16.1 of the Award. Employees who were required to work more than one hour’s overtime after the scheduled end of a shift were entitled to be paid a meal allowance of $16.28.

39    In addition to prescribing wage and other monetary entitlements, the Award also made provision for some administrative obligations. Clause 20.1, in particular, obliged Winit to pay its employees weekly or fortnightly.

40    As has been noted, the applicant’s case extends beyond those requirements of the Award (and the statutory requirement that they be honoured, which s 45 of the FW Act imposed upon Winit). She also alleges that Winit contravened s 44 of the FW Act, which provided as follows:

44 Contravening the National Employment Standards

(1)    An employer must not contravene a provision of the National Employment Standards.

…

41    The “National Employment Standards” are set out at pt 2-2 of the FW Act. Of relevance presently is s 125(1), which provides (and provided) as follows:

125 Giving new employees the Fair Work Information Statement

(1)    An employer must give each employee the Fair Work Information Statement before, or as soon as practicable after, the employee starts employment.

…

42    A Fair Work Information Statement is a document published annually by the applicant under s 124 of the FW Act. By that section, its content must include information about the National Employment Standards, modern awards and various other matters.

43    Section 536 of the FW Act also features in what the applicant alleges. It concerns the creation and provision of pay slips, and relevantly provided as follows:

536 Employer obligations in relation to pay slips

(1)     An employer must give a pay slip to each of its employees within one working day of paying an amount to the employee in relation to the performance of work.

…

(2)     The pay slip must:

(a)     if a form is prescribed by the regulations—be in that form; and

(b)     include any information prescribed by the regulations.

    …

44    The Fair Work Regulations 2009 (Cth) (the “FW Regulations”) made (and make) provision for the form and content that a pay slip must assume and contain in order that its provision to an employee will accord with the requirements of s 536(2) of the FW Act. Of relevance, reg 3.46 provided as follows, namely:

3.46 Pay slips—content

    (1)    For paragraph 536(2)(b) of the Act, a pay slip must specify:

(a)    the employer’s name; and

(b)    the employee’s name; and

(c)    the period to which the pay slip relates; and

(d)    the date on which the payment to which the pay slip relates was made; and

(e)    the gross amount of the payment; and

(f)    the net amount of the payment; and

(g)    any amount paid to the employee that is a bonus, loading, allowance, penalty rate, incentive-based payment or other separately identifiable entitlement; and

(h)    on and after 1 January 2010—the Australian Business Number (if any) of the employer.

…

(3)    If the employee is paid at an hourly rate of pay, the pay slip must also include:

(a)     the rate of pay for the employee’s ordinary hours (however described); and

(b)     the number of hours in that period for which the employee was employed at that rate; and

(c)     the amount of the payment made at that rate.

…

45    Section 340 of the FW Act forms part of pt 3-1, which is entitled “general protections”. It relevantly provides (and provided) as follows:

340 Protection

(1)     A person must not take adverse action against another person:

(a)     because the other person:

(i)     has a workplace right; or

(ii)     has, or has not, exercised a workplace right; or

(iii)     proposes or proposes not to, or has at any time proposed or proposed not to, exercise a workplace right; or

(b)     to prevent the exercise of a workplace right by the other person.

…

…

46    “[A]dverse action” is defined by s 342 of the FW Act. It is unnecessary to set that definition out in any detail, save to observe that it is broad enough to include discriminatory treatment, including in the form of reductions to rostered hours of work that are greater for some employees relative to others. The concept of “workplace right[s]” is established by s 341(1) of the FW Act, which provides as follows:

341 Meaning of workplace right

Meaning of workplace right

(1)     A person has a workplace right if the person:

(a)     is entitled to the benefit of, or has a role or responsibility under, a workplace law, workplace instrument or order made by an industrial body; or

(b)     is able to initiate, or participate in, a process or proceedings under a workplace law or workplace instrument; or

(c)     is able to make a complaint or inquiry:

(i)     to a person or body having the capacity under a workplace law to seek compliance with that law or a workplace instrument; or

(ii)     if the person is an employee—in relation to his or her employment.

…

47    Like s 45, ss 44, 340 and 536(2) are “civil remedy provision[s]”, in respect of the contravention of which this court is empowered to grant relief under ss 545 and 546 equivalent to that which might be granted in respect of contraventions of s 45: FW Act, s 539(1).

The contraventions

48    It is convenient to split the analysis that follows into two parts: the first dealing with the statutory contraventions that are alleged against Winit, in its capacity as the Relevant Employees’ employer; and the second dealing with those alleged against Mr Cheng, who is said to have been “involved in” some of those contraventions (such that he should be understood to have himself committed them).

Contraventions alleged against Winit

49    The statutory contraventions that are alleged against Winit can themselves be separated into two classes: three of them are said to amount to “serious contravention[s]” for the purposes of s 557A of the FW Act; the rest are not.

50    The three “serious contravention[s]” all concern s 45 of the FW Act. The statement of claim charges Winit with having contravened that injunction by reason of each of the following, namely by its failure to:

(1)    pay the Relevant Employees overtime penalty rates of pay in accordance with cl 24.1 of the Award (see above, [31]);

(2)    pay the Relevant Employees (or all but one of them) Sunday penalty rates of pay in accordance with cl 24.5(b)(i) of the Award (see above, [32]); and

(3)    pay the Relevant Employees (or all but four of them) public holiday penalty rates of pay in accordance with cl 24.5(c)(i) of the Award (see above, [33]).

51    The SOAF sets out in some detail the conduct that is said (and is agreed) to have constituted the three contraventions of s 45 of the FW Act just described. It also particularises the amounts that ought to have been but were not paid to the Relevant Employees in consequence of those contraventions. In total, nearly a quarter of a million dollars was improperly withheld from them over the course of the Relevant Period, comprising:

(1)    $141,413.12 for the contravention concerning overtime penalty rates;

(2)    $86,225.66 for the contravention concerning Sunday penalty rates; and

(3)    $21,689.68 for the contravention concerning public holiday penalty rates.

52    Additionally, the SOAF sets out various matters of which it is agreed that Winit had knowledge, at least for the period 1 October 2017 to 30 June 2018. Specifically, Winit (through the agency of Mr Cheng and Ms Li) knew that the Award applied in respect of the Relevant Employees, that it made provision for penalty rates of pay for overtime work, and work performed on Sundays and public holidays, that the Relevant Employees performed such work, and that they were not paid those rates when they did so. The SOAF records that, over that period (1 October 2017 to 30 June 2018—hereafter, the “Serious Contravention Period”), Winit authorised the three contraventions described at [50] above (the “Serious Contraventions”), such that by operation of s 557B(1) of the FW Act, it may be understood to have knowingly contravened s 45 of the FW Act in those ways.

53    The SOAF also records that, by reason of circumstances that needn’t here be rehearsed, the conduct constituting each of the Serious Contraventions was engaged in as part of a systematic pattern of conduct.

54    Those two circumstances—namely, that the contraventions were knowing and committed as part of a systematic pattern—suffice to bring the Serious Contraventions within the ambit of s 557A of the FW Act.

55    It is conceded—and, in light of that concession, I am satisfied—that:

(1)    Winit committed each of the Serious Contraventions (and otherwise, throughout the remainder of the Relevant Period, contravened s 45 in the ways to which each pertains); and

(2)    each such contravention was a serious contravention for the purposes of s 557A of the FW Act.

56    Several other (non-serious) contraventions of s 45 are also alleged against Winit. Specifically, the statement of claim charges it with having failed to:

(1)    pay the Relevant Employees (or all but six of them) sufficient amounts by way of casual loading in accordance with cl 11.4 of the Award (see above, [34]);

(2)    pay the Relevant Employees (or all but three of them) rest period penalty rates in accordance with cl 24.4(c) of the Award (see above, [35]);

(3)    pay two of the Relevant Employees in accordance with cl 24.5(a)(ii) of the Award for the minimum engagement period applicable to work performed on Saturdays (see above, [36]);

(4)    pay three of the Relevant Employees in accordance with cl 24.5(b)(ii) of the Award for the minimum engagement period applicable to work performed on Sundays (see above, [32]);

(5)    pay two of the Relevant Employees in accordance with cl 24.5(c)(ii) of the Award for the minimum engagement period applicable to work performed on public holidays (see above, [33]);

(6)    pay 20 of the Relevant Employees shift allowances in accordance with cl 25.4(a) and (b) of the Award (see above, [37]);

(7)    pay the Relevant Employees meal allowances in accordance with cl 16.1 of the Award (see above, [38]); and

(8)    ensure that the Relevant Employees were paid weekly or fortnightly in accordance with cl 20.1 of the Award.

57    Again, the SOAF contains admissions as to each of those allegations. It identifies both the conduct in which Winit engaged in breach of the relevant clauses of the Award and the amounts that ought to have been but were not paid to the Relevant Employees (specifically as a consequence of the first seven of the eight contraventions described in the preceding paragraph). It is accepted that Winit collectively underpaid the Relevant Employees as follows (the contravention numbers correspond to the numbering in [56] above):

58    Winit concedes that it committed all eight of the contraventions of s 45 set out at [56] above. On the strength of those admissions, I am satisfied that it did.

59    Additionally, the statement of claim accuses Winit of subjecting two employees—Han-Chang Chu and Wei-Chih Huang—to adverse action in contravention of s 340(1) of the FW Act. Those contraventions focus upon reductions that Winit made to those employees’ rostered hours of work after they refused to agree to terms in compromise of their underpayment entitlements (see above, [16]). The reductions so made were greater than those that were made to employees who did agree to equivalent terms.

60    It is not apparent from the SOAF how the refusals to sign the agreements that Winit proposed amounted, in each case, to the possession or exercise of a “workplace right”. Taken by themselves, the representations recorded in the SOAF do not suffice in that regard. But it is not necessary to explore that deficiency further. Winit concedes that the refusals amounted to the exercise of a workplace right and the court is entitled to presume that it does so for good reason (even if that reason is not apparent on the face of the SOAF).

61    In light of its concessions, then, I am satisfied that, by reducing their rostered hours of work by more than what was visited upon other employees; and by doing so because of their refusal to sign terms compromising their underpayment claim rights, Winit subjected the two relevant employees to adverse action in contravention of s 340(1) of the FW Act.

62    The statement of claim also charges Winit with having failed to provide to the Relevant Employees a Fair Work Information Statement as required by s 125(1) of the FW Act. Again, Winit concedes—and I am satisfied—that it did so; and that, by doing so, it contravened s 44(1) of the FW Act.

63    Finally, the statement of claim charges Winit with having failed to provide to the Relevant Employees pay slips containing the information prescribed by the FW Regulations. The SOAF records Winit’s concession in that regard; specifically, that the pay slips that it provided to the Relevant Employees did not contain:

(1)    the employer’s name;

(2)    the employer’s ABN;

(3)    the period to which the pay slip relates;

(4)    the date on which the payment to which the pay slip relates was made; or

(5)    the name, or the name and number, of any superannuation fund to which a superannuation contribution was made.

64    Again on the strength of what is admitted, I am satisfied that Winit contravened s 536(2) of the FW Act as alleged.

Contraventions alleged against Mr Cheng

65    The applicant charges Mr Cheng as an accessory to some of the contraventions of s 45 of the FW Act that I am satisfied that Winit committed, specifically its having:

(1)    failed to pay the Relevant Employees the overtime rates of pay to which they were entitled under cl 24.1 of the Award (see above, [50(1)]);

(2)    failed to pay the Relevant Employees (or all but one of them) the Sunday penalty rates of pay to which they were entitled under cl 24.5(b)(i) of the Award (see above, [50(2)]); and

(3)    failed to pay the Relevant Employees weekly or fortnightly in accordance with cl 20.1 of the Award (see above, [56(8)]).

66    Mr Cheng’s conduct and the state of his knowledge at relevant times are the subject of exploration below. For now, it suffices to note that, on the strength of his admissions (which are recorded in the SOAF), I am satisfied that Mr Cheng was relevantly “involved in” (within the meaning that s 550(1) of the FW Act attributes to that phrase) each of those three of Winit’s contraventions of s 45 of the FW Act (hereafter, the “Accessorial Contraventions”).

Proposed relief

67    The applicant asks the court to grant declaratory relief recording the contraventions that are alleged (and that I am satisfied transpired) and to impose pecuniary penalties upon each of the respondents. In the case of Winit, she seeks penalties totalling between $750,000.00 and $1,000,000.00; and, in the case of Mr Cheng, she seeks penalties totalling between $13,608.00 and $18,648.00.

68    As she has done in other, similar matters, the applicant helpfully particularises the constituent penalty amounts that she says should accumulate toward those totals (or ranges). To that end, she identifies what is described as a “discount” of 20%, which she says should be applied in recognition of the respondents’ cooperation in accepting that they contravened the FW Act in the ways that I have found and in agreeing to the content of the SOAF. Thereafter, she identifies in respect of the individual contraventions some penalty ranges that might be imposed in respect of each, in each case referrable to a nominated percentage of the maximum penalty that the court is authorised to impose, minus that “discount”.

69    Insofar as concerns Winit, the applicant submits that the court should impose penalties as follows, namely:

(1)    in relation to the Serious Contraventions, where the maximum penalty that the court is authorised to impose is $630,000.00 (making the discounted maximum $504,000.00):

(a)    for its failure to pay overtime penalty rates (see above, [50(1)]), between 50% and 70% of the discounted maximum;

(b)    for its failure to pay Sunday penalty rates (see above, [50(2)]), between 40% and 50% of the discounted maximum; and

(c)    for its failure to pay public holiday penalty rates (see above [50(3)]), between 40% and 50% of the discounted maximum; and

(2)    in relation to the other (non-serious) contraventions, where the maximum penalty that the court is authorised to impose is $63,000.00 (making the discounted maximum $50,400.00):

(a)    for its failure to pay sufficient casual loadings (see above, [56(1)]), between 15% and 20% of the discounted maximum;

(b)    for its failure to pay rest period penalty rates (see above, [56(2)]), between 70% and 80% of the discounted maximum;

(c)    for its failure to pay shift allowances (see above, [56(6)]), between 40% and 50% of the discounted maximum;

(d)    for its failure to pay wages weekly or fortnightly (see above, [56(8)]), between 15% and 25% of the discounted maximum;

(e)    for its having taken adverse action against Han-Chang Chu and Wei-Chih Huang (see above, [61]), between 60% and 70% of the discounted maximum;

(f)    for its failure to provide employees with a Fair Work Information Statement (see above, [62]), between 30% and 40% of the discounted maximum; and

(g)    for its failure to include prescribed information on pay slips (see above, [63]-[64]), between 15% and 25% of the discounted maximum.

70    Insofar as concerns Mr Cheng, the applicant submits that the court should impose penalties as follows, namely:

(1)    for his involvement in Winit’s failure to pay overtime rates (see above, [65(1)]), between 60% and 80% of the discounted maximum (namely $10,080.00, which is 80% of the $12,600.00 maximum that the FW Act authorises);

(2)    for his involvement in Winit’s failure to pay Sunday penalty rates (see above, [65(2)]), between 60% and 80% of the discounted maximum; and

(3)    for his involvement in Winit’s failure to pay weekly or fortnightly (see above, [65(3)]), between 15% and 25% of the discounted maximum.

71    The applicant then submits that the sum of the penalties to be imposed should (at least in the case of Winit) be reduced by operation of the so-called “totality” principle to the total figures (or ranges) identified above (at [67]).

72    The respondents accept that the court should impose penalties on account of the contraventions that are agreed (and that I am satisfied transpired). As is common, they contend that penalties set at lower levels of severity are more appropriate than what the applicant has proposed. They also submit that the court should give effect to a higher “discount” of 25% (rather than 20%) in light of their cooperation and contrition.

73    Winit submits that appropriate penalties for the contraventions in which it engaged, taking account of a “discount” and application of the “totality” principle, would total “…something closer to [$]400,000”. Mr Cheng contends that penalties appropriate to his contraventions should be set at between $12,758.00 and $17,483.00.

74    I shall deal in turn with each of the two primary species of relief (declarations and penalties) for which the applicant moves.

Declaratory relief

75    The applicant proposes that the court should grant relief in the form of declarations that reflect the findings that I have made as to the court’s satisfaction that the respondents committed the statutory contraventions outlined above (specifically, at [55], [58], [61], [62], [64] and [66]). Neither Winit nor Mr Cheng oppose the granting of relief in the form that the applicant has proposed.

76    As was made clear from the opening paragraphs of these reasons, I am satisfied that it is appropriate to (and I will) impose upon both of the respondents pecuniary penalties for the conduct in which they have engaged in contravention of the FW Act. In light of that—and for the reasons set out below—I am not persuaded that there is utility in also granting declaratory relief.

77    I have arrived at that position notwithstanding the obvious appeal of simply giving the applicant relief that isn’t opposed. That is the outcome that plays out more often than not in this court in matters such as this one and it would be very easy to simply replicate that presently. Indeed, the demands on the court in modern times are such that that proverbial course of least resistance is attractive, as the parties likely appreciate.

78    Nonetheless, declaratory relief is not to be granted merely because it is asked for and not opposed, and/or because the court is too busy not to grant it. It has been said that the court’s discretion to grant declaratory relief should “…be exercised ‘sparingly,’ with ‘great care and jealousy,’ with ‘extreme caution,’ [and] with ‘the utmost caution’” and, at all events, with “…a proper sense of responsibility and a full realisation that judicial pronouncements ought not to be issued unless there are circumstances that call for their making”: Ibeneweka v Egbuna [1964] 1 WLR 219, 224-225 (Viscount Radcliffe, Guest and Upjohn LJJ); Ainsworth v Criminal Justice Commission (1992) 175 CLR 564, 596 (Brennan J).

79    In Fair Work Ombudsman v PTES 928 Pty Ltd [2023] FCA 934 (hereafter, “PTES”), I had occasion to consider the appropriateness of declaratory relief in a matter materially similar to this one. I made the following observations:

It is well accepted that the court has the power to grant declaratory relief that does nothing more than state that a respondent’s prior conduct was engaged in in contravention of a statute: Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) v Milin Builders Pty Ltd [2019] FCA 1070 (Snaden J; hereafter Milin), [85]. The authorities suggest that the court may adopt that course as a means of marking its disapproval of conduct that is found to have been undertaken in breach of a statute; and that there might be circumstances in which declaratory relief is appropriate to realise some broader educative or deterrent effect, or otherwise to vindicate or assist an applicant’s action: Milin, [98]. In Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (2017) 254 FCR 68 (Dowsett, Greenwood and Wigney JJ), the full court of this court held (at 87 [93]) that “[d]eclarations relating to contraventions of legislative provisions are likely to be appropriate where they serve to record the Court’s disapproval of the contravening conduct, vindicate the regulator’s claim that the respondent contravened the provisions, assist the regulator to carry out its duties, and deter other persons from contravening the provisions”.

There is now at least some reason to doubt those propositions. In Australian Building and Construction Commissioner v Pattinson (2022) 399 ALR 599 (Kiefel CJ, Gageler, Keane, Gordon, Edelman, Steward and Gleeson JJ; hereafter, “Pattinson”), the High Court made clear, at least in the context of relief in the form of pecuniary penalties, that “appropriate” relief is relief that is calculated to deter repetition of the conduct in respect of which it is imposed; both specifically, in the case of the respondent that engaged in it, and generally, in the case of other persons who might otherwise be minded to emulate that conduct in the future. In other words, relief—or, at the least, relief in the nature of penalties—will be “appropriate” insofar as its imposition seeks to vindicate the public interest in ensuring “…compliance with norms of industrial behaviour prescribed by Parliament”: Construction, Forestry, Maritime, Mining and Energy Union v Australian Building and Construction Commissioner (The Broadway on Ann Case) (2018) 265 FCR 208, 226 [69] (Logan J, with whom Tracey J agreed).

Insofar as that reasoning may be applied beyond the realm of pecuniary penalties, it would seem that considerations such as the vindication of a regulator’s claims and the provision of some species of judicial “assistance” should not, absent some deterrent effect, factor in the court’s assessment of the appropriateness of declaratory relief. Why, it might rhetorically be asked, should the assessment of what is “appropriate” for the purposes of s 545(1) of the FW Act proceed otherwise than upon the same considerations that guide assessments of what is “appropriate” for the purposes of s 546(1)? In other words, why should declaratory (or any other form of non-penal) relief be thought to be “appropriate” unless its imposition can be understood to visit some deterrent effect, specifically or generally?

80    Ultimately, I proceeded on the basis that “…nothing said by the High Court in Australian Building and Construction Commissioner v Pattinson (2022) 274 CLR 450 (hereafter, “Pattinson”) serves to alter what this court has said about the appropriateness of declaratory relief in cases such as this one, or about the considerations that guide the court in assessing whether or not particular declaratory relief is appropriate in any given case.”

81    In this matter, the applicant accepts that declaratory relief would be appropriate only insofar as it might serve to deter, specifically or generally, repetition of the conduct in respect of which it was granted. She submits that declaratory relief would, in this case, serve that very end.

82    Here, the deterrent effect to be realised by the declaratory relief that the applicant proposes is said to lie in the following, namely that it will:

(1)    mark the court’s disapproval of the contravening conduct;

(2)    explain the basis for any penalties that the court may determine should be imposed on the respondents;

(3)    help to educate employers about their obligations to employees, including their obligations to comply with modern awards;

(4)    warn employers of the consequences of failing to comply with Commonwealth workplace laws;

(5)    assist the applicant to carry out her duties in the future; and

(6)    assist in achieving general deterrence.

83    Additionally, it is said that there is further utility in the court granting declaratory relief in respect of the Serious Contraventions that I am satisfied transpired. The applicant submits that relief in the form of declarations as proposed is appropriate because “…[a] declaration as to a ‘serious contravention’ is an unequivocal mark of the fact that conduct occurred, and of its gravity.”

84    I am compelled to pause so as to address that last contention. The parties accept—and I have found—that Winit committed the Serious Contraventions. I am going to impose significant financial penalties in respect of them. There is no ambiguity in any of that. The conduct did occur and its gravity is already unequivocal. It is not apparent to me how any form of declaratory relief might add to that.

85    In relation to the conduct in which the respondents engaged in contravention of the FW Act, I am not persuaded that any grant of declaratory relief will serve to realise any marginal deterrent benefit, either specifically or generally, additional to that which will flow from the significant pecuniary penalties that I intend to impose. I am, in other words, of the same opinion in this case as that to which I have been drawn in other, similar matters. I need not repeat (although I adopt, with appropriate adaptation) the observations that I made in PTES, [66]-[69].

86    There will be no declaratory relief.

Pecuniary penalties—principles to be applied

87    In PTES, [71]-[75], I made the following observations about the principles that regulate the court’s jurisdiction to impose pecuniary penalties under the FW Act:

The principles that guide the imposition of civil penalties for contraventions of the FW Act (and, indeed, generally) are well-settled. They are distilled in the joint judgment of Kiefel CJ, Gageler, Keane, Gordon, Steward and Gleeson JJ in Pattinson. In Fair Work Ombudsman v Roach (The Melbourne Quarter Case) [2023] FCA 781, Wheelahan J, referring to Pattinson, summarised them as follows (at [13]):

(1)    The purpose of the civil penalty regime under the FW Act is primarily, if not solely, the promotion of the public interest in compliance with provisions of the Act by the deterrence of further contraventions of the Act.

(2)    Reflecting the text of s 546 of the FW Act, the Court’s task is to determine what it considers to be an “appropriate” penalty in a particular case. A penalty should not be greater than is necessary to achieve the object of deterrence, and severity beyond that would be oppression. An appropriate penalty is one that strikes a reasonable balance between oppressive severity and the need for deterrence in respect of the particular case.

(3)    The assessment of an appropriate penalty may be informed by the factors listed by French J in Trade Practices Commission v CSR Ltd (1991) ATPR 41 076 at 52,152 3 to the extent that those factors relate to deterrence. However, that list is not a rigid catalogue of matters for attention as if it were a legal checklist. Account of the factors listed by French J in CSR, such as an expression of genuine remorse, may moderate the penalty that is appropriate to protect the public interest by deterring future contraventions of the FW Act.

(4)    Some concepts familiar from criminal sentencing, such as totality, parity, and course of conduct may assist in the assessment of what may be considered reasonably necessary to deter further contraventions of the FW Act.

(5)    The maximum penalties provided for by the FW Act are not reserved for the worst cases. Rather, what is required is that there be some reasonable relationship between the theoretical maximum and the final penalty imposed viewed through the lens of achieving the deterrence which is the purpose of the FW Act civil penalty regime.

(6)    In some cases, the circumstances of the contravener may be more significant to the assessment of an appropriate penalty than the circumstances of contravention, because, all other things being equal, a greater financial incentive will be necessary to persuade a well resourced contravener to abide by the law rather than to adhere to its preferred policy than will be necessary to persuade a poorly resourced contravener that its unlawful policy preference is not sustainable.

In determining what penalties are appropriate in the present case, the court’s discretion is very broad: A & L Silvestri Pty Limited v Construction, Forestry, Mining and Energy Union [2008] FCA 466, [6] (Gyles J). The task of assessing what amount to impose is one of instinctive synthesis that involves the selection of a figure that takes due account of all factors relevant to the particular case: Flight Centre Ltd v Australian Competition and Consumer Commission (No 2) (2018) 260 FCR 68, 84 [55] (Allsop CJ, Davies and Wigney JJ); Australian Competition and Consumer Commission v Reckitt Benckiser (Australia) Pty Ltd (2016) 340 ALR 25, 36 [44] (Jagot, Yates and Bromwich JJ).

The sole object to which the court must give effect in setting appropriate penalties is to deter the repetition of the conduct in respect of which they are to be imposed: Construction, Forestry, Maritime, Mining and Energy Union v Australian Building and Construction Commissioner (The Non-Indemnification Personal Payment Case) (2018) 264 FCR 155 (hereafter, the “NIPP Case”), 167 [19] (Allsop CJ, White and O’Callaghan JJ). Deterrence, in that sense, is both specific and general: the court must endeavour to “…put a price on contravention that is sufficiently high to deter repetition by the contravenor and by others who might be tempted to contravene [the Act]”: Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (2017) 254 FCR 68, 88 [98] (Dowsett, Greenwood and Wigney JJ); Trade Practices Commission v CSR Ltd (1991) ATPR 41-076, 52,152 (French J).

In the NIPP Case (Allsop CJ, White and O’Callaghan JJ), the full court set the task in the following terms (at 167 [20]-[21]):

Relevant factors in the overall assessment of penalty were helpfully listed by French J in CSR. They have been adopted in many cases. For present purposes, they can be restated as follows: the nature, character and seriousness of the conduct; the loss and damage caused; the circumstances in which the conduct took place; the size of the contravener and its degree of power; the deliberateness of the conduct and the time over which it occurred; the degree of involvement of senior officials or management; the culture of the organisation as to compliance or contravention; and, any co-operation with the regulator and contrition.

The seriousness of the contravention and other features of the conduct which may be seen as relevant to it…find their place in understanding the degree of deterrence that is necessary to be reflected in the size of the penalty: Flight Centre Ltd v Australian Competition and Consumer Commission (No 2) [2018] FCAFC 53; (2018) 260 FCR 68 at [71].

Inherent in realising the sole objective to which its imposition is directed is a recognition that a civil penalty “…must be fixed with a view to ensuring that the penalty is not such as to be regarded by [the] offender or others as an acceptable cost of doing business”: Australian Competition and Consumer Commission v TPG Internet Pty Ltd (2013) 250 CLR 640, 659 [66] (French CJ, Crennan, Bell and Keane JJ); Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (2017) 249 FCR 458, 481 [101] (Dowsett and Rares JJ, North J dissenting—hereafter, the “Perth Airport Case”).

88    Those observations apply with equal force in the present matter. The principles that they describe are not in dispute. I will address their application as against each of the respondents.

Penalties to be imposed upon Winit

89    It is agreed (and I find) that, over the course of the 12-month Relevant Period, the Relevant Employees were collectively underpaid nearly $370,000.00—or an average of $12,289.47—relative to what ought to have been paid to them under the Award. On any measure, that is a substantial amount.

90    Overwhelmingly, the Relevant Employees hail from migrant backgrounds. The majority of the approximately 175 employees that Winit employed over the Relevant Period were temporary visa holders. I have no hesitation in inferring that few, if any, would have enjoyed much in the way of knowledge of the Award system or their entitlements under the FW Act. All the more readily might that be inferred given Winit’s failure to provide to them a Fair Work Information Statement.

91    Winit’s conduct in contravening the Award was, on any view, troubling. Particularly is that so insofar as concerns the Serious Contraventions, which were deliberate and systematic. On the evidence, it is clear that Winit knew that it had obligations under the Award but made a decision regardless to set flat rates of pay for its employees that were not sufficient to meet them. It rostered the Relevant Employees to work hours that attracted liability for penalty rates, which were then deliberately not paid.

92    Indeed, it is apparent that all of Winit’s contraventions occurred against the backdrop of at least some degree of executive appreciation—at least on the part of Mr Cheng—that the Award applied.

93    When alerted to its wrongdoing, Winit’s initial response was not to correct it or take steps to ensure that it wouldn’t be repeated: it was to negotiate a monetary compromise. Worse, when two of its employees pushed back on that course, it took reprisal action against them in the form of reduced working hours (over and above reductions imposed upon other employees).

94    Worse still (although it cannot factor into present calculations), it is clear on the evidence that Winit’s Award misfeasance extended beyond the Relevant Employees and the Relevant Period. The underpayments in respect of which the court is to impose appropriate penalties are not the whole picture.

95    Perhaps some of Winit’s conduct can be explained—although not excused—by its rapid growth. Winit is the local emanation of a larger business based in China, from which it receives all of its funding. It began its Australian operations in 2013 and opened the Regents Park warehouse a little over 12 months later. At that point, its operations spanned just 12 employees.

96    In the years leading to the commencement of the Relevant Period, its headcount would expand more than ten-fold. It seems uncontroversial to observe that that increase in activity must have visited some corresponding increase in the demands upon its payroll function. Regrettably, such efforts as were made to bolster that function, if any, appear not to have had the desired (compliance) effect. Despite its rapid growth, Winit did not seek professional assistance or advice concerning its employment or remuneration arrangements.

97    One measure that was implemented—at the start of 2016—was a move from permanent to casual employment. That, so Mr Cheng deposed, was engineered partly because Winit’s employees had indicated that they were not particularly interested in accruing leave entitlements. Plainly, there was some consciousness on the part of Winit that that was something that could be achieved by changing the basis upon which Winit’s employees were engaged.

98    There are, though, some redeeming features inherent in Winit’s conduct. Broadly, it has shown a healthy measure of cooperation toward the applicant and her office’s attempts to investigate its non-compliance with the Award. It ensured that it was competently represented over the course of those efforts by reputable law firms, which have assisted it in putting in place mechanisms to ensure that its Award transgressions will not be repeated.

99    It has also, at considerable cost, engaged specialist auditing assistance to ascertain for itself the scope of its Award underpayment. By February 2019, those efforts had seen it back-pay its employees a total of $245,500.00. Toward the end of 2019, a bleaker picture emerged: it appeared that, between 2014 and 2019, Winit had underpaid nearly 400 employees a collective sum of more than $3.6 million. Throughout 2020, Winit took steps to contact those employees (or a majority of them) and pay them what the audit had identified.

100    Winit has also invested in specialist payroll technology, which is now deployed in its Sydney and Melbourne warehouses. Its efforts in those regards disclose a commendable consciousness of wrongdoing, a level of regret that it occurred and a determination to correct it into the future. By his affidavit, Mr Cheng expressed what I have no doubt was his genuine regret that the Relevant Employees were underpaid as they were.

101    None of that, though, undermines the scale of Winit’s misconduct. It remains that a significant number of employees were underpaid significant amounts over a relatively short period of time; in each case, at the direction of (if not with the knowledge of) its management. That it is funded entirely by receipts from its Chinese parent company may be accepted; but it does not appear to want greatly for funds when they are needed, as its remediation efforts have made clear.

102    I turn, then, to the individual contraventions and what should suffice by way of penalty to deter their repetition, both by Winit and by others. I shall address the contraventions in the order that they are listed above.

103    Insofar as concerns Winit’s failure to pay overtime rates of pay (above, [50(1)], I consider that the penalty proposed by the applicant—between 50% and 70% of the maximum (discounted by 20% to reflect Winit’s cooperation)—is more severe than is warranted, albeit not considerably so. Whilst I should be very careful not to excuse the scale or undoubted enormity of its transgressions, Winit is a first-time contravenor of s 45 of the FW Act, which has responded to its misdeeds in a way that bespeaks an acceptance of wrongdoing and a determination to ensure against its repetition in the future. I consider that a penalty set at 30% of the (undiscounted) maximum is appropriate to deter repetition of Winit’s conduct; both by it and by other employers who might be minded to emulate it.

104    As concerns Winit’s failure to pay Sunday penalties (above, [50(2)]) and public holiday penalties (above, [50(3)]), I am of substantially the same opinion (namely, that what the applicant proposes, though lower than what is proposed in respect of overtime penalties, is nonetheless slightly higher than what is appropriate). I consider that penalties set at 25% and 20% (respectively) of the (undiscounted) maximum are appropriate to deter Winit’s misconduct, both generally and specifically.

105    In relation to the non-payment of sufficient casual loadings (above, [56(1)]), the lower boundary of the penalty range proposed by the applicant is appropriate, particularly given the modest amount of the collective underpayment. I will set a penalty for that contravention equal to 12% of the maximum that is available.

106    The applicant proposes that the court should impose a penalty of between 70% and 80% of the maximum (discounted by 20%) in respect of Winit’s failure to pay rest period penalty rates (above, [56(2)]). Respectfully, that range is well above what I consider to be appropriate having regard to the nature and seriousness of Winit’s misconduct (and what might be thought to be appropriate in order to deter its repetition). True it is that the amount that was collectively underpaid is substantial—more than $70,000.00—but, again, I would reserve penalties within that range for conduct more egregious than what has here occurred. I am, in particular, conscious of Winit’s efforts to remediate its conduct and ensure against its repetition in the future. I consider, in all of the circumstances, that a penalty set at 27.5% of the maximum available is appropriate for deterrence purposes.

107    The applicant does not invite the court to impose any penalty in respect of Winit’s failure to pay in accordance with the minimum engagement periods applicable on Saturdays, Sundays or public holidays (above, [56(3)], [56(4)] and [56(5)]). That is said to reflect the overlap between the conduct that gave rise to those contraventions and Winit’s related failures to pay weekend and public holiday penalty rates. In the case of minimum Saturday engagement periods, it likely also reflects the relative triviality of the amount that was underpaid (a little over $200.00). I am satisfied, in the circumstances, that what is proposed is appropriate.

108    Insofar as concerns Winit’s failure to pay shift allowances (above, [56(6)]), the applicant submits that a penalty of between 40% and 50% of the maximum (discounted by 20%) is appropriate. I am not persuaded that that is so. Again, the amount of the underpayment in question, while not immaterial, is not egregious. It averages just shy of $325.00 per affected employee over the Relevant Period. I consider that a penalty set at 20% is appropriate in all of the circumstances.

109    No penalty is sought in relation to Winit’s failure to pay meal allowances. That is because, although it failed to pay the allowance, Winit did, in fact, provide meals to employees when they were required to work evenings. It appears to be accepted that, although technically in breach of the Award, Winit nonetheless operated consistently with its spirit. In all of the circumstances, I consider it appropriate that no penalty be imposed in respect of that contravention.

110    The applicant invites the court to impose a penalty set at between 15% and 25% of the discounted maximum in respect of Winit’s failure to pay the Relevant Employees weekly or fortnightly (above, [56(8)]). That equates (at the lower end of that range) to a penalty of $7,560.00. It is to be recalled that the Relevant Employees were paid monthly, rather than weekly or fortnightly. There is no evidence before the court as to what, if any, impact that visited upon any of them but it is not difficult to imagine that there must have been at least some adverse impacts. Given Winit’s contrition and efforts to ensure that its conduct is not repeated, I consider a penalty set at $7,560.00 is appropriate.

111    As concerns Winit’s two general protections contraventions—that is, its subjection of two of the Relevant Employees to adverse action in breach of s 340(1) of the FW Act (above, [61])—the applicant invites the court to impose a single penalty set at between 60% and 70% of the maximum (discounted by 20%). It is accepted that the two contraventions share common elements and that, applying the common law course of conduct test (see, for example, Construction, Forestry, Mining and Energy Union v Cahill (2010) 269 ALR 1, 12 [39] (Middleton & Gordon JJ), a single penalty is appropriate in respect of them.

112    The conduct constituting the contraventions of s 340(1) of the FW Act has already been rehearsed. It is difficult to overstate how concerning was Winit’s response to the refusal of the two employees in question to sign its proposed compromise. Again, there is no evidence about the impact that the relative reduction in working hours visited upon the two employees; but it is obvious enough that it was unlikely to have been positive. Winit’s conduct is deserving of a stern penalty; one set at a meaningful level that serves to deter both it and other employers from committing similar contraventions in the future.

113    Nonetheless, I consider that what the applicant proposes in that regard is beyond what is appropriate, albeit not by a significant margin. Having regard to the nature of the conduct, the cooperation that Winit has exhibited since the applicant’s office began its investigations and the contrition that Winit has demonstrated by its actions since, I consider that a penalty set at 40% of the maximum available is appropriate.

114    Insofar as concerns Winit’s failure to provide the Relevant Employees with Fair Work Information Statements (above, [62]), the applicant submits that a penalty set at between 30% and 40% of the (discounted) maximum is appropriate.

115    It is not immediately apparent what impact Winit’s failure to provide its employees with Fair Work Information Statements might have visited. The statutory prescriptions as to the content that such statements must contain are not such as to suggest, or necessarily suggest, that its provision in this case might have alerted the Relevant Employees to their rights sooner than occurred. Perhaps it might have.

116    Nonetheless, the obligation to provide Fair Work Information Statements is one of many that comprise the National Employment Standards that are established by pt 2-2 of the FW Act. It is no mere triviality. Here, Fair Work Information Statements ought to have been provided and Winit’s failure to provide them is deserving of a meaningful penalty. Appreciating Winit’s acceptance of wrongdoing and its determination that it should not be repeated, I consider that a penalty set at 20% of the maximum available—or $12,600.00—is appropriate.

117    Finally, as concerns Winit’s failure to provide the Relevant Employees with compliant pay slips (above, [64]), the applicant submits that the court should impose a penalty set at between 15% and 25% of the (discounted) maximum. Again, there is no evidence that contextualises the impact that Winit’s failure visited upon any of the Relevant Employees. It may be that it simply resulted in the employees being denied a record of the kind to which they were entitled under the FW Act. In the circumstances, I agree that a penalty set within the range that the applicant nominates is appropriate. I will impose a penalty set at 12.5% of the (non-discounted) maximum available.

118    By way of summary, then, I am minded to impose upon Winit the following penalties, namely:

119    The so-called “totality principle” requires that, before proceeding to levy multiple penalties, the court should consider whether the total of what is proposed is proportionate to the wrongdoing that warrants them. Given the scale of what I propose to impose, consideration of the totality of the penalties that are in contemplation is particularly important. There can be no doubt that penalties in the order of $563,220.00 represent a significant imposition upon Winit. There is good reason why they should. The court must exact a heavy toll: not merely to ensure that Winit is brought to account for its obnoxious conduct; but also to serve as a warning to other employers who might be minded to ignore their own important Award and statutory obligations in the way that Winit did.

120    Looking at them in their totality, I am satisfied that it is appropriate to reduce the total amount slightly, and to impose upon Winit penalties totalling $550,000.00. Penalties totalling that amount strike an appropriate balance between deterrence and oppressive severity: Pattinson, 468 [41] (Kiefel CJ, Gageler, Keane, Gordon, Steward and Gleeson JJ). There shall be an order to that effect.

Penalties to be imposed upon Mr Cheng

121    Mr Cheng is not in the same position as Winit. As has been noted, he is said to have been—and, on the strength of his admissions, I have found that he was—involved in each of the Accessorial Contraventions. By operation of s 550(1) of the FW Act, he is to be taken to have himself committed those same contraventions.

122    His conduct in doing so, however, does not inhere in the form of failures to pay what the Award required. That obligation fell uniquely upon Winit, as the Relevant Employees’ employer. Mr Cheng’s involvement in the Accessorial Contraventions necessarily involved different conduct—that is, different acts or omissions—in which he engaged with a state or states of mind that were sufficient to associate him with Winit’s wrongdoing.

123    The conduct in which Mr Cheng engaged so as to involve himself (for the purposes of s 550(1) of the FW Act) in the Accessorial Contraventions is not clear from the SOAF. Nonetheless, it was the subject of exploration with counsel during the hearing and does not appear to be materially in contest. It is accepted that Mr Cheng was the officer who, on behalf of Winit, determined to pay the Relevant Employees the rates of pay that they ultimately received. By doing so—and, in particular, by doing so with knowledge that what would be paid would be insufficient to meet Winit’s obligations with respect to overtime and Sunday penalty rates—Mr Cheng is (and accepts that he is) to be understood as having been involved in Winit’s corresponding contraventions of the Award.

124    Additionally, it is common ground that it was Mr Cheng who determined that employees should be paid monthly, and that he did so despite knowing that the Award required more frequent payment. His conduct and state of mind suffice to associate him with (that is to say, to involve him in, for the purposes of s 550(1) of the FW Act) Winit’s contravention of cl 20.1 of the Award. There is no controversy that that is so.

125    Counsel for the applicant properly accepted Mr Cheng’s involvement in Winit’s non-payment of overtime and Sunday penalty rates arose from the same conduct or course of conduct (specifically, from his decision to pay the rates of pay that the Relevant Employees received). There is, then, no doubt that his involvement in those two contraventions of s 45 of the FW Act is, by operation of s 557(1) of the FW Act, to be taken to constitute him as having committed a single contravention of that section.

126    There are, then, two instances or courses of conduct in respect of which the court is to consider appropriate penalties to be imposed upon Mr Cheng. As with Winit, it is appropriate to record some observations about that conduct.

127    On any view, Mr Cheng’s involvement in the Accessorial Contraventions was troubling. It is apparent that, despite being aware of the Award and the obligations that it imposed, Mr Cheng instead determined that Winit should not meet them. His conduct was, it seems, deliberate and engaged in with knowledge that it would result in the Accessorial Contraventions that Winit committed.

128    Against that, Mr Cheng is, like Winit, a first-time (and, one would hope, a one-time-only) contravenor of s 45 of the FW Act. It is predominantly through him that Winit has exhibited its acceptance of wrongdoing, its contrition and its determination not to repeat what occurred. There can be no doubt that, in light of those realities, the needs of specific deterrence loom less largely in respect of Mr Cheng than they otherwise might.

129    Insofar as concerns Mr Cheng’s having determined the rates that were paid to the Relevant Employees (and, thereby, his having led Winit to contravene the overtime and Sunday penalty rate provisions of the Award—see above, [65(1)] and [65(2)]), the applicant submits that the court should impose a penalty of between 60% and 80% of the maximum available (discounted by 20% on account of Mr Cheng’s cooperation with the applicant). Mr Cheng submits that that range is appropriate, save that he invites the court to apply a greater cooperation “discount” of 25%.

130    Respectfully, it is not apparent to me why the court should impose upon Mr Cheng penalties set at levels materially different from those that will be imposed upon Winit for the equivalent contraventions. Some allowance should, I accept, be made for the fact that the applicant does not seek to constitute Mr Cheng’s contraventions as “serious contravention[s]” under s 557A of the FW Act. In all of the circumstances, I consider that Mr Cheng’s decision to determine what the Relevant Employees should be paid (and, thereby, his involvement in Winit’s contraventions of the overtime and Sunday penalty rate provisions of the Award) should attract a penalty set at 45% of the maximum available. A penalty of that magnitude strikes an appropriate balance between oppressive severity and the needs of deterrence (both specific and general).

131    As regards Mr Cheng’s decision to pay the Relevant Employees monthly, rather than weekly or fortnightly (above, [65(3)]), the applicant invites the court to impose a penalty set at between 15% and 25% of the discounted maximum. That is the same range as was proposed in respect of Winit. Respectfully, I consider that a slightly higher penalty percentage should apply in respect of Mr Cheng, partly on account of the much smaller maximum amount that is available (which, in my view, affects the court’s realisation of the deterrent effect that it must attempt to realise) and partly because Mr Cheng’s knowing indifference toward what the Award required is an aggravating factor worthy of some attention. I consider that it is appropriate to impose upon Mr Cheng a penalty set at 20% of the maximum available.

132    I pause to note that the penalties that I intend to impose upon Mr Cheng amount to less than what he invited the court to impose. Ordinarily, I would hesitate to indulge such a course; but, in this case, the lower figure that I favour arises predominantly as a result of the concession that the applicant properly made as to the single course of conduct that gave rise to two of the three Accessorial Contraventions in which Mr Cheng was relevantly involved. No doubt for reasons that one might understand, Mr Cheng appears not to have considered that possibility when shaping his submissions as to the scale of penalties to be imposed upon him.

133    Regardless (and by way of summary), I intend to impose upon Mr Cheng the following penalties, namely:

134    As with Winit, the “totality principle” requires that, before levying multiple penalties, the court should consider whether the total of what is proposed is proportionate to the whole of the wrongdoing to which it relates. I am satisfied that penalties totalling $8,190.00 are proportionate to the wrongdoing in which Mr Cheng was relevantly involved and will visit the deterrent effect (both general and specific) to which the imposition of penalties is directed.

Conclusion

135    I will make orders imposing upon the respondents penalties totalling the amounts set out above in respect of each of them. The amounts so imposed will be made payable to the Commonwealth within 28 days. Section 570 of the FW Act operates to preclude the making of any order for costs and, in any event, the applicant does not seek one. None will be made.

136    By her originating application, the applicant also requested an order granting her liberty to apply on seven days’ notice in the event that the respondents fail to comply with any of the court’s orders. That was not the subject of submission and, although not negatively disposed toward relief of that nature, I am nonetheless inclined to leave questions of compliance for consideration if or when they arise.

Associate:

Dated:    11 October 2023