Federal Court of Australia

Shergill v Singh (No 2) [2024] FCA 261

ORDERS

THE COURT ORDERS THAT:

1.    The respondent, Mr Navdeep Suri Singh, pay a pecuniary penalty to the applicant, Ms Shergill, of $97,200 within 60 days.

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

REASONS FOR JUDGMENT

RAPER J:

1    This decision concerns what appropriate penalty should be fixed as a consequence of the orders made and my reasons for judgment in Shergill v Singh [2023] FCA 1346 (liability judgment or LJ). Ms Shergill was a member of a proportion of Australian workers who are invisible from Australian society: Their work and entire existence is entrapped within domestic servitude. These workers, by fear, the precarious nature of their employment arising from their visa status, their lack of language skills, complete isolation and their slave-like working conditions, are precluded from participating in our society and huddling under the cloak of our societal protections. Their invisibility breeds exploitation and unlawful practices.

2    As observed in the liability judgment, Ms Shergill’s working conditions bore no semblance with what might be expected by Australian society. Ms Shergill was a domestic worker in the house of Mr Suri, who was then the Indian High Commissioner to Australia. Her employment conditions, which included her passport being taken from her, working seven days a week, never being permitted to take leave and only being allowed outside the house for brief periods in the day when looking after Mr Suri’s dog, involved significant breaches of Australian law: at LJ[2]. Mr Suri, the former High Commissioner of India in Australia, set about deliberately to avoid his obligations under Australian law to pay Ms Shergill her entitlements. It is without question that Ms Shergill was employed by him personally and not the Indian High Commission. It is without question that Mr Suri was, as was Ms Shergill, subject to the rights, obligations and protections under Australian law.

3    In the liability judgment, I made declarations that, between 24 September 2015 and 26 May 2016, the respondent (Mr Suri) contravened ss 323, 536, 44(1) and 45 of the Fair Work Act 2009 (Cth), each of which is a civil penalty provision. I also ordered that Mr Suri pay $136,276.62 plus interest within 60 days of the orders. That order has not been complied with.

4    The declaration made was in the following terms:

1.     The respondent contravened the following civil remedy provisions in the period between 24 September 2015 and 26 May 2016 (the employment claim period):

(a)     section 323 of the Fair Work Act 2009 (Cth) by failing to pay the applicant amounts payable to her in relation to the performance of work in full, at least monthly and by one of the methods specified in s 323(2) of the FW Act;

(b)     section 536 of the FW Act by failing to provide the applicant with a pay slip within one working day of paying her an amount in relation to her performance of work;

(c)     section 44(1) of the FW Act by contravening a provision of the National Employment Standards, being s 90(2) of the FW Act, by failing to pay the applicant when employment ended the amount that would have been payable to her had she taken that period of annual leave;

(d)     section 45 of the FW Act by:

(i)     failing to pay the applicant minimum wages under cl 14.1 and Sch B of the Miscellaneous Award 2010 during the employment claim period;

(ii)     failing to provide an arrangement for ordinary hours of work under cll 10.2 and 20 of the Award;

(iii)     failing to provide an unpaid break of at least 30 minutes where the applicant was required under cl 21 of the Award;

(iv)     failing to pay overtime rates prescribed under cl 22.1 of the Award;

(v)     failing to pay penalty rates for work performed on public holidays as prescribed under cl 22.2 of the Award; and

(vi)     failing to pay an annual leave loading of 17.5% on top of the paid annual leave required under the National Employment Standards, as prescribed under cl 23.3 of the Award.

5    For the reasons which follow, I am of the view that Mr Suri should pay the appropriate penalty in all the circumstances which is the statutory maximum of $97,200.

Power to order pecuniary penalties

6    Section 546(1) provides that the 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 penalty provision”.

7    In full, s 546 provides:

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.

Note 1: Pecuniary penalty orders cannot be made in relation to conduct that contravenes a term of a modern award, a national minimum wage order or an enterprise agreement only because of the retrospective effect of a determination (see subsections 167(3) and 298(2)).

Note 2: Pecuniary penalty orders cannot be made in relation to conduct that contravenes a term of an enterprise agreement only because of the retrospective effect of an amendment made under paragraph 227B(3)(b) (see subsection 227E(2)).

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.

Recovery of penalty

(4)    The pecuniary penalty may be recovered as a debt due to the person to whom the penalty is payable.

No limitation on orders

(5)    To avoid doubt, a court may make a pecuniary penalty order in addition to one or more orders under section 545.

8    Under s 546(2)(a), a pecuniary penalty imposed on an individual must not be more than “the maximum number of penalty units referred to in the relevant item in column 4 of the table in subsection 539(2)”. For each of the provisions contravened by Mr Suri, column 4 of the table in s 539(2) specifies a maximum penalty of 600 penalty units for a serious contravention or, otherwise, 60 penalty units.

Filed evidence and the non-attendance of Mr Suri

9    On the question of penalty Ms Shergill relied upon an affidavit of David Hilliard affirmed on 25 January 2024 (Hilliard affidavit) which contained a number of annexures. Certain parts of the evidence were not pressed or were ruled inadmissible by the Court.

10    In addition, Ms Shergill relied upon the affidavit of Ms Rachael Grivas, solicitor, who provided evidence of compliance with the Court’s orders on 24 November 2023, namely that Mr Suri had been served the Court’s timetabling orders for hearing (including notifying him of the hearing date and when he needed to file any evidence or submissions) and also with copies of Ms Shergill’s evidence and submissions. I accept this evidence.

11    Mr Suri has made no contact with the Court or Registry at all in these proceedings. Mr Suri did not attend either the liability nor the penalty hearing. At the hearing I granted Ms Shergill leave for the hearing to proceed in Mr Suri’s absence because I am satisfied he is aware of the proceedings and has chosen not to participate.

Relevant principles

12    The primary, if not sole purpose of a civil penalty is deterrence: Australian Building and Construction Commissioner v Pattinson [2022] HCA 13; 274 CLR 450 at [9] and [15] (Kiefel CJ, Gageler, Keane, Gordon, Steward and Gleeson JJ). The Court must fix “appropriate” penalties. Penalties will be appropriate where they are no more than might be considered reasonably necessary to deter further contraventions of a “like kind” by the contravener and others: Pattinson at [9]-[10].

13    Relevant non-exhaustive factors to be taken into account include, those identified in Trade Practices Commission v CSR Ltd [1990] FCA 521; [1991] ATPR ¶41-076 at 52,152 (French J), cited in Pattinson at [18]:

1.    The nature and extent of the contravening conduct.

2.    The amount of loss or damage caused.

3.    The circumstances in which the conduct took place.

4.    The size of the contravening company.

5.    The degree of power it has, as evidenced by its market share and ease of entry into the market.

6.    The deliberateness of the contravention and the period over which it extended.

7.    Whether the contravention arose out of the conduct of senior management or at a lower level.

8.    Whether the company has a corporate culture conducive to compliance, as evidenced by educational programs and disciplinary or other corrective measures in response to an acknowledged contravention.

9.    Whether the company has shown a disposition to co-operate with the authorities responsible for enforcement of the Act in relation to contravention.

14    The maximum penalty is “but one yardstick” amongst a number of other relevant factors to be considered (including those identified immediately above). There must be “some reasonable relationship between the theoretical maximum and the final penalty imposed”: Australian Competition and Consumer Commission v Reckitt Benckiser (Australia) Pty Ltd [2016] FCAFC 181; 340 ALR 25 at [55], cited with approval in Pattinson at [53]. In Pattinson at [55] Kiefel CJ, Gageler, Keane, Gordon, Steward and Gleeson JJ stated that the relationship of “reasonableness” may be established by consideration of the circumstances of the contravener as well as by the circumstances of the conduct involved in the contravention because each inform the need for deterrence.

15    The Court is required to strike a reasonable balance between deterrence and oppressiveness. In Pattinson at [41], the holding in Reckitt Benckiser at [152] was approved:

152.    If it costs more to obey the law than to breach it, a failure to sanction contraventions adequately de facto punishes all who do the right thing. It is therefore important that those who do comply see that those who do not are dealt with appropriately. This is, in a sense, the other side of deterrence, being a dimension of the general deterrence equation. This is not to give licence to impose a disproportionate or oppressive penalty, which cannot be done, but rather to recognise that proportionality of penalty is measured in the wider context of the demands of effective deterrence and encouraging the corresponding virtue of voluntary compliance.

16    As indicated by the sixth of the CSR factors above, state of mind and intention have relevance. The concept of deliberateness within the civil penalty context is spectral: Conduct may be deliberate if done consciously, in the sense of being aware of each of the essential facts constituting the elements of the contravention without understanding them to be unlawful, or while apparently believing them to be lawful or otherwise due to an innocent mistake: Flight Centre Ltd v Australian Competition and Consumer Commission (No 2) [2018] FCAFC 53; 260 FCR 68 at [61]-[65]. As observed by the Full Court in Flight Centre, the precise basis of purported “innocence” may give rise to the need for consideration when determining deterrence.

17    Consideration must be given to whether the contravention involves a relevant state of mind including, a deliberate flouting of the law, recklessness, wilful blindness, “courting the risk”, negligence or innocence: Reckitt Benckiser at [131]. Furthermore, where there is any degree of awareness (noting the spectrum) of the actual or potential unlawfulness, the contravention is necessarily more serious. It is worthwhile extracting the Full Court’s holding in full:

131.    If a contravention does not involve any state of mind then it is for the party asserting any particular state of mind (be it a deliberate flouting of the law, recklessness, wilful blindness, “courting the risk”, negligence, or innocence or any other characterisation of state of mind) to prove its assertion. If, in the event, neither party discharges its onus to establish any particular state of mind in relation to the contraventions, the Court determines penalty on no more than the fact of the proscribed nature of the conduct (see, by analogy see R v Olbrich (1999) 199 CLR 270; 166 ALR 330; [1999] HCA 54 (Olbrich) at [22]–[28]). However, if any degree of awareness of the actual or potential unlawfulness of the conduct is proved then, all other things being equal, the contravention is necessarily more serious. Such awareness may be able to be inferred from the very nature of the conduct or representations constituting the conduct. However absence of such proof does not establish a mitigatory state of mind (see, by analogy, R v Storey [1998] 1 VR 359 at 369, quoted with approval by the majority in Olbrich at [27]; see also [25]). It means only that the neutral state of mind required for liability has not been disturbed for the purposes of penalty. If a contravening party wishes to go beyond the neutral statutory state of mind for liability and positively assert a lack of consciousness of the character of the conduct for the purposes of penalty, that is a circumstance of mitigation which the contravening party must prove.

Consideration

18    Consistent with the structure of Ms Shergill’s submissions, it is useful to undertake the instructive steps identified by Bromwich J in Fair Work Ombudsman v NSH North Pty Ltd trading as New Shanghai Charlestown [2017] FCA 1301; 275 IR 148 at [36]:

(a)    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;

(b)    consider whether each separate contravention should be dealt with independently or as arising out of a course of conduct, noting that section 557 of the FW Act provides that two or more contraventions of specific civil remedy provisions 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;

(c)    consider whether there should be further adjustment to ensure that there is no double penalty imposed, and that the penalty is an appropriate response to what each respondent did;

(d)    consider the appropriate penalty in respect of each final individual group of contraventions, taken in isolation; and

(e)    consider the overall penalties arrived at 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.

19    As a consequence of the application of the first three of these steps, as Ms Shergill submitted, I am satisfied that there were nine separate contraventions, described in the following way:

(1)     Four separate contraventions of section 45 of the FW Act referable to underpayments under the Award concerning:

(i)     minimum wages under cl 14.1 and Sch B of the Award;

(ii)     overtime rates under cl 22.1 of the Award;

(iii)     penalty rates for work performed on public holidays under cl 22.2 of the Award; and

(iv)     annual leave loading of 17.5% under cl 23.3 of the Award;

(2)     Two further separate contraventions of section 45 of the FW Act referable to other Award obligations that had not been observed concerning:

(i)     providing an arrangement for ordinary hours of work under cll 10.2 and 20 of the Award; and

(ii)     providing an unpaid break of at least 30 minutes every 5 hours under cl 21 of the Award;

(3)     One contravention of section 44 of the FW Act by failing to pay the Applicant her accrued annual leave on termination of employment under the National Employment Standards, specifically subsection 90(2) of the FW Act;

(4)     One contravention of section 323 of the FW Act by failing to pay the Applicant at least monthly for the performance of her work and by one of the methods specified in subsection 323(2) of the FW Act;

(5)     One contravention of section 536 of the FW Act by failing to provide the Applicant with a pay slip within one working day of paying her an amount in relation to her performance of work.

20    I accept Ms Shergill’s submission that upon application of the above principles in NSH North, to my findings with respect to Mr Suri’s conduct, in the liability judgment, that nine distinct contraventions arise. I do not consider that adjustment is required by operation of s 557. The offending conduct giving rise to each of the contraventions did not arise out of a course of conduct as contemplated under that provision. Furthermore, I do not consider that the principle of double jeopardy, pursuant to s 556, applies. Section 556 precludes the ordering of a penalty for breach of more than one civil remedy provision where the breach arises from “particular conduct” namely what the person actually did, with all of its attributes and in its whole context: Australian Building and Construction Commissioner v Automatic, Food, Metals, Engineering, Printing and Kindred Industries Union (The Australian Paper Case) (No 2) [2017] FCA 367 at [40].

21    The Court’s task is then to determine the appropriate penalty in respect of each final individual group of contraventions taken in isolation.

22    Ms Shergill submitted that the appropriate penalty which would achieve specific and general deterrence would be fixed at the statutory maximum in respect of each of the nine contraventions namely:

23    Ms Shergill submitted that the statutory maximum is justified in respect of each of the contraventions on account of the nature and seriousness of Mr Suri’s conduct which was egregious and exploitative, where Ms Shergill performing work under “employment conditions [that] bore no resemblance to what one would expect under Australian law”: LJ[2]

24    I accept Ms Shergill’s description of each of the contraventions as being egregious and exploitative. I found in the liability judgment, Ms Shergill worked seven days per week, for around 17.5 hours per day (being from approximately 5:00 am until 11:30 pm) with one hour off between 4:00 and 5:00pm. Being required to work under such conditions, each compound the effect of the others. The circumstances bring into stark relief why there is need for protections such as those under section 45 of the FW Act, being the failure to provide an arrangement for ordinary hours of work (being an average of 38 hours per week) and failure to provide unpaid breaks (of at least 30 minutes every 5 hours). Such departures from Mr Suri’s obligations to Ms Shergill are not minor - they were in every sense egregious and exploitative in their effect of depriving Ms Shergill of any semblance of a work and life divide, and must be considered to fall in the high range of seriousness.

25    The situation was exacerbated by the fact that Mr Suri never permitted Ms Shergill to take a day's leave, never allowed her to leave his diplomatic residence except for brief periods when looking after the dog and deprived her of her passport at all times. This contravening deprivation (the failure to provide leave) coupled with the circumstances, deprived her of visibility and the protections which come with it: The ability to participate in Australian society and to know and avail herself of its protections.

26    The deleterious effect of these contraventions (and the powerlessness they created) were exacerbated by the failure to pay her at all what she was entitled and the manner in which she was paid. Ms Shergill was not paid at all in Australia, and the only money she received during the employment claim period was a total of around $2,496.08, paid sporadically into a bank account in India set up by Mr Suri. Critically, Ms Shregill did not have access to this account in Australia: LJ[16]. This paltry sum equated to approximately $9.00 per day during the employment claim period, being an amount that was barely half the minimum required to be paid to Ms Shergill per hour under the applicable award, without even taking into account the additional amounts she ought to have been paid on top of the minimum wage for overtime, penalty rates, accrued annual leave on termination and annual leave loading.

27    Ms Shergill was classified as a level 2 worker under the Award. I accept Ms Shergill’s submission that any level of underpayment, even if minimal (which was not the case here) would have a significant effect on a low paid employee at this level.

28    The same considerations apply to render the contraventions of sections 323 and 536 of the FW Act which are similarly egregious and exploitative and in the high range of seriousness. It is obvious that vulnerable low paid workers will be disproportionately affected by comparison to higher paid workers where they are not paid in a timely way, and are not provided with transparent pay records, in the form of pay slips which, by operation of r 3.46 of the Fair Work Regulations 2009 (Cth) are required to stipulate essential information including, but not limited to, the hours worked, the pay received, leave accrued and any amount paid that is said to be a bonus, loading, allowance, penalty rate or other separately identifiable entitlement to verify that minimal entitlements are being honoured. At first blush it might appear that a payslip contravention is minor. That may be the case where it happens once. However, the requirement that an employer provide payslips is an essential part of a functioning industrial system. An employee does not have access to his or her employer’s records. An employee needs to understand the basis upon which he or she is being paid in a timely way so as to be able to raise discrepancies when they arise. The need is obvious also in the case for foreign nationals, like Ms Shergill. The failure to make and maintain employee entitlement records undermines the ability of employees and also workplace inspectors to ensure compliance: Fair Work Ombudsman v Orwill Pty Ltd & Ors [2011] FMCA 730 at [21]: Fair Work Ombudsman v Taj Palace Tandoori Indian Restaurant Pty Ltd & Anor [2012] FMCA 258 at [67]; Fair Work Building Inspectorate v Foxville Projects Group Pty Ltd [2015] FCA 492 at [35].

29    In the context of considering the need for specific deterrence it is worthwhile considering Mr Suri. Mr Suri was the Indian High Commissioner to Australia. It may be inferred that he is well educated and has multiple advisors and supports when navigating the intersection between any rights and obligations he has under Australian and Indian law.

30    Indeed, it is apparent from the following, that he initiated and was involved in all the processes that facilitated Ms Shergill’s passage to Australia and the terms of conditions of her employment. It is noteworthy that prior to Ms Shergill coming to Australia, she worked as a domestic worker for Mr Suri, whilst he was the Indian Ambassador to Egypt. Mr Suri asked Ms Shergill to come to Australia with him. When he asked her to come, he disclosed his intention, that she work as his domestic worker in his residence in Australia: LJ[7]. It can therefore be inferred that Mr Suri was under no illusion as to the circumstances of Ms Shergill’s employment and from which it was apparent that she was being employed by him and not by the Indian High Commission.

31    Despite this knowledge, Mr Suri required that she sign Department of Foreign Affairs documentation, including a Notification of Arrival of Staff Member of Diplomatic Mission, Consular Post, International Organisation or Overseas Mission: LJ[10]. The liability judgment describes the information was contained in the Notification in this way:

It describes the “Mission/Post” as “High Commission of India, Canberra” and specifies that her title would be “Service Staff” with the primary functions of “Reception and Entertainment of Guests”. However, the evidence revealed that Ms Shergill was not employed by the High Commission nor performed any duties for the Commission. Ms Shergill was not asked any questions for the purpose of the completion of the Notification Form. The form states that her residential address would be 3 Moonah Place, Yarralumla. However, Ms Shergill never lived at this address. It was Ms Shergill’s evidence that she worked (and resided) for a year exclusively at Mr Suri’s residence at 34 Mugga Way, Red Hill. It was also her evidence that she only ever took direction from Mr Suri or his wife as to the performance of her duties. In addition, it was her evidence that her duties were not those of “Reception and Entertainment” but those of a domestic worker in a residential household.

32    Notably, Mr Suri created a documentary artifice giving the erroneous impression that the Ms Shergill was engaged by the High Commission in an attempt to avoid his obligations as her employer under Australian law. This is apparent from the fact that he knew before she come to Australia that she would not be “Service Staff” with the primary functions of “Reception and Entertainment of Guests” at the High Commission. The form described her residence as being 3 Moonah Place, Yarralumla when Mr Suri had employed her on the basis that she would live and perform her work at his residence. Ms Shergill never lived at the Yarralumla address nor performed any work there. It was Mr Suri arranged Ms Shergill’s flight to Australia. It can be inferred that he booked and paid for the flight. In addition, Mr Suri took possession of her passport at the airport and never returned it to her. When Ms Shergill arrived in Australia, she was taken to Mr Suri’s residential address and never left there. She acted solely under his direction and that of his wife.

33    The deliberateness of the unlawful scheme is evident from the circumstances which led to Ms Shergill fleeing the house. Ms Shergill described someone from the Indian High Commission coming to the house in May 2016 to require her to sign documents that said she was being paid a salary (which she was not). Ms Shergill refused to sign the documents because they did not record what she had actually been paid. Ms Shergill was pressured not only by staff of the Indian High Commission but also Mr Suri’s wife. Mr Suri’s wife told her that if she refused to sign it, she would be sent back to India: LJ[21]. Such was Ms Shergill’s fear of repercussions that she fled without any of her possessions and slept on the streets.

34    The existence of deliberateness is a factor indicative of increased need for specific deterrence. It is my view that there is heightened need for the penalty to reflect the need for specific deterrence in the circumstances of this case, given Mr Suri’s high-ranking position, the extent of the power he had over Ms Shergill and his abuse of that position, the degree of his knowledge and involvement in facilitating the exploitation, the fact that there is no evidence of any co-operation or remorse, no evidence of any steps taken by him to rectify the loss suffered and there is no evidence of steps taken by him to ensure that this conduct will not occur again.

35    It is my view that these factors weigh heavily in favour of awarding the maximum penalty particularly given the nature of Ms Shergill’s role as a low paid worker, the extent of the financial loss Ms Shergill sustained being $136,276.62 by reason of her entrapment in powerless domestic servitude without any means to leave the house (because of her not having access to even the limited funds she earned in Australia and not having her passport).

36    I also accept that there is a particular need for the penalty imposed to generally deter diplomat employers from exploiting foreign nationals who may enter Australia on, among other visas, a subclass 403 “Domestic Worker (Diplomatic or Consular)” visa. Mr Hillard’s evidence established that there are 110 diplomatic missions in Australia. There have been other cases before this Court, where applicants have complained of like conduct arising in the Domestic Worker (Diplomatic or Consular) context. See for example, Mahmood v Chohan [2021] FCA 973, where the applicant established a prima facie case of breaches of conditions of employment while working as a private domestic worker for 18 months in the employment of the High Commissioner of Pakistan at her diplomatic residence in Canberra, including working excessive hours with minimal breaks, not being given annual leave and being paid less than Award minimum wages.

37    Unfortunately, Ms Shergill’s case has the hallmarks of other like incidents globally. There are reported decisions of the Supreme Court of the United Kingdom. The case of Basfar v Wong [2022] UKSC 20; [2023] AC 33 concerned a Filipino woman who was employed as a domestic worker in the household of a Saudi diplomatic staff member in Britain. In Reyes v Al-Malki [2017] UKSC 61; [2018] 1 All ER 629 a Filipino woman was employed as a domestic worker for a Saudi diplomat in London. Ms Reyes’ passport was confiscated, she was prevented from leaving the house or communicating with others and was not paid wages. The Victorian Supreme Court in Doe v Howard [2015] VSC 75 enforced a judgment of the United States District Court, concerning a claim brought by an Ethiopian woman who had worked as a housekeeper at the US diplomatic compound in Tokyo. These cases are relevant to Australia given that those in senior positions in the diplomatic service move from post to post, as was evident here with Mr Suri having just completed his ambassadorship in Egypt before coming to Australia.

38    The Organisation for Security and Co-operation in Europe has published an extensive handbook, entitled “How to Prevent Human Trafficking for Domestic Servitude in Diplomatic Households and Protect Private Domestic Workers” (3 November 2014), in order to raise awareness with the relevant authorities in its 57 member States “about how to prevent trafficking in human beings for domestic servitude in diplomatic households, how to detect abuses and how to react to exploitative situations while protecting the rights of the domestic worker”. The handbook identifies the “indicators of exploitation in slavery-like conditions [to] include:

•    Confiscation of identity documents;

•    Physical violence;

•    Threats to the victim or his/her family;

•    Psychological, emotional and verbal violence (insults, humiliation,

•    degrading treatment, instigating guilt feelings and manipulation);

•    Non-payment of wages or grossly inadequate wages;

•    Isolation (contact not allowed with the outside world or the family);

•    Denial of private life and intimacy. The workers often sleep on a mattress on the floor in the children’s room, but also in the bathroom, in the kitchen or even in the shed;

•    No access to health care and medical treatment;

•    Food deprivation even up to starvation;

•    Sleep deprivation due to long working hours, including during the night;

•    Freedom of movement limited to meeting the needs of the employer;

•    Threat of deportation.”

39    Unfortunately, as is apparent from the above, the circumstances of this case fall within this definition of slave-like conditions.

40    It is not known whether this was the first time Mr Suri has contravened the Act. In any event, as observed in NSH North, as a matter of principle, even if there were evidence of the same, a first-time contravention does not always require a substantial discount, particularly where the contravention is serious and engaged in over a long period of time: at [177]. This holding was endorsed by the Full Court in Volkswagen Aktiengesellschaft v Australian Competition and Consumer Commission [2021] FCAFC 49 (at [144]) where the mere fact that Volkswagen had not been found to have engaged in similar conduct previously “was deserving of minimal, if any, weight as a mitigating circumstance”.

41    Lastly, relevant both to general and specific deterrence considerations is the invisibility of these kinds of workers and the circumstances in which these contraventions occur. As the Full Court in Volkswagen observed at [152], contravening conduct which is concealed and not easily detected may warrant penalty that is many multiples of the profits earned. This is most certainly the case here.

42    Weighing up all of the considerations, I note that none of the factors ordinarily taken into account which might give rise to mitigation, such as cooperation, remorse and rectification, have application here. The absence of any evidence as to Mr Suri’s past contravention history means that it is neither a mitigatory nor an aggravating factor. There are particularly aggravating features present in this case: The deliberate, egregious nature of the conduct, as found above. The proven contraventions are very serious. Further, Mr Suri benefits from the inherent leniency that is afforded to him by the grouping exercise under s 557(1) of the Act. In the circumstances it is my view that it is appropriate to award the statutory maximum for each of the nine contraventions.

43    The application of the totality principle does not call for any reduction of the penalties to be imposed.

Conclusion    

44    The appropriate penalty in all the circumstances is $97,200 which is required to be paid within 60 days.

Associate:

Dated:    20 March 2024