FEDERAL COURT OF AUSTRALIA

Wollermann v Fortrend Securities Pty Ltd (No 2) [2025] FCA 443

ORDERS

THE COURT DECLARES THAT:

1.    The first respondent contravened:

(a)    s 323 of the Fair Work Act 2009 (Cth) (FW Act) by:

(i)    failing to pay to the first applicant, in full and at least monthly, his commission on sales earned in May, June, July, August and October 2022 (Wollermann Bonus Payment Contravention);

(ii)    failing to pay to the second applicant, in full and at least monthly, his commission on sales earned in May, June, July, August and October 2022 (Lyle Bonus Payment Contravention); and

(iii)    deducting, from on or about 16 March 2015 until the cessation of the first applicant’s employment on 16 December 2022, $500 per month from the first applicant’s gross salary (Wollermann Deduction Contravention);

(b)    s 536 of the FW Act by:

(i)    failing to provide the first applicant with pay slips that met the requirements in s 536 of the FW Act and the Fair Work Regulations 2009 (Cth) (FW Regulations) (Wollermann Pay Slip Contravention); and

(ii)    failing to provide the second applicant with pay slips that met the requirements in s 536 of the FW Act and the FW Regulations (Lyle Pay Slip Contravention); and

(c)    s 9 of the Long Service Leave Act 2018 (Vic) (LSL Act) by:

(i)    failing to pay the first applicant his long service leave entitlements in full on termination of employment; and

(ii)    failing to pay the second applicant his long service leave entitlements in full on termination of employment.

2.    Pursuant to s 550 of the FW Act, the second respondent contravened s 323 of the FW Act by reason of:

(a)    the Wollermann Bonus Payment Contravention;

(b)    the Lyle Bonus Payment Contravention; and

(c)    the Wollermann Deduction Contravention.

3.    The Wollermann Deduction Contravention was a serious contravention by the first respondent for the purposes of s 557A of the FW Act.

AND THE COURT ORDERS THAT:

4.    Pursuant to s 545 of the FW Act, within 28 days of the date of these orders, the first respondent is to pay to the first applicant the following sums:

(a)    in respect of the Wollermann Bonus Payment Contravention, the sum of $66,313.58 comprised of the following:

(i)    $55,396.80 in unpaid commission on sales; and

(ii)    $10,916.78 in interest; and

(b)    in respect of the Wollermann Deduction Contravention, the sum of $37,839.83 comprised of the following:

(i)    $29,500 as compensation for the deductions made between 16 February 2018 and 16 December 2022; and

(ii)    $8,339.83 in interest.

5.    Pursuant to s 545 of the FW Act, within 28 days of the date of these orders, the first respondent is to pay to the second applicant, in respect of the Lyle Bonus Payment Contravention, the sum of $66,313.58 comprised of the following:

(a)    $55,396.80 in unpaid commission on sales; and

(b)    $10,916.78 in interest.

6.    Pursuant to s 26 of the LSL Act, the first respondent is to pay to:

(a)    the first applicant the sum of $149,667.02 comprised of the following:

(i)    $122,954 in payment of the first applicant’s unpaid long service leave entitlement; and

(ii)    $26,713.02 in interest; and

(b)    the second applicant the sum of $120,083.37 comprised of the following:

(i)    $98,650.53 in payment of the second applicant’s unpaid long service leave entitlement; and

(ii)    $21,432.84 in interest.

7.    Pursuant to s 546 of the FW Act, within 28 days of the date of these orders, the first respondent is to pay the following penalties to the first applicant:

(a)    in respect of the Wollermann Bonus Payment Contravention, the amount of $13,320;

(b)    in respect of the Wollermann Deduction Contravention, the amount of $133,200; and

(c)    in respect of the Wollermann Pay Slip Contravention, the amount of $6,660.

8.    Pursuant to s 546 of the FW Act, within 28 days of the date of these orders, the first respondent is to pay the following penalties to the second applicant:

(a)    in respect of the Lyle Bonus Payment Contravention, the amount of $13,320; and

(b)    in respect of the Lyle Pay Slip Contravention, the amount of $6,660.

9.    Pursuant to s 546 of the FW Act, within 28 days of the date of these orders, the second respondent is to pay the following penalties to the first applicant:

(a)    in respect of the Wollermann Bonus Payment Contravention, the amount of $2,664; and

(b)    in respect of the Wollermann Deduction Contravention, the amount of $2,664.

10.    Pursuant to s 546 of the FW Act, within 28 days of the date of these orders, the second respondent is to pay to the second applicant, in respect of the Lyle Bonus Payment Contravention, a penalty in the amount of $2,664.

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

REASONS FOR JUDGMENT

O’CALLAGHAN J

INTRODUCTION

1    In Wollermann v Fortrend Securities Pty Ltd [2025] FCA 103 (the principal judgment), I relevantly found that:

(a)    contrary to s 323(1) of the Fair Work Act 2009 (Cth) (the FW Act or the Act), Fortrend Securities Pty Ltd (Fortrend):

(i)    withheld bonus payments from Mr Wollermann and declined to pay him such amounts that had already been earned on termination (Wollermann Bonus Payment Contravention); and

(ii)    withheld bonus payments from Mr Lyle and declined to pay him such amounts that had already been earned on termination (Lyle Bonus Payment Contravention)

(together, the Bonus Payment Contraventions);

(b)    contrary to s 323(1) of the Act, Fortrend unilaterally deducted amounts from Mr Wollermann’s monthly pay without authorisation under s 324 of the Act (Wollermann Deduction Contravention), which amounted to a serious contravention by Fortrend under s 557A(1) of the Act;

(c)    contrary to ss 536(1) and (2) of the Act:

(i)    Fortrend failed to provide pay slips to Mr Wollermann within one working day of being paid each month (or at all), and those that were provided were deficient (Wollermann Pay Slip Contravention); and

(ii)    Fortrend failed to provide pay slips to Mr Lyle within one working day of being paid each month (or at all), and those that were provided were deficient (Lyle Pay Slip Contravention)

(together, the Pay Slip Contraventions); and

(d)    Mr Forster, the managing director of Fortrend, was “involved in” each of Fortrend’s above contraventions of the Act (other than in respect of the Pay Slip Contraventions) and was therefore liable as an accessory pursuant to s 550 of the Act for the Bonus Payment Contraventions and the Wollermann Deduction Contravention.

2    I also found that Fortrend failed to pay the applicants their long service leave entitlements in accordance with the Long Service Leave Act 2018 (Vic), but that finding is not relevant to the question of penalties.

3    I must now impose a penalty in respect of each of the breaches of the FW Act, and make final orders.

4    I asked the parties to file written submissions on the issue, which they did. The applicants also sought to rely on a written penalty submission in reply dated 15 April 2025, which was filed with leave.

5    Having considered them, I formed the view that it was an appropriate matter to decide on the papers.

6    These reasons assume a familiarity with the principal judgment, and with my reasons in Fortrend Securities Pty Ltd v Wollermann (No 2) [2025] FCA 96, in which I dismissed the case brought by Fortrend against Mr Wollermann and Mr Lyle for alleged breaches of their equitable duties of confidence, their fiduciary duties and statutory obligations, and for their alleged breaches of contract. (This proceeding was originally issued in the Federal Circuit and Family Court of Australia, but it was transferred to this court and allocated to my docket because it was said to be sufficiently related to Fortrend’s claims against Mr Wollermann and Mr Lyle.)

APPLICABLE LEGAL PRINCIPLES

7    There was no dispute about the applicable legal principles.

8    Under s 546(1) of the FW Act, the imposition of penalties is discretionary. Penalties are imposed where “appropriate”. The discretion must be exercised judicially having regard to the statutory context — that is, the subject matter, scope and purpose of the legislation. See National Tertiary Education Industry Union v University of Sydney (Relief) [2023] FCA 537 at [21] (Thawley J).

9    The purpose of imposing a penalty is protective in promoting the public interest in compliance with the legislation. The object is deterrence, both specific and general. See National Tertiary Education at [22].

10    As the High Court explained in Australian Building and Construction Commissioner v Pattinson (2022) 274 CLR 450 at 457 [9] and 459 [15] (Kiefel CJ, Gageler, Keane, Gordon, Steward and Gleeson JJ), deterrence is the primary, if not sole, purpose of civil penalties such as that contained in s 546 of the FW Act. There is no requirement that the penalty be “proportionate” to the contravention. See Pattinson at 457 [10]. The court’s task is to determine what is an “appropriate” penalty in the circumstances of the particular case. See Pattinson at 461 [19]. An appropriate penalty is one that strikes a reasonable balance between oppressive severity and the need for deterrence in respect of the particular case. See Pattinson at 470 [46].

11    The objective is to put a price on contravention that is sufficiently high to deter repetition by the contravener and by others who might be tempted to contravene. See Pattinson at 459 [15].

12    The penalty should be fixed at a level sufficient to deter both the contravener and others, with a view to ensuring that the penalty is not regarded as an acceptable cost of doing business. See Pattinson at 460 [17].

13    The court should have regard to all matters relevant to deterring contraventions of the relevant kind. See National Tertiary Education at [26].

14    In Pattinson at 460 [18], the High Court quoted with approval what French J said in Trade Practices Commission v CSR Ltd [1990] FCA 521 at [42]; (1991) ATPR ¶41-076 at 52,152–52,153 in relation to several factors which informed the assessment under the Trade Practices Act 1974 (Cth) of a penalty of “appropriate deterrent value”, viz:

The assessment of a penalty of appropriate deterrent value will have regard to a number of factors which have been canvassed in the cases. These include the following:

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 with the Act, 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 the enforcement of the Act in relation to the contravention.

15    Further, concepts 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. See Pattinson at 469 [45].

16    The “maximum penalty” is not reserved exclusively for the worst category of contravening conduct. See Pattinson at 471 [49].

17    The maximum penalty does not constrain the exercise of the discretion under s 546 of the FW Act beyond requiring “some reasonable relationship between the theoretical maximum and the final penalty imposed”. See Pattinson at 472 [55].

18    This relationship of “reasonableness” may be established by reference to the circumstances of the contravener as well as by the circumstances of the conduct involved in the contravention. See Pattinson at 472 [55].

CONSIDERATION OF PRELIMINARY ISSUES

Course of conduct

19    Section 557 of the FW Act relevantly provides 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.

(2)     The civil remedy provisions are the following:

…

(g)     subsection 323(1) (which deals with methods and frequency of payment);

…

(o)     subsections 536(1), (2) and (3) (which deal with employer obligations in relation to pay slips);

…

20    At [23]–[26] of its written penalty submissions dated 2 April 2025, the respondents submitted that, for the purposes of penalty, the court should treat both Bonus Payment Contraventions as constituting a single course of conduct and both Pay Slip Contraventions as constituting a separate, single course of conduct.

21    Those submissions are misconceived for the reasons that follow.

22    Dealing first with the Bonus Payments Contraventions, each of the Wollermann Bonus Payment Contravention and the Lyle Bonus Payment Contravention comprises the non-payment of commissions earned by an employee in May, June, July, August and October 2022.

23    For each employee, each monthly non-payment of commission was sufficient to ground an individual contravention of s 323(1) of the FW Act.

24    Fortrend committed each individual contravention against each employee, and those contraventions against that employee arose out of a course of conduct by Fortrend. Section 557(1) of the FW Act is therefore satisfied.

25    It follows that the Wollermann Bonus Payment Contravention and the Lyle Bonus Payment Contravention should each be taken to constitute a single course of conduct — i.e. one in respect of Mr Wollermann and one in respect of Mr Lyle.

26    However, it does not follow that those two courses of conduct — namely, the course of conduct which relates to the Wollermann Bonus Payment Contravention and that which relates to the Lyle Bonus Payment Contravention — should in turn be taken to constitute a single “Bonus Payment Contraventions” course of conduct. A critical feature of the contravening conduct was that it related to two distinct employees, and the penalties imposed on the respondents should reflect this fact.

27    In any event, the single course of conduct principle is “a tool of analysis… which a court is not compelled to utilise”. See Construction, Forestry, Mining and Energy Union v Cahill [2010] FCAFC 39; (2010) 269 ALR 1 at 13 [41] (Middleton and Gordon JJ). “[E]ven if offences are properly characterised as arising from the one transaction or a single course of conduct, a judge is not obliged to apply concurrent terms if the resulting effective term fails to reflect the degree of criminality involved”. See Cahill at [42].

28    If I am wrong in my view that there is not a single course of conduct of the type contended for by the respondents, then I would apply “concurrent terms” in order “to reflect the degree of criminality involved”.

29    The applicants also submitted, and I accept, that an equivalent conclusion applies in respect of the Wollermann Pay Slip Contravention and the Lyle Pay Slip Contravention.

Serious contravention in respect of the Wollermann Deduction Contravention

30    From 15 September 2017, s 557A of the FW Act relevantly 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.

Note:     For the liability of bodies corporate for serious contraventions, see section 557B.

Example:    Generally, subsection 323(1) requires an employer to pay an employee the full amount payable to the employee in relation to the performance of work.

A contravention of subsection 323(1) is a serious contravention if the employer knowingly does not pay the employee in full or is reckless as to whether the failure would occur. It does not matter if the employer does not know the exact amount of the underpayment.

…

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.

31    The applicants submitted that the Wollermann Deduction Contravention was a “serious contravention” under s 557A of the FW Act by both Fortrend and Mr Forster. The respondents submitted that no such allegation was made against Mr Forster and that it does not follow from the finding that Fortrend had committed a serious contravention under s 557A of the FW Act that Mr Forster did likewise.

32    The respondents’ submissions must in that regard be accepted.

33    The applicants did not plead that Mr Forster committed a serious contravention. The applicants’ statement of claim dated 16 February 2024 relevantly stated as follows:

30.     From on or about 16 March 2015 until the cessation of Wollermann’s employment on 16 December 2022, FSA unilaterally deducted $500 per week from his gross salary (the Unlawful Deductions).

…

35.     By reason of paragraphs [6] and [27] to [33] herein, FSA contravened s 323 of the FW Act (Unlawful Deduction Contravention).

…

38.    By reason of paragraphs [27] to [33] and [37] herein:

(a)     FSA knowingly contravened s 323 of the FW Act;

…

(b)     the Unlawful Deductions were a systematic pattern of conduct relating to Wollermann.

39.     By reason of paragraph [38] herein, the Unlawful Deduction Contravention was a serious contravention for the purposes of s 557A(1) of the FW Act.

(Emphasis added.)

34    The applicants’ reference to “FSA” (i.e. Fortrend) as the entity that “knowingly contravened” s 323 (in satisfaction of the requirement in s 557A(1)(a) of the FW Act) reveals the true scope of the applicants’ claim: it was Fortrend (not Mr Forster) that was alleged to have committed the serious contravention.

35    Consistently with that position, the applicants’ written submissions filed in respect of the question made the case that Fortrend, a “body corporate”, was the relevant contravening entity. See the applicants’ written outline of submissions dated 24 April 2024 at [20]–[22]; and the applicants’ written closing submissions dated 6 September 2024 at [38]–[42].

36    As the applicants contended at [40] of their written closing submissions, the decision constituting the serious contravention was ultimately taken by Fortrend, and Mr Forster’s state of mind was attributable to Fortrend:

The decision by Fortrend (via Mr Forster as its controlling mind) to withhold Mr Wollermann’s pay was deliberate. So much can be gleaned from the emails Mr Forster, as director of Fortrend, sent to Mr Wollermann on 16 March 2015 (see paragraph 36 herein). The Court can be satisfied that Mr Forster’s deliberate intention in facilitating the deductions was to ensure that the cost of visiting clients was borne by Mr Wollermann. This state of mind is to be attributed to Fortrend.

37    At [19] of their amended written submissions on penalty dated 27 March 2025, the applicants submitted that I found that Mr Forster’s conduct constituted a serious contravention. But as the respondents submitted at [14(a)] of their written penalty submissions, I made no such finding.

Calculating the maximum penalty for the relevant contraventions

38    The relevant period of contravention in respect of the Bonus Payment Contraventions was from May 2022 to October 2022. See the applicants’ amended written submissions on penalty at [10]. During this period, s 546(2) of the FW Act (read together with column 4 of item 10 of s 539(2)) relevantly provided that the maximum penalty for a contravention of s 323(1) of the FW Act was 60 penalty units for an individual and 300 penalty units for a corporation.

39    The relevant period of contravention in respect of the Wollermann Deduction Contravention was from 16 March 2015 to 16 December 2022. See the applicants’ statement of claim at [30]. During this period, s 546(2) of the FW Act (read together with column 4 of item 10 of s 539(2)) provided that the maximum penalty for a contravention of s 323(1) of the FW Act was 60 penalty units for an individual and 300 penalty units for a corporation. From 15 September 2017 until 16 December 2022, those provisions also provided that the maximum penalty for a “serious contravention” of s 323(1) of the FW Act was 600 penalty units for an individual and 3,000 penalty units for a corporation.

40    The relevant period of contravention in respect of the Wollermann Pay Slip Contravention was from 14 September 2009 to 16 December 2022. It was from 8 May 2012 to 16 December 2022 in respect of the Lyle Pay Slip Contravention. See the applicants’ amended written submissions on penalty at [30]; affidavit of Mr Wollermann dated 8 April 2024 at [6]; and affidavit of Mr Lyle dated 8 April 2024 at [6]. Section 546(2) of the FW Act (read together with column 4 of item 29 of s 539(2)) relevantly provided that the maximum penalty for a contravention of ss 536(1) and (2) of the FW Act was:

(a)    from 14 September 2009 to 14 September 2017 — 30 penalty units for an individual and 150 penalty units for a corporation; and

(b)    from 15 September 2017 to 16 December 2022 — 60 penalty units for an individual and 300 penalty units for a corporation.

41    A “penalty unit” is defined in s 4AA of the Crimes Act 1914 (Cth). The applicable value of a penalty unit has changed over the course of the relevant periods of contraventions, such that it was:

(a)    $110 from 14 September 2009 to 27 December 2012;

(b)    $170 from 28 December 2012 to 30 July 2015;

(c)    $180 from 31 July 2015 to 30 June 2017;

(d)    $210 from 1 July 2017 to 30 June 2020; and

(e)    $222 from 1 July 2020 to 16 December 2022.

42    The applicants submitted, and I agree, that if a given contravention spans a period where different penalty values apply, it is the higher penalty unit value that should be applied for the purposes of determining the maximum penalty. See Fair Work Ombudsman v Grouped Property Services Pty Ltd (No 2) [2017] FCA 557 at [396]–[401] (Katzmann J); Fair Work Ombudsman v Tac Pham Pty Ltd [2018] FCA 120 at [67] (Siopis J); Ahmed v Al-Hussain Pty Ltd t/as The Cheesecake Shop (No 3) [2019] FCA 848 at [35]–[36] (Rares J); Fair Work Ombudsman v Australian Workers’ Union [2020] FCA 60 at [47]–[48] (Snaden J); Fair Work Ombudsman v Foot & Thai Massage Pty Ltd (in liq) (No 8) [2024] FCA 483 at [149] (Katzmann J). However, the fact that a lower penalty amount was applicable at some time during the contravention may be a relevant matter to be taken into account when fixing the penalty. See, by way of example, Grouped Property Services at [401].

43    I apply the same reasoning by analogy with respect to the increase in applicable penalty units for the purposes of the Pay Slip Contraventions (discussed above at paragraph 40).

44    The applicable maximum penalties for the FW Act contraventions are therefore as follows (on the basis that the “course of conduct” provision in s 557 does not apply as between the two Bonus Payment Contraventions or as between the two Pay Slip Contraventions):

(a)    Fortrend: $932,400‬ total, comprised of the following:

(i)    $799,200 for the contraventions relating to Mr Wollermann, being:

(A)    $66,600 for the Wollermann Bonus Payment Contravention;

(B)    $666,000 for the Wollermann Deduction Contravention, which was a serious contravention by Fortrend under s 557A of the FW Act; and

(C)    $66,600 for the Wollermann Pay Slip Contravention; and

(ii)    $133,200‬ for the contraventions relating to Mr Lyle, being:

(A)    $66,600 for the Lyle Bonus Payment Contravention; and

(B)    $66,600 for the Lyle Pay Slip Contravention; and

(b)    Mr Forster: $39,960 total, comprised of the following:

(i)    $26,640‬ for the contraventions relating to Mr Wollermann, being:

(A)    $13,320 for the Wollermann Bonus Payment Contravention; and

(B)    $13,320 for the Wollermann Deduction Contravention, which was not a serious contravention by Mr Forster under s 557A of the FW Act for the reasons discussed above at paragraphs 30–37; and

(ii)    $13,320 for the contravention relating to Mr Lyle, being the Lyle Bonus Payment Contravention.

45    The applicants submitted that the appropriate penalty to be imposed on both Fortrend and Mr Forster for each of the two Bonus Payment Contraventions should be 70% of the maximum penalty. See the applicants’ amended written submissions on penalty at [18] and [37]; and the applicants’ written penalty submissions in reply at [3].

46    They submitted that the appropriate penalty to be imposed on both Fortrend and Mr Forster for the Wollermann Deduction Contravention should be 90% of the maximum penalty. See the applicants’ amended written submissions on penalty at [29] and [38].

47    They also submitted that the appropriate penalty to be imposed on Fortrend for each of the two Pay Slip Contraventions should be 60% of the maximum penalty. See the applicants’ amended written submissions on penalty at [36].

48    The respondents submitted (at [65] of their written penalty submissions) that the respective appropriate penalties should be as follows:

(a)    no more than 20% of the maximum penalty imposed on Fortrend and Mr Forster for each of the two Bonus Payment Contraventions;

(b)    no more than 20% of the maximum penalty imposed on Fortrend and Mr Forster for the Wollermann Deduction Contravention; and

(c)    no more than 10% of the maximum penalty imposed on Fortrend for each of the two Pay Slip Contraventions.

CONSIDERATION OF PENALTY AMOUNT

49    As is obvious from what I have said above, the applicants’ case was that the penalties should in each case be at the higher end of the range. The respondents’ case, to the contrary, was that their respective penalties should be at the lower end of the range.

50    Factors in favour of the latter approach are:

(a)    there is no evidence of any previous contraventions of industrial laws by either of the respondents over the course of many decades (save for one small claim in 2019);

(b)    the sums of money owing to the applicants are, relatively speaking, quite small in the sense that the deductions and underpayments found to be contraventions equal an amount that is less than 10% of the annual remuneration paid to the applicants in their last full financial year of employment; and

(c)    Fortrend is a small business.

51    Factors in favour of the former approach are:

(a)    there is no evidence of contrition;

(b)    the breaches were brought about by senior management (albeit that it was a one-person company); and

(c)    the breaches spanned a considerable period of time.

52    In all the circumstances, subject to the totality principle, in my view the appropriate penalties to be imposed are the maximum sums contended for by the respondents. It seems to me that the amounts proposed by the applicants would, if imposed, be manifestly excessive in light of the fact that the amounts of money owing to the applicants for the underlying breaches are quite small relative to their overall remuneration. It is also to be accepted that, although there is not a word of contrition, Fortrend is a relatively small business and it has not previously fallen foul of industrial laws over the course of many years (with one minor exception in the small claims jurisdiction: see Kirwan v Fortrend Securities Pty Ltd [2019] FCCA 3119).

53    In my view, the penalties set out below are appropriate having regard to the principles set out above.

(a)    For Fortrend:

(i)    in respect of the Wollermann Bonus Payment Contravention: 20% of the maximum amount of $66,600, being $13,320‬;

(ii)    in respect of the Lyle Bonus Payment Contravention: 20% of the maximum amount of $66,600, being $13,320‬;

(iii)    in respect of the Wollermann Deduction Contravention: 20% of the maximum amount of $666,000, being $133,200;

(iv)    in respect of the Wollermann Pay Slip Contravention: 10% of the maximum amount of $66,600‬, being $6,660; and

(v)    in respect of the Lyle Pay Slip Contravention: 10% of the maximum amount of $66,600‬, being $6,660.

(b)    For Mr Forster:

(i)    in respect of the Wollermann Bonus Payment Contravention: 20% of the maximum amount of $13,320, being $2,664;

(ii)    in respect of the Lyle Bonus Payment Contravention: 20% of the maximum amount of $13,320, being $2,664; and

(iii)    in respect of the Wollermann Deduction Contravention: 20% of the maximum amount of $13,320, being $2,664.

54    I have considered whether any reduction is required on the basis of the totality principle. See, by way of example only, Australian Securities and Investments Commission v Wooldridge [2019] FCAFC 172 at [26] (Greenwood, Middleton and Foster JJ). I do not consider that any reduction is required. I will therefore impose a total penalty of $173,160 against Fortrend and $7,992 against Mr Forster.

55    The applicants sought a personal payment order, but Fortrend is a one-person entity, so I fail to see the point.

DISPOSITION

56    Other than penalty, the parties were agreed on the form of declarations and orders to be made to finalise the proceeding, so I will make those declarations and orders substantially in the form agreed, together with penalty orders reflecting these reasons.

Associate:

Dated:    6 May 2025