Federal Court of Australia

Ioakimidis v Lygon Court Travel Pty Ltd (No 2) [2026] FCA 176

ORDERS

THE COURT DECLARES THAT:

1. Upon an admission by the first respondent, on about 25 September 2019, the first respondent, by the acts of the second and third respondents, contravened s 45 of the Fair Work Act 2009 (Cth) (Act) by failing to pay the applicant annual leave loading on accrued but untaken annual leave upon termination of employment, in contravention of cl 32.3 of the General Retail Industry Award 2010.

2. Upon an admission by the first respondent, in the period June 2014 to 29 August 2019, the first respondent, by the acts of the second and third respondents, contravened s 535(1) of the Act by failing to make and keep employee records as required by regs 3.32 and 3.36 of the Fair Work Regulations 2009 (Cth).

3. Upon an admission by the first respondent, in the period June 2014 to August 2019, the first respondent, by the acts of the second and third respondents, contravened s 536(1) of the Act by not providing payslips to the applicant in the course of her employment.

THE COURT ORDERS THAT:

4. Pursuant to s 546(1) of the Act, the first respondent pay a penalty of $15,000 for its contravention of s 45 of the Act.

5. Pursuant to s 546(1) of the Act, the first respondent pay a penalty of $20,000 for its contravention of s 535(1) of the Act.

6. Pursuant to s 546(1) of the Act, the first respondent pay a penalty of $20,000 for its contravention of s 536(1) of the Act.

7. Pursuant to s 546(3) of the Act the penalties referred to in Order 4, 5 and 6 be paid to the applicant within 28 days.

THE COURT ORDERS BY CONSENT THAT:

8. The proceeding against the second respondent and third respondent is dismissed.

9. Save for the contraventions the subject of declarations 1 – 3, all other claims made against the first respondent in the further amended statement of claim dated 5 September 2025 are dismissed.

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

REASONS FOR JUDGMENT

DOWLING J

1 Ms Lisa Ioakimidis, the applicant, was employed by the first respondent, HelloWorld Lower Templestowe (HWLT) between 2014 and 2019. There is a long history of litigation between the parties. The present dispute is confined to three contraventions of the Fair Work Act 2009 (Cth). The applicant alleges that the first respondent failed to pay her annual leave loading on accrued but untaken annual leave, failed to keep required employment records, and failed to provide her with payslips. The first respondent admits those contraventions.

2 The parties agree on the form of declarations which record those contraventions. The parties are in dispute as to the penalties to be imposed upon the first respondent for those contraventions.

3 For the reasons explained below, I am satisfied that it is appropriate to make declarations and impose penalties totalling $55,000 in respect of the admitted contraventions by the first respondent.

THE RELEVANT BACKGROUND FACTS

4 The parties have agreed a statement of agreed facts (SOAF) for the purposes of the Court’s assessment of penalty and the proposed declarations. Consistent with that SOAF, and the pleadings and evidence discussed below, I make the following findings.

5 The first respondent, HWLT, is a franchisee travel agency. The franchisor is Helloworld Travel Limited. The directors and managers of the first respondent are Ms Suzanne Corvasce and Ms Kristina Rowe, the second and third respondents.

6 The applicant first met Ms Corvasce in about 2014 when they both attended a “familiarization trip” for travel agents. At that time, the applicant was employed as a “group travel consultant” at Helloworld Travel Eltham, another Helloworld franchise.

7 In about May of 2014, the applicant informed Ms Corvasce that she had ceased work at Helloworld Travel Eltham. The applicant and Ms Corvasce agreed that the applicant could attend the HWLT office to work on her current bookings and files.

8 In about June of 2014, the parties signed a written employment contract (the 2014 Contract). In 2015 the parties executed a further employment contract (the 2015 Contract). The 2014 Contract and 2015 Contract are in substantially the same form.

9 On 25 September 2019, the employment relationship between the parties ended. The parties agree that it was an acrimonious end.

10 In November 2019, the applicant commenced proceedings in the Federal Circuit Court against HWLT, Ms Corvasce and Ms Rowe. The applicant alleged various contraventions of the Act and breaches of contract. In summary she alleged:

(a) breach of contract arising from unpaid contractual commission and superannuation entitlements;

(b) contraventions of various provisions of the Act arising from HWLT wrongly characterising her as an independent contractor rather than an employee (including misrepresentations in contravention of ss 345 and 357, non-payment of entitlements under the National Employment Standards and the then-General Retail Industry Award 2010 in contravention of ss 44 and 45, and a failure to issue pay slips in contravention of s 536);

(c) contraventions of s 340 of the Act arising from several adverse actions; and

(d) failure to pay her reasonable notice of the termination of her employment in breach of the 2014 Contract.

11 In December 2019, by their response in the Federal Circuit Court proceedings, the respondents admitted the existence of an employment relationship for the period between May 2014 and 25 September 2019, and that HWLT failed to make and keep employee records during that time and failed to give the applicant pay slips during that time. The respondents denied the contraventions of the Act.

12 By a statement of claim dated 28 February 2020, the applicant added additional contraventions of ss 345 and 535 of the Act to her claim. Section 345 proscribes misrepresentations about workplace rights. Section 535 provides for employer obligations in relation to employee records.

13 By defence and cross-claim in March 2020, the respondents alleged unjust enrichment, breach of fiduciary duty and breach of s 182 of the Corporations Act 2001 (Cth) on the part of the applicant.

14 Also in 2020, HWLT reported to Victoria Police certain aspects of the applicant’s conduct as a HWLT employee. Victoria Police charged the applicant with a number of offences. The applicant pleaded not guilty to all criminal charges.

15 In February of 2022, there was a contested criminal trial in the Magistrates’ Court of Victoria. The applicant, Ms Corvasce and Ms Rowe each gave evidence under oath. By judgment on 14 February 2022, Magistrate MacLean found the charges proved. The applicant appealed that decision to the County Court of Victoria, and that appeal was heard by Moglia J in March 2023. The applicant’s convictions in the Magistrates’ Court were quashed.

16 In those criminal proceedings, the applicant gave evidence (in the Magistrates’ Court) and submitted (in the County Court) that she was an independent contractor. Ms Corvasce and Ms Rowe also gave evidence under oath in the criminal proceedings as to their subjective opinion on the nature of the applicant’s working relationship with HWLT. The respondents relied on the evidence and submissions from the criminal proceedings to indicate an ongoing state of confusion concerning the nature of HWLT’s engagement of the applicant.

17 The applicant’s proceeding in the Federal Circuit Court was transferred to this Court in 2021. The respondents repeated their admissions and denials in substantially the same form in their amended defence and amended cross claim in this Court.

18 On 23 June 2025, I heard an interlocutory application brought by the respondents seeking, first, orders dismissing the causes of action advanced by the applicant against them under the Act as an abuse of process, and second, leave to withdraw certain admissions made by them in the further amended defence and cross claim that the applicant was an employee of HWLT. The respondents relied on the evidence and submissions of the applicant in the criminal proceedings that she was an independent contractor. The respondents submitted that that evidence and those submissions led to an abuse of process in this Court where the applicant alleges that she is an employee. On 24 June 2025, I made orders and delivered judgment dismissing that interlocutory application: see Ioakimidis v Lygon Court Travel Pty Ltd [2025] FCA 706. At the time that judgment was delivered, the substantive matter was listed for hearing for six days commencing on 14 July 2025.

19 On 29 June 2025, the parties settled the claims relating to alleged contraventions of s 340 of the Act and the respondents’ alleged failure to pay the applicant reasonable notice of the termination of her employment in breach of the 2014 Contract. Pursuant to that partial settlement, the applicant filed a further amended statement of claim narrowing her case to the then remaining claims in dispute.

20 On 11 September 2025, the parties further settled the proceeding. The settlement involved the respondents paying a confidential sum to compromise the remaining claims, save for the applicant’s claim for declarations and pecuniary penalties in respect of three contraventions which HWLT admit. As explained, those admitted contraventions are:

(a) one contravention of s 45 of the Act arising from HWLT’s failure to pay annual leave loading on termination in breach of the then-General Retail Industry Award 2010 (the annual leave loading contravention);

(b) one contravention of s 535 of the Act arising from HWLT’s failure to make and keep employee records in respect of the applicant between May 2014 and 25 September 2019 (the employee records contravention); and

(c) one contravention of s 536 of the Act arising from HWLT’s failure to give the applicant pay slips between May 2014 and 25 September 2019 (the payslips contravention).

21 As part of the settlement, the parties also agreed to dismiss the proceeding against Ms Corvasce and Ms Rowe. I consider it appropriate to make that order.

PLEADINGS, AGREED FACTS AND EVIDENCE

22 On 19 September 2025, following the penalty hearing of this matter, the applicant filed her second further amended statement of claim which, consistent with the settlement described above,  narrowed the claims to the three contraventions described at [20]. On the same day, HWLT filed a third further amended defence which relevantly admits those contraventions. Those pleadings and admissions form part of the basis for making the declarations and imposing penalties.

23 The parties also rely upon the SOAF dated 16 September 2025, and its two annexures, comprising the 2014 Contract and the 2015 Contract.

24 The first respondent relies upon three affidavits. First, it relies on extracts from the affidavit of Ms Corvasce dated 23 April 2025 (first affidavit of Ms Corvasce) at [49]-[52]. These paragraphs relevantly set out an email sent by Ms Rowe to Ms Lancashire, a “HR professional … who provided the HWLT Business with occasional advice”, on 26 May 2015. The email described the applicant’s payment arrangement at the time where the applicant was paid a lump sum at the end of the financial year. The email suggests that a staged arrangement be used instead where the applicant would be paid weekly. It also provides that HWLT’s accountant did not think the payment arrangement would be a problem, and that following that email correspondence, the respondents would arrange for Ms Lancashire to draw up the 2015 Contract.

25 Second, it relies on extracts from the affidavit of Ms Rowe dated 23 April 2025 at [37]-[39]. These paragraphs summarise the contents of the email sent by Ms Rowe to Ms Lancashire on 26 May 2015. Ms Rowe deposes further that the 2015 Contract was finalised and executed in June 2015 “with the assistance of our HR consultants”, and the “key terms of that agreement reflected the key terms of [the applicant’s] contractor arrangement, namely, the $50,000 salary was to be repaid if the commission was not made in the 12-month periods and that as a contractor she was not entitled to leave (including paid public holidays, annual leave, personal leave)”.

26 Third, it relies on the affidavit of Ms Corvasce dated 16 September 2025 (second affidavit of Ms Corvasce) in full, which relevantly sets out:

(a) Ms Corvasce’s evidence as to the commencement of the applicant’s relationship with the respondents;

(b) that the applicant’s relationship with HWLT was unlike any existing employment relationships with the HWLT franchise at the time;

(c) Ms Corvasce’s understanding of the arrangement between the applicant and HWLT;

(d) the record keeping system used for all other HWLT staff; and

(e) the lack of prior contraventions of the Act on the part of HWLT.

Ms Corvasce additionally deposes that since the commencement of this litigation in 2019, the respondents have “taken steps to obtain specialist HR and legal advice when employing new staff”. Ms Corvasce also apologises on behalf of herself and Ms Rowe to the applicant and the Court for “failing to understand [their] obligations to [the applicant] when she worked for the HWLT Business as an employee”.

27 Ms Corvasce and Ms Rowe were not cross-examined on those affidavits. There was no direct challenge to that evidence, however, there was a dispute between the parties about the characterisation of that evidence and how those matters should affect the penalties for the admitted contraventions.

THE CONTEXT FOR THE CONTRAVENING CONDUCT

28 On the basis of the admissions, the pleadings, the SOAF, and the evidence before me, I am satisfied that the conduct of the first respondent, by the acts of the second and third respondents, establishes the contraventions as alleged.

29 The circumstances of this case are capable of arising in environments where the parties have not given sufficient, and ongoing, attention to the nature of the working relationship and the obligations of the parties. It is appropriate to set out the relevant context in which these contraventions arose.

30 Ms Corvasce deposes in her second affidavit that in May 2014, she agreed to help the applicant after the applicant’s employment at Helloworld Travel Eltham had been terminated. Ms Corvasce and the applicant agreed to “perhaps work out an arrangement where she would bring her clients across to the HWLT business and operate a group travel business”. She deposes that discussions were held about an “arrangement” where the applicant “would bring her own clients and work on a commission split”.

31 Ms Corvasce then deposes as to a discussion she had with the applicant in May 2014 where a “deal was struck”, as follows:

(a) the applicant would work from the HWLT office (but was not required to attend the office each day);

(b) the applicant was to bring her own clients and develop her group travel business;

(c) the applicant was to use her own business name and ABN;

(d) the applicant was to use the respondents’ business processes to issue invoices and collect revenue from the group and pay out for services and experiences; and

(e) the respondents will pay the applicant commission on her gross earnings after she issued to the respondents an invoice from her business.

32 Ms Corvasce deposes that she discussed the applicant’s arrangement with Ms Rowe, and, due to the different features of the applicant’s arrangement as compared to other HWLT staff (including the applicant’s provision of services and issuing of invoices under her own business name, the lack of office attendance requirements, and applicant’s charging of goods and services tax to HWLT), Ms Corvasce and Ms Rowe agreed the arrangement was not an employment relationship. As such, they did not record the applicant’s relationship as full-time or part-time employment, provide payslips to the applicant, or pay the applicant an amount for annual leave loading on top of her base rate of pay.

33 On or around this time, the 2014 Contract was signed by the parties. That contract was titled “Employment Agreement”, and included clauses such as:

(a) “Remuneration: Your salary is in full compensation for all incidents of your employment …”;

(b) “Contract Employment: During this period, either the Company or you may terminate your employment at any time …”;

(c) “Leave: As a contractor you are not entitled to any leave entitlements including paid public holidays, annual leave, personal leave”;

(d) “Personal Communication & internet usage: While management does not prohibit the making and receiving of personal phone calls and emails, it is expected that all staff take a reasonable approach to the time this can take in working hours and the fact these are work tools”;

(e) “Policies and procedures: Helloworld has in place various policies and procedures concerned with matters such as safe work practices, HR, the administration of employment and the appropriate standards of workplace behaviour. You are expected to make yourself familiar with these policies and procedures where they exist. Whenever a policy or procedure is relevant to your employment, you must comply. Conduct, which is in breach of policies or procedures, may, in particular cases, justify disciplinary action, including termination of employment”; and

(f) “Non-Solicitation/Restraint of Trade: In consideration of your remuneration and training and the necessity to protect our goodwill, trade connection, trade secrets and Confidential Information which you may acquire in the course of your employment, you undertake and agree that whilst you are employed by us, and for a period of 12 months after your employment ends …”.

34 The applicant submits that some of the terms of the 2014 Contract are “not the sort of terms that one would expect to see in a contract with an independent party providing services” and are “antithetical to an arm’s-length independent contracting relationship”. She relies on the fact that the contract identifies itself as an “Employment Agreement” and contains various indicia of employment.

35 I understand the respondents do not rely on the above evidence to contradict the admissions made by them about the applicant’s employment status. Rather, they point to that context to augment their submission about the confusion that existed, and how that confusion is a mitigating factor in the assessment of penalty.

36 The first respondent submits that the 2014 Contract explicitly contains the clause, as identified above: “As a contractor you are not entitled to any leave entitlements including paid public holidays, annual leave, personal leave”. It says this clause “runs against the grain of the entire … document … which says you’re an employee”. I consider that this clause further underscores the applicant’s submission that the characterisation of the applicant’s relationship with the respondents required attention and clarification.

37 As discussed at [24]-[25], Ms Corvasce deposes in her first affidavit that in May 2015, the applicant sought that her payment arrangement be modified. Ms Rowe emailed Ms Lancashire, a Human Resources professional. In that email, Ms Rowe described an amended payment arrangement to apply to the applicant where she would be paid weekly rather than in one lump sum for the financial year. Ms Corvasce deposes that payment arrangement was then discussed with the respondents’ accountant. Subsequently, the respondents arranged a contract to be “drawn up” by Ms Lancashire. That contract is the 2015 Contract. The 2014 Contract and 2015 Contract are in substantially the same form, save for an added appendix in the 2015 Contract titled “Remuneration & Commission Structure”. Both contracts contain each of the clauses identified above at [33]. Other than the added appendix, it is unclear what advice was given by Ms Lancashire in relation to the 2015 Contract in circumstances where the contract “drawn up” by Ms Lancashire was in substantially the same form as the earlier 2014 Contract.

38 In any event, the applicant submits, and I accept, that the 2015 Contract should have made it more obvious that the characterisation of the applicant’s relationship with the respondents required clarification. An inquiry should have been made from the point of receipt of the contract “drawn up” by Ms Lancashire, which identifies itself as an “Employment Agreement” and contains various indicia of employment.

39 Ms Corvasce deposes in her second affidavit that during the period of 2016 to 2019, the applicant charged and collected goods and services tax of $37,915.66. The first respondent submits that the goods and services tax was paid consistent with Ms Corvasce and Ms Rowe’s honest and reasonable belief as to the applicant’s status as a HWLT contractor rather than employee.

40 Ms Corvasce in her second affidavit deposes that all other HWLT staff employed since 2014 are provided payslips via a record keeping system called “Wages Manager”. This software also calculates and tracks employee annual leave and annual leave loading. However, the applicant was not issued payslips that could have been generated through the Wages Manager System. Instead, her relationship was treated differently to other staff where the first respondent received invoices from her and paid accordingly.

41 The applicant submits, and I accept, that the underlying cause of the contraventions in this matter is a failure by the respondents to obtain proper advice as to the characterisation of the applicant’s relationship with the first respondent.

PRINCIPLES FOR THE ASSESSMENT OF PENALTIES

42 There was no dispute about the principles to be applied in assessing penalties. The relevant principles can be summarised as follows.

43 First, s 546(1) of the Act provides that the Court may “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”. Section 546 confers a discretion that is to be exercised fairly and reasonably having regard to the subject matter, scope and purpose of the legislation: Australian Building and Construction Commissioner v Pattinson [2022] HCA 13; 274 CLR 450 at [40] (Kiefel CJ, Gageler, Keane, Gordon, Steward and Gleeson JJ).

44 Second, civil penalties are imposed primarily, if not solely, for the purpose of deterrence: Pattinson at [15] (Kiefel CJ, Gageler, Keane, Gordon, Steward and Gleeson JJ). A penalty is appropriate if it is no more than might be considered to be reasonably necessary to deter further contraventions of a like kind by the contravener and others: Pattinson at [9] (Kiefel CJ, Gageler, Keane, Gordon, Steward and Gleeson JJ).

45 Third, the penalty imposed must be proportionate, such that it strikes a reasonable balance between deterrence and oppressive severity. However, the Act does not require that the maximum penalty be reserved only for the most serious example of offending. What is required is that there be some reasonable relationship between the theoretical maximum and the final penalty imposed. That relationship may be established by reference to the circumstances of the contravener and the circumstances of the conduct involved in the contravention. Either set of circumstances may bear upon the extent of the need for deterrence in the penalty: Pattinson at [10], [41] and [55] (Kiefel CJ, Gageler, Keane, Gordon, Steward and Gleeson JJ).

46 The authorities have identified several factors which may inform the assessment of penalty of an appropriate deterrent value. One such list of factors is that applied by Tracey J in Kelly v Fitzpatrick [2007] FCA 1080; 166 IR 14 at [14], as follows:

(a) the nature and extent of the conduct which led to the breaches;

(b) the circumstances in which that conduct took place;

(c) the nature and extent of any loss or damage sustained as a result of the breaches;

(d) whether there had been similar previous conduct by the respondent;

(e) whether the breaches were properly distinct or arose out of the one course of conduct;

(f) the size of the business enterprise involved;

(g) whether or not the breaches were deliberate;

(h) whether senior management was involved in the breaches;

(i) whether the party committing the breach had exhibited contrition;

(j) whether the party committing the breach had taken corrective action;

(k) whether the party committing the breach had cooperated with the enforcement authorities;

(l) the need to ensure compliance with minimum standards; and

(m) the need for specific and general deterrence.

47 Such lists of factors, however, are not a rigid catalogue of matters for attention: Pattinson at [18]-[19] (Kiefel CJ, Gageler, Keane, Gordon, Steward and Gleeson JJ).

Course of conduct

48 Section 557(1) provides that for the purposes of Part 4-1 of the Act dealing with “Civil Remedies”, two or more contraventions of a civil remedy provision listed in s 557(2) are, subject to s 557(3), “taken to constitute a single contravention”.

49 The failures constituting the employee records contravention (s 535) and payslips contravention (s 536) were ongoing over a number of years, from 2014 to 2019. The parties agree that the continuing contraventions are taken to comprise a single contravention of each of ss 535 and 536 by operation of s 557(1) of the Act. I am satisfied that s 557(1) applies.

50 Sections 535(1), (2) and (4), and 536(1)-(3) are civil remedy provisions listed in s 557(2). Section 557(3) provides an exception where a contravention of a civil remedy provision is committed by a person after a court has imposed a pecuniary penalty on the person for an earlier contravention of the provision. That exception does not apply here. The contraventions of ss 535 and 536 are taken to be a single contravention of each provision.

The applicable maximum penalty

51 For each of the admitted contraventions, the maximum pecuniary penalty for a body corporate is fixed at 300 penalty units: ss 539 and 546(2)(b) of the Act.

52 At the time the contravention of s 45 occurred, the value of a penalty unit was $210. As such, the maximum penalty that may be imposed upon HWLT for that contravention is $63,000.

53 Due to the operation of s 557(1) of the Act, the contraventions of ss 535 and 536 are taken to be single contraventions of the Act. However, those contraventions occurred between 2014 and 2019. They operate upon three different penalty unit values ranging between $170 (for the period up to 30 July 2015), $180 (for the period 31 July 2015 to 30 June 2017) and $210 (for the period from 1 July 2017). The parties agree that in this scenario, the Court is to apply the last penalty unit value of $210, but take into account the varying penalty unit values when determining the appropriate aggregate penalty: Fair Work Ombudsman v Grouped Property Services Pty Ltd (No 2) [2017] FCA 557 at [394]-[401] (Katzmann J); see also Wollermann v Fortrend Securities Pty Ltd (No 2) [2025] FCA 443 at [42] (O’Callaghan J) and the cases cited.

54 Accordingly, the maximum applicable penalty that may be imposed upon the first respondent is $63,000 per contravention, or $189,000 in total.

CONSIDERATION

(a) The nature, extent and circumstances of the conduct

55 Relevantly here, the obligations under ss 45, 535 and 536 of the Act arose because the applicant was as an employee. The obligations would not have arisen if the applicant was an independent contractor. Both parties accept that that the contraventions arose as the result of a measure of ignorance, confusion and a lack of appropriate enquiry as to the applicant’s status as employee or an independent contractor. The parties disagree, however, as to the extent that these circumstances may be relied upon in mitigation. The parties also disagree as to the extent to which the respondents made any relevant enquiries.

56 As to the first issue, the applicant submits that confusion, ignorance, and lack of enquiry are not excuses that mitigate in any material way the appropriate penalty.

57 The applicant relies on Yang v China Australia Travel Group Pty Ltd (No 2) [2024] FedCFamC2G 1228 at [53], where Obradovic J said: “The respondents’ breaches arose because of an ignorance of the law. Such ignorance, however, arose as a result of a lack of appropriate enquiry, which for those conducting a business and engaging workers, is rather a poor explanation. A belief in the innocence of the conduct that is a contravention of a statute is usually not an ameliorating factor.”

58 In Flight Centre Ltd v Australian Competition and Consumer Commission (No 2) [2018] FCAFC 53; 260 FCR 68 at [64] (Allsop CJ, Davies and Wigney JJ) the Full Court confirmed that “usually a belief in the innocence of conduct that is a contravention of the statute is not an ameliorating factor”. However, the Court also said that where the object of the imposition of a penalty is specific and general deterrence, it will be relevant to know that the conduct was done believing it to be innocent and knowing that the party, now disabused of its belief, will not, or is likely not to reoffend. It said in those circumstances specific deterrence is of less significance.

59 The first respondent complains that Yang is inconsistent with Pattinson. At [46] of Pattinson, Kiefel CJ, Gageler, Keane, Gordon, Steward and Gleeson JJ state:

[46] … It is important to recall that an “appropriate” penalty is one that strikes a reasonable balance between oppressive severity and the need for deterrence in respect of the particular case. A contravention may be a “one-off” result of inadvertence by the contravenor rather than the latest instance of the contravenor’s pursuit of a strategy of deliberate recalcitrance in order to have its way. There may also be cases, for example, where a contravention has occurred through ignorance of the law on the part of a union official, or where the official responsible for a deliberate breach has been disciplined by the union. In such cases, a modest penalty, if any, may reasonably be thought to be sufficient to provide effective deterrence against further contraventions.

60 I do not consider that there is a meaningful inconsistency between Pattinson, Yang and Flight Centre. Ignorance, or the belief in the innocence of the conduct, will not usually be ameliorating, but will likely be relevant to specific deterrence. However, attention must be given to the context in which the ignorance or innocence occurs. In the present circumstances, the relevance of the ignorance, or belief in the innocence, to specific deterrence must be weighed with the respondents’ failure to make full, proper and ongoing inquiries as to the employment status of the applicant (which I discuss further below). In those circumstances the ignorance or innocence deserves very little weight.

61 This leads to the second disagreement between the parties: the extent to which the respondents made any relevant enquiries.

62 The first respondent submits that enquiries were made. It relies on extracts from the first affidavit of Ms Corvasce and the affidavit of Ms Rowe, which provides that Ms Rowe emailed Ms Lancashire, a HR professional, in May 2015. The contents and context of that email are explained at [24]-[25] and [37] above. Notably, Ms Rowe’s email describes the applicant’s payment arrangement at the time, and suggests a different arrangement be adopted. The email concludes with Ms Rowe asking, “Is that enough info for you?” Ms Corvasce then deposes that she and Ms Rowe discussed the payment arrangement with their accountant, who “did not seem to think it was a problem”. Both deposed that they arranged for Ms Lancashire to draw up the 2015 Contract. The respondents rely on these events to submit that the respondents made the effort of getting advice and did not take a “head-in-the-sand” approach.

63 The difficulty with that submission is that what appears to be the subject of the requests for advice is the modification of the payment terms for the applicant. What the evidence does not disclose is any particular advice about the proper characterisation of the applicant’s relationship with HWLT.

64 What followed that exchange was Ms Lancashire “draw[ing] up” the 2015 Contract. As stated at [8], the 2015 Contract is in substantially the same form as the 2014 Contract, save for the addition of a “Remuneration & Commission Structure” appendix. Further, as the applicant submits, that 2015 Contract should have raised questions with the respondents about the applicant’s employment status. As described at [33]-[38], the 2015 Contract identifies itself as an “Employment Agreement” and contains various indicia of employment together but also contained a reference to “as a contractor”. I consider there was a lack of appropriate and ongoing enquiry as to the applicant’s status as an independent contractor or employee. This undermines any weight that should be given to ignorance or innocence in the assessment of specific deterrence.

65 I raise one further related matter in considering the nature and extent of the conduct. The first respondent submits that the contraventions were a “one-off”. The applicant submits that they were not. As explained, the evidence of Ms Corvasce was that HWLT had “never engaged an experienced travel agent with an existing business to operate under a commission-only based agreement” and “since the cessation of [the applicant’s employment], we have not employed anyone else in this manner”. She says further that “for all other staff employed by the HWLT Business since 2014, the HWLT Business operated and maintained a record keeping system”. That evidence does not make clear whether HWLT has ever engaged, and might in the future engage, an independent contractor and the circumstances of any such engagement. That is, whether the issue of a person’s status as an independent contractor or employee has arisen, or might arise, with HWLT. On the evidence, I am not able to reach a definitive conclusion. However, insofar as “one-off” is intended to indicate no more than there had been no prior similar conduct, I must accept that submission.

(b) The need to ensure compliance with minimum standards

66 The agreed contraventions are contraventions of protective provisions dealing with minimum employment entitlements.

67 In respect of the annual leave loading contravention (s 45), the first respondent contravened a term of the Award that provides a baseline set of protective safety net conditions. I find this contravention to be serious.

68 In respect of the employee records contravention (s 535) and the payslips contravention (s 536), the first respondent contravened provisions which, in the words of the applicant, unlock the employee’s ability to properly prosecute their statutorily protected entitlements. It is only through compliance with those obligations that an employee is provided with the relevant information to ensure that their pay and other financial entitlements and non-financial entitlements are being adequately discharged and met. I find these contraventions to be very serious.

69 The parties did not clearly distinguish between the relative seriousness of the three admitted contraventions. I consider that all three are serious. All three statutory protections are designed to provide for minimum entitlements. However, in the circumstances of this case, I have imposed a greater penalty for the employee records and payslip contraventions. As contended, those contraventions are designed to ensure that the employer provide its employees with such information as to assist in verifying compliance with the Act and industrial instruments. In this respect, the failure is particularly serious. Denying an employee that information denies the employee the ability to understand and assess other compliance. That seriousness is underscored by s 557C of the Act. That section imposes on the employer the burden to disprove certain allegations where it has failed to keep employee records or to give payslips.

(c) Admissions and cooperation

70 The first respondent relies on the admissions made in this proceeding as a matter mitigating penalty.

71 It is appropriate to revisit the timeline of this matter, set out at [5]-[21], insofar as it is relevant to the admissions made and any cooperation between the parties.

72 The applicant commenced proceedings against the respondents in November 2019. By way of response in the Federal Circuit Court, the respondents admitted:

(a) the existence of an employment relationship between the applicant and HWLT;

(b) that they failed to make and keep employee records; and

(c) that they failed to give the applicant pay slips.

73 They denied the alleged contraventions of the Act.

74 Those proceedings were transferred to this Court in 2021. The respondents’ admissions and denials were repeated in substantially the same form in the respondents’ defence and subsequent amended defence in this Court.

75 This matter was listed for a hearing on liability for six days, to commence in July 2025.

76 On 29 June 2025, the parties supplied a “joint note” to chambers which relevantly provided that the applicant would no longer press her claims relating to:

(a) the alleged contraventions of s 340; and

(b) failure to pay the applicant reasonable notice of the termination of her employment in breach of the applicant’s 2014 Contract.

It also provided that the first respondent would abandon its cross claim.

77 The note also provided that the applicant accepted an undertaking by the respondents to make a payment of $45,000 towards the resolution of all claims made under the Act upon final adjudication, whatever the outcome of the liability hearing. The parties sought the matter be re-listed for a three-day trial in September of 2025 for adjudication on liability questions relating to the residual causes of action. On 30 June 2025, I made orders listing the matter for a three-day trial commencing on Monday 15 September 2025.

78 On Friday, 12 September 2025, my chambers received an email from the respondents’ counsel providing that the following resolution was agreed:

(a) all matters save for three admitted contraventions of the Act were resolved;

(b) the first respondent will make admissions as to the three remaining contraventions; and

(c) all claims against the second and third respondent were resolved and the proceedings against them will be dismissed upon the Court’s approval of a consent order.

79 The hearing on the admitted contraventions and penalty was held on Wednesday, 17 September 2025.

80 On the basis of the timeline outlined above, the applicant submits that no discount is warranted for the respondents’ “eleventh-hour” admissions. She submits that insofar as the Court considers that some discount ought to be given, any discount ought to be very modest.

81 The applicant says that admissions were made in respect of the constituent elements of the contraventions as far back as 2019, yet the respondents denied the contraventions themselves. The applicant submits that it is not clear what the proper basis was for maintaining denials of contraventions until a handful of days prior to trial. Additionally, the applicant submits, and I accept, that the admissions occurred at a point where substantially all of the applicant’s costs of trial preparation were incurred and were unrecoverable by operation of s 570 of the Act.

82 The first respondent accepts that the admissions were “many years down the track”, but does not accept that the admissions were made “on the door of the Court”. It relies on the joint note (from June 2025 and in advance of the admissions in September 2025) to show that the respondents were acknowledging that there was “liability on the horizon” in relation to the contraventions of the Act. The first respondent also submits that the Court ought to take into account the offer of $45,000 in the joint note as a consideration in determining the appropriate penalty in that it represents an “indication of acceptance” by the respondents as at June 2025 that “it’s a good thing to bring the matter to an end before trial …” and that the respondents were “actively trying to invest in that outcome”.

83 I accept that the joint note is evidence of cooperation in seeking to resolve the proceeding. However, I do not treat the joint note as though the respondents made the admissions in June rather than September. I accept that the September admissions warrant some discount to the penalty. I accept that their lateness diminishes that discount. While the admissions occurred at a very late stage of the proceeding, they did obviate the need for a trial. Beyond that, however, I recognise that the admissions had very little impact on the way in which the matter progressed over the past six years and the costs and resources involved.

84 I give the first respondent some discount for the payment of $45,000 to the applicant. I note that payment was paid to the applicant towards the resolution of all claims made under the Act, which at the time included the admitted allegations the subject of these reasons. The evidence does not enable me to ascertain what proportion of that payment was to be attributed to those admitted contraventions.

(d) Apology and contrition

85 Ms Corvasce deposes in her second affidavit:

Each of myself and Kris formally and publicly apologises to Lisa and to the Court for failing to understand our obligations to Lisa when she worked for the HWLT Business as an employee. We apologise for the three (3) contraventions of the FW Act.

86 The applicant submits that it welcomes the apology and does not cavil with its veracity. She submits that the apology is evidence of some contrition. However, the applicant emphasises that none of the respondents offered an apology or exhibited any contrition until the eve of the trial. All denied liability in the defences initially filed, and in several further pleadings. The applicant adds that these denials were made all the more frustrating in light of the respondents’ admissions to the contraventions’ constituent elements as early as December 2019. Accordingly, the applicant submits that the apology should be afforded less weight than it might be given in other circumstances because of its timing.

87 The first respondent submits that it ought to be given credit for that apology in mitigation. It submits that the timing of the apology was due to the number of moving parts in issue, including the number of causes in action in play up until the settlement of substantial parts of the proceeding on 29 June and 11 September 2025. It also relies on the fact that this proceeding was a “difficult matter with some open wounds”, where part of that difficulty included criminal proceedings against the applicant arising out of her relationship with the respondents.

88 I take into consideration the apology. I recognise and give weight to the apology in light of the protracted nature of these proceedings and the relationship between the applicant and respondents. I consider the apology to be evidence of some contrition. However, given the lateness of that apology, I accept it should be afforded less weight in my determination of the appropriate penalty.

(e) Involvement of senior management

89 It was accepted by the first respondent that the admitted contraventions were brought about by the involvement senior management, being Ms Corvasce and Ms Rowe. I weigh that into the balance in my consideration of the appropriate penalty.

(f) The size of the business

90 As a factor in mitigation, the first respondent submits that it is a small business employer as defined by the Act. It submits that in the period of 2014 to 2019 when the agreed contraventions occurred, it had fewer than 10 employees.

91 The applicant, on the other hand, submits that the fact that HWLT is a comparatively small enterprise does not excuse it, and the size and financial circumstances of the business does not exculpate conduct by employers contravening the Act.

92 The size of the business has been held to be relevant in determining the size of a pecuniary penalty which would operate as an effective deterrent. The penalty required to achieve that object will generally be larger where the company has vast resources: Australian Building and Construction Commissioner v Ingham (180 Brisbane Construction Case) (No 2) [2021] FCA 263 at [38] (Collier J); Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union [2017] FCAFC 113; 254 FCR 68 at [105] (Dowsett, Greenwood and Wigney JJ). That is, the “size of the business” in the authorities refers to, at least in part, its financial circumstances as opposed to the number of its employees.

93 There is no evidence before me as to the financial circumstances of HWLT. Counsel for the first respondent acknowledged at the hearing that: “We didn’t adduce any evidence of the finances because we’re not coming to the Court to say, ‘We can’t really afford to pay a penalty’, or ‘It might break the business’”. In the absence of that evidence, I give the first respondent’s size very little weight in the assessment of penalty.

(g) Corrective action

94 Ms Corvasce deposes that all other staff employed by HWLT since 2014 have their pay calculated and payslips generated by a record keeping system software, Wages Manager. She says that that software also calculates and tracks employee annual leave and annual leave loading. Ms Corvasce deposes that since 2019 the respondents have not needed to make any modification to the issuing of payslips or recording of entitlements for other HWLT employees.

95 Ms Corvasce also says that “since this litigation commenced in 2019, we have taken steps to obtain specialist HR and legal advice when employing new staff”. The first respondent relies on this evidence to submit that corrective action has been taken and HWLT no longer poses a risk of contravening the Act in the manner admitted in this case.

96 The applicant submits that there is presently no evidence of substance about subsequent steps taken by HWLT to ensure that the contraventions of the Act do not repeat themselves.

97 An important issue underlying the admitted contraventions is the respondents’ failure to obtain advice in order to clarify the employment status of the applicant. It is that failure that, the first respondent accepts, led to the contraventions. That suggests that the corrective action should ensure that there is always certainty between HWLT and those it engages about employment status so as to prevent as much as possible a repeat of the present circumstances. The evidence that the respondents have “taken steps to obtain specialist HR and legal advice when employing new staff” falls short of that type of corrective action. It is unclear what “steps” have been taken and whether there is a system to make certain that advice is sought on every occasion. While I give some credit for those “steps”, I am not satisfied on the evidence that they are type of corrective action that prevents a recurrence of the contraventions.

(h) Deterrence

98 As to general deterrence, the applicant makes two key submissions.

99 First, the applicant highlights the significance of an employer making and keeping employee records and providing payslips to an employee’s ability to detect, evidence and prove contravening conduct. The applicant emphasises that for effective deterrence,  the key driving factors are the risks of detection, investigation, proceedings being commenced, proceedings being successfully concluded and penalty being imposed: see Fair Work Ombudsman v 85 Degrees Coffee Australia Pty Ltd [2024] FCA 576; 331 IR 106 at [36] (Bromwich J). The applicant says, citing 85 Degrees at [37] (Bromwich J), as a general proposition, the lower the likelihood of any of these risks being realised, the greater the weight must lie in the size of the penalty in order for deterrence to be likely to have any meaningful effect. The applicant submits that where employee records and payslips are not provided, the “risks of detection” are less likely. The applicant submits, and I accept, that therefore these considerations mean a more significant penalty is warranted to give effect to general deterrence.

100 Second, the applicant submits that in imposing a penalty, it is important that contraventions are seen to be uncommercial, even after factoring in a lower risk of being caught: see 85 Degrees at [37]. The applicant relies upon Australian Competition and Consumer Commission v Reckitt Benckiser (Australia) Pty Ltd [2016] FCAFC 181 at [152] (Jagot, Yates and Bromwich JJ):

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.

101 The first respondent points to what it says was the already uncommercial nature of the arrangement. It points to the goods and services tax paid by the first respondent to applicant that the first respondent did not recover. The applicant confirms that these amounts were remitted to the Australian Tax Office. I accept that the penalty must ensure that the contraventions are seen to be uncommercial.

102 I consider that general deterrence has a significant role to play in the present circumstances. The penalty should be such as to deter any indolence or indifference as to the proper characterisation of the employment or engagement.

103 As to specific deterrence, the first respondent submits that it has no work to do. It points to the “hybrid” and “unusual” nature of the applicant’s relationship with the first respondent and the steps taken as corrective action to say that it is unnecessary. That submission assumes a conclusion that the corrective action is effective to prevent a recurrence. For the reasons explained above, I am not satisfied that it is. I consider that there remains some need for specific deterrence, albeit I accept that it is low, where there is some corrective action, an admission and an apology.

(i) Totality

104 In Mill v The Queen (1988) 166 CLR 59 at 63 (Wilson, Deane, Dawson, Toohey and Gaudron JJ), the High Court described the totality principle as a recognised principle of sentencing formulated to assist a court when sentencing an offender for a number of offences. It explained that the effect of the totality principle is to require a sentencer who has passed a series of sentences, each properly calculated in relation to the offence, to review the aggregate sentence and consider whether the aggregate is “just and appropriate”.

105 The totality principle has been adopted in the industrial law context: see Mornington Inn Pty Ltd v Jordan [2008] FCAFC 70; 168 FCR 383 at [42] and [91] (Stone and Buchanan JJ); Maritime Union of Australia v Fair Work Ombudsman [2016] FCAFC 102; 247 FCR 154 at [39] (Tracey and Buchanan JJ).

106 I have had regard to the aggregate penalties imposed on the first respondent. In the circumstances set out above, I consider the total penalties imposed to be just and appropriate to achieve the goal of deterrence.

(j) The nature and extent of any loss or damage sustained as a result of the breaches

107 The parties did not make any submission about loss and damage. The applicant did not lead any evidence about loss or damage or assert that loss or damage was an aggravating factor for the calculation of the penalty. I therefore weigh this factor neutrally in my assessment of the appropriate penalty.

(k) Whether there had been similar previous conduct by the respondent

108 Ms Corvasce deposes in her second affidavit that the first respondent has never been prosecuted for any breach of statute or contract regulating employees. The first respondent has also never been found liable for contravening the Act or any predecessor legislation. I take this into consideration.

(l) Whether the breaches were properly distinct or arose out of the one course of conduct

109 For the reasons explained above, I am satisfied and take into consideration that the employee records contravention (s 535) and payslips contravention (s 536) were continuing contraventions that are taken to comprise a single contravention of each of s 535 and 536 by operation of s 557(1) of the Act. Section 557 does not apply to the circumstances of the breach of s 45.

DISPOSITION

110 For the reasons explained above, I consider the contraventions to be serious. Both are statutory protections designed to provide for minimum entitlements. I consider that a slightly higher penalty is justified for the employee records and payslip contraventions. As explained, those provisions are designed to ensure that the employer provide its employees with information to assist in verifying compliance with the Act and industrial instruments. Denying an employee that information is particularly serious.

111 I consider the following penalties are appropriate in all of the circumstances, are proportionate to the contravening conduct, have a reasonable relationship to the theoretical maximum, and are sufficient to deter the respondents and others from similar conduct.

112 I note that the maximum penalty listed in the table did not apply across the entire period from 2014 to 2019: see [51]-[54] for a discussion of the applicable maximum penalty.

113 The applicant seeks that the penalties be paid to her. That order is not opposed. Section 546(3)(c) provides that the Court may order that a pecuniary penalty be paid to a particular person. In Sayed v Construction, Forestry, Mining and Energy Union [2016] FCAFC 4; 239 FCR 336 at [101], the Full Court (Tracey, Barker, Katzmann JJ) said at [101] “… we consider that the power conveyed by s 546(3) is ordinarily to be exercised by awarding any penalty to the successful applicant”. I consider it is appropriate to make such an order.

114 The applicant and the first respondent agree that the Court should grant declaratory relief in respect of the admitted contraventions. They have come to an agreed position as to the terms of the declarations sought. It is uncontroversial that this Court has the power to grant declaratory relief where the terms of the declarations record the results of the case or otherwise mark the Court’s disapproval of conduct undertaken in breach of statute: Cruse v Multiplex Ltd [2008] FCAFC 179; 172 FCR 279 at [53] (Goldberg and Jessup JJ); Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining, and Energy Union (Syme Library Case) (No 2) [2019] FCA 1555 at [78] (Wheelahan J); Australian Building and Construction Commissioner v Menon [2020] FCA 1418 at [45] (White J); cf Construction, Forestry, Maritime, Mining and Energy Union v Milin Builders Pty Ltd [2019] FCA 1070 at [91]–[100] (Snaden J).

115 The question of whether declarations should be made is a matter for my discretion. I consider it appropriate to make those declarations in the terms agreed on by the parties. I consider there to be an educative and deterrent effect directed towards both the respondents and members of the public in making declarations which record the effect of my decision in this matter. The declarations define and publicise the type of conduct that constitutes a contravention of the Act and clearly set out the foundation on which the pecuniary penalty is grounded: Australian Competition and Consumer Commission v Midland Brick Co Pty Ltd [2004] FCA 693; 207 ALR 329 at [21] (Lee J).

Associate:

Dated:    27 February 2026