Al-Areqi v 3 Lads Laverton Food Hub

(a) section 44 of the Act by contravening section 90(2) of the Act in relation to payment of accrued and untaken annual leave;

(b) section 44 of the Act by contravening section 125 of the Act in relation to the Fair Work Information Statement;

(c) section 45 of the Act by contravening clause 18.1 of the Restaurant Industry Award 2020 (Award) in relation to minimum rates of pay;

(d) section 45 of the Act by contravening clauses 24.1 and 24.2 of the Award in relation to penalty rates;

(e) section 45 of the Act by contravening clauses 23.1 and 23.4 of the Award in relation to overtime rates;

(f) section 45 of the Act by contravening clause 22.2 of the Award in relation to superannuation;

(g) section 45 of the Act by contravening clause 3.3 of the Award in relation to availability of copies of the Award and National Employment Standards (NES);

(h) section 323 of the Act by failing to pay the Applicant her wages in full;

(i) section 340 of the Act by taking adverse action against the Applicant for the reason, or reasons that included the reason, that:

(i) the Applicant had and/or had exercised and/or proposed to exercise and/or to prevent the exercise of the Applicant's workplace right(s); and/or

(ii) that a third party had exercised and/or proposed to exercise workplace right(s) for the Applicant's benefit, or for the benefit of a class of persons to which the Applicant belongs;

(j) section 536(2) by providing payslips that did not include the information prescribed by the Fair Work Regulations 2009 (Cth); and

(k) section 536(3) by providing payslips which were false or misleading.

1. The primary relief sought by the Applicant for the declared contraventions was payment of pecuniary penalties at 10 to 15% of the maximum that may be imposed pursuant to section 546(1) of the Act (where the maximum amounts to $1,032,900.00).

1. The Court's power to impose pecuniary penalties in respect of the established contraventions resides in s.546(1) of the Act.
2. Section 546(1) permits the Court to impose a pecuniary penalty "that the court considers is appropriate if the court is satisfied that the person has contravened a civil remedy provision". Each of ss. 44, 45, 323, 340, 536(2) and 536(3) of the Act are civil remedy provisions.
3. As above and for the reasons delivered on 14 May 2025, that state of satisfaction exists. It falls to determine what level of penalty (if any) is appropriate as against the Respondent in light of the established contraventions.
4. The purpose of a civil penalty under the regime provided by the Act is primarily, if not wholly, protective in the promotion of the public interest in compliance with the provisions of the Act and in (general and specific) deterrence of further contraventions: Australian Building and Construction Commissioner v Pattinson [2022] HCA 13; (2022) 274 CLR 450 (Kiefel CJ, Gageler, Keane, Gordon, Edelman, Steward and Gleeson JJ) ) at [15]-[16] (Pattinson) citing the plurality in Commonwealth v Director, Fair Work Building Industry Inspectorate [2015] HCA 46; (2015) 258 CLR 482 (French CJ, Kiefel, Bell, Gageler, Keane, Nettle and Gordon JJ) and French J in Trade Practices Commission v CSR Ltd [1990] FCA 521 (CSR Ltd). An "appropriate" penalty being one that "strikes a reasonable balance between oppressive severity and the need for deterrence in a particular case": Pattinson at [41].
5. The task of assessing what amount to impose involves the selection of a figure taking into account all factors relevant to the particular case: Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584 (Gaudron, Gummow and Hayne JJ) at [75]; Markarian v The Queen (2005) 228 CLR 357 (Gleeson CJ, Gummow, Hayne and Callinan JJ) at [37]; Flight Centre Ltd v Australian Competition and Consumer Commission (No 2) [2018] FCAFC 53; (2018) 260 FCR 68 (Allsop CJ, Davies and Wigney JJ) at [55]; Australian Competition and Consumer Commission v Reckitt Benckiser (Australia) Pty Ltd (2016) 340 ALR 25 (Jagot, Yates and Bromwich JJ) at [44] as cited by Snaden J at [26] in Australian Building and Construction Commissioner v Pattinson [2019] FCA 1654. The oft cited decision of French J in CSR Ltd at [42] listed those factors relevant to an overall assessment of penalty, restated by the Full Court in Construction, Forestry, Maritime, Mining and Energy Union v Australian Building and Construction Commissioner (The Non-Indemnification Personal Payment Case) [2018] FCAFC 97; (2018) 264 FCR 155 (Allsop CJ, White and O'Callaghan JJ) at [20]:

..the nature, character and seriousness of the conduct; the loss and damage caused; the circumstances in which the conduct took place; the size of the contravener and its degree of power; the deliberateness of the conduct and the time over which it occurred; the degree of involvement of senior officials or management; the culture of the organisation as to compliance or contravention; and, any co-operation with the regulator and contrition.

1. This is not an exhaustive list. Further, each case warrants an "idiosyncratic" approach and a careful analysis of all relevant circumstances - as was stated in Australian Ophthalmic Supplies Pty Ltd v McAlary-Smith [2008] FCAFC 8 (Graham J) at [12]:

Penalties are not a matter of precedent. The choice of penalty must be dictated by the individual circumstances of a case, not by a line by line comparison with another case.

1. The task of assessing what amount to impose involves the selection of a figure taking into account all factors relevant to the particular case: CSR Ltd, as applied in this context see for example CFMMEU v ABCC [2018] FCAFC 97 (Allsop CJ, White and O'Callaghan JJ). I turn to consider the appropriate penalty in light of those well established principles and non-exhaustive list of factors from the case authorities.

1. The relevant conduct involves the Respondent's variously declared contraventions incurred over a period of some 9 days during the short term of the Applicant's employment. Specifically:

a) two separate contraventions of s.44 by failing to comply with the obligation to pay accrued but unused annual leave upon termination as required by the NES and failing to provide the Fair Work Information Statement; > > b) five separate contraventions of s.45 by failing to comply with the minimum payment provisions of the Award; > > c) one contravention of s.323 by failing to pay the Applicant in full; > > d) one contravention of s.340 by terminating the Applicant's employment for a prohibited reason in the exercise or proposed exercise or prevention of the exercise of the Applicant's workplace rights; and > > e) two separate contraventions of s.536 by failing to provide accurate payslips.

2. On the materials before the Court the contraventions were, respectively, deliberate and reflective of the Respondent's disregard for Australia's workplace laws as applicable to the work performed by the Applicant during their employment.
3. It has been judicially recognised (see, for example, in Fair Work Ombudsman v Mai [2025] FCA 421 (McDonald J) at [156]) that employees in the hospitality industry are generally at higher risk of being denied employment-related entitlements where employees in this industry include a relatively high number of low paid, young, low educated and migrant workers. Here, the Applicant is a migrant woman from Iran with limited English skills and limited work experience in Australia - a vulnerable employee placed in a precarious position by the Respondent's failure to pay her minimum entitlements under the NES and Award and otherwise comply with Australia's workplace laws.

1. It is evident that the Applicant has suffered loss occasioned by the various contraventions. Consideration of the loss suffered by the Applicant is addressed in the reasons of 14 May 2025 and subject of separate relief ordered in terms of compensation. At the time of the penalty hearing the Respondent had not yet compensated the Applicant for the loss or taken steps to rectify the underpayments, notwithstanding the orders of the Court.
2. These are all matters to be taken into account in assessing the appropriate penalty to be fixed.

1. On the evidence before the Court, there has been no cooperation on part of the Respondent during these proceedings. That evidence establishes that the Applicant made reasonable efforts to put the Respondent on notice of the proceedings and the orders of the Court. Despite the Applicant's efforts, the Respondent has failed to comply with various orders of the Court including as to remedy pursuant to the reasons of 14 May 2025.
2. In the circumstances, I am satisfied that the Respondent was aware of the proceedings but has declined to properly engage with the requirements ordered of them (which included explanations as to the consequences of such non-compliance).
3. Further, there has been no statement of contrition or regret by or on behalf of the Respondent as may otherwise have been relevant to an assessment of the appropriate penalty.

1. There is no evidence before the Court relating to the size or the financial circumstances of the Respondent. The Applicant submitted that the Respondent is no longer operational and the Respondent's ABN status was cancelled after initiation of these proceedings (on and from 1 October 2024). The Respondent however still remains registered with Australian Securities and Investments Commission (ASIC).

1. There is a need for general deterrence in this case, to emphasise the importance of an effective compliance framework and at a sufficient level to incentivise compliance. This is particularly so in the hospitality industry which, on the evidence before the Court, comprises employees at higher risk of being denied their employment-related entitlements.
2. There is also a need for specific deterrence in the present case as to demonstrate that the multiple contraventions are not acceptable and to deter the Respondent from future conduct of this kind, especially given that the Respondent entity continues to be registered with ASIC and has the potential to operate in the future.

1. The Applicant submitted, and I accept, that the conduct subject of each declared contravention derives from a single course of conduct that was temporal and of the same factual basis and may be characterised as a common course of conduct.
2. When all of the above factors are considered, I am satisfied that it is appropriate to impose a pecuniary penalty on the Respondent for its declared contraventions.
3. The aggregate maximum total penalty for the Respondent's contraventions of the Act is $1,032,900.00. The Applicant sought the imposition of 10 to 15% of the aggregate maximum total in pecuniary penalties.
4. Weighing the various competing factors and in the particular circumstances, a penalty in the range of 10% of the maximum that may be imposed and totalling $103,290.00 is, in my view, appropriate in the circumstances. This is a proportionate response to the Respondent's declared contraventions and strikes a reasonable balance between oppressive severity and the need for both general and specific deterrence in this particular case. It is also appropriate that the penalty amount be paid to the Applicant in the particular circumstances of the present case.

1. For the above reasons, I will make orders accordingly.

I certify that the preceding twenty-eight (28) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Mansini.