Fair Work Ombudsman v Armstrong [2025] FedCFamC2G 1756

1. Pursuant to s 546(1) of the FW Act, within 28 days of this order, the respondent to pay a pecuniary penalty of $7,981.50 to the Commonwealth for his contravention declared at paragraph 1 above.
2. Pursuant to s 545(1) of the FW Act, within 28 days of this order, the respondent take the following steps to remedy the direct effects of his non-compliance with the Compliance Notice by:
   1. paying to Mr Warrick Alston (Employee) the amount of $2,498.33, minus such amounts as had been paid by the respondent to the Employee at the date of these orders; and
   2. calculating and paying any additional superannuation to the Employee's nominated superannuation fund in accordance with cl 20.2 of the Car Parking Award 2020 (Award) in respect of the amount of $2,498.33.
3. Pursuant to s 547(2) of the FW Act, within 28 days of this order, the respondent to pay interest to the Employee on so much of the amount of $2,498.33 as was outstanding from time to time between 1 July 2024 and the date of these orders (the interest period) at the pre-judgement interest rate prescribed by the Federal Court of Australia from time to time in the interest period.

Note: The form of the order is subject to the entry in the Court's records.

Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 24.04(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth)), or to record a variation to the order pursuant to r 24.04 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth).

1. The respondent is the operator of a valet car parking service for cruise ship customers. In November 2023, the applicant commenced an investigation of the respondent after a complaint was made to it by a worker who had performed car parking work for the respondent, Warrick Alston (the employee).
2. As a result of the applicant's investigation, a fair work inspector formed the belief that Mr Alston was an employee of the respondent, that the Car Parking Award 2020 (the award) applied to Mr Alston's employment by the respondent, and that between 3 August 2023 and 27 October 2023, the respondent had failed to make payments of casual overtime penalty rates and casual overtime Saturday and Sunday penalty rates to Mr Alston, and thereby contravened the award.
3. On 20 May 2024, the fair work inspector issued a compliance notice to the respondent (the compliance notice), requiring him to take steps to rectify the alleged contraventions by 1 July 2024, and then provide evidence of such rectification to it by 8 July 2024.
4. The applicant commenced the present proceeding on 14 May 2025 by an originating application (the application) accompanied by a statement of claim (the statement of claim) alleging that the respondent contravened s 716(5) of the Fair Work Act 2009 (Cth) (FW Act) by failing to comply with the compliance notice.
5. The respondent admits the contravention of the compliance notice. That admission being made, the Court must determine the relief to be granted, namely:

(1) Whether it should make a declaration of the respondent's contravention;

(2) Whether it should make orders pursuant to s 545 of the FW Act that the respondent pay compensation to the applicant; and

(3) Whether it should impose a pecuniary penalty upon the respondent for his contravention, and if so, in what amount.

1. The above questions have been answered in the affirmative and the Court makes orders accordingly, including an order that the respondent pay a pecuniary penalty of $7,981.50.
2. The reasons for those conclusions are set out below, following a summary of the evidence before the Court, the relevant statutory provisions, and a history of the background, the contravention, and the proceeding.

1. The Court had before it the following materials:

(a) A Statement of Agreed Facts made for the purposes of s 191 of the Evidence Act 1995 (Cth) (SOAF);

(b) Affidavit of Kirsty Ford, Fair Work Inspector, affirmed 21 August 2025;

(c) Affidavit of Bradley Robert Armstrong, respondent, affirmed 17 September 2025; and

(d) Affidavit of Ryan Leaney, a lawyer in the office of the applicant, affirmed 2 October 2025.

1. None of the deponents of the affidavits were required for cross-examination.

1. The relevant provisions of the FW Act are as follows:

(1) This section applies if an inspector reasonably believes that a person has contravened one or more of the following:

(a) a provision of the National Employment Standards;

(b) a term of a modern award;

(c) a term of an enterprise agreement;

(d) a term of a workplace determination;

(e) a term of a national minimum wage order;

(f) a term of an equal remuneration order;

(fa) subsection 536AA(1) or (2) (which deal with employer obligations in relation to advertising rates of pay);

(g) a provision of Part 6‑4C (which deals with the Coronavirus economic response);

(h) a jobkeeper enabling direction (within the meaning of Part 6‑4C);

(i) a provision of an agreement authorised by Part 6‑4C.

Giving a notice

(2) The inspector may, except as provided by subsection (4), give the person a notice requiring the person to do either or both of the following within such reasonable time as is specified in the notice:

(a) take specified action to remedy the direct effects of the contravention referred to in subsection (1) (including to calculate and pay the amount of any underpayment);

(b) produce reasonable evidence of the person's compliance with the notice.

(a) set out the name of the person to whom the notice is given; and

(b) set out the name of the inspector who gave the notice; and

(c) set out brief details of the contravention; and

(d) explain that a failure to comply with the notice may contravene a civil remedy provision; and

(e) explain that the person may apply to the Federal Court, the Federal Circuit and Family Court of Australia (Division 2) or an eligible State or Territory Court for a review of the notice on either or both of the following grounds:

(i) the person has not committed a contravention set out in the notice;

(ii) the notice does not comply with subsection (2) or this subsection; and

(f) set out any other matters prescribed by the regulations.

Relationship with enforceable undertakings

(4) An inspector must not give a person a notice in relation to a contravention if:

(a) the person has given an undertaking under section 715 in relation to the contravention; and

(b) the undertaking has not been withdrawn.

Relationship with civil remedy provisions

(4A) An inspector must not apply for an order under Division 2 of Part 4‑1 in relation to a contravention of a civil remedy provision by a person if:

(a) the inspector has given the person a notice in relation to the contravention; and

(b) either of the following subparagraphs applies:

(i) the notice has not been withdrawn, and the person has complied with the notice;

(ii) the person has made an application under section 717 in relation to the notice that has not been completely dealt with.

Note: A person other than an inspector who is otherwise entitled to apply for an order in relation to the contravention may do so.

(4B) A person who complies with a notice in relation to a contravention of a civil remedy provision is not taken:

(a) to have admitted to contravening the provision; or

(b) to have been found to have contravened the provision.

Person must not fail to comply with notice

(5) A person must not fail to comply with a notice given under this section.

Note: This subsection is a civil remedy provision (see Part 4‑1).

(6) Subsection (5) does not apply if the person has a reasonable excuse.

545 Orders that can be made by particular courts

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

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

Note 1: For the court's power to make pecuniary penalty orders, see section 546.

Note 2: For limitations on orders in relation to costs, see section 570.

Note 3: The Federal Court and the Federal Circuit and Family Court of Australia (Division 2) may grant injunctions in relation to industrial action under subsections 417(3) and 421(3).

Note 4: There are limitations on orders that can be made in relation to contraventions of subsection 463(1) or (2) (which deals with protected action ballot orders) (see subsection 463(3)).

(2) Without limiting subsection (1), orders the Federal Court or Federal Circuit and Family Court of Australia (Division 2) may make include the following:

(a) an order granting an injunction, or interim injunction, to prevent, stop or remedy the effects of a contravention;

(b) an order awarding compensation for loss that a person has suffered because of the contravention;

(c) an order for reinstatement of a person;

(d) an order requiring a person to comply, either wholly or partly, with a notice (other than an infringement notice) given to the person by an inspector or the Fair Work Ombudsman.

Eligible State or Territory courts

(3) An eligible State or Territory court may order an employer to pay an amount to, or on behalf of, an employee of the employer if the court is satisfied that:

(a) the employer was required to pay the amount under this Act or a fair work instrument; and

(b) the employer has contravened a civil remedy provision by failing to pay the amount.

Note 1: For the court's power to make pecuniary penalty orders, see section 546.

Note 2: For limitations on orders in relation to costs, see section 570.

(3A) An eligible State or Territory court may order an outworker entity to pay an amount to, or on behalf of, an outworker if the court is satisfied that:

(a) the outworker entity was required to pay the amount under a modern award; and

(b) the outworker entity has contravened a civil remedy provision by failing to pay the amount.

Note 1: For the court's power to make pecuniary penalty orders, see section 546.

Note 2: For limitations on orders in relation to costs, see section 570.

When orders may be made

(4) A court may make an order under this section:

(a) on its own initiative, during proceedings before the court; or

(b) on application.

Time limit for orders in relation to underpayments

(5) A court must not make an order under this section in relation to an underpayment that relates to a period that is more than 6 years before the proceedings concerned commenced.

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

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

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

Determining amount of pecuniary penalty

(2) Subject to this section, the pecuniary penalty must not be more than:

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

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

(2AA) Despite paragraph (2)(b), if:

(a) the civil remedy provision is a selected civil remedy provision; and

(b) the person is a body corporate; and

(c) when the application for the order is made, the person is not a small business employer;

the pecuniary penalty must not be more than 5 times the amount worked out in accordance with paragraph (2)(b).

Payment of penalty

(3) The court may order that the pecuniary penalty, or a part of the penalty, be paid to:

(a) the Commonwealth; or

(b) a particular organisation; or

(c) a particular person.

Recovery of penalty

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

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

1. Applications for orders in relation to contraventions of civil remedy provisions

(1) A provision referred to in column 1 of an item in the table in subsection (2) is a civil remedy provision.

(b) the Federal Circuit and Family Court of Australia (Division 2);

1. The applicant is the regulator with the standing to bring the present proceedings under s 539(2) of the FW Act.
2. The respondent operates a valet car parking service for people going on cruise holidays. The business, which the applicant operated as a sole trader, traded under the registered business name "Cruise Control Australia Parking Sydney" (Cruise Control).
3. In August 2023, Warrick Alston commenced performing work for Cruise Control as a driver.
4. The respondent paid Mr Alston at a flat rate of $30.00 per hour for that work.
5. Mr Alston's work increased in late September 2023, when the season started.
6. Mr Armstong affirmed that Mr Alston's employment ended in early November 2023 because he insisted on being paid daily rather than weekly and in arrears.
7. Mr Alston approached the applicant later that month to make a request for assistance. The applicant conducted an investigation, as a result of which one of its fair work inspectors, Kristy Ford, formed the belief that Mr Alston had been employed by the respondent between 3 August 2023 and 12 November 2023, that the award applied to Mr Alston's employment, and that by reason of his duties, Mr Alston was properly classified as a Car Parking Officer Level 1A, as defined in cl 12.4 of the award.
8. Inspector Ford also formed the view that the respondent had contravened the award by failing to pay Mr Alston:
   • casual overtime penalties of 175% for the first two hours of overtime in accordance, and 225% for subsequent hours, in accordance with cls 21.3(a) and 21.3(b) of the award;
   • casual Saturday penalties of 150% in accordance with cl 23.1(a) of the award; and
   • casual Sunday penalties of 200% in accordance with cl 23.2(a) of the award.
9. On 20 May 2024, Inspector Ford issued the compliance notice to the respondent, pursuant to s 716(2) of the FW Act.
10. The compliance notice recited that Inspector Ford had a reasonable belief that the respondent (referred to thereafter as "Employer") had contravened terms of the award and required the respondent to take steps to remedy the contravention as described below.
11. The first page of the compliance notice contained the following section (as per original):

Rights and obligations under this Compliance Notice

1. Failure to comply with this Compliance Notice may contravene a civil remedy provision and render you liable for a civil penalty (unless you have a reasonable excuse). See sections 716(5) and 716(6) of the Fair Work Act 2009 (Cth) (FW Act).

2. You may be liable to a civil remedy if you give false or misleading information or produce false or misleading documents. It is also a serious offence under the Criminal Code (Cth).

3. If you do not comply with this Compliance Notice, the Fair Work Ombudsman may, without further notice, commence legal action against you and/or individuals involved in your failure to comply with this Compliance Notice to recover any outstanding monies which this Compliance Notice requires you to pay and to seek civil penalties.

4. Complying with the Compliance Notice is not an admission that you contravened, or have been found to have contravened, the Award or the FW Act.

5. You may apply to the Federal Court, Federal Circuit and Family Court (Division 2) or eligible State or Territory Court for a review of this Compliance Notice on either or both of the following grounds:

(a) you did not commit the contraventions set out in this Compliance Notice;

(b) this Compliance Notice does not comply with sections 716(2) or 716(3) of the FW Act.

1. The compliance notice then went on to recite the suspected contraventions of the award, identifying Mr Alston as "the Employee", the period of the employment ("Period"), and the award clauses and the penalty rates payable in respect of the particular hours of work, namely the clauses and rates for casual overtime hours of work ("Casual Overtime Penalty Entitlement"), casual Saturday hours of work ("Casual Saturday Penalty Entitlement") and casual Sunday hours of work ("Casual Sunday Penalty Entitlement").
2. Under the heading "Required action under this Compliance Notice", the compliance notice then required the respondent, in respect of each of the types of contravention referred to above to do the following, by 1 July 2024:

(i) identify the number of hours the Employee worked during the Period in respect of which the Entitlement was required to be paid by the Award (Hours);

(ii) identify the amount the Employer paid to the Employee during the Period in respect of the Entitlement (having regard to the Hours, where applicable);

(iii) calculate the amount the Employer should have paid to the Employee during the Period in respect of the Entitlement (having regard to the Hours, where applicable) and identify the applicable rates of pay within the Period and the period during which each rate applied;

(iv) make a payment to the Employee of the difference between the amount referred to in (ii) and the amount referred to in (iii) immediately above; and

(v) make a record of the information and amounts referred to in (i) to (iii) and the amount of the payment referred to in (iv) immediately above (Underpayment Rectification Information)

1. The compliance notice also required the respondent, by 1 July 2024, to calculate and pay any additional superannuation contributions required by cl 20.2 of the award in respect of the additional amounts required to be paid to the employee.
2. The notice required the respondent to produce to the applicant reasonable evidence of his compliance by 8 July 2024. The details of that requirement are unnecessary to set out, as the respondent did not take any action in the period between being given the compliance notice, and the dates specified for action, to comply with its requirements.
3. The compliance notice contained the following warning, highlighted on the page:

IMPORTANT: Most businesses like yours take this opportunity to fix the issues and avoid legal action.

If you don't, you risk:

• court ordered back-payments to the employee(s) (possibly with interest)
• significant penalties for failing to comply with a compliance notice (up to $93,900 for a company or $18,780 for an individual)
• reputation damage, media coverage and costs associated with legal proceedings.

1. The letter also directed the recipient to seek help if unsure about what to do, including seeking assistance from a legal advisor, accountant or employer association, reading the attached "Frequently Asked Questions" page, or doing the applicant's free "Compliance notices online course". In addition, the document provided links to its online tools and resources to calculate the amounts owed. The document invited the respondent to telephone Inspector Ford.
2. The compliance notice was given to the respondent by personal service on 26 May 2024.
3. Inspector Ford sent a copy of the compliance notice and the covering letter to the respondent by email on 3 June 2024 (3 June 2024 email).
4. The respondent did not take any of the actions required under the compliance notice within the times required. The respondent's evidence does not identify any step he took upon receipt of the compliance notice.
5. On 9 July 2024, Inspector Ford wrote by email to the respondent (9 July 2024 email), attaching her 3 June 2024 email and compliance notice, and a letter dated 9 July 2024.
6. The letter noted the respondent's failure to comply with the compliance notice and continued as follows (as per original):

Please advise us, within 7 days, if ARMSTRONG, BRADLEY ROBERT has a reasonable excuse for not complying with the Compliance Notice.

If ARMSTRONG, BRADLEY ROBERT does not provide a reasonable excuse for its failure to comply with the Compliance Notice, the Office of the Fair Work Ombudsman (FWO) may commence legal action against ARMSTRONG, BRADLEY ROBERT, and any persons involved in its failure to comply with the Compliance Notice, without further notice.

Failure to comply with a compliance notice is a contravention under section 716(5) of the Fair Work Act 2009 (Cth) (FW Act). A court may order a maximum penalty of up to $469,500 in respect of a company that is not a small business employer (with 15 or more employees: section 23 of the FW Act), $93,900 in respect of a company that is a small business employer (with less than 15 employees), or $18,780 in respect of an individual for each failure to comply with a compliance notice.

If legal action is taken against ARMSTRONG, BRADLEY ROBERT, in addition to seeking civil penalties, FWO may seek to recover any outstanding monies which the Compliance Notice required ARMSTRONG, BRADLEY ROBERT to pay.

Finally, we note that you may be liable to a civil penalty or other civil remedy under the FW Act if you give false or misleading information, or produce false or misleading documents, to the FWO. You may also be liable for a criminal offence under the Criminal Code (Cth) if you do so.

We strongly encourage you to obtain independent legal advice in respect of this matter and, in particular, this correspondence. You should be aware that this letter may be produced to a court in respect of this matter.

1. The respondent replied to the 9 July 2024 email on 2 August 2024 (2 August 2024 email).
2. In that email the respondent claimed that the "hard copy" had been "served to the wrong address", and that he was "now" in receipt of it. Given the respondent agrees that he was personally served on 26 May 2024, that claim must be seen as an attempt to obfuscate the matter with language that is, at best, misleading.
3. The respondent further alleged that the employee had been engaged as a contractor, had a "history of fabricated claims", was the subject of police interest, and was in arrears of child support payments. He asked Inspector Ford to advise of a hearing date and whether the employee would be attending "so we can make appropriate arrangements with the authorities concerned to take him into custody to resolve the issues alleged against him." The respondent did not elaborate upon the "history of fabricated claims" in the email and did not do so at the hearing before this Court. The respondent's allegations of fabricated claims, police matters, and child support arrears, and his threat that the police would be waiting to take the employee into custody were a clumsy and transparent attempt to intimidate or embarrass the applicant into abandoning its regulatory task. They do not reflect favourably on the respondent.
4. Inspector Ford responded to that email by her email of 5 August 2024. Inspector Ford advised that the matter would be referred for further enforcement action, which meant that the applicant may commence legal proceedings for failure to comply with the compliance notice. The email attached a copy of the applicant's Compliance and Enforcement Policy.
5. Although there is no evidence that the respondent took any step in response to that communication, on 8 August 2024, the respondent registered Cruise Control Australia Parking Sydney Pty Ltd, of which he was the director, secretary and sole shareholder.
6. On 20 December 2024, the applicant's Compliance and Enforcement Branch wrote to the respondent by email. The letter noted the failure of the respondent to rectify its non-compliance with the compliance notice or provide a reasonable excuse for the non-compliance supported by sufficient evidence. The letter advised that the matter had been referred to the applicant's Legal Enforcement Branches for consideration of appropriate enforcement action.
7. The letter gave the respondent a further and final opportunity to take the actions required by the compliance notice and provide evidence of such actions, or to provide any reasonable excuse for his failure to comply with the compliance notice by 17 January 2025. The covering email invited the respondent to contact either the author or another lawyer, Ryan Leaney, employed by the applicant, to discuss.
8. The respondent emailed the applicant on 14 January 2025, seeking the contact details of Inspector Ford's immediate supervisor, and those of Mr Leaney.
9. Mr Leaney called the respondent on the afternoon of 15 January 2025 and emailed him on the morning of 16 January 2025 inviting the respondent to contact him to discuss the 20 December 2024 and the attached compliance notice.
10. During the course of 16 January 2025, Mr Leaney and the respondent exchanged emails. In that correspondence Mr Leaney noted the respondent's "willingness to rectify non-compliance with the compliance notice issued on 20 May 2024 by entering into a payment plan. In order to consider your request for a payment plan, the Fair Work Ombudsman requires details as to the amount and frequency of the payments that you propose to make."
11. Later that day, the respondent wrote to Mr Leaney as follows (as per original):

With the hardship your client has caused me,

With outstanding legal debts totalling over

$8000,

Which invoiced receipts can be provided to you,

If need be

Tomorrow at the earliest,

Your client does not have clean hands in

legal speak,

Your client has been involved in a concerted smear against me,

Which is heavily impacted on my personal earnings

I can only provide at this point in time

$100 a month

Because of his published defamatory & slanderous

habitual lies

he has a history of,

which is on written

checkable evidence he is very much aware of doing Wilfully & w recklessly

publishing on social media platforms slandering & defaming me,

I am fully committed

to settling the matter with Warwick Alston

As advised.

There will be a catch round in pending civil matters against Warwick

Which he will be served with,

Once his address which is credible

has been substantiated,

I will be seeking substantial costs & applying for

a costs judgement against your client

along with a request for punitive damages to be applied

after all out of pocket costs expenses involved,

to secure a judgement has been applied in court orders against your client.

1. On 9 April 2025, Mr Leaney wrote to the respondent and advised that the applicant was considering whether to accept his proposed payment plan, inviting the respondent to provide information about his financial circumstances by 30 April 2025. The letter specified the information the applicant sought, including details of average weekly income, current liabilities, tax return notice of assessment for the previous financial year, bank statements and the like.
2. The letter advised that the applicant's calculations were that the respondent was obliged to pay Mr Alston the amount of $2,415.17 and enclosed the calculations.
3. The letter stated that the respondent's non-compliance with the compliance notice would be taken to have been rectified if he paid the amount of $2,415.17 to Mr Alston, made any additional superannuation payments, and provided evidence to the applicant of such payments.
4. The letter advised, under a heading "Consequences if required action not taken" as follows:
   1. If you fail to provide evidence and information in respect of your financial circumstances, or take the actions required by the Compliance Notice, or provide a reasonable excuse for non-compliance by 30 April 2025, the FWO may commence litigation against you without further notice alleging that you contravened section 716(5) of the FW Act.
   2. In the event that the FWO commences litigation against you, the FWO may seek:

a) a declaration that you contravened section 716(5) of the FW Act;

b) an order that you take the actions required by the Compliance Notice; and

c) penalties against you.

The maximum penalty the Court may impose for a contravention of section 716(5) of the FW Act is $18,780 for an individual. Such penalties are imposed in addition to the amount to be paid to the employee in accordance with the requirements of the Compliance Notice.

1. We encourage you to obtain independent legal advice in respect of this matter and this correspondence.

You should be aware that this letter may be produced to the Court in respect of this matter.

1. The following day Mr Leaney wrote to the respondent again providing an amended set of calculations. The hours of work and rate were identical; the amended calculations showed the amount that had been paid to the employee and displayed the amount of $2,415.17 as the balance owing when the payments already made to the employee were factored into the calculations.
2. There is no evidence that the respondent replied to the 9 April 2025 letter.
3. On 14 May 2025, the applicant commenced the present application. The application was given a first return date of 18 June 2025. The respondent did not file a Notice of Address for Service until 8 July 2025.
4. On 22 July 2025, the applicant and the respondent agreed to a payment plan to pay the outstanding amount under the compliance notice to the employee, with a payment of $400 to be made at the end of July, and monthly thereafter.
5. Since that time the respondent has made payments to the employee of $420 on:

(a) 1 August 2025;

(b) 29 August 2025; and

(c) 29 September 2025.

1. On 25 July 2025, the Court made orders for the preparation of the matter for a hearing on the question of penalty and any other relief. The hearing proceeded on 7 October 2025.
2. The respondent continues to be involved in the Cruise Control business.

1. The three issues arising for determination are addressed in turn below.

1. The respondent opposed the making of a declaration of the respondent's contravention, submitting that the purpose of deterrence would be served by the imposition of a penalty in the matter. The respondent did not identify any authority in support of that view.
2. The Court has a wide discretion to make declarations of right pursuant to s 141 of the Federal Circuit and Family Court of Australia Act 2021 (Cth). However, the Court must be satisfied that it is appropriate to make a declaration in any particular case.
3. Declarations of contraventions of provisions such as s 716 of the FW Act are likely to be appropriate where they serve to record the Court's disapproval of the contravention, vindicate the regulator's claim of contravention, assist the regulator to carry out its duties, and deter other persons from contravening the provisions: Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (2017) 254 FCR 68; [2017] FCAFC 113 at [93].
4. The applicant has the important function of promoting and monitoring compliance with the FW Act and fair work instruments (such as the award) and to inquire into any act that may be contrary to the FW Act or a fair work instrument. The respondent's contravening conduct demonstrated either ignorance or disregard of that role. The respondent failed to seriously engage with the applicant in respect of the compliance notice until the present proceeding was commenced. It is appropriate to make declarations of contravention in those circumstances to record the Court's disapproval of the contravening conduct and to convey a message to the respondent and other like employers that they may not disregard their obligations to respond to compliance notices issued by the regulator.

1. The parties were agreed that the current amount outstanding under the compliance notice following the recent payments that had been made by the respondent was $1,238.33.
2. The respondent accepted that the Court had the discretion to make an order for payment of compensation but submitted that an order for compensation was unnecessary given the payments recently made. Given the history of this matter, it is more appropriate that there be an order made.
3. For reasons I set out in Fair Work Ombudsman v Clark Projects Pty Ltd [2025] FedCFamC2G 24, including the authorities referred to therein, I consider it is within the power of the Court, pursuant to s 545 of the FW Act to make an order for payment of compensation consequent on a contravention of s 716(5) of the FW Act. In this matter, where the outstanding amount is agreed, there can be no suggestion that the amount does not reflect what the respondent would have been required to pay in order to comply with the compliance notice.
4. I am also satisfied that it is appropriate, pursuant to s 547 of the FW Act, to make an order for payment of interest on so much as was outstanding from time to time of the amount that was required to be paid under the compliance notice (being $2,498.33) from 1 July 2024 (the date for payment specified in the compliance notice) to the date of this judgment, at the rates used by the Federal Court.
5. I am satisfied that it is appropriate to make orders for the respondent to calculate and pay additional superannuation contributions on the same amount, as the compliance notice required and will so order.

1. The maximum penalty that the Court may impose on the respondent for his contravention of s 716(5) of the FW Act is $18,780.00 (that is 60 penalty units of $313 per unit).
2. The principles relevant to the determination of an appropriate penalty for contravention of a civil penalty provision in the FW Act do not require exhaustive restatement.
3. The primary, if not exclusive, objective of imposing a civil penalty for contravention of a civil remedy provision in the Act is the promotion of the public interest in compliance by discouraging, or deterring, future contraventions of the Act of a like kind, both by the instant contravener and by others: Australian Building and Construction Commissioner v Pattinson (2022) 274 CLR 450; [2022] HCA 13 at [9]) (Pattinson).
4. A penalty should not be so low as to be capable of being regarded by the contravener as the mere cost of doing business (Pattinson at [17]; Australian Competition and Consumer Commission v TPG Internet Pty Ltd (2013) 250 CLR 640; [2013] HCA 54 at [66]; Singtel Optus Pty Ltd v Australian Competition and Consumer Commission (2012) 287 ALR 249; [2012] FCAFC 20 at [62]). Equally, the penalty should not be so great as to be of oppressive severity.
5. The following matters inform the determination of an appropriate penalty in this matter.
6. First, in considering the nature and circumstances of the contravention itself there is no evidence that the respondent took any action in response to the compliance notice at the time it was given to him, namely 26 May 2024. The first evidence of any step taken by the respondent was his email to the applicant on 2 August 2024 in reply to the applicant's 9 July 2024 email following up the respondent after his non-compliance. As set out above, the applicant's response was to untruthfully suggest that he had not received the notice until recently, to blame the employee and then to attempt to intimidate or embarrass the applicant into abandoning the case by making irrelevant allegations about the employee, with a threat that the employee would be arrested for some unspecified police matters if the matter was pursued.
7. The respondent attempted the same strategy in response to the applicant's December 2024 letter. In his 16 January 2025 email, the respondent again laid blame upon the employee, made himself out to be the victim and made a threat that the matter would be brought to the attention of "Child Support".
8. Although the respondent was given repeated opportunities by the regulator to remedy the situation short of Court proceedings, it was not until the commencement of the present proceeding that the respondent finally grappled with the reality of the compliance notice and its consequences for him.
9. The respondent's behaviour showed a complete disregard of his obligations and a failure to take the most basic steps to understand them, or to understand the agency with which he was communicating. Much of the relevant information was provided with the compliance notice itself or was otherwise readily available. Had the respondent taken the advice in the applicant's letter of 20 May 2024 or taken up the invitation to telephone Inspector Ford, he may have been able to clarify the situation.
10. The respondent's failure has been ongoing. Had the respondent complied with the compliance notice, the employee would have been paid by 1 July 2024. The first payment by the respondent toward that liability was made in July 2025, over a year after compliance was required. The amount of $2,498.33 (the amount the parties are now agreed represents the amount the respondent would have paid had he complied with the compliance notice), which may be considered modest by some standards, would be significant for an employee who was working on a casual basis for $30 per hour, and who was, according to the respondent, vulnerable to homelessness during the period of the employment.
11. The respondent must be given credit for his admission of the contravention and agreement to the SOAF, however, that credit must be tempered by the respondent's affidavit evidence. The respondent casts himself as the victim of the employee, who, he complains, made a complaint to Safe Work NSW and a claim for workers compensation. The basis for advancing that evidence on the present matter is unclear; the mere fact of such claims does not paint the employee in an unfavourable light and make the compliance notice less legitimate, or lead to any conclusion that the respondent has been subject to some unjust extra-curial punishment which should be taken into account in his favour. Even if it were demonstrated that the above complaints were baseless (which has not been shown) the respondent has not demonstrated how those claims could possibly mitigate the respondent's failure to comply with the compliance notice.
12. The respondent also avers that:

When the matter was investigated by the Fair Work Ombudsman they suggested to me that there had been an underpayment to Warrick. I was convinced that Warrick had been paid appropriately and indicated an intention to dispute the allegation of underpayment but when I looked into it the costs associated with such dispute was simply prohibitive in the context of my seriously deteriorating financial circumstances. In particular, the costs would well exceed the amount of the alleged underpayment of $2415.17. In those circumstances I agreed to pay and offered to reimburse at a rate of $100 per month.

1. The respondent has taken the baffling step of informing the Court that he disputes the underlying contravention and his concession of the obligation in the compliance notice has only been motivated by expedience. That illustrates his failure to acknowledge the nature of his obligations under the compliance notice. The respondent, of course, had an opportunity to engage about whether there was a proper basis for the issuing of the notice, whether the contravention identified in the compliance notice had occurred, and whether he had a reasonable excuse for failing to comply with the compliance notice. The respondent's assertion leaves no room for a conclusion that his concession in the proceeding evidences some contrition and remorse about the contravention that may redound to his credit.
2. Later, the respondent affirms:

I sincerely regret having inadvertently underpaid Warrick the amount referred to. This is particularly so in circumstances where I had gone out of my way to help him by providing him with work and in addition providing him with a place to live.

1. So far as the respondent expresses regret, it is not for the contravention before the Court, namely, the failure to comply with the compliance notice. The applicant does not appear to have grappled with the fact that his failure to attend to his obligations on receipt of the compliance notice has caused the applicant to devote many hours, at taxpayer expense, to following him up, without receiving a sensible response until the Court's processes were enlivened.
2. The statement of regret must also be taken with a grain of salt, given it is the vehicle for a self-serving claim of "inadvertence", an accusation of betrayal by the employee, and a claim that he is the victim of his own kindness.
3. The position advanced by the respondent to the Court gives the Court little confidence that the respondent has understood the nature of the obligation he contravened or taken any responsibility for his contravening conduct. It is to be hoped that the reality of the respondent's experience of engaging his lawyer, appearing at the hearing, and being compelled to make payment arrangements will likely have had some salutary effect upon him.
4. The considerations above support the conclusion that a greater, rather than lesser, penalty, is appropriate to focus the respondent's mind upon the importance of his compliance obligations in future. There is a need for the penalty to serve the purpose of specific deterrence because the respondent continues to operate in the industry and appears to have has incorporated a company for that purpose.
5. The penalty imposed in the present matter must also be such as to achieve general deterrence; that is, to send a message to other like employers that compliance notices are serious, and the failure to respond to them carries serious consequences. Unless that message is communicated the efficacy of the statutory scheme will be undermined.
6. The fact that the respondent has now grappled with the matter and made payments in satisfaction of the requirements of the compliance notice stands to his credit. The fact that there is no evidence before the Court of any prior contravention by the applicant must also be taken into account in his favour.
7. The applicant contends that a penalty of $9,577.80, being 60% of the maximum, with a 15% discount for co-operation and partial rectification is appropriate.
8. The respondent contends that the contravention should be regarded as being in the lower range, and that the penalty suggested by the applicant would be oppressive. That submission is not accepted, particularly given the absence of evidence of the size and financial position of the respondent's business.
9. In the final analysis, I am satisfied that it is appropriate to impose a penalty at 50% of the maximum, being $9,390.00. Applying a discount of 15% to that amount, the penalty I will order be imposed upon the respondent is $7,981.50.
10. I will order accordingly.

I certify that the preceding eighty-eight (88) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Doust.