Fair Work Ombudsman v Blumentals [2025] FedCFamC2G 2106

1. The respondent has not filed any documents in the proceedings nor appeared at any court event. The applicant seeks a default judgment against the respondent pursuant to r 13.05(2)(c) of the 2021 Rules. The applicant contends that the 2021 Rules apply to the interlocutory application because:

(a) it was lodged on Friday, 29 August 2025, when the 2021 Rules were in effect; and

(b) s 7(2)(c) of the Acts Interpretation Act 1901 (Cth) (Acts Interpretation Act), (which applies to the Rules per s 13(1) of the Legislation Act 2003 (Cth) (Legislation Act)) operates to preserve the right to seek default judgment which was acquired or accrued under the 2021 Rules.

1. The Federal Circuit and Family Court of Australia (General Federal Law) Rules 2025 (Cth) (2025 Rules) took effect on Monday, 1 September 2025.
2. Section 7(2) of the Acts Interpretation Act provides:

No effect on previous operation of Act or part

(2) If an Act, or an instrument under an Act, repeals or amends an Act (the affected Act) or a part of an Act, then the repeal or amendment does not:

(a) revive anything not in force or existing at the time at which the repeal or amendment takes effect; or

(b) affect the previous operation of the affected Act or part (including any amendment made by the affected Act or part), or anything duly done or suffered under the affected Act or part; or

(c) affect any right, privilege, obligation or liability acquired, accrued or incurred under the affected Act or part; or

(d) affect any penalty, forfeiture or punishment incurred in respect of any offence committed against the affected Act or part; or

(e) affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment.

Any such investigation, legal proceeding or remedy may be instituted, continued or enforced, and any such penalty, forfeiture or punishment may be imposed, as if the affected Act or part had not been repealed or amended.

1. The applicant contends that, in any event, rr 13.04 and 13.05 of the 2021 Rules are substantially the same as rr 5.09 and 5.11 of the 2025 Rules.
2. In Esber v Commonwealth of Australia [1992] HCA 20; (1992) 174 CLR 430 (Esber v Commonwealth), the High Court considered the savings and transitional provisions of one statutory scheme (for redemption of employee's compensation) when replaced by another. In that case, a former member of the defence forces received weekly compensation payments exceeding $50 under the Compensation (Commonwealth Government Employees) Act 1971 (Cth) (the 1971 Act). A provision of the 1971 Act permitted the employee to apply to receive a lump sum in lieu of such weekly payments. The application was rejected by the delegate. The employee applied to the Administrative Appeals Tribunal (Tribunal) for review. The application for review was instituted on 15 September 1988.
3. After the application was made, but before the Tribunal hearing, the 1971 Act was repealed and replaced by the Commonwealth Employees' Rehabilitation and Compensation Act 1988 (Cth) (the 1988 Act). Under the 1988 Act, weekly payments of compensation exceeding $50 per week were not redeemable. The Tribunal determined that the 1971 Act applied. The Commonwealth appealed that decision to the Full Court of the Federal Court which allowed the appeal. The High Court held that the 1971 Act applied, based on its construction of the savings and transitional provisions within the 1988 Act (which I need not say more about here) and, separately, the operation of s 8 of the Acts Interpretation Act.
4. Section 8 of the Acts Interpretation Act, as it stood at the time of the decision in Esber v Commonwealth, was in substantially the same form as s 7 of the current version of that Act:

Where an Act repeals in the whole or in part a former Act, then unless the contrary intention appears the repeal shall not;

...

(c) affect any right privilege obligation or liability acquired accrued or incurred under any Act so repealed; or

(e) affect any investigation legal proceeding or remedy in respect of any such right privilege obligation liability penalty forfeiture or punishment as aforesaid ...

The first step in a consideration of s 8 is to identify the "right" to which the appellant says was acquired or accrued under the repealed Act. Paragraph (e) operates in relation to such a right, not independently of it.

[...]

Once the appellant lodged an application in the Tribunal to review the delegate's decision, he had a right to have the decision of the delegate reconsidered and determined by the Tribunal. It was not merely "a power to take advantage of an enactment". Nor was it a mere matter of procedure; it was a substantive right. Section 8 of the Acts Interpretation Act protects anything that may be truly described as a right, "although that right might fairly be called inchoate or contingent". This was such a right. It was a right in existence at the time the 1971 Act was repealed. That being so, and in the absence of a contrary intention, the right was protected by s 8 of the Acts Interpretation Act and was not affected by the repeal of the 1971 Act.

1. I turn to my consideration of whether the 2021 or 2025 Rules apply to the interlocutory application. The application was lodged at 12:50pm on 29 August 2025 when the 2021 Rules were in force. At that time, r 2.05 of the 2021 Rules provided:

(1) A document must be filed by electronic communication as permitted by the Court, unless it is not reasonably practicable to do so.

(2) If it is not reasonably practicable to file a document by electronic communication in accordance with subrule 2.08(2), it may be filed, in order of preference, by:

(a) emailing it to the registry; or

(b) delivering it to the registry; or

(c) sending it to the registry by post; or

(d) faxing it to the registry.

(a) the filing fee has been paid (or an exemption or deferral applies); and

(b) the document is accepted for filing by the Registry Manager and sealed with the seal of the Court or marked with the stamp of the Court, as required by Division 2.4.

(4) However, a document sent by fax or electronic communication, if accepted, is taken to have been filed:

(a) if the whole document is received by 4.30 pm on a day the Registry is open for business--on that day; or

(b) in any other case--on the next day the Registry is open for business.

1. Despite being lodged before 4:30pm on 29 August 2025, the document was not accepted for filing by the Registry until 4:52pm on 1 September 2025. At the commencement of business on 1 September 2025, the 2025 Rules came into effect and repealed the whole of the 2021 Rules.
2. Rule 2.15(1) and (2) of the 2025 Rules provides:

(a) the document has been lodged with the Court in accordance with rule 2.12; and

(b) the filing fee, if any, has been paid (or an exemption or deferral applies); and

(c) the document has been accepted for filing in a registry by having the seal of the Court affixed to it.

(2) A document, if accepted by a Registrar under subrule (1), is taken to have been filed:

(a) if the whole document is received by 4.30 pm on a day the registry is open for business - on that day; or

(b) in any other case - on the next day the registry is open for business.

1. The question is whether the applicant is entitled to rely on the right created by the 2021 Rules to seek default judgment notwithstanding the effluxion of time between the lodgement of the interlocutory application and it becoming "filed".
2. Section 217 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (FCFCOA Act) provides that the majority of the judges of Division 2 may make rules of the court. Section 217(2) provides that such rules have effect "subject to any provision made by another Act". This includes s 7 of the Acts Interpretation Act and s 13 of the Legislation Act as to preserve the rights created by the 2021 Rules.
3. The first step is to ascertain the "right". In this case, it is the applicant's right to seek default judgment under r 13.05 of the 2021 Rules.
4. Next is to ask whether such right had been "acquired or accrued" during the pendency of the 2021 Rules. In my view, it had not.
5. Rule 2.05(3) of the 2021 Rules stipulates that a document is not "filed" until all the requirements of the sub-rule are met i.e., the filing fee paid, it "being accepted by the Registry Manager" and the document being sealed. This makes it clear that that lodgement of the document does not constitute its filing. The disconnect between lodgement of a document and its filing is amplified by sub-rule 2.05(4) of the 2021 Rules where a document is "if accepted" "taken to have been filed" on the day it was received by the Registry by 4:30pm on a day the Registry is open for business, but otherwise on the next day that the Registry is open for business. The qualifying words "if accepted" reinforces the distinction, and potential temporal separation, between the lodgement of the document and it being "filed".
6. Until the document is "filed", the application is not instituted within the court. The "filing" of a document marks the institution of the proceeding in the court and, until that occurs, no right is acquired or accrued under the enactment on which it relies.
7. In Esber v Commonwealth, the application for relief under the 1971 Act had been instituted in the Tribunal prior to its repeal, whereas in this case, the interlocutory application was lodged during the pendency of the 2021 Rules but the proceedings were not instituted until after the 2025 Rules came into effect. I accept that, by concluding that the "right" had not been "acquired or accrued" at the time of the document's lodgement, and noting that effluxion of time between being lodged and being filed, the relief that the applicant sought to avail itself of under the 2021 Act would be extinguished at 4:30pm on the last business day before the 2025 Rules commenced. Superficially, this may appear to defeat the right that s 7 of the Acts Interpretation Act is intended to protect.
8. However, when the applicant sought to avail itself of the default judgment provisions in the 2021 Rules, it did so against the background of the totality of those Rules, including r 2.05. In other words, it knew that unless and until the document was accepted by the Registry, it was not "filed" and thus had not instituted the claim. The applicant took its chances by filing the interlocutory application on the eve of the commencement of the 2025 Rules.
9. The interlocutory application was accepted as filed at 4:53pm on 1 September 2025. This was after the commencement of the 2025 Rules. I am satisfied that the date of filing established when the right is acquired or accrues. In this case, that was during the pendency of the 2025 Rules and I so find.
10. Even if I am wrong about the application of the 2025 Rules and the 2021 Rules apply, the default judgment provisions are consistent such that there is no difference in result and no prejudice is occasioned.

For the purposes of rule 5.11, a respondent is in default if the respondent:

(a) has not satisfied the applicant's claim; and

(b) does not:

(i) do an act required to be done, or an act in the time required, by these Rules; or

(ii) comply with an order of the Court in the proceeding; or

(iii) attend a hearing in the proceeding; or

(iv) defend the proceeding with due diligence.

1. The applicant's claim is clearly set out in the Originating Documents. Pursuant to orders made on 14 July 2025, such documents were deemed to have been served on the respondent on 22 April 2025. The relief sought is set out at paragraphs 38 and 39 of the SOC and was in substantially the same terms as the orders stated in the interlocutory application. The claim for the sum of compensation sought to be paid for each affected employee is contained in paragraph 39(a) and Column E of Annexure A to the SOC, and interest is sought by paragraph 39(b) of the SOC.
2. The respondent has not satisfied the claim, as demonstrated by the affidavit of Mr Andrew Vas filed on 13 October 2025 wherein he deposed:
   1. Between 21 August 2025 and 15 September 2025, Fair Work Inspector Diana Barker, telephoned and emailed the 16 employees identified in the statement of claim filed in this matter on 14 March 2025 to enquire as to whether they had received any further payments from Mr Blumentals or Mr William Anthony Honner and Mr John Andrew Scott (Liquidators), being the Court appointed liquidators for D365.Group Pty Ltd. Each of the Employees confirmed that they had not received any further payments from Mr Blumentals.
   2. All employees except for Ms Thalagala further confirmed that they had not received any money from the liquidators. Ms Thalagala advised that she had received some money, but could not recall if it was from the Liquidators or from the Department of Employment and Workplace Relations pursuant to the Fair Entitlements Guarantee scheme. A true copy of the file notes of telephone calls and emails from the Employees are annexed and marked "AMV-29"

1. The affidavits of Mr Joseph Koury filed 19 May 2025, and Mr Andrew Vas filed 19 May 2025, 23 May 2025, 20 June 2025, 29 August 2025 and 13 October 2025 set out the applicant's attempts to communicate with the respondent for the purpose of affecting personal service of the Originating Documents and to bring the proceedings to his attention including future court dates. Reference may be made to those affidavits such that it is not necessary for me to set out their details.
2. On 6 March 2025, the applicant wrote to the respondent outlining its intention to commence litigation against him. The respondent responded to this email on 11 March 2025 but has not otherwise engaged with the applicant.
3. On 14 July 2025, I directed the respondent to file a notice of address for service and a defence and/or response. He did not comply with the directions nor otherwise engage with the court.
4. I am satisfied that the respondent has been aware of the applicant's claim since 22 April 2025; has been on notice of each court event, including the hearing on 27 October 2025; and was on notice of the interlocutory application for default judgment, including that it may be heard on 27 October 2025 if there was no appearance by him. I find that the respondent has chosen to take no part in the proceedings at any time.
5. In the circumstances, I am satisfied that the respondent has not defended the proceeding with due diligence within r 5.09(b)(iv) of the 2025 Rules. He has also failed to comply with orders to file a Notice of Address for Service and a defence or response within the meaning of r 5.09(b)(i) and (ii), and failed to attend hearings on 5 May 2025, 2 June 2025, 14 July 2025 and 27 October 2025 within the meaning of r 5.09(b)(iii).

Should the relief claimed by the applicant be granted?

If a respondent is in default, the Court may:

[...]

(c) If the proceeding was started by an originating process supported by a statement of claim or an alternative accompanying document referred to in rule 8.04, or if the Court has ordered that the proceeding continue on pleadings - give judgment against the respondent for the relief claimed in the statement of claim or alternative accompanying document to which the court is satisfied that the applicant is entitled; or

1. It is convenient to set out the predecessor rule, being r 13.05(2)(c) of the 2021 Rules, which provided:

If a respondent is in default, the Court may:

[...]

(c) If the proceeding was started by an originating process supported by a statement of claim [...]- give judgment against the respondent for the relief that:

(i) The applicant appears entitled to on the statement of claim; and

(ii) The Court is satisfied it has the power to grant; or

1. In Fair Work Ombudsman v Al Hilfi [2015] FCA 313 (FWO v Al Hilfi) at [17] to [23], Besanko J identified the relevant rules concerning default judgments as applied in the Federal Court over time:

[17] Before the introduction of the Federal Court Rules 2011 (Cth), default judgments were dealt with in O 35A of the Federal Court Rules 1979 (Cth). The equivalent of what is now r 5.23(c) was O 35A r 3(2)(c). I set out O 35A r 3(2)(c) and r 5.23(c):

(2) If a respondent is in default, the Court may:

(c) if the proceeding was commenced by an application supported by a statement of claim or the Court has ordered that the proceeding continue on pleadings - give judgment against the respondent for the relief that:

(i) the applicant appears entitled to on the statement of claim; and

(ii) the Court is satisfied it has power to grant;

(2) If a respondent is in default, an applicant may apply to the Court for:

(c) if the proceeding was started by an originating application supported by a statement of claim, or if the Court has ordered that the proceeding continue on pleadings - an order giving judgment against the respondent for the relief claimed in the statement of claim to which the Court is satisfied that the applicant is entitled; or

[...]

1. As can be seen from his Honour's extract of the Federal Court Rules:

(a) O 35A r 3(2)(c) of the Federal Court Rules 1979 (Cth) was the same as r 13.05(2)(c) of the 2021 Rules (but for the use of the synonymous words "started" and "commenced"); and

(b) Rule 5.23(2)(c) of the Federal Court Rules 2011 (Cth) was comparable to r 5.11(c) of the 2025 Rules (save that the 2025 Rule also refers to "alternate accompanying documents").

1. At [18] to [23] of FWO v Al Hilfi, his Honour said:
   1. I start with a number of general observations on the Court's power to make declarations on an application for default judgment.
   2. In Arthur v Vaupotic Investments Pty Ltd [2005] FCA 433 ("Arthur v Vaupotic Investments Pty Ltd") at [3] Heerey J said that O 35A r 3(2)(c) did not require proof by way of evidence of the applicant's claim, but rather, satisfaction on the part of the Court that, on the face of the statement of claim, there was a claim for relief and that the Court had jurisdiction to grant that relief. In that case, in relation to an alleged infringement of a registered design, Heerey J gave judgment in default, including injunctions and orders for delivery up and the payment of costs.
   3. The decision in Arthur v Vaupotic Investments Pty Ltd has been followed in subsequent cases involving applications for default judgment: Australian Competition and Consumer Commission v 1Cellnet LLC [2005] FCA 856 (injunctions and other orders under the Trade Practices Act 1974 (Cth)); Luna Park Sydney Pty Limited v Bose [2006] FCA 94 (damages for breach of contract); Humphries v Halifax Vogel Group Proprietary Limited [2008] FCA 569 (injunction and other relief in connection with the infringement of a patent). Where the Rule of Court dealing with default judgments is engaged by a respondent's default, the allegations of fact in the statement of claim are deemed to be admitted: Australian Competition and Consumer Commission v Dataline.net.au Pty Ltd & Others [2015] FCAFC 114; (2007) 161 FCR 513 at 523, [42]. I agree with Flick J in Speedo Holdings B.V. v Evans (No 2) [2011] FCA 1227 at [19] and [23] that, despite the difference in wording between O 35A r 3(2)(c) and r 5.23(2)(c), this principle applies to r 5.23(2)(c) in the same way it did to O 35A r 3(2)(c).
2. The difference in the wording between r 13.05(2)(c) of the 2021 Rules and r 5.11(c) of the 2025 Rules does not alter the application of FWO v Al Hilfi to this case, given the same difference was observed and resolved by Besanko J at [20] of his Honour's reasons. It thus continues to be the case in this Court pursuant to the 2025 Rules that:

(a) the court does not require proof by way of evidence of the applicant's claim but rather satisfaction on the part of the court that, on the face of the statement of claim, there was a claim for relief; and

(b) the allegations of fact in the statement of claim are deemed to be admitted by the respondent, although are not a concession that the applicant is entitled to the relief sought.

1. Even though r 5.11(c) of the 2025 Rules does not expressly require that the court should be satisfied that it has the power to grant the relief, this is implicit in the exercise of its jurisdiction.
2. I turn to my consideration of the facts relating to the alleged contraventions and the involvement of the respondent in them. The facts reflect the SOC, which are deemed to have been admitted by the respondent.

1. At all material times, the respondent was the sole director, secretary and shareholder of the Company. The Company was incorporated under the Corporations Act 2001 (Cth) and was engaged in the business of modifying, selling, deploying and providing services to clients in relation to Microsoft enterprise software products. The Company is thus a "trading corporation" within the meaning of s 51(xx) of the Commonwealth of Australia Constitution Act, a "constitutional corporation" within the meaning of s 12 of the FW Act, and therefore a "national system employer" within the meaning of s 14(1)(a). The Company entered liquidation on 6 October 2023.
2. The relevant employees are Harianto Antonio, Gordon Foo, Oleksandra Horbatenko, Yogesh Jogani, Muralidhar Mudhireddy, Trevin Nimaladasa, Nirmala Pallyage (Karunarathna), Nishit Parikh, Julija Rikhter, Karan Sahni, Pranisha Shrestha, Nadishani Thalagala, James Turnbull, Ankush Vemagal, David Wakeman and Eman Younis.
3. None of the employees was a casual employee during the period of their employment. Each employee was a "national system employee" within the meaning of s 13 of the FW Act, given the Company was a "national system employer".

Claim pursuant to s 323(1) of the FW Act: failure to pay contractual wages

1. The applicant claims that the Company contravened s 323(1) of the FW Act by failing to pay twelve of the employees (Unpaid Employees) any salary or wages in relation to the performance of their work in full, further or alternatively in money, and further or alternatively at least monthly during the period, and at the relevant rate (Final Rate).
2. The names of the Unpaid Employees and their Final Rate are stated in the table in paragraph 8 of the SOC (Paragraph 8 Table). I agree with the calculations in Column E of the Paragraph 8 Table other than lines (i) and (vi), which I have amended. The Paragraph 8 Table, as amended, reads:

1. The applicant claims that each of the Unpaid Employees was contractually entitled to be paid the Final Rate either because that entitlement was set out in writing in clause 8 of the document styled "Employment Contract" in the form of an annual salary, or because it was inferred from the circumstances of the Company paying them the Final Rate and their continuing performance of work in exchange.
2. Section 323(1) and (2) of the FW Act provides:

(1) An employer must pay an employee amounts payable to the employee in relation to the performance of work:

(a) in full (except as provided by section 324); and

(b) in money by one, or a combination, of the methods referred to in subsection (2); and

(c) at least monthly.

(a) cash;

(b) cheque, money order, postal order or similar order, payable to the employee;

(c) the use of an electronic funds transfer system to credit an account held by the employee;

(d) a method authorised under a modern award or an enterprise agreement.

1. For a national system employee, "full rate of pay" is defined by s 18(1) of the FW Act as including incentive-based payments and bonuses, loadings, monetary allowances, overtime or penalty rates, and any other separately identifiable amounts.
2. In Australia Workers' Union v UGL Resources (Contracting) Pty Ltd [2025] FCAFC 107 (AWU v UGL), the Full Court (Raper, Dowling and Longbottom JJ) considered the scope of s 323(1) of the FW Act. Their Honours said at [79] to [82]:
   1. As explained above, the AWU alleges that UGL has breached s 323 of the Act by failing to pay the Shift Over Cycle rates provided by cl 14.8 of the Agreement. As part of its submissions the AWU addressed the Court on the proper operation of s 323 and a conflict in the authorities regarding that operation. Given our conclusion on the construction of cl 14.8, it is not necessary to address s 323. However, in circumstances where a conflict exists, we consider it appropriate to make the following observations.
   2. In Wilkinson v Wilson Security Pty Ltd (No 3) [2024] FCA 705; 332 IR 387, Colvin J considered (at [102]-[103]) that s 323(1) is not contravened in circumstances where the reason for the non-payment was a dispute about the particular amount that is payable in relation to the performance of work, although Colvin J noted there may be exceptions where the employer wilfully ignores whether there is any payment obligation, or fails to undertake any genuine consideration as to the amounts due to the employee, or defers identifying the amount to be paid (at [105]). There are two decisions of the Federal Circuit and Family Court of Australia which have followed Colvin J's approach: Sabapathy v Viveganantham [2024] FedCFamC2G 666 at [98] ([Judge Mansini]) and Dimkovski v Majorsite Property Group Pty Ltd [2024] FedCFamC2G 683 at [39]- [40] (Young J); and an earlier decision which appears to somewhat support the approach: Coote v Mainline Access Pty Ltd (No 3) [2019] FCCA 383; 344 FLR 1 at [45]- [57] ([Judge Manousaridis]).
   3. There are, however, two recent decisions of this Court (relying upon earlier dicta from this Court) which have interpreted s 323(1) more broadly and determined that it creates an independent obligation to pay amounts due under any instrument, including a contract, in full: Euro Car Parts Pty Ltd v Cannon [2024] FCA 828; 304 FCR 349 at [85] (Halley J) and Wollermann v Fortrend Securities Pty Ltd [2025] FCA 103; 337 IR 457 at [11] (O'Callaghan J).
   4. In our view, the approaches in Euro Car and Wollermann are correct. The obligation arising under s 323(1) is plain on its words; it is for an employer to pay the employee amounts payable in relation to the performance of work in full (and in money, and at least monthly), except as provided by s 324. There is nothing in the text or context of s 323 that suggests that the obligation to pay "in full" depends on whether those amounts are disputed, or the extent to which an employer has given "genuine consideration" as to the amounts due to the employee. A review of the text, context and purpose of the provision reveals that it confronts the mischief of ensuring that employees are not paid in kind but in full and have certainty as to the frequency of payment. If the approach in Wilkinson were taken it would mean that s 323 would operate in a different way to all other civil penalty provisions in the Act which require strict compliance with payment obligations. That approach might also, when applied in cases where the employer disputes an amount payable to an employee under a modern award, have the effect of undermining the objective of the Act to provide a "guaranteed safety net" of minimum terms and conditions provided under modern awards: s 3(b). Of course, while the employer's subjective view on the amount owing may be relevant to the assessment of any penalty, it is not relevant when determining a breach of s 323.
3. To the extent the Paragraph 8 Table includes incentive-based payments and bonuses, loadings, monetary allowances, overtime or penalty rates, and any other separately identifiable amounts, such amounts fall within s 323(1) of the FW Act for the reasons given by the Full Court in AWU v UGL.
4. The facts in paragraphs [1] to [7] and [8] to [10] of the SOC demonstrate, and I find, that:

(a) the Company did not pay the Unpaid Employees their contractual salary or wages contrary to s 323(1) of the FW Act; and

(b) because of such breach, each of the Unpaid Employees suffered loss in the amount set out in Column E of the Paragraph 8 Table as amended.

Claim pursuant to s 90 FW Act: failure to annual leave entitlements

1. The applicant claims that each employee was entitled to four weeks' of paid annual leave for each year of service with the Company, and that annual leave accrued progressively during a year of service according to the ordinary hours of work.
2. Further, the applicant claims that during their respective periods of employment, each of the sixteen employees (Untaken Annual Leave Employees) had at least the amount of untaken annual leave stated in Column E of the Table in paragraph 12 of the SOC (Paragraph 12 Table). Column E is styled "Untaken Annual Leave (D-C)" but should read "Untaken Annual Leave (C-D)" (Untaken Annual Leave). I am satisfied that the calculations are accurate. The Table states:

1. The applicant claims that if each Untaken Annual Leave Employee had taken their Untaken Annual Leave, they would have been entitled to be paid for it at their Final Rate. The table in paragraph 14 of the SOC (Paragraph 14 Table) calculates the amount that each of the Untaken Annual Leave Employees should have been paid by reference to the untaken annual leave (hours) from Column E of the Paragraph 12 Table/Column A of the Paragraph 14 Table multiplied by the Final Rate for that employee. The sum is at Column D of the Paragraph 14 Table. I agree with the calculations in Column D of the Paragraph 14 Table other than line (x), which I have amended. The Paragraph 14 Table, as amended, reads:

1. I am satisfied that, for the purpose of s 86 of the FW Act, Division 6 of Part 2.2 of the FW Act applies to the Unpaid Annual Leave Employees as they were not casual employees.
2. Section 87 of the FW Act provides:

Amount of leave

(1) For each year of service with an employer (other than periods of employment as a casual employee of the employer), an employee is entitled to:

(a) 4 weeks of paid annual leave; or

(b) 5 weeks of paid annual leave, if:

(i) a modern award applies to the employee and defines or describes the employee as a shiftworker for the purposes of the National Employment Standards; or

(ii) an enterprise agreement applies to the employee and defines or describes the employee as a shiftworker for the purposes of the National Employment Standards; or

(iii) the employee qualifies for the shiftworker annual leave entitlement under subsection (3) (this relates to award/agreement free employees).

Accrual of leave

(2) An employee's entitlement to paid annual leave accrues progressively during a year of service (other than periods of employment as a casual employee of the employer) according to the employee's ordinary hours of work, and accumulates from year to year.

Award/agreement free employees who qualify for the shiftworker entitlement

(3) An award/agreement free employee qualifies for the shiftworker annual leave entitlement if:

(i) is employed in an enterprise in which shifts are continuously rostered 24 hours a day for 7 days a week; and

(ii) is regularly rostered to work those shifts; and

(iii) regularly works on Sundays and public holidays; or

(b) the employee is in a class of employees prescribed by the regulations as shiftworkers for the purposes of the National Employment Standards.

(4) However, an employee referred to in subsection (3) does not qualify for the shiftworker annual leave entitlement if the employee is in a class of employees prescribed by the regulations as not being qualified for that entitlement.

(5) Without limiting the way in which a class may be described for the purposes of paragraph (3)(b) or subsection (4), the class may be described by reference to one or more of the following:

(a) a particular industry or part of an industry;

(b) a particular kind of work;

(c) a particular type of employment.

(1) If, in accordance with this Division, an employee takes a period of paid annual leave, the employer must pay the employee at the employee's base rate of pay for the employee's ordinary hours of work in the period.

(2) If, when the employment of an employee ends, the employee has a period of untaken paid annual leave, the employer must pay the employee the amount that would have been payable to the employee had the employee taken that period of leave.

1. Section 44 of the FW Act provides that an employer must not contravene a provision of the National Employment Standards. Section 90 is located within Part 2-2 of Chapter 2 of the FW Act. Part 2-2 comprises the National Employment Standards. While s 90 of the FW Act is not itself a civil remedy provision, it engages s 44 as to enliven such remedies.
2. The rate of pay of annual leave to be paid out on termination must be the same as the employee would have received had they taken their annual leave while still employed: Centennial Northern Mining Services Pty Ltd v Construction, Foresty, Mining and Energy Union (CFMEU) [2015] FCAFC 100; (2015) 231 FCR 298. Untaken annual leave payable under s 90(2) of the FW Act is to be paid on the day of termination and any later payment is a contravention of s 44: Dorsch v HEAD Oceania Pty Ltd [2024] FCA 162.
3. The facts in paragraphs [1] to [7] and [11] to [17] of the SOC demonstrate, and I find, that:

(a) the Company did not pay the Unpaid Annual Leave Employees their entitlement to be paid for Untaken Annual Leave contrary to s 90(2), and thus s 44, of the FW Act; and

(b) because of such breach, each of the Unpaid Annual Leave Employees suffered loss in the amount set out in Column D of the Paragraph 14 Table.

Claim pursuant to s 117 of the FW Act: failure to provide notice or make payments in lieu

1. The applicant claims that the Company contravened s 117 and thus s 44 of the FW Act by failing to provide Mr Gordon Foo at least one weeks' notice of the termination of his employment (Notice Period) or payment in lieu of the Notice Period.
2. Mr Foo's employment commenced on 5 January 2022 and was terminated on 15 March 2022, and his Final Rate was $52.88 per hour. Had Mr Foo been provided with the Notice Period, he would have worked forty hours and been paid $2,115.20.
3. Section 117 of the FW Act provides:

Notice specifying day of termination

(1) An employer must not terminate an employee's employment unless the employer has given the employee written notice of the day of the termination (which cannot be before the day the notice is given).

Note 1: Section 123 describes situations in which this section does not apply.

Note 2: Sections 28A and 29 of the Acts Interpretation Act 1901 provide how a notice may be given. In particular, the notice may be given to an employee by:

(a) delivering it personally; or

(b) leaving it at the employee's last known address; or

(c) sending it by pre‑paid post to the employee's last known address.

Amount of notice or payment in lieu of notice

(2) The employer must not terminate the employee's employment unless:

(a) the time between giving the notice and the day of the termination is at least the period (the minimum period of notice) worked out under subsection (3); or

(b) the employer has paid to the employee (or to another person on the employee's behalf) payment in lieu of notice of at least the amount the employer would have been liable to pay to the employee (or to another person on the employee's behalf) at the full rate of pay for the hours the employee would have worked had the employment continued until the end of the minimum period of notice.

(3) Work out the minimum period of notice as follows:

(a) first, work out the period using the following table:

Employee's period of continuous service with the employer at the end of the day the notice is given

(b) then increase the period by 1 week if the employee is over 45 years old and has completed at least 2 years of continuous service with the employer at the end of the day the notice is given.

(4) A reference in this section to continuous service with the employer does not include periods of employment as a casual employee of the employer.

1. Section 117 is located within Part 2-2 of Chapter 2 of the FW Act as to comprise a National Employment Standard and thus engages s 44 FW Act: Melbourne Stadiums Ltd v Sautner [2015] FCAFC 20; (2015) 317 ALR 665 at [213]- [214] per White J. Payment in lieu of notice of termination is payable on the day of termination and such failure constitutes a breach of s 44: Jewell v Magnium Australia Pty Ltd [2025] FedCFamC2G 201 per Judge Champion.
2. The facts in paragraphs [1] to [7] and [18] to [21] of the SOC demonstrate, and I find, that:

(a) the Company did not provide Mr Foo with a minimum of one weeks' notice of the termination of his employment or payment in lieu, contrary to s 117, and thus s 44 of the FW Act; and

(b) because of such breach, Mr Foo suffered loss in the amount of $2,115.20.

Claim pursuant to s 550 FW Act: Accessorial liability of the respondent

1. The applicant submitted at [27] of its written outline:
   1. The SOC sets out at paragraphs 22 to 37 that Mr Blumentals at all material times:

(a) was the sole director, secretary and shareholder of the Company;

(b) had the sole and primary responsibility for all aspects of the Company's operations on a day-to-day basis;

(c) employed the Employees, determined their conditions of employment including remuneration, onboarded the Employees, paid the Employees and distributed their pay slips, approved or oversaw the approval of their leave, monitored their leave balances and timesheets, determined when an Employee's employment would be terminated, conducted the offboarding process for the Employees, and was the point of contact for all of the abovementioned matters;

(d) knew the essential elements of the contraventions referred to in paragraph 26(d) and (e);

(e) participated in or had a practical connection with each of the [Contraventions];

(f) was therefore knowingly concerned with each of the [Contraventions]; and

(g) was therefore involved, pursuant to section 550(2) of the FW Act, in each of the Company's [Contraventions], and is taken to have engaged in each of those contraventions.

(1) A person who is involved in a contravention of a civil remedy provision is taken to have contravened that provision.

(2) A person is involved in a contravention of a civil remedy provision if, and only if, the person:

(a) has aided, abetted, counselled or procured the contravention; or

(b) has induced the contravention, whether by threats or promises or otherwise; or

(c) has been in any way, by act or omission, directly or indirectly, knowingly concerned in or party to the contravention; or

(d) has conspired with others to effect the contravention.

1. In EZY Accounting 123 Pty Ltd v Fair Work Ombudsman [2018] FCAFC 134; (2018) 360 ALR 261 (EZY Accounting), the Full Court said at [11]:

[11] Section 550(2)(a) and (c), it has been said, have a "different emphasis": Fair Work Ombudsman v Devine Marine Group Pty Ltd [2014] FCA 1365 (Devine Marine). White J there reviewed some of the authorities and summarised their effect as follows:

Relevant principles

[176] Although the general principles relating to accessorial liability are settled, their application in a case such as the present is not without difficulty. In order to aid, abet, counsel or procure the relevant contravention, the person must intentionally participate in the contravention with the requisite intention: Yorke v Lucas (1985) 158 CLR 661 at 667; 61 ALR 307 at 310. In order to have the requisite intention, the person must have knowledge of "the essential matters" which go to make up the events, whether or not the person knows that those matters amount to a crime: Yorke v Lucas at CLR 667; ALR 310. Although it is necessary for the person to be an intentional participant and to have knowledge of the matters or things constituting the contravention, it is not necessary for the person to know those matters or things do constitute a contravention: Rural Press Ltd v Australian Competition and Consumer Commission (2002) 118 FCR 236; 193 ALR 399; [2002] FCAFC 213 at [159]-[160]. That is to say, it is not necessary that the accessory should appreciate that the conduct in question is unlawful. ...

[177] Actual, rather than imputed, knowledge is required. So much was made clear in Giorgianni v R [1985] HCA 29; (1985) 156 CLR 473 at 506-7; [1985] HCA 29; 58 ALR 641 at 665-6; [1985] HCA 29; 2 MVR 97 at 120-1 by Wilson, Deane and Dawson JJ ...

[178] The notion of being "knowingly concerned" in a contravention has a different emphasis from that of aiding, abetting, counselling or procuring" a contravention. To be knowingly concerned in a contravention, the person must have engaged in some act or conduct which "implicates or involves him or her" in the contravention so that there be a "practical connection between" the person and the contravention: Construction, Forestry, Mining and Energy Union v Clarke (2007) 164 IR 299; [2007] FCAFC 87 at [26]; Qantas Airways Ltd v Transport Workers' Union of Australia (2011) 280 ALR 503; [2011] FCA 470 at [324]-[325].

[179] As indicated, these principles are not in doubt. The more difficult question arises from their application to the circumstances of this case and, in the identification of the essential facts about which an accessory must have actual knowledge.

1. At [12] to [15] of EZY Accounting, their Honours continued:

[12] Actual knowledge may be inferred from "a combination of suspicious circumstances and a failure to make an inquiry": cf Compaq Computer Australia Pty Ltd v Merry [1998] FCA 968; (1998) 157 ALR 1 at 5 per Finkelstein J.

[13] To be "involved in" conduct there has to be some conduct which "implicates" a person in the offending conduct such that they become "involved in" or "associated with" that conduct: Fair Work Ombudsman v Priority Matters Pty Ltd [2017] FCA 833 at [116]. It was there said that a person cannot be "involved in" conduct for the purposes of s 550 "merely by reason of his knowledge of the conduct being pursued".

[14] In reliance upon Devine Marine, and with reference to the liability of an accessory for a contravention of s 50 of the Fair Work Act, in Australian Building and Construction Commissioner v Parker (2017) 266 IR 340; [2017] FCA 564 (Parker) at [126]-[128] a potential divergence in the authorities was noted as follows:

[126] For a person to be "knowingly concerned in or a party to the contravention" for the purposes of s 550(2)(c), the person must have been an intentional participant with knowledge at the time of the contravention of the essential elements constituting the contravention: cf. Yorke v Lucas (1985) 158 CLR 661 at 670; 61 ALR 307 at 312-13. Actual knowledge is required - mere constructive or imputed knowledge is not sufficient. But actual knowledge may be inferred from "exposure to the obvious": [Giorgianni v R [1985] HCA 29; (1985) 156 CLR 473 at 507-8; [1985] HCA 29; 58 ALR 641 at 665-6; [1985] HCA 29; 2 MVR 97 at 121-2].

[127] Where the contravention in question is a contravention of a term of an enterprise agreement, there is some divergence in the authorities as to those matters of which an accessory must have knowledge. One line of authority tends to suggest that an accessory must have knowledge that the enterprise agreement applies: cf. Potter v Fair Work Ombudsman [2014] FCA 187 at [80]-[81] per Cowdroy J. Perhaps with an insistence upon a greater degree of knowledge, in Fair Work Ombudsman v Al Hilfi [2012] FCA 1166 at [44] Besanko J observed on the facts of that case that there was a good deal of force in the argument that it was necessary to establish that the accessory had knowledge that an award applied to particular employees, that the work being performed gave rise to those entitlements and that the employees were not paid those entitlements. The other line of authority tends to suggest that the approach in Potter sets the bar too high: Fair Work Ombudsman v Grouped Property Services Pty Ltd (2016) 152 ALD 209; [2016] FCA 1034 at [1019]. Katzmann J there expressed an obiter view that where "the contravention is a failure to pay award rates, an accessory must know what rates are being paid but need not know that the rates which were paid were below the rates prescribed by the applicable award".

[128] Either approach, with respect, exposes a difficulty. Where the contravention in question is a contravention of s 50, that section does not require the person contravening a term of an enterprise agreement to have any knowledge of the existence of an enterprise agreement and does not require knowledge of the term being contravened or the fact that the act of contravention is in fact contravening conduct. If the "elements" of s 50 do not encompass those matters, it is - with respect - difficult to see why an accessory need have any greater knowledge. For a person to contravene s 50, it is sufficient to prove that conduct took place which was in fact a contravention of a term of an enterprise agreement. For the purposes of accessorial liability, all that need be proved is that the accessory had knowledge of the conduct.

Section 50, it may be noted, is in comparable terms to s 45 - other than that s 45 refers to "a term of a modern award" and s 50 refers to "a term of an enterprise agreement".

[15] In Fair Work Ombudsman v Grouped Property Services Pty Ltd (2016) 152 ALD 209; [2016] FCA 1034 (Grouped Property Services) at [957], Katzmann J concluded that a person may be "knowingly concerned" in a contravention even though he may not know, for example, the details of which hours a particular employee worked or when. Her Honour thus concluded:

[957] I accept the Ombudsman's contention, as far as it goes. [Australian Communications and Media Authority v Mobilegate Ltd (a company incorporated in Hong Kong) (No 8) (2010) 275 ALR 293; [2010] FCA 1197] shows that, where an alleged accessory is aware of a system producing certain outcomes, and those outcomes constitute contraventions of the Act, it is unnecessary to show that the alleged accessory knew the details of each particular instance of those outcomes in order to show the requisite knowledge. As I will explain, reasoning of that kind allows me to conclude that certain arrangements put in place by Rosario, such as the sham contracting arrangements, were knowing and intentional means of avoiding paying certain entitlements, such as penalty rates and leave loadings. Provided he knew, for example, that an employee covered by the sham contracting arrangements worked on weekends, Rosario could be knowingly concerned in GPS's failure to pay penalty rates notwithstanding that he may never have known on which weekends and for how many hours the employee worked.

1. I turn to Section F of the SOC which claims accessorial liability against the respondent. Paragraphs 22 to 29 in Section F are to the effect that:

(a) The respondent was the sole director, shareholder and secretary of the Company; and the person with sole or primary responsibility for all aspects of the Company's operations, including administering the Company bank accounts, paying Company liabilities, and attending to the Company's human resources functions.

(b) With respect to the Company's human resource functions, the respondent was responsible for and directly and closely involved with: recruitment; determining the terms and conditions of employment including remuneration; settling, signing and sending letters of offer and contracts of employment; arranging payment of employees; monitoring leave balances and timesheets; determining when an employee's employment would be terminated; conducting the onboarding and offboarding processes for employees; and being the point of contact for employees in relation to such matters.

(c) Several employees resigned from their employment. In each case, the employee wrote to the respondent with notice of his or her resignation. Three of these employees were sent an "offboarding letter" which sought the employee's acknowledgement of the terms in their employment contract relating to non-competition, non-solicitation and the return of confidential information. The "offboarding letters" were signed by the respondent and stated: "Upon receipt of your signed acknowledgment of the above we will finalise outstanding employee benefits." In one case, the offboarding letter sought the employee's agreement to a specified sum of money "in full and final settlement" of his unpaid entitlements.

(d) At the end of their employment, several employees wrote to the respondent to make enquiries about their unpaid wages and/or annual leave entitlements. The respondent responded to four of these employees.

(e) On 16 November 2021, a Fair Work Inspector (Inspector) sent an email to the respondent to the effect that an employee, Mr Wakeman, alleged that he had not been paid, inter alia, his final pay or accrued annual leave on termination. On 22 November 2021, the respondent responded to the Inspector which included that Mr Wakeman "has not completed his offboarding tasks so remains currently active in our payroll system" and needed to "complete his offboarding tasks so we may finalise his entitlements".

1. First, the applicant claims that the respondent knew the essential elements of the Contravention relating to s 323(1) of the FW Act as to the Company's failure to pay final wages. This is because, at and after the end of each employee's employment, he knew or was wilfully blind to the following:

(a) the Company was incorporated under the Corporations Act, conducted the business described at paragraph 3(b) of the SOC, was a constitutional corporation and a national system employer;

(b) the employee was employed by the Company;

(c) the terms and conditions of the employee's employment contract, including their contractual wages;

(d) that legislation provided for minimum entitlements for the employees, including in relation to leave;

(e) the employee's ordinary days and hours of work;

(f) the fact that the employee's employment had ended; and

(g) the fact that the employee had not been paid any salary or wages in respect of their Unpaid Period.

1. Second, the applicant claims that the respondent knew the essential elements of the Contravention relating to ss 90(2) and 44 of the FW Act as to the Unpaid Annual Leave Employee's employment. This is because, at and after the end of each employee's employment, he knew or was wilfully blind to:

(a) the amount of accrued and untaken annual leave; and

(b) the fact that the employee had not been paid any amount in respect of their accrued and untaken annual leave.

1. Third, the applicant claims that the respondent knew the essential elements of the Contravention relating to ss 117 and 44 of the FW Act as to the failure to give notice of termination or payment in lieu to Mr Foo. This is because, at and after the end of Mr Foo's employment, the respondent knew or was wilfully blind to the fact that: the Company had terminated Mr Foo's employment; the length of Mr Foo's employment; and that Mr Foo was not given the Notice Period for the termination of his employment or paid any amount in lieu of it.
2. The applicant claims that the respondent's knowledge of the essential elements of the Contraventions can be inferred from the matters in paragraphs 22 to 29 of the SOC. Further and in the alternative to such inferences, the applicant claims that the respondent's knowledge or wilful blindness was demonstrated by his overarching involvement in the Company's operations including its relationship with its employees, and the inclusion of a contractual provision relating to leave.
3. Further, the applicant claims that the respondent participated in, or had a practical connection with, each of the Contraventions because:

(a) he was involved in administering payments made by the Company to the employees through the Company's payroll systems and otherwise administering payments to the employees including superannuation and reimbursements for work expenses;

(b) he participated in the termination of each employee's employment, including the "offboarding" process; and

(c) he had an overarching involvement in the Company's operations, including its relationship with the employees.

1. Finally, the applicant claims that, by reason of the respondent's knowledge of the essential elements of the Contraventions and his participation or practical connection with each Contravention, he was knowingly concerned with each of the Contraventions as to satisfy the requirement that he was "involved", and therefore taken to have engaged, in the Contraventions for the purpose of s 550(1) of the FW Act.

Consideration of claim for accessorial liability

1. For s 550(1) of the FW Act to be engaged in respect of the respondent, he must have been "involved" in the Contraventions. If "involved", then he is taken to have contravened the relevant provisions of the FW Act. The circumstances in which a person can be found to be "involved" are limited by s 550(2), as demonstrated by the words "if and only if" in its chapeau.
2. It is apparent from paragraph 37(a) of the SOC and 27(f) of its outline of submissions that the applicant relies on s 550(2)(c), namely that the respondent was "knowingly concerned in [...] the contraventions".
3. Knowledge must be actual knowledge of the essential matters which make up the contravention. To be "knowingly concerned" requires a practical connection between the respondent and the Contravention(s): EZY Accounting (supra at [11]).

Did the respondent have actual knowledge of the Contraventions?

1. The evidence demonstrates that the respondent oversaw, and signed, the respective contracts of employment or letters of offer, and was otherwise responsible for the human resources and payroll functions of the Company.
2. The respondent's knowledge of the essential matters that go to the contraventions include that:

(a) several employees wrote to the respondent to notify him of their resignation;

(b) a number of employees wrote to the respondent at the end of their employment to enquire about unpaid entitlements and the respondent responded to four of them;

(c) the respondent sent several employee's "offboarding letters"; and

(d) the respondent engaged in communication with the Inspector about Mr Wakeman's entitlements.

1. The correspondence between the respondent and the employees who received offboarding letters, and the correspondence between the respondent and the Inspector, supports the conclusion that the respondent had actual knowledge of the contraventions because their subject matter was the unpaid contractual wage and leave entitlements.
2. As to Mr Foo's entitlement to the Notice Period or payment in lieu, the respondent cannot be heard to say that he did not have knowledge of the essential matter of the contravention given he was the person with overarching day to day operational oversight of the Company.
3. Having regard to the direct connection between the respondent's day to day operations of the financial and human resources functions of the Company, I am satisfied that the respondent had actual knowledge of the essential matters of each of the Contraventions.

Was there a practical connection between the respondent and the Contraventions?

1. I am satisfied that there was a practical connection between the respondent and the Contraventions as demonstrated by his direct role in administering payments to each of the employees through the Company's payroll systems, monitoring of leave balances and monitoring of timesheets, conducting offboarding processes, and entry into contracts of employment between the employees and the Company. At the end of each employee's employment, those aspects of the Company's operations, for which the respondent was responsible and in which he was directly and closely involved, ought to have culminated in the calculation of the employee's entitlements to their contractual wages, leave entitlements and, in the case of Mr Foo, either providing the Notice Period or payment in lieu of it.
2. Furthermore, the respondent's overarching day to day involvement in the operations of the Company, including its financial and human resources functions, supports the finding that there is a practical connection between the respondent and each of the Contraventions. In the foregoing, I find that there is the requisite connection.
3. Having found that the respondent had actual knowledge of the essential matters that go to make up each of the Contraventions and a practical connection between the respondent and the Contraventions, the requirements of s 550(2)(c) of the FW Act are established. It follows that the respondent was "involved" in the Contraventions for the purpose of s 550(1) and is therefore taken to have contravened ss 90 and thus s 44, 117 and thus s 44, and 323(1) of the FW Act. Section 550(1) of the FW Act has been engaged in relation to the respondent.

1. The applicant seeks declarations that the respondent was involved in the Contraventions pursuant to s 550 of the FW Act, an order that the respondent pay compensation for the amounts owed with interest at court rates within 28 days, and ancillary orders concerning the distribution of such amounts as the respondent pays by way of compensation.

(1) The Federal Circuit and Family Court of Australia (Division 2) may, in relation to a matter in which it has original jurisdiction, make binding declarations of right, whether or not any consequential relief is or could be claimed.

(2) A proceeding is not open to objection on the ground that a declaratory order only is sought.

1. In Australian Competition and Consumer Commission v Dataline.Net.Au Pty Ltd and Others (2006) 236 ALR 665, Keifel J (as her Honour then was) said of declaratory relief at [58] and [59]:

[58] The power to grant declarations (s 21 of the Federal Court Act 1976 (Cth)) is unconfined. Order 35A itself imposes no constraints upon the relief sought. Refusals to make declarations in cases of default are based upon a practice, not a rule of law. The practice is one of long-standing and might be seen as derived from views about litigation which pre-date more recent concerns expressed by the courts as to the costs of unnecessary litigation, the management of cases and efficiency overall. Views expressed in older cases may not take account of the increase in the use made of declaratory orders in developing areas of law which may involve matters of public interest. A caution with respect to the use of older authority is made in the White Book Service 2003 to the English Civil Procedure Rules 1998 (40.20.2).

[59] It may no longer be correct to have a practice which operates as a prohibition in every case of default and preferable to consider the circumstances pertaining to the particular case and the purpose and effect of the declaration. Millett J made declaratory orders in Patten v Burke Publishing Co Ltd [1991] 1 WLR 541; [1991] 2 All ER 821 where justice to the plaintiff required it. The order, however, operated principally inter partes and it might be doubted whether it would be of interest to other persons. Cases such as this, involving the protection of consumers, are of public interest. Declarations are often utilised in such cases to identify for the public what conduct contributes a contravention and to make apparent that it is considered to warrant an order recognising its seriousness. It is however important that there be no misunderstanding as to the basis upon which they are made. This could be overcome by a statement, preceding the declarations, that orders are made: "upon admissions which [the respondent in question] is taken to have made, consequent upon non-compliance with orders of the court".

1. At paragraph 31 of its written outline, the applicant submitted that it is appropriate to make the declarations because:

(a) there is utility in making them, namely that they have been framed to accurately and concisely identify the contravening conduct (Australian Building and Construction Commissioner v CFMEU (Syme Library Case) (No 2) [2019] FCA 1555 at [78]);

(b) there is a public interest in making the declarations as they will help to educate employers about their obligations to employees and warn employers of the consequences of failing to take steps to ascertain and meet those obligations (Fair Work Ombudsman v Mining and Energy Union (The Oaky North Coal Mine Case) [2024] FCA 1093 at [28], referring to Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union [2017] FCAFC 113; (2017) 254 FCR 68 at [93]; Fair Work Ombudsman v South Jin Pty Ltd (No 2) [2016] FCA 832 at [7]);

(c) they will mark the court's disapproval of the contravening conduct (ACCC v Yellow Page Marketing BC (No 2) [2011] FCA 352; (2011) 195 FCR 1 at [69]; and

(d) the declarations would not be superfluous in circumstances where, because they are being made on default, the court is not required to make findings or deliver reasons with respect to the substance of the contraventions (Syme Library Case supra at [78]).

1. I am satisfied that it is appropriate to make the declarations sought by the applicant. I agree with the applicant's submissions as to the reasons for this, as outlined in the preceding paragraph. Moreover, the evidence located at paragraphs 5, 6 and 23 and Annexures AMV-1, AMV-2 and AMV-16 of the affidavit of Mr Vas filed on 16 May 2025 establishes that:

(a) on 10 June 2022, a creditor of the Company lodged a Notification of Application to Wind Up the Company;

(b) on 21 June 2022, the respondent established a company known as "D365.Global" appointing himself the sole director and secretary;

(c) on 29 August 2023, the Deputy Commissioner of Taxation lodged a Notification of Application to Wind Up the Company;

(d) on 6 October 2023, the Company was placed into liquidation;

(e) the registered office of the Company and D365.Global is one and the same;

(f) the respondent was using the email address david@d365.Global as at 11 March 2025; and

(g) the homepage of D365.global, accessed by Mr Vas on 15 May 2025, demonstrates that D365.Global offers services in "Microsoft Dynamics 365" and that the "get in touch" link on the home page connects to a pre-populated email, which is addressed to the respondent's email address.

1. This chronology raises the real possibility that the respondent, as director of the Company, has sought to avoid the Company's obligations to its employees and embarked on a Phoenix-style venture through the similarly named "D365.Global". In those circumstances, I am satisfied that the proposed declarations are in the public interest by alerting current and potential employees of the respondent to the risks associated with such employment.

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.

(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.

1. Compensation can be ordered to be paid by an accessory who is liable under s 550 of the FW Act: Veeraragoo v Goldbreak Holdings Pty Ltd (No 2) [2018] FCA 1448 at [42]- [53] per Colvin J.
2. The Annexure to the SOC sets out the total underpayment owed to each employee (per Column E) in the amount of $149,240.60. These amounts are consistent with the applicant's calculations in paragraphs 8, 14 and 21 of the SOC. Having regard to the correction that I have made to Column E of the Paragraph 8 Table, I reach the sum of $148,812.82.
3. I am satisfied that that an order for compensation in the form proposed by the applicant in its interlocutory application should be made in the sum of $148,812.82. That order will compensate the employees for the loss they have suffered by reason of the Contraventions and prevent the respondent from retaining the benefit of his unlawful conduct. Further, the Company is in liquidation, as to make the satisfaction of their entitlements from that source unlikely.
4. Section 547 of the FW Act provides:

(1) This section applies to an order (other than a pecuniary penalty order) under this Division in relation to an amount that a person was required to pay to, or on behalf of, another person under this Act or a fair work instrument.

(2) In making the order the court must, on application, include an amount of interest in the sum ordered, unless good cause is shown to the contrary.

(3) Without limiting subsection (2), in determining the amount of interest, the court must take into account the period between the day the relevant cause of action arose and the day the order is made.

1. An application for interest pursuant to s 547 of the FW Act has been made and no "good cause has been shown to the contrary". I must make an order for interest on the amounts of compensation at the applicable pre-judgment rate of interest.
2. The applicant seeks an order pursuant to s 545(2) of the FW Act as to the distribution of any amounts paid by the respondent in compliance with the orders, less any amounts the employees have received pursuant to the Fair Entitlements Guarantee Act 2012 (Cth) (FEG Act), which is to be referred to the Commonwealth Consolidated Revenue in satisfaction of any debt owed by an employee under s 34 of the FEG Act. It is appropriate that such an order be made to lend efficiency to the administration of the orders.
3. Payment of the compensation and interest sums should be paid by the respondent by 30 January 2025, which is a reasonable time having regard to the forthcoming Christmas period.
4. I will give the respondent until 30 January 2025 to seek to vary or discharge the orders which have been made in his absence and otherwise make directions for the hearing on penalty.

1. For the reasons given, I make the following orders.

I certify that the preceding one hundred and six (106) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Eldershaw.