Fair Work Ombudsman v Echuca Kebabs Pty Ltd [2026] FedCFamC2G 182

(a) The first respondent pay a pecuniary penalty of $10,312.50 for the first respondent's contravention of section 716(5) of the FW Act;

(b) The second respondent pay a pecuniary penalty of $2,062.50 for his involvement in the contravention by the first respondent of section 716(5) of the FW Act.

1. Pursuant to section 546(3) of the FW Act, any pecuniary penalties ordered to be paid by the respondents be paid into the Consolidated Revenue Fund of the Commonwealth within 28 days of this order.

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. Before the court is an application for the imposition of a penalty on the first respondent in relation to its contravention of section 716(5) of the Fair Work Act 2009 (Cth) ('FW Act') and on the second respondent for his involvement in that contravention for the purposes of section 550 of the FW Act. The contravention arose from the respondents' failure to comply with a Compliance Notice issued by the applicant ('Ombudsman') dated 22 February 2023.
2. The first respondent admits to having contravened section 716(5) by failing to comply with the Compliance Notice. The second respondent admits having been involved in the contravention for the purposes of section 550 of the FW Act.
3. There are essentially two issues which arise for the court's determination. The first is to determine a just and appropriate penalty for each of the respondents in respect of these contraventions. The second is whether any orders ought to be made requiring the respondents to effectively take steps to comply with the Compliance Notice or whether compliance has been established.

1. The following background is taken from the Statement of Agreed Facts ('SOAF') filed by the parties in this matter and is therefore not contentious. The first respondent is a company that operates a takeaway food business, with a registered office at 156 Hare Street Echuca, Victoria. The first respondent was at all relevant times covered by the FW Act in respect of its employees.
2. The second respondent was at all relevant times the secretary and sole director of the first respondent and was responsible for the overall management of the first respondent, including ensuring that the first respondent complied with its legal obligations under the FW Act.
3. Fair Work Inspector Sheree Patterson ('FWI Patterson') was at all relevant times a duly appointed Fair Work Inspector. FWI Patterson investigated the first respondent's compliance with the FW Act, and on the basis of the information obtained during that investigation formed the view that Ms Dianne Antrobus was employed by the first respondent on a part time basis, during the investigation period, namely from 22 February 2017 until 18 February 2022. FWI Patterson formed the belief that Ms Antrobus' employment was covered by the Fast Food Industry Award 2010 ('Award') and that by reason of the duties performed, Ms Antrobus was classified as a Fast Food Employee Level 1.
4. FWI Patterson also formed a belief that:
   • Ms Antrobus was not paid the applicable minimum hourly rate under the Award;
   • on termination of her employment, Ms Antrobus was not provided with her accrued annual leave entitlements under the Award; and
   • in respect of the relevant period, the first respondent did not meet the wages condition under the JobKeeper scheme at the time, but received the JobKeeper payments in respect of the applicant's employment.
5. As a result, FWI Patterson formed a reasonable belief for the purposes of section 716(1) of the FW Act, that the first respondent had contravened:
   • clauses 17 and 12.7 of the Award, by failing to pay Ms Antrobus the applicable minimum part time wage;
   • section 90(2) of the FW Act, by failing to pay Ms Antrobus accrued annual leave entitlements on the termination of her employment.
6. In addition, in relation to JobKeeper payments, it is agreed that:

(i) in the periods between 30 March 2020 to 3 January 2021 and 1 February 2021 to 28 March 2021, the First Respondent qualified for the 'jobkeeper scheme' pursuant to the Coronavirus Economic Response Package (Payments and Benefits) Rules 2020 (Jobkeeper Rules).

(j) section 10 of the Jobkeeper Rules provided that an employer satisfied the wage condition in respect of an employee for a fortnight if the amount paid to the employee in the fortnight was equal to or exceeded the amount of the relevant Jobkeeper Payment (Wage Condition);

(k) the 'jobkeeper scheme' consisted of 26 fortnights commencing on 30 March 2020 (Fortnight 1) and ending on 28 March 2021 (Fortnight 26);

(l) the First Respondent was entitled to 'jobkeeper payments' in respect of the Employee for a fortnight, if the First Respondent satisfied the wage condition under the Jobkeeper Rules.

(m) the jobkeeper payment' in respect of the Employee was:

(i) from 30 March 2020 to 27 September 2020 (Jobkeeper Fortnights 1 to 13) in the amount of $1,500 per fortnight;

(ii) from 28 September 2020 to 3 January 2021 (Jobkeeper Fortnights 14 to 20) in the amount of $1,200 per fortnight; and

(iii) for the period 1 February 2021 to 28 March 2021 (Jobkeeper Fortnights 1 February 2021 to 28 March 2021 (Jobkeeper Fortnights 23 to 26) in the amount of $1,000 per fortnight;

(collectively, the Jobkeeper Payments);

(n) the Australian Taxation Office paid the First Respondent the Jobkeeper Payments for the JobKeeper Fortnights 1 to 20 and 23 to 26 (collectively, the JobKeeper Fortnights); and

(o) in each of the Jobkeeper Fortnights, the First Respondent paid the Employee an amount that was less than the relevant Jobkeeper Payment.

1. The SOAF was signed by the parties on 2 May 2025. By the time the matter came on for hearing before me, the second respondent had filed two affidavits, the last one on 23 January 2026. Annexed to that affidavit were pay slips for the period during which the Jobseeker payments were made, which indicated that Ms Antrobus was paid $750 per week throughout the relevant period, notwithstanding the reduction in the amount due over that period.
2. On 22 February 2023, FWI Patterson gave the first respondent the Compliance Notice in respect of these contraventions, pursuant to section 716(2). The Compliance Notice required the first respondent to take remedial action to remedy the contraventions and produce evidence of such to the applicant. It is conceded that the Compliance Notice met the requirements of section 716(3) of the FW Act.
3. The first respondent failed to comply with the Compliance Notice and therefore contravened section 716(5) of the FW Act.
4. It is also conceded that the second respondent was responsible for ensuring that the first respondent complied with the Compliance Notice and that given the second respondent's role within the first respondent, the second respondent was involved in the contravention of the first respondent within the meaning of section 550(2) of the FW Act.
5. It is therefore conceded that the second respondent was, pursuant to section 550(1) of the FW Act, taken to have contravened section 716(5) of the FW Act.
6. On the basis of these agreed facts, the parties seek certain declarations by consent as set out in paragraph 20 of the SOAF.
7. They also seek orders for each of the respondents to pay a pecuniary penalty, although there is a dispute as to the level of penalty which ought to be imposed.
8. The applicant also seeks orders, initially agreed to by the respondents, for the respondents to comply with the Compliance Notice. The respondents no longer consent to these orders on the basis that they say that they have now done all that is necessary to comply with the notice and therefore there is no utility in the making of those orders. The applicant presses those orders on the basis that they say they are not satisfied that full compliance has been effected.

1. The applicant relies upon the following:
   • its application and Statement of Claim filed on 10 January 2025;
   • the affidavits of Sheree Elizabeth Patterson filed on 16 May 2025 ('Patterson affidavit') and Kim Louise De Iacovo filed on 30 January 2026 ('De Iacovo affidavit'); and
   • its outline of submissions on penalty filed on 16 May 2025, and its reply submissions on penalty filed on 30 January 2026.
2. The respondents took objections to the following paragraphs contained in the De Iacovo affidavit:

(a) paragraph 13 and the corresponding Annexure 'KLD-5'; and

(b) paragraph 6 and the corresponding Annexure 'KLD-2'.

1. The applicant did not press its reliance on paragraph 13 or its corresponding Annexure and on that basis and for the reasons given at the time, I upheld this objection.
2. In relation to paragraph 6 of the De Iacovo affidavit and its corresponding Annexure, the respondents sought an order which excluded this evidence under section 135 of the Evidence Act 2008 (Cth). For the reasons given at the time, I did not allow that objection.
3. Finally, the respondents sought an order under section 136 of the Evidence Act 2008 (Cth) in respect of paragraph 8(f) to the Patterson affidavit. For the reasons given at the time I made that ruling.
4. The respondents rely upon the following:
   • the first and second respondents' responses filed on 4 April 2025;
   • the affidavits of Zekeriye Bilir filed on 30 October 2025 and 23 January 2026; and
   • their outline of submissions on penalty filed on 23 January 2026.
5. It is common ground that no evidence was led from Ms Antrobus. At its highest, in the material annexed to the affidavits filed in this matter, there are notes of what Ms Antrobus has told the FW investigators in the course of their investigation. Similarly, there are notes of what the second respondent has told the investigators along the way, including that Ms Antrobus received the Jobseeker allowance during the COVID-19 pandemic.

1. Having regard to the consent position adopted by the parties, the only two issues arising for determination are:
   • the level of penalty to be imposed on the first and second respondent; and
   • whether orders should be made that the respondents comply with the Compliance Notice.

1. In relation to penalties, the applicant seeks a penalty of 45 to 55% of the maximum penalty for each of the first and second respondents. The applicant says that a penalty at this level takes into account the seriousness of the contraventions, provides for a 15% discount considering the respondent's engagement and co-operation with the Ombudsman, and has regard to the remorse shown and the remedial action taken by the respondents.
2. The respondents accept that a penalty must be imposed for the contraventions, but say that a penalty in the range of 10 to 15% of the maximum is more appropriate in the circumstances of this case.

1. The parties largely agree on the principles which are to guide the court in fixing a penalty for the contravention of a civil penalty provision under the FW Act. The difference between them is how those principles are to apply to the circumstances of this matter.
2. For convenience, I set out below the summary of relevant legal principles as per the applicant's written submissions, with which the respondents broadly agree.[1]

1. The Court may impose penalties pursuant to section 546 of the FW Act if it is satisfied that a person contravened a civil remedy provision. Failing to comply with a compliance notice is a contravention of a civil remedy provision in accordance with section 716(5) and 539(2) of the FW Act. 2. The Court's task under section 546 of the FW Act is to fix an 'appropriate' penalty for which it considers fairly and reasonably to be appropriate to protect the public interest from further contravention of the FW Act. An 'appropriate' penalty is one that "strikes a reasonable balance between oppressive severity and the need for deterrence in respect of the particular case". 3. The approach of the Court in determining penalties is well established. The Court has a broad discretion to assess the appropriate penalty. In Fair Work Ombudsman v NSH North Pty Ltd trading as New Shanghai Charlestown Bromwich J endorsed the following approach:

(a) identify the separate contraventions - each contravention of each separate obligation in the FW Act is a separate contravention; > > (b) consider whether any of the contraventions arising from the above constitute a single course of conduct within the meaning of section 557(1) of the FW Act; > > (c) consider the extent to which two or more of the contraventions have common elements - the penalties imposed should be an appropriate response to the conduct of the Respondent; > > (d) consider the appropriate penalty for each contravention and, if relevant each group of the contraventions; and > > (e) finally, assess whether the overall penalty is an appropriate and proportionate response to the conduct as a whole which lead to the contraventions. This is the application of the "totality principle"

1. In this matter there is a single contravention of a civil remedy provision by each of the Respondents relating to the failure to comply with the Compliance Notice. Accordingly, the steps relating to the course of conduct or common elements do not apply and only the fourth and fifth steps of Bromwich J's approach are relevant.

...

1. Pursuant to section 539(2) and 546(2) of the FW Act the maximum penalty that the Court may impose for a contravention of section 716(5) of the FW Act that occurred in May 2023 is $41,250 for a body corporate and $8,250 for an individual.

2. The maximum penalty is a relevant consideration but "does not constrain the exercise of discretion under section 546...beyond requiring "some reasonable relationship between the theoretical maximum and the final penalty imposed". The reasonable relationship should be considered by reference to the need for deterrence.

...

1. The purpose of imposing civil penalties is "primarily, if not solely, the promotion of the public interest in compliance with the provision of the [FW] Act by the deterrence of further contraventions of the FW Act" as well as "to attempt to put a price on contravention which is sufficiently high to deter repetition of the conduct by the contravener and by others who might be tempted to contravene the Act".

2. The appropriate deterrent value of a penalty may be assessed by reference to the non-exhaustive list of factors identified by French J in Trade Practices Commission v CSR Ltd. This list is well settled but not a "rigid catalogue of matters for attention". It includes matters relevant to both the character of the contravening conduct and of the contravener.

(Citations omitted)

1. It is important therefore to keep in mind that whilst there are various factors which inform the court's assessment of what might be an appropriate penalty in a particular set of circumstances, the overarching purpose of the imposition of a penalty is deterrence. Therefore, those factors must be viewed in the context of the extent to which they will effectively deter future breaches.

Nature, circumstances and deliberateness of conduct

1. As stated, the respondents concede that they were served with the Compliance Notice as alleged, and that the first respondent failed to comply with it within the specified time frame, meaning that the second respondent was involved in that contravention for the purposes of section 550 of the FW Act.
2. The respondents also concede that there were various communications between the Ombudsman and the first respondent's representative over the course of 2023 and 2024 in which the first respondent was afforded various opportunities to comply with the Compliance Notice.
3. It is well recognised that the process for Compliance Notices was introduced into the FW Act as a mechanism to address non-compliance under the FW Act without the need to engage in costly and time-consuming litigation.
4. The respondents also accept that had the first respondent complied with the Compliance Notice, the applicant would not have had to bring civil remedy proceedings and the first respondent would not be taken to have contravened or have admitted to contravening these civil remedy provisions in respect of the underlying contraventions pursuant to section 716(4B) of the FW Act.
5. In those circumstances, it is submitted for the applicant that the first respondent's failure to comply with the Compliance Notice was deliberate and therefore a meaningful penalty should be imposed. The respondents on the other hand submit that notwithstanding the concession as to non-compliance with the Compliance Notice, this is not a case in which the respondents have flagrantly disregarded their obligations. The respondents point to the fact that from the moment they were first contacted by the Ombudsman about this matter, they engaged in the process, sought advice, and were co-operative. The failure to ultimately comply with the notice in the prescribed time frame, is explained by the second respondent in his affidavit material.
6. It is submitted for the respondents that:[2]

... the Respondents acted upon the Compliance Notice and took steps to comply, even if they were ultimately unsuccessful or inadequate. This is not a case where a respondent approached the Compliance Notice with the sort of contumelious disregard that might weigh in favour of a more severe penalty.

1. I accept that the second respondent is a sole director and secretary of the first respondent and that he sought advice from his accountant/bookkeeper, and that he also sought legal advice and acted in reliance upon those professionals. It is apparent from the email exchanges and phone records that the second respondent's accountant did engage with the applicant and attempted to respond to the questions raised by the applicant. It also appears from the email exchanges and file notes that the respondent's accountant was unwell at the time which added to his difficulty in addressing the concerns raised.
2. However, notwithstanding these efforts, the fact remains that the Compliance Notice was not complied with for a number of years, notwithstanding that the respondents were on notice of what was required. This is a factor which must be reflected in the penalty imposed.

1. The applicant submits that the first respondent's failure to comply with its legislative obligations has resulted in Ms Antrobus not having the benefits of her minimum entitlements for a significant period of time. That is in circumstances where, as at the date of filing the applicant's written submissions, that non-compliance was continuing.
2. In reply, the respondents submit that this mischaracterises the effect of the first respondent's non-compliance. Rather, the first respondent's failure to comply with the notice resulted in Ms Antrobus's loss of the opportunity to have her entitlements reviewed, and if necessary, addressed through enforcement proceedings.[3]
3. Whilst the court must be focussed on the consequences of non-compliance with the Compliance Notice, rather than the underlying contraventions, it can have regard to the delay in compliance, which resulted in a significant delay in Ms Antrobus receiving her entitlements to which the Compliance Notice related.
4. Moreover, as a result of the first respondent's failure to comply with the Compliance Notice, a process which was intended to be an efficient and effective manner of enforcing compliance with lawful minimum entitlements, has been thwarted. Moreover, the first respondent's failure to comply with the Compliance Notice has resulted in the expenditure of public funds to institute and go ahead with these proceedings.
5. These are all factors which weigh in favour of the imposition of a penalty.

1. It is not in dispute that the respondents have at all times co-operated with the applicant. They engaged with the applicant both during the investigation, after the Compliance Notice was issued and once proceedings were initiated. The respondents have also admitted the contraventions and entered into a SOAF early in the proceedings, thereby avoiding additional costs and delays of proving those matters.
2. The second respondent, as the mind and will of the first respondent, has expressed genuine contrition for the contraventions and the underlying failure to comply with the FW Act. The applicant accepts that in making admissions in relation to the contraventions, the respondents have demonstrated genuine contrition.
3. By his second affidavit, filed on 23 January 2026, the second respondent has given evidence that the first respondent has now fully complied with the Compliance Notice. In closing submissions, the applicant does not concede that this is the case. I will discuss this issue further below when considering what orders should be made in this matter.

1. It is accepted that the second respondent is the only director and secretary of the first respondent. Indeed, other than Ms Antrobus, the second respondent was at all relevant times the only other person working in the business, save for occasional assistance from family members.
2. It is also not in dispute that the second respondent has accepted that he was involved in the first respondent's contraventions for the purposes of section 550. For each of these reasons, it is submitted for the applicant that "any penalty fixed by the court should take into account that senior management was directly responsible for the First Respondent's Contravention of the FW Act".[4]
3. The respondents acknowledge that in setting a penalty, consideration can be given to whether the contravention arose out of conduct of senior management or of a lower-level employee.[5]
4. However, it is submitted for the respondents that for that distinction to have any meaning, it must relate to an organisation of such a size as to have both senior management employees and lower level employees, per se. It is submitted for the respondents that if a different view was taken, then, by their very nature, small businesses, which effectively have one or two employees who are also the directors of those companies, will always be subjected to higher penalties because the person who engages in the conduct which constitutes the contravention, will, by definition, be a senior person, there being no other type of employee in the company.
5. In reply, the applicant points to the decision in Fair Work Ombudsman v Champagne or Wine Pty Ltd [2023] FedCFamC2G 735 in which the court described the second and third respondents who were joint directors and shareholders of the company involved in that case, as 'senior management' notwithstanding that they were the only level of management.
6. Ultimately, the issue in this case, is not how one would describe the second respondent. It is conceded that he was ultimately the directing mind and will of the first respondent and his actions are responsible for ensuring that the Compliance Notice was complied with. This is a factor that is relevant to determining what penalty ought apply. It is not helpful in this case to focus on whether the second respondent ought to be described as senior management. In some cases, that descriptor may point to increased liability such that it weighs in favour of a greater penalty being imposed. This is not such a case.
7. In any event, I note that factors to which the High Court referred at paragraph [18] of Australian Building and Construction Commissioner v Pattinson [2022] HCA 13 ('Pattinson'), is not an exhaustive or determinative list. Moreover, those factors are to be considered in the context of what is required to 'deter' future conduct. As noted by the High Court in Pattinson:
   1. In explaining the deterrent objective of civil penalty regimes such as that found in the Act, the majority of this Court in Australian Competition and Consumer Commission v TPG Internet Pty Ltd approved the statement by the Full Court of the Federal Court in Singtel Optus Pty Ltd v Australian Competition and Consumer Commission that a civil penalty:

"must be fixed with a view to ensuring that the penalty is not such as to be regarded by [the] offender or others as an acceptable cost of doing business".

1. In CSR, French J listed several factors which informed the assessment under the Trade Practices Act 1974 (Cth) of a penalty of appropriate deterrent value:

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

1. The nature and extent of the contravening conduct.

2. The amount of loss or damage caused.

3. The circumstances in which the conduct took place.

4. The size of the contravening company.

5. The degree of power it has, as evidenced by its market share and ease of entry into the market.

6. The deliberateness of the contravention and the period over which it extended.

7. Whether the contravention arose out of the conduct of senior management or at a lower level.

8. Whether the company has a corporate culture conducive to compliance with the Act, as evidence by educational programs and disciplinary or other corrective measures in response to an acknowledged contravention.

9. Whether the company has shown a disposition to co-operate with the authorities responsible for the enforcement of the Act in relation to the contravention.

10. It may readily be seen that this list of factors includes matters pertaining both to the character of the contravening conduct ... and to the character of the contravenor ... It is important however, not to regard the list of possible relevant considerations as a "rigid catalogue of matters for attention" as if it were a legal checklist. The court's task remains to determine what is an "appropriate" penalty in the circumstances of the particular case.

1. Having regard to these observations, I find that the in the circumstances of this particular case, and having regard to the totality of the evidence, the fact that the second respondent was the mind and will of the first respondent is not a factor which weighs in favour of a more significant penalty.

1. It is conceded that in failing to comply with the Compliance Notice, the respondents have caused the applicant additional costs and expense in bringing these proceedings.
2. Whilst this concession is relevant, it is also important to note that the Compliance Notice procedure plays an important part in ensuring compliance with minimum entitlements without the need to bring enforcement proceedings which are by their nature more time consuming and costly. It is submitted for the applicant that the penalty for non-compliance with a compliance notice, "must be set at a level which demonstrates that there are serious consequences for failing to comply with a compliance notice. In doing so the Court will deter other parties from failing to comply with a compliance notice".[6] There is some force to this submission. This is a factor which must be taken into consideration in setting a penalty at a level which does not result in parties simply seeing such penalties as being a cost of doing business.
3. Anything less could result in the undermining of the Compliance Notice procedure as an efficient and effective alternative to a prosecution for a breach of the underlying contraventions.

1. It is common ground that civil penalties are imposed primarily, if not solely for the purpose of deterrence, both specific and general.
2. In relation to specific deterrence, whilst the respondents concede that as a general rule, a penalty ought be set at a level which could achieve specific deterrence, in this case, it is submitted that specific deterrence is not required. This is for two key reasons.
3. First, the second respondent has given evidence that since Ms Antrobus resigned, he only employed one other employee, briefly, and now does not employ any other employee and has no intention of doing so.
4. Secondly, the second respondent has given evidence that these contraventions arose as a result of incorrect advice and that in future if he were to employ someone, he would ensure that he obtained the correct advice to comply with his obligations under the FW Act. In addition, it is submitted for the second respondent that the first respondent is barely profitable and he is seeking to sell the first respondent and has been trying to do so for many years.
5. The second respondent further submits that he is contrite. For all of these reasons, it is submitted for the respondents that the risk of re-offending is low or negligible.
6. The applicant accepts that the respondents are contrite and does not challenge the second respondent's evidence regarding the employment of other employees. However, it points to the fact that the first respondent remains registered and trading and that the second respondent remains the sole director and sole secretary of the first respondent. In those circumstances, it is submitted that the court could conclude that there is a risk of re-offending if the first respondent were to employ someone in the future. In those circumstances it is submitted that any penalty ought to be set at a level which is aimed at deterring the respondents specifically from re-offending.
7. It is submitted for the respondents that there is no evidence that respondents will employ anyone in the future and therefore the court would be engaging in speculation to conclude that it could and therefore that there is a risk of reoffending.
8. Having regard to the totality of the evidence, I am satisfied that in circumstances where the first respondent remains registered and trading, there is always a chance that it may employ someone in the future. Whist the evidence before the court is that the first respondent's business has dropped off, in particular due to the new bakery nearby, the business remains in operation and the second respondent's evidence is that he continues to work in the business six days a week.
9. There is a need to have regard to specific deterrence in determining any penalty in this case, although having regard to the evidence given by the second respondent, however, whist a factor in determining an appropriate penalty, it is not a significant factor in the circumstances of this case.
10. As to general deterrence, it is common ground that a penalty, "should be of a kind that it would be likely to act as a deterrent in preventing similar contraventions by like-minded persons or organisations". Indeed, in Ponzio v B & P Caelli Constructions Pty Ltd [2007] FCAFC 65 at [93], Lander J relevantly stated:

In regard to general deterrence, it is assumed that an appropriate penalty will act as a deterrent to others who might be likely to offend. ... The penalty therefore should be of a kind that it would be likely to act as a deterrent in preventing similar contraventions by like minded persons or organisations. If the penalty does not demonstrate an appropriate assessment of the seriousness of the offending, the penalty will not operate to deter others from contravening the section. However, the penalty should not be such as to crush the person upon whom the penalty is imposed or used to make that person a scapegoat. In some cases, general deterrence will be the paramount factor in fixing the penalty. ...

1. It is submitted for the applicant that general deterrence is particularly important in this case in circumstances where the efficacy of statutory notice such as the Compliance Notices will be hindered if recipients perceive that a failure to comply will have no meaningful consequence. In this context, it is submitted for the applicant that penalties should be imposed at a level that demonstrates that there are serious consequences for failing to comply with a Compliance Notice.
2. Whilst the respondents do not take issue with the general principles which apply with regard to general deterrence, they take issue with the suggestion that penalties ought be imposed at a level which demonstrates that there are serious consequences for a failure to comply with a Compliance Notice.
3. The respondents submit that in fixing a penalty, the court must "attempt to put a price on the contravention which is sufficiently high to deter repetition of the conduct by the contravenor and by others who might be tempted to contravene the Act".[7]
4. I agree that this is the task for the court in fixing a penalty. That is, it must be at a level that will deter both the contravenor and others. It must be set at a level which is not just seen as being the cost of doing business.

Size and financial circumstances of the respondents

1. The second respondent has deposed to the fact that the first respondent is a small kebab shop in a regional city. It has operated for some 20 years, largely through the efforts of the second respondent, although for some 10 years, Ms Antrobus worked for 15 hours per week. Since she has left, the second respondent has largely worked in the business by himself. The evidence is that the business just makes enough to break even and that it has struggled more recently due to the establishment of a bakery nearby.
2. Accepting all of this, it is relevant to note that the size and financial circumstances of the respondents do not exclude the imposition of an appropriate penalty. As noted by Judge Jarret (as His Honour then was) in Fair Work Ombudsman v Extrados Solutions Pty Ltd [2014] FCCA 815 at [10]:

The obligation to comply with the Fair Work Act and, in particular, s 716 falls just as heavily on small corporations and small businesses - and individuals, for that matter - as it does on large employers or businesses. Put shortly, one cannot shirk one's responsibilities imposed by law simply because one might be described as a "small business". or because the business has a particular size. It is incumbent on all employers to comply with the requirements of the Fair Work Act.

1. Moreover, I note that the respondents have not provided evidence of their financial position, such as bank statements or evidence as to assets that they hold. There is no evidence of incapacity to pay any penalties. In any event, even if there were such evidence, that alone ought not affect the court's determination of an appropriate penalty, having regard to the fact that the key consideration in imposing a penalty for non-compliance, is deterrence.

1. Having regard to all of these factors therefore, the applicant submits that a penalty in the range of:

$21,038 to $24,544 for the first respondent and

$4,208 to $4,909 for the second respondent;

1. This range in effect represents a range of 60 to 70% with a further discount of 15% for co-operation. It is submitted for the applicant that penalties in this range are not crushing or oppressive but do reflect the seriousness of the offending.
2. The respondents submit that penalties in the range proposed by the applicant are not appropriate having regard to the considerations set out earlier. Rather, they say that penalties in this range are excessive and do not give due consideration to the mitigating factors.
3. In making this submission, the respondents rely upon the decision of Justice Snaden in Yes Insurance Group Pty Ltd v Fair Work Ombudsman [2024] FCA 1366 ('Yes Insurance'). In that case, a judge of this court at first instance found that the employer had committed a single contravention of section 716(5) and co-operated with the applicant in the subsequent investigation and hearing. In that case, the applicant sought the imposition of a penalty in the range of 70 to 80%. The judge at first instance imposed penalties at the lower end of that range, namely 70 % of the maximum penalty. In making this finding, his Honour found that in part a penalty at that level was warranted having regard to the 'aggravating features' of that matter, namely "the deliberate nature of the breach, the lack of contrition and the prior non-compliance with a Compliance Notice". [8]
4. On appeal, among other things, Justice Snaden set aside the penalties imposed at first instance and imposed a penalty of 25% of the maximum penalty. In that context, his Honour said:
   1. There are, I think, some features of this matter that bear repeating for present purposes. The Compliance Notice was not ambiguous. It required things to be done and they were not done. ...
   2. ... Nonetheless, there are some other features of this case that contextualise - though, to be very clear, do not excuse - what transpired. The circumstances in which Mr Hazari's employment came to an end are mysterious, to say the least. ...
   3. The appellants did not ever suggest that they were entitled not to pay Mr Hazari the sum that ultimately was paid to him. ...
   4. The appellants, it is accepted, are first-time (and, one should hope, one-time) contraveners of the FW Act. Their contraventions inhere in Yes Insurance's failure to comply with a notice that required it to calculate and pay what, on any view, was not a substantial sum of money (appreciating, as I do, that it might well have been significant to Mr Hazari).
   5. Furthermore, although it did not find (and has not found) favour either with the FCFCOA or this court, the appellants' submission about the application of the BFIA was not inherently untenable or ambitious beyond reason. ...
   6. The penalties for which the FWO agitated were, by some margin, wholly outside the range of sentencing options that were properly available. I would not contemplate a penalty anywhere close to 80% of the maximum available for cooperative (or at least partly cooperative) first-time contraveners whose conduct, although wrong, involved a small sum, the non-payment of which was voluntarily corrected and not wholly without extenuating explanation.
   7. It is difficult to fathom how an agency of the Commonwealth would seek penalties in this case that bear any resemblance to (indeed, might, in some cases, exceed) those that it seeks, from time to time, as against recidivist corporate contraveners whose apparently unrepentant conduct visits far greater commercial damage. In the circumstances, the penalties for which the FWO agitated were extreme. ...
   8. With great respect to the learned primary judge, penalties set at 70% of the maximum available were well beyond what was necessary to visit the deterrent effect that is the sole objective that the imposition of pecuniary penalties is meant to achieve. ...
5. His Honour then determined that it was appropriate for him to re-exercise the discretion and determine an appropriate penalty rather than remitting the matter to the primary judge. In doing so, his Honour went on to say:
   1. ... I should be careful, again, not to recognise for the appellants' benefit any excuse for their conduct. Respectfully, the learned primary judge was correct to reason that their conduct warranted the imposition of pecuniary penalties; and there can be no doubt that there are circumstances that serve to require the imposition of more than what might typically be associated with non-compliance of a demand to calculate and pay the small amount that is at the heart of this matter.
   2. I consider that penalties set at 25% of the maximum available are appropriate to here realise the deterrent effect that is the sole objective of imposing pecuniary penalties. I have reached that view having taken account of the matters to which I have referred above and, in particular, the following matters, namely:

(1) the nature of the appellant's conduct (... their failure without reasonable excuse to comply with the Compliance Notice, specifically by calculating and paying the small amount of money that was owed to Mr Hazari);

(2) the circumstances that serve as surrounding context for it (including Mr Hazari's unusual disinclination to return their property);

(3) the appellant's early acceptance of liability; and

(4) the appellant's decision voluntarily to correct the non-payment that the Compliance Notice alleged.

1. Penalties fashioned at this level will serve as a deterrent not merely to the appellants but to those who might be minded to replicate their conduct in the future.

1. It is submitted for the respondents that this reasoning equally applies to the circumstances of this matter. It is submitted that when regard is had to the respondents' co-operation and rectification as well as the explanation offered as to why compliance did not occur earlier, that a penalty of between 10 to 15 % is appropriate in the present circumstances. This sum is also based on the fact that some of the aggravating circumstances present in the Yes Insurance case do not appear here.
2. The applicant cautions against placing undue reliance upon the assessment of an appropriate penalty in Yes Insurance. It is submitted for the applicant that the court is required to have regard to the particular circumstances in the matter before it in determining what penalty is appropriate. In this case, the applicant says that the following factors support the imposition of a penalty in the range it proposes is appropriate:

(a) the first respondent's failure to comply with the Compliance Notice despite being given numerous opportunities to do so over more than 20 months;

(b) a delay of about two and a half years to rectify the underpayments to Ms Antrobus referred to in the Compliance Notice;

(c) this failure and delay cannot be explained by the second respondent simply seeking advice and assistance from his accountant.

1. Moreover, the applicant submits that the fact that the respondents had engaged an accountant to assist with the FW investigation and the Compliance Notice, does not alleviate their responsibilities to meet their obligations under the FW Act. There is some force to this submission. I also note that whilst the second respondent gives evidence that he 'thought' that the accountant was dealing with this matter, he was put on notice at various times during the FW investigation and after the Compliance Notice was issued that the matter had not been resolved. At best, in failing to take control of the situation, particularly when he was aware that the accountant himself had health issues, suggests that there was a level of wilful blindness on his part as to whether the issues raised by the Ombudsman were appropriately addressed. Indeed, it was not until October 2025, that any payment was made to Ms Antrobus Moreover, it was not until 26 January 2026 that further payments owing to Ms Antrobus were made. This weighs against the respondent's submission that a lower penalty ought be imposed.
2. Having regard to all of these matters, I find that a penalty of 25% of the maximum penalty is appropriate.

1. As stated, in the SOAFs, the parties agreed that the court should make orders that:

(a) pursuant to section 545(1) of the FW Act, the First Respondent take the steps that were required by the Compliance Notice within 28 days of this order, by:

(i) calculating and paying the amounts payable to Dianne Antrobus (Employee) in respect of each of the contraventions identified in the Compliance Notice (Amounts Payable);

(ii) calculating any additional superannuation contributions required to be paid by clause 19.2 of the Fast Food Industry Award 2020 in respect of the Amounts Payable, and paying such contributions to the Employee's chosen superannuation fund;

(iii) making a record of the amounts calculated and paid referred to at paragraphs 21(a)(i) and 21(a)(ii) above;

(iv) producing to the Applicant a copy of the record referred to at paragraph 21(a)(iii) above and proof that full payment has been made to the Employee and their chosen superannuation fund as required by paragraphs 21(a)(i) and 21(a)(ii) above;

(b) pursuant to section 547(2) of the FW Act, the First Respondent pay interest on the Amounts Payable calculated in accordance with the applicable pre-judgment interest rate prescribed by the Federal Court of Australia within 28 days of this order; and

(c) the Applicant have liberty to apply on seven days notice in the event that any of the proceeding orders are not complied with; and

(d) such further orders as the Court considers appropriate.

1. At the hearing before me, the respondents no longer consented to those orders being made. Rather, the respondents submitted that in circumstances where the respondents have taken steps required by the Compliance Notice, the court ought not make the balance of the orders sought.
2. The applicant maintains that on the evidence before it, the court cannot be satisfied that the respondents have in fact complied with the Compliance Notice. In support of this position, the applicant relies upon the following:
   • instructions from Ms Antrobus that she was in fact not paid at the rate of $21.54 per hour from 9 March 2019;
   • instructions from Ms Antrobus that she was not paid the full amount owing under the Jobseeker scheme;
   • instructions from Ms Antrobus that she did not take any annual leave during her employment and therefore the amount of annual leave calculated by the respondents as owing at termination is insufficient to meet her actual entitlement.
3. Therefore, it is submitted for the applicant that there is still some utility in orders being made in the terms sought. There are a number of difficulties with this proposed course. Ms Antrobus is not on affidavit in relation to any of these matters. Rather, the only evidence before the court about what Ms Antrobus says she was paid, and whether she took any leave, is found in file notes of the applicant's employees.
4. I note that when the issue of Ms Antrobus not being on affidavit about any of these matters was raised, no application was made for an adjournment to allow that material to be obtained. Moreover, against that is the fact that the second respondent sought leave to adduce oral evidence in relation to these matters, and in circumstances where there was no objection to that course, leave was granted. The second respondent gave evidence that:
   • Ms Antrobus did take annual leave during her employment;
   • Ms Antrobus was paid at the rate of $21.54 per hour from 9 March 2019;
   • That on termination of her employment, Ms Antrobus had 90.1 hours of annual leave as indicated on her final pay slip; and
   • That Ms Antrobus was paid $750 per week during the COVID-19 period as reflected in the payslips annexed to his affidavit sworn 23 January 2026.
5. I accept that evidence.
6. In addition, there is a question as to the utility of the orders sought by the applicant in circumstances where the second respondent has given sworn evidence that he has done all things necessary to comply with the Compliance Notice. I understand that the Ombudsman does not accept that he has but, absent evidence to support the Ombudsman's proposition, there is a risk that orders in the terms sought by the applicant will simply lead to further litigation and disputation.
7. This is to be avoided.

1. For these reasons, I make the declarations and orders set out at the commencement of these written reasons.

I certify that the preceding ninety-three (93) numbered paragraphs are a true copy of the Reasons for Judgment of Deputy Chief Judge Mercuri.

[1] Respondents' Amended Outline of Submissions filed on 23 January 2026, paragraph 5.

[2] Respondents' Amended Outline of Submissions filed on 23 January 2026, paragraph 10.

[3] See Fair Work Ombudsman v LROC Builders Pty Ltd [2025] FedCFamC2G 1516 at [96] - [97]; Fair Work Ombudsman v Soma Kitchen Pty Ltd & Anor (No 2) [2020] FCCA 2583 at [38].

[4] Applicant's Outline of Submissions filed on 16 May 2025, paragraph [40].

[6] Applicant's Outline of Submissions filed on 16 May 2025, paragraph 42.

[7] Applicant's Outline of Submissions filed on 16 May 2025, paragraph 20.

[8] See Fair Work Ombudsman v Yes Insurance Group Pty Ltd [2022] FedCFamC2G 694, [43].