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[2017] FCA 557
Federal Court of Australia
2017-05-24
Katzmann J
Original judgment source is linked above.
The application to vary the judgment and declarations 5 Before dealing with the questions of compensation and penalties, there is a preliminary matter which requires attention. 6 The Ombudsman applied to vary some of the declarations and to correct some clerical and other errors in the Liability Judgment. 7 The application was supported by an affidavit sworn by Eric Leahy, a Principal Lawyer in the Ombudsman's office and the lawyer supervising the conduct of the proceeding on the Ombudsman's behalf. 8 Rule 39.05 of the Federal Court Rules 2011 (Cth) relevantly provides that the Court may vary a judgment or order after it has been entered in a number of circumstances including if: (e) it does not reflect the intention of the Court; or (f) the party in whose favour it was made consents; or (g) there is a clerical mistake in [the] judgment or order; or (h) there is an error arising in [the] judgment or order from an accidental slip or omission. 9 The application to vary the judgment and declarations was made, not only with the consent, but at the behest, of the Ombudsman. As the Ombudsman is the party in whose favour they were made, there can be no doubt that the Court has the power to do as the Ombudsman asks - provided, in the case of the application to vary the judgment, that it involves a variation of the kind contemplated by the rule. Nevertheless, it is well-established that this power should only be exercised "where it is just and appropriate to do so": Perre v Apand [2004] FCA 1220 (Selway J at [11]). 10 To the extent that the Ombudsman seeks variations of the declarations, I am satisfied that in all but two cases it is indeed just and appropriate to make them. 11 The first matter raised by the Ombudsman concerns the erroneous inclusion of one particular employee in declaration 1.2. That declaration related to the contravention of s 44 of the FW Act by failing to pay 32 employees for their accrued untaken annual leave as prescribed by s 90(2) of the Act. The right to be paid for accrued annual leave is a right conferred on all employees except for casuals: FW Act, s 86. The employee whom the Ombudsman contended was wrongly included in this declaration was Bibek Luitel (see Liability Judgment at [292]). The Ombudsman characterised Mr Luitel as a part-time employee. Later in my reasons (at [496]), however, I found that Mr Luitel was not a part-time employee but a casual. I was not conscious of the discrepancy and I regret to say that it was not detected during the proof-reading process. I am indebted to the Ombudsman for drawing it to my attention. It was an obvious oversight. The declaration should be varied to reduce the number of employees from 32 to 31. 12 The Ombudsman also sought a variation of the judgment relating to Rosario's involvement in contravention 23, which concerns the failure to pay employees the applicable penalty rate for working permanent night shifts contrary to cl 27.1(b) of the Cleaning Services Award 2010 (Cleaning Services Award). 13 In the Liability Judgment (at [1087]), I observed that, in order to find that Rosario was "involved in" GPS's contravention, it must be established that Rosario had knowledge that: (1) an employee was covered by the Cleaning Services Award; (2) the employee worked a shift finishing after midnight and at or before 8.00am; (3) the shift did not alternate or rotate with another shift or day work; and (4) the employee was not paid an additional 30% of the ordinary hourly rate for the appropriate classification. 14 The error resulted from my consideration of elements (2) and (3). 15 I found that Rosario was involved in this contravention because of his knowledge of the shift rosters for Alfonso Alcuitas. Yet, I did not find that GPS had contravened the award in respect of Mr Alcuitas. Indeed, the Ombudsman had made no such allegation. This was an undoubted error. 16 The Ombudsman submitted that this was a slip and I could amend the reasons to correct the error. I reject the submission. 17 This was not a slip because it was not an error arising from a clerical mistake or omission and it was not unintentional because the reasons reflected my intention at the time, misconceived though it was, to find that Rosario was culpable because of his knowledge of the elements of a contravention involving Alfonso Alcuitas. The slip rule, which is reflected in r 39.05 (formerly O 35 r 7 of the Federal Court Rules 1979 (Cth)), does not extend to mistakes that result from deliberate decisions: Elyard Corporation Pty Ltd v DDB Needham Sydney Pty Ltd (1995) 61 FCR 385 at 391 (Lockhart J). Furthermore, I do not consider that it is open to me to amend the reasons to correct the error as an error in reasoning is not "an error arising in a judgment or order": Austal Ships Sales Pty Ltd v Stena Rederi Aktiebolag (2009) 263 ALR 384; [2009] FCAFC 179 at [25]. As Finn and Dowsett JJ went on to explain in that case: The court may be in error in its reasoning, but a judgment or order which reflects the consequences of that error is, itself, free from error, although appealable. We do not understand these propositions to have ever been doubted, although it may be, that from time to time, the operation of the rule has been stretched to accommodate a hard case. 18 While reasons may always be revised to correct errors of form, they may not be revised to correct errors of substance: Todorovic v Moussa (2001) 53 NSWLR 463 at [47]-[48] (Beazley JA, Powell JA agreeing at [1] and Sperling J at [61]). 19 The only relevant order that this error affects is declaration 10.14, which was to the effect that Rosario was involved in the contravention by GPS of s 45 of the FW Act in failing to pay penalty rates prescribed by cl 27.1(b) of the Cleaning Services Award in relation to one employee. The employee was not named. The order requires no correction because, as the Ombudsman submitted, there is an independent foundation for it. That independent foundation consists of the evidence and findings concerning Robert Wilkey. Rosario did not argue otherwise. Nor, as the following exposition indicates, could he have done so. 20 Rosario (together with a woman named only as "Rosie") interviewed Mr Wilkey for a cleaning job. They offered him a permanent part-time cleaning position "for 2.5 hours a night Monday to Thursday, and Friday" and three hours on Saturday and Sunday. When Mr Wilkey told them that he had other work and that it would be better for him to come in "between 1am and 1:30am". He received the following reply: That's good. Everyone will be gone by then. You will just need to do the alarm and clock on. It's no problem. 21 These, then, were some of the terms of his employment. They were negotiated either by Rosario or in his presence. He plainly knew of them. 22 Mr Wilkey's evidence was that he finished every shift between midnight and 8.00am from 29 March 2012 onwards but was paid a flat rate of $17.95 with no allowances (Liability Judgment [718]). I accepted this evidence and found the contravention proved against GPS in this respect, amongst others (at [711]). As I noted at [259] of the Liability Judgment, on 12 July 2012 Mr Wilkey complained to Janil (also known as "Jay") Modi, the assistant accountant, that he had received no pay for a few months. Over the next few days he received $200 but nothing since. From this evidence it is apparent that he was not paid a shift allowance. After numerous futile efforts to contact the payroll office to chase up the rest of his pay, on 1 August 2012 he telephoned Rosario. Rosario did not answer but Mr Wilkey left him a message "on his message bank" asking him when he was getting his money. Rosario did not return his call. Mr Wilkey decided that the only way he would get a response from Rosario was if he called him at 1am. So this is what he did. He then told Rosario that "payroll keeps saying to me that they will pay the money owed to me but they haven't paid it". Rosario assured him that he would make sure someone looked into it in the morning and "someone will get back to you". Later that day, however, Rosario called him and abused him for ringing him, saying: You are a fucking idiot. You are a fucking cunt. How dare you ring me at 1am. 23 Mr Wilkey said that he could not remember anything else he said during the three-minute tirade that followed because he was in shock and unable to get a word in. Then, either Rosario hung up or the connection was lost. Rosario rang back, saying: Don't you fucking call me up when my wife's sleeping, I'm going to call Yvette [an obvious reference to Yvette Cooley, the then South Australian State Manager of GPS] and you're out. I'm not going to have you ringing me like that when my wife's there, give me the keys, you're done. 24 When Mr Wilkey inquired about his outstanding pay, Rosario replied: You will see nothing. You can do what you like you won't be getting your money. Go to Fair Work, I'll leave the paperwork on the desk and it will be there for 3-4 months and you won't get anything. 25 Regrettably, eloquent though it is, my attention was not drawn to this evidence in the context of any of the submissions the Ombudsman made on the subject of Rosario's liability. Having regard to this evidence, Rosario unquestionably had the requisite knowledge to make him liable as an accessory to GPS's contravention of cl 27.1(b) of the Cleaning Services Award in relation to Mr Wilkey. In these circumstances, there is no reason to vary the terms of declaration 10.14. 26 The Ombudsman also drew my attention to an error at [318] in the context of discussing contravention 2 (the failure to pay untaken accrued annual leave) where I mistook the hours that Wen Yang worked for the hours of his friend, Xiao Teng, whose details were in the email annexed to Mr Yang's affidavit to which I referred. To correct this error would also involve a correction to the reasons. Yet, nothing turns on it. That is because the evidence shows that Mr Yang, who was employed for only two and a half weeks in November 2012, did not take annual leave and was not paid for his untaken leave. 27 Most of the variations that the Ombudsman sought, however, did concern slips or clerical errors. Apart from the slip concerning Mr Luitel, they are set out in Appendix A to these reasons. 28 Otherwise, the variations the Ombudsman sought resulted from a review conducted by the Ombudsman after the publication of the Liability Judgment, which allegedly disclosed that certain underpayments affecting four employees had been the subject of inadvertent double-counting and that the claims in these cases should never have been made. They are said to affect the findings and declarations in relation to contraventions 25, 26, 28 and 29. 29 The Ombudsman submitted that, notwithstanding the case it ran at the liability hearing, the findings that Alyson Hellyer and Helen Pakas were not paid the applicable penalty rates for working on a Sunday (contraventions 25) and the finding that Ms Pakas was not paid overtime rates for overtime worked on a Sunday (contravention 28) should not have been made. In Ms Hellyer's case, this is because her hours worked on a Sunday are classified as overtime hours and are wholly captured by contravention 28. Therefore to claim these hours again under contravention 25 would be "double-counting". 30 In Ms Pakas's case, the Ombudsman applied for both contraventions 25 and 28 to be varied to undo the findings that GPS failed to pay Ms Pakas both penalty rates and overtime rates for Sunday work. This is because the Ombudsman is only claiming compensation for the hours Ms Pakas worked between 16 April 2012 and 19 April 2013. During this period Ms Pakas only worked on one Sunday: 24 June 2012. In the Liability Judgment at [733] and [808], however, I found that Ms Pakas also worked on six Sundays on 24 and 31 July 2011 and 7, 14, 21, and 28 August 2011. While these findings were not erroneous, the hours worked on these Sundays were all overtime hours. I accept the Ombudsman's submission that an employee who must be paid overtime rates for working on a Sunday is not also entitled to Sunday penalty rates in relation to the overtime hours. I therefore accept that the declaration in respect of contravention 25 should be varied to exclude Ms Pakas. But I see no reason to vary contravention 28. 31 The Ombudsman also submitted that the finding that Ms Hellyer was not paid for working overtime on the Queen's Birthday public holiday in 2012 (contravention 29) should not have been made and there should be a consequential amendment to the relevant declaration. The Ombudsman submitted that, because the hours she worked that day were covered under contravention 26, which concerns the failure to pay cleaners the applicable penalty rate for work on a public holiday, GPS did not contravene the Cleaning Services Award in this respect. I accept the Ombudsman's submission. The Ombudsman further submitted that a similar kind of error affected contravention 26 and the declaration relating to it in that Tammy May and Thomas Sung Hong were wrongly included. I accept this submission too. The declarations relating to this contravention should therefore be amended to correct those errors. 32 I regret to say that there are a number of other slips and clerical errors that I have since picked up and brought to the parties' attention. First there is an additional clerical error in one of the declarations where the wrong section of the FW Act was referred to and I will vary that declaration to rectify that error. There are also two slips in the penultimate sentence of [879] in which I referred to the National Minimum Wage Order 2013 instead of the National Minimum Wage Order 2012 and a national minimum wage of $16.37 per hour instead of $15.96. These slips should be corrected. 33 Finally, I will vary four declarations to correct slips or clerical errors so as to accurately reflect my findings concerning contravention 32 in respect of GPS and contraventions 6, 19 and 21 in respect of Rosario. In declaration 4, which concerns contravention 32, "49" should replace "50"; in declaration 10.4, which concerns contravention 6, "one" should replace "two"; in declaration 10.12, which concerns contravention 19, "eight" should replace "11"; and in declaration 10.23, which also concerns contravention 32, "51" should replace "one". The Ombudsman consents to all these variations and neither GPS nor Rosario raised an objection to them being made. 34 To the extent that the declarations are varied, corresponding changes will be made to the table of contraventions in Annexure B to the Liability Judgment. I omitted to record the outcome in one instance - relating to Rosario's culpability for contraventions 17 and 18 insofar as they concerned Paul Bacon - and I will rectify that omission at the same time. 35 With only one possible exception (the case of declaration 10.23), the alterations to the declarations I intend to make are either neutral or favour the respondents. I am satisfied that it is in the interests of justice that they all be made.
The legal parameters 36 Where the Court is satisfied that a person has contravened a civil remedy provision, the Court may make any order it considers appropriate, including an order awarding compensation for loss suffered by a person because of the contravention: FW Act, s 545. The only express limitation on this power is that an order in relation to an underpayment may not be made in relation to a period earlier than six years before the proceeding commenced: s 545(5). The limitation is of no consequence in the present case as all the conduct with which it is concerned took place within six years before the filing of the originating application on 1 July 2014. The conduct in question occurred between 1 July 2011 and 14 September 2013, a period referred to by the Ombudsman as "the Audit Period". 37 An order for compensation is undoubtedly appropriate in the present case.
The Ombudsman's application 38 The compensation orders are sought against GPS in relation to contraventions 1, 2, 3, 4, 6, 7, 8, 10, 13, 14, 16, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32 and 33. These contraventions concern the company's failure to afford minimum standards of employment prescribed by the National Employment Standards (NES) contained in Pt 2-2 of the FW Act and to comply with its obligations under two modern awards, including by failing to pay minimum wages. The Ombudsman seeks an order that GPS pay the amount of the underpayments by way of compensation to the employees concerned or, if they cannot be found, to the Consolidated Revenue Fund. 39 I found that Enrico was involved in contravention 33 and the Ombudsman asks that the order for compensation for this contravention be made against him as well as GPS. 40 No compensation order is sought from Rosario because, as an undischarged bankrupt, an order for compensation would be a provable debt in his bankruptcy, and the Ombudsman made no application for leave to proceed against him in respect of the debt: see Bankruptcy Act 1966 (Cth), ss 58(3), 82. 41 The Ombudsman relied on the evidence upon which the findings in the Liability Judgment were made and those findings, subject to the variations mentioned above. In addition, the Ombudsman read a further affidavit from a GPS employee, Abraham Arguello, sworn on 29 November 2016, touching upon the amount of annual leave owing to him on termination. At the hearing, Rosario objected to the evidence, but only because he quarrelled with its contents, despite not having filed any evidence or required Mr Arguello's attendance for cross-examination. The evidence was admitted over his objection.
The problem of classification 42 Rates of pay under the relevant awards are determined by reference to the job classifications set out in the awards. It is therefore impossible to determine the amount of the underpayments without first ascertaining the relevant classifications for the relevant employees. 43 In the Liability Judgment I made findings as to the awards governing the employment of the relevant employees and as to whether they were employed on a part-time, full-time, or casual basis and the classifications in which the cleaners were employed. I did not, however, make findings about the job classifications of the clerical employees, described by the Ombudsman and in the Liability Judgment as the administrative employees. Their employment was covered by the Clerks-Private Sector Award 2011 (Clerks Award). The Clerks Award stipulates that employees be classified according to the structure set out in Schedule B to the award. Clause B.2.1 of Schedule B lists "indicative typical duties and skills". Having regard to the terms of the Schedule, the Ombudsman contended that the administrative employees came within the following classifications: Name Role Classification Aisling Dunn Receptionist Level 2 Clerical Employee Moona Hasan Preparing tenders and proposals Level 3 Clerical Employee Christine Meager Telemarketer Level 3 Clerical Employee Janil Modi Assistant accountant Level 4 Clerical Employee Lara Satchell Human resources officer Level 4 Clerical Employee Md Shamsuzzoha Data entry Level 3 Clerical Employee
44 In her written submissions the Ombudsman explained in detail, by reference to the evidence, why these classifications were the appropriate ones. In the absence of any argument to the contrary, I accept the Ombudsman's submissions. Accordingly, I find that the employees listed in the above table were within the classifications recorded alongside their names. Consequently, they will be compensated at the rates applicable to those classifications.
Calculation of the underpayments 45 The calculation of the appropriate rates and the extent of the underpayments is complicated by several matters. 46 First, the employees in question worked for GPS in six jurisdictions (NSW, Victoria, Queensland, South Australia, Western Australia, and the Australian Capital Territory) and the rates vary between the jurisdictions. This is because, during the period in question, transitional rates were set in each modern award as part of the award modernisation process. In that process similar awards operating in different states and territories were consolidated into a single instrument, using transitional provisions to phase in changes in wages, loadings, and penalties until they were consistent across all jurisdictions. Transitional increases differed in the various jurisdictions and changed annually between July 2011 and July 2013. These variations affect the majority of employees covered by the Cleaning Services Award, but not the five employees covered by the Clerks Award, as they all worked in NSW. 47 Secondly, the rates of pay vary according to the periods in which the employees worked. Under the Cleaning Services Award, the transitional rates changed annually between 2011 and 2014, with incremental increases to wages, loadings and penalties coming into force at the start of each financial year. The rates of pay for employees covered by the Clerks Award also changed at the start of each financial year between 2011 and 2013. 48 Thirdly, on the assumption that GPS and National Contractors produced all the documents they were required to produce in answer to the various notices to produce issued by the Ombudsman, the records kept by the companies were in a very poor state. One example is the records generated by the computer system GPS used to record the start and finish times for the cleaners. As I observed in the Liability Judgment at [228], this system, referred to in the evidence as "Praxeo", would often fail to record log on or log off times. On some occasions it would record that an employee had logged in one minute and logged off the next. As it is inconceivable that any employee would work for one minute, the records generated by the system are an incomplete record of the hours the employees worked. To the extent that the Ombudsman is forced to rely on this information, the result is that in most, if not all, of these cases employees will be undercompensated for their losses. 49 The Ombudsman tendered 13 lever arch files of material. This material comprised extracts of the evidence adduced during the liability hearing and copies of the relevant sections of the FW Act and the relevant awards. Included with them were 102 "summary sheets" for each employee affected by each contravention. Those summary sheets set out the employee's relevant classification, state or territory in which he or she was employed, hours worked, and applicable rates of pay, including the minimum award rates, loadings, allowances, and penalties, cross-referenced to the evidence, the relevant sections of the Act, the relevant awards, and the relevant findings. I was informed that this material was served on Rosario and Enrico in both hard copy and electronic form on 5 December 2016. Where accurate, these summary sheets were of great assistance. 50 These summary sheets were revised, however, on 17 February 2017 to correct several errors in the figures conceded by the Ombudsman during the course of oral argument, and upon a review conducted after the hearing concluded which uncovered some "double-counting" errors. 46 of the 102 summary sheets were amended by this review and a number of others since. At no time did the respondents contend that any of the references were incorrect or that the rates upon which the calculations were made were not the correct award rates for the relevant classifications of employee. Nor did they contend that the hours recorded in the summary sheets were an inaccurate record of what they purported to be. 51 Rosario was given the opportunity to make submissions concerning the amendments. He provided submissions on 13 March 2017. The submissions were accompanied by an affidavit he swore on 11 March 2017, which he was not invited, or given leave, to file. Be that as it may, none of the matters raised in the affidavit or the submissions was to the point. Instead, Rosario took issue with a number of the findings made in the Liability Judgment. As on this occasion no leave was given for the filing of an affidavit and as it is irrelevant to the remaining issues, it must be rejected and, to the extent that the submissions relied on the statements in the affidavit or dealt with the same or similar matters, I give them no weight. 52 Rosario submitted that the Ombudsman's calculations should reflect the terms of an enterprise bargaining agreement made by RPEP Holdings Pty Ltd and to which GPS was not a party. As I found that all the individuals in question were employed by GPS, the enterprise bargaining agreement is also irrelevant. 53 Unless otherwise indicated, in the absence of any relevant challenge to the Ombudsman's calculations, I accept the figures in the summary sheets and, where revised, in the revised summary sheets. Where I refer in these reasons to hours or shifts worked by the employees in question, I have relied on the Ombudsman's summary sheets in which the sources are identified. There were, however, some errors and inconsistencies in the summary sheets, even after the Ombudsman's review. The most notable inconsistency was that in some cases, the Ombudsman assumed (often despite findings to the contrary) that a particular employee was paid a flat rate of pay throughout his or her employment, yet in other cases assumed (correctly) that the same employee was unpaid, or paid at different rates, in different periods.
Contravention 1: Failing to pay annual leave, contrary to s 90(1) of the Act 54 Contravention 1 was proved in relation to two part-time employees: Tammy May and Robert Wilkey. 55 Section 90(1) of the FW Act provides: 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. 56 "Base rate of pay" is defined in s 16(1) in this way: The base rate of pay of a national system employee is the rate of pay payable to the employee for his or her ordinary hours of work, but not any of the following: (a) incentive-based payments and bonuses; (b) loadings; (c) monetary allowances; (d) overtime or penalty rates; (e) any other separately identifiable amounts. 57 Tammy May took 10 days of annual leave in August 2011 for which she was not paid. The Ombudsman claims, however, only 7.53 hours, rightly or wrongly ignoring the hours accrued before the commencement of the Audit Period. Ms May's minimum rate of pay as a level 1 cleaner under the Cleaning Services Award was $16.57 per hour. Multiplying that figure by 7.53 hours gives a base rate of pay within the meaning of s 16(1) of the Act of $124.77. 58 Robert Wilkey took annual leave over the period from 7 to 20 May 2012. His leave entitlement is restricted to his ordinary hours of work of which there are 30 in this period. His minimum hourly rate under the award as a level 1 cleaner was $16.57. That figure multiplied by 30 gives a base rate of $497.10. 59 The Ombudsman also claimed additional amounts referable to the part-time allowance of 15% of the hourly rate to which the employees were entitled under cll 29.3(d) and 12.4(b)(iii) of the award. Having regard to the definition of "base rate of pay", however, to which the Ombudsman did not refer in her submissions, the allowance should not be taken into account in the calculation of annual leave entitlements under s 90(1). It is either a monetary allowance or another separately identifiable amount. Accordingly, Ms May was underpaid $124.77 and Mr Wilkey $497.10.
Contravention 2: Failing to pay accrued annual leave on termination, contrary to s 90(2) of the Act 60 This contravention was proved in relation to 31 employees: Alfonso Alcuitas, Abraham Arguello, Paul Bacon, Juliana Botero Hernandez, Rangana Dissanayake, Barry Dowling, Fawaz El Rahman, Marissa Hall, Freddy Herrera, Fiona Holland, Michael Kallee, Charles Mascarenhas, Tammy May, Christine Meager, Kian Mu, Jose Pena, Barbara Piper, Mariana de Queiroz, Tuula Rintala, Linda Robinson, Sumit Salhotra, Baljinder Singh, Dianne Sjoberg, Cheryl Sorrell, Thomas Sung Hong, Tui Tane, Xiao Teng, Sekson Thinathin, Tashi Wangchuck, Robert Wilkey, and Wen Yang. 61 Section 90(2) provides that: 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. 62 The amount that would have been payable to each of these 31 employees had they taken leave would have included any allowances and loadings provided for under a modern award: see Centennial Northern Mining Services Pty Ltd v Construction, Forestry, Mining and Energy Union (2015) 231 FCR 298. In Centennial at [38] the Full Court held that: Section 90(1) creates the minimum standard: payment at the base rate for ordinary hours worked. The effect of s 90(2) is that if that is the rate at which the employee is paid when he or she takes annual leave, then that is the minimum amount that must be paid for any accrued untaken annual leave. If, on the other hand, there is a modern award or enterprise agreement which provides for payment at a higher rate for annual leave that is taken, then s 90(2) stipulates that that is the rate which is payable where annual leave has accrued but has not been taken. This is the natural way to read the section and there is nothing in the legislative context which would require a different interpretation. 63 The Cleaning Services Award is a modern award which provides for payment at a higher rate for annual leave than the minimum rate of pay. Clause 29.3 provides that: For the purposes of payment of annual leave, an employee's ordinary pay means remuneration for the employee's normal weekly number of hours or work calculated at the ordinary time rate of pay and in addition will include: (a) leading hand allowance; (b) first aid allowance; (c) penalty rates paid for shiftwork or rostered ordinary hours of work on Saturday and/or Sunday; and (d) part-time allowance for part-time employees working shiftwork (Monday to Friday) or rostered ordinary hours on a Saturday and/or a Sunday. 64 All but one of the 31 employees affected by this contravention were covered by the Cleaning Services Award. Accordingly, in all but that one case, accrued but untaken annual leave owing to those 30 employees must be paid in accordance with cl 29.3 of the Cleaning Services Award. These 30 employees are also entitled to a 17.5% annual leave loading under cll 29.4(a) and 29.7 of the award. Clause 29.4(a) relevantly provides that: The terms of the NES prescribed the basis for payment for annual leave, including payment for untaken leave upon the termination of employment. In addition to the terms of the NES an employer is required to pay an additional leave loading of 17.5% calculated on an employee's ordinary time rate of pay. 65 Clause 29.7 is in substantially the same terms as cl 29.4(a). 66 There is no definition in the Cleaning Services Award of "ordinary time rate of pay". As the Ombudsman submitted, however, the meaning of the phrase can be gleaned by comparison with the term "ordinary pay", which is defined in cl 29.3 to include various allowances and penalties in addition to the employee's ordinary time rate of pay. Consequently, an employee's ordinary time rate of pay refers to the employee's rate of pay excluding the allowances and penalties mentioned in cl 29.3. 67 The only employee not covered by the Cleaning Services Award, Christine Meager, was covered by the Clerks Award. This award similarly provides for a 17.5% annual leave loading. Clause 29.3 of the Clerks Award relevantly states: (a) During a period of annual leave an employee will receive a loading calculated on the rate of wage prescribed in clause 16 - Minimum weekly wages. Annual leave loading payment is payable on leave accrued. (b) The loading is as follows: (i) Day work Employees who would have worked on day work only had they not been on leave - 17.5% or the relevant weekend penalty rates, whichever is the greater but not both. 68 Christine Meager was employed throughout on day work. 69 Each of the 31 employees covered by this contravention is therefore entitled to a 17.5% loading on top of his or her ordinary pay. No claim was made that Ms Meager was entitled to any greater amount. 70 Of these 31 employees, 22 were part-time cleaners who the Ombudsman submitted, and I accept, were entitled to the 15% part-time allowance as they worked shiftwork (Monday to Friday) or were rostered on ordinary hours on weekends: see cll 29.3(d) and 12.4(b)(iii) of the Cleaning Services Award. No account is taken, however, of shift or weekend penalties, notwithstanding the terms of cl 29.3 of the Cleaning Services Award. When this omission was drawn to the Ombudsman's attention, she acknowledged the error but did not seek to vary her claim, in substance because she considered that, the costs of the exercise could not be justified. 71 The underpayments for which compensation is sought for GPS's failure to pay untaken accrued annual leave on termination for the 22 part-time employees are as follows: (1) $2,962.40 for Alfonso Alcuitas. Mr Alcuitas had accrued 131.13 hours of untaken annual leave. His minimum award rate of pay at the time his employment ended was $17.05 per hour. His accrued annual leave entitlement was $2,235.77 (131.13 hours x $17.05), the 15% allowance of $335.37 and the 17.5% loading of $391.26. The total is $2,962.40. (2) $566.00 for Rangana Dissanayake. Mr Dissanayake accrued 25.78 hours of untaken annual leave. At the time his employment ended the minimum rate of pay for his position under the award was $16.57 per hour. Over 25.78 hours that amounts to $427.17. When the 15% allowance of $64.08 and the 17.5% loading of $74.75 are added, he should have been paid $566. (3) $1,167.06 for Barry Dowling. Mr Dowling accrued 51.66 hours of untaken annual leave. His minimum award rate of pay at the time his employment ended was $17.05 per hour. Over 51.66 hours that amounts to $880.80. When the 15% allowance of $132.12 and the 17.5% loading of $154.14 are added, he should have been paid $1,167.06. (4) $959.01 for Fawaz El Rahman. Mr El Rahman accrued 43.68 hours of untaken annual leave. His minimum award rate of pay at the time his employment ended was $16.57 per hour. Over 43.68 hours that amounts to $723.78. When the 15% allowance of $108.57 and the 17.5% loading of $126.66 are added, he should have been paid $959.01. (5) $3,777.93 for Freddy Herrera. Mr Herrera accrued 167.23 hours of untaken annual leave. His minimum award rate of pay at the time his employment ended was $17.05 per hour. Over 167.23 hours that amounts to $2,851.27. When the 15% allowance of $427.69 and the 17.5% loading of $498.97 are added, he should have been paid $3,777.93. (6) $307.24 for Fiona Holland. Ms Holland accrued 13.60 hours of untaken annual leave. Her minimum award rate of pay at the time her employment ended was $17.05 per hour. Over 13.60 hours that amounts to $231.88. When the 15% allowance of $34.78 and the 17.5% loading of $40.58 are added, she should have been paid $307.24. (7) $225.26 for Michael Kallee. Mr Kallee accrued 10.26 hours of untaken annual leave. His minimum award rate of pay at the time his employment ended was $16.57 per hour. Over 10.26 hours that amounts to $170.01. When the 15% allowance of $25.50 and the 17.5% loading of $29.75 are added, he should have been paid $225.26. (8) $350.62 for Charles Mascarenhas. Mr Mascarenhas accrued 15.52 hours of untaken annual leave. His minimum award rate of pay at the time his employment ended was $17.05 per hour. Over 15.52 hours that amounts to $264.62. When the 15% allowance of $39.69 and the 17.5% loading of $46.31 are added, he should have been paid $350.62. (9) $1,950.99 for Tammy May. Ms May accrued 86.36 hours of untaken annual leave. Her minimum award rate of pay at the time her employment ended was also $17.05 per hour. Over 86.36 hours that amounts to $1,472.44. When the 15% allowance of $220.87 and the 17.5% loading of $257.68 are added, she should have been paid $1,950.99. (10) $708.91 for Jose Pena. Mr Pena accrued 31.38 hours of untaken annual leave. His minimum award rate of pay at the time his employment ended was $17.05 per hour. Over 31.38 hours that amounts to $535.03. When the 15% allowance of $80.25 and the 17.5% loading of $93.63 are added, he should have been paid $708.91. (11) $66.65 for Barbara Piper. Ms Piper accrued 2.95 hours of untaken annual leave. Her minimum award rate of pay at the time her employment ended was $17.05 per hour. Over 2.95 hours that amounts to $50.30. When the 15% allowance of $7.55 and the 17.5% loading of $8.80 are added, she should have been paid $66.65. (12) $1,342.47 for Mariana De Queiroz. Ms De Queiroz accrued 59.38 hours of untaken annual leave. Her minimum award rate of pay at the time her employment ended was $17.05 per hour. Over 59.38 hours that amounts to $1,012.43. When the 15% allowance of $151.86 and the 17.5% loading of $178.18 are added, she should have been paid $1,342.47. (13) $222.40 for Tuula Rintala. Ms Rintala accrued 10.13 hours of untaken annual leave. Her minimum award rate of pay at the time her employment ended was $16.57 per hour. Over 10.13 hours that amounts to $167.85. When the 15% allowance of $25.18 and the 17.5% loading of $29.37 are added, she should have been paid $222.40. (14) $919.48 for Sumit Salhotra. Mr Salhotra accrued 41.88 hours of untaken annual leave. His minimum award rate of pay at the time his employment ended was $16.57 per hour. Over 41.88 hours that amounts to $693.95. When the 15% allowance of $104.09 and the 17.5% loading of $121.44 are added, he should have been paid $919.48. (15) $88.57 for Baljinder Singh. Mr Singh accrued 3.92 hours of untaken annual leave. His minimum award rate of pay at the time his employment ended was $17.05 per hour. Over 3.92 hours that amounts to $66.84. When the 15% allowance of $10.03 and the 17.5% loading of $11.70 are added, he should have been paid $88.57. (16) $600.70 for Dianne Sjoberg. Ms Sjoberg accrued 27.36 hours of untaken annual leave. Her minimum award rate of pay at the time her employment ended was $16.57 per hour. Over 27.36 hours that amounts to $453.36. When the 15% allowance of $68.00 and the 17.5% loading of $79.34 are added, she should have been paid $600.70. (17) $432.52 for Cheryl Sorrell. Ms Sorrell accrued 19.70 hours of untaken annual leave. Her minimum award rate of pay at the time her employment ended was also $16.57 per hour. Over 19.70 hours that amounts to $326.43. When the 15% allowance of $48.96 and the 17.5% loading of $57.13 are added, she should have been paid $432.52. (18) $3,655.96 for Thomas Sung Hong. Mr Hong accrued 157.76 hours of untaken annual leave. His minimum award rate of pay at the time his employment ended was $17.49 per hour. Over 157.76 hours that amounts to $2,759.22. When the 15% allowance of $413.88 and the 17.5% loading of $482.86 are added, he should have been paid $3,655.96. (19) $243.92 for Tui Tane. Ms Tane accrued 11.11 hours of untaken annual leave. Her minimum award rate of pay at the time her employment ended was $16.57 per hour. Over 11.11 hours that amounts to $184.09. When the 15% allowance of $27.61 and the 17.5% loading of $32.22 are added, she should have been paid $243.92. (20) $751.31 for Sekson Thinathin. Mr Thinathin accrued 34.22 hours of untaken annual leave. His minimum award rate of pay at the time his employment ended was $16.57 per hour. Over 34.22 hours that amounts to $567.03. When the 15% allowance of $85.05 and the 17.5% loading of $99.23 are added, he should have been paid $751.31. (21) $1,214.96 for Robert Wilkey. Mr Wilkey accrued 53.78 hours of untaken annual leave. His minimum award rate of pay at the time his employment ended was $17.05 per hour. Over 53.78 hours that amounts to $916.95. When the 15% allowance of $137.54 and the 17.5% loading of $160.47 are added, he should have been paid $1,214.96. (22) $109.11 for Wen Yang. Mr Yang accrued 4.83 hours of untaken annual leave. His minimum award rate of pay at the time his employment ended was also $17.05 per hour. Over 4.83 hours that amounts to $82.35. When the 15% allowance of $12.35 and the 17.5% loading of $14.41 are added, he should have been paid $109.11. 72 The Ombudsman submitted that the remaining nine employees were not entitled to the 15% part-time allowance. No explanation was offered, but, save in one case, I take it that this was because these employees were employed full-time, did not work shiftwork during the week or rostered ordinary hours on a Saturday and/or a Sunday, or were not covered by the Cleaning Services Award. The one exception is Xiao Teng, who was a part-time employee and regularly worked shiftwork within the meaning of cl 27.1(a) of the award. I cannot fathom why she was excluded. 73 Abraham Arguello worked full-time as a building supervisor/manager and was found to be a level 3 cleaning services employee under the Cleaning Services Award. He accrued 190.94 hours of untaken annual leave. His ordinary rate of pay at the time his employment ended was $50.61 per hour, calculated by reference to his salary. Over 190.94 hours that amounts to $9,663.47. When the 17.5% annual leave loading of $1,691.11 is added, he should have been paid $11,354.58. 74 Paul Bacon was a part-time cleaner. He accrued 19.33 hours of untaken annual leave. His minimum award rate of pay at the time his employment ended was $17.05 per hour. Over 19.33 hours that amounts to $329.58. When the 17.5% loading of $57.68 is added, he should have been paid $387.26. 75 Juliana Botero Hernandez was also a part-time employee who accrued 4.21 hours of untaken annual leave. Her minimum award rate of pay at the time her employment ended was $17.05 per hour. Over 4.21 hours that amounts to $71.78. When the 17.5% loading of $12.56 is added, she should have been paid $84.34. 76 Marissa Hall accrued 4.14 hours of untaken annual leave. Her minimum award rate of pay at the time her employment ended was $17.05 per hour. Over 4.14 hours that amounts to $70.59. When the 17.5% loading of $12.35 is added, she should have been paid $82.94. 77 Christine Meager worked part-time in a customer service role. She accrued 3.76 hours of annual leave. Her minimum award rate of pay at the time her employment ended was $19.23 per hour. Over 3.76 hours that amounts to $72.30. When the 17.5% loading of $12.65 is added, she should have been paid $84.95. 78 Kian Mu worked as a level 1 Cleaning Services Employee, part-time for the first two months of his employment and full-time thereafter. He accrued 102.98 hours of annual leave. His minimum award rate of pay at the time his employment ended was $17.05 per hour. Over 102.98 hours that amounts to $1,755.81. When the 17.5% loading of $307.27 is added, he should have been paid $2,063.08. 79 Linda Robinson worked full-time as a level 3 Cleaning Services Employee. She accrued 44.31 hours of annual leave. Her minimum award rate of pay at the time her employment ended was $18.06 per hour. Over 44.31 hours that amounts to $800.24. When the 17.5% loading of $140.04 is added, she should have been paid $940.28. 80 Xiao Teng was a part-time cleaner. Ms Teng accrued 17.47 hours of untaken annual leave. Her minimum award rate of pay at the time her employment ended was $17.05 per hour. Over 17.47 hours that amounts to $297.86. When the 17.5% loading of $52.13 is added, she should have been paid $349.99. 81 Tashi Wangchuck was also a part-time cleaner. Ms Wangchuck accrued 4.68 hours of untaken annual leave. Her minimum award rate of pay at the time her employment ended was $17.05 per hour. Over 4.68 hours that amounts to $79.79. When the 17.5% loading of $13.96 is added, she should have been paid $93.75.
Contravention 3: Failing to pay basic rates for personal leave, contrary to s 99 of the Act 82 Section 99 of the FW Act relevantly provides that, if an employee takes a period of paid personal leave in accordance with Subdivision A of Division 7 of Part 2-2 of the Act, the employer must pay the employee at the employee's minimum award rate of pay for the employee's ordinary hours of work in the period. 83 I found that one employee, Linda Robinson, took such a period of paid personal leave and was not paid for it. Her minimum rate of pay under the Cleaning Services Award was $18.06 per hour. She took 21.66 hours of personal leave. Accordingly, she was entitled to be paid $391.18. That is the extent of the underpayment for this contravention.
Contravention 4: Failing to pay employees for public holidays or part thereof when they would ordinarily have worked, contrary to s 116 of the Act 84 Section 116 of the FW Act requires an employer to pay an employee who was absent from his or her employment on a public holiday (or part thereof) at the employee's base rate of pay for the employee's ordinary hours of work on that day (or part-day). 85 Contravention 4 was proved in relation to six employees: Jessica Alvarado Palma, Angela Bustos Alvarado, Robin Malla, Helen Pakas, Thomas Sung Hong, and Xiao Teng. None of them received payment in accordance with the section. 86 Jessica Alvarado Palma was a part-time employee who worked three hours a day, seven days a week. She was absent from her employment on 25 December 2012 and 1 January 2013. Her base rate of pay at that time was $17.05 per hour. Six hours at $17.05 per hour is $102.30. This is the amount she should have been, but was not, paid. 87 Angela Bustos Alvarado was a part-time employee generally worked an average of 2.85 hours a day seven days a week. She did not work on Christmas Day or Boxing Day in 2012. Her base rate of pay at that time was $17.05 per hour. She was paid nothing. Her loss then is $17.05 x (2.85 hours x 2 days) or $97.19. 88 Robin Malla did not work on Christmas Day and Boxing Day 2012 or on New Year's Day 2013. He was also a part-time employee who worked seven days a week. Christmas Day 2012 was a Tuesday, Boxing Day 2012 a Wednesday, and New Year's Day 2013 a Tuesday. On Tuesdays Mr Malla worked five hours and on Wednesdays two hours. His base rate of pay at the relevant time was $17.05 per hour. Accordingly, he should have been paid $204.60 ($17.05 per hour over 12 hours). Instead he was paid $153.12. The shortfall in his wages was therefore $51.48. 89 At the time of this contravention, Helen Pakas was a full-time employee. Full-time hours are 38 per week or 7.6 hours a day. But for the public holidays, Ms Pakas would have worked on 25 December 2012, 26 December 2012, and 1 January 2013. Her base rate of pay was $17.05. For 7.6 hours each day for three days, she should have been paid $388.74 but she was paid nothing. 90 Thomas Sung Hong was absent on New Year's Day, 2012. That was a Sunday. Mr Hong ordinarily worked four hours each Sunday. His Sunday rate (at double time) was $33.37 per hour. He should have received $133.48 but was paid nothing. 91 Xiao Teng worked three hours a day, Monday to Friday. She did not work on Monday 1 October 2012, as it was the Labour Day public holiday. Her base rate of pay was $17.05 per hour. She should have been paid $51.15 for the three hours she otherwise would have worked but she, too, was paid nothing.
Contravention 5: Failing to give written notice of termination of employment, contrary to s 117(1) of the Act 92 No claim is made for compensation for this contravention.
Contravention 6: Failing to give adequate notice or payment in lieu, contrary to s 117(2) of the Act 93 Section 117(2) provides that an employer must not terminate an employee's employment unless at least the minimum period of notice worked out under subs (3) is given (para (a)) or the employer has paid to the employee (or someone on the employee's behalf) payment in lieu of notice of at least the amount the employer would have been liable to pay at the full rate of pay for the hours the employee would have worked had the employment continued until the end of the minimum notice period (para (b)). 94 Contravention 6 concerns 10 employees: Abraham Arguello, Wendy Bong, Angela Bustos Alvarado, Rangana Dissanayake, Barbara Piper, Linda Robinson, Lara Satchell, Xiao Teng, Robert Wilkey, and Wen Yang. None of these employees was given adequate notice or payment in lieu. Except in the case of Mr Arguello, the Ombudsman does not contend that the amount of compensation should exceed the extent of the employee's entitlements under the FW Act. 95 I start, then, with Abraham Arguello. The Ombudsman claims that the underpayment in his case is with respect to a failure to pay him in lieu of four weeks' notice and seeks compensation, based, it appears, on his contract of employment. But the claim for compensation is not brought for breach of contract. It is brought because of a contravention of s 117(2). 96 Under the terms of s 117(2), GPS was not entitled to terminate Mr Arguello's employment unless it had given him at least three weeks' notice or payment in lieu. He was entitled to a minimum of three weeks' notice because he had worked for GPS for two years and 10 months, which entitled him to a minimum of two weeks' notice under item 2 in the table to s 117(3)(a) plus an additional week because he was over 45 (he was then 51) and had completed at least two years of continuous service with GPS when his employment was terminated: see s 117(3)(b). Mr Arguello received an annual salary of $100,000 (or $1,923.08 per week). Consequently, the extent of the underpayment for the contravention in his case is three times $1,923.08 or $5,769.24, not four times or $7,692.32 as the Ombudsman contended. 97 Wendy Bong was employed full-time in NSW as a level 1 Cleaning Services Employee. He worked a total of 13 days in February 2013. He was entitled to one week's notice (see item 1 of the table to s 117(3)) and payment in lieu of $17.05 an hour. The underpayment in his case is $647.90. 98 Angela Bustos Alvarado was a part-time employee in NSW with less than a year's continuous service. She was a level 1 Cleaning Services Employee on permanent part-time night shift who generally worked seven days a week and an average of 2.85 hours a day. Her hourly rate of pay for ordinary hours of work was $22.17 and her base rate was $17.05 at the time her employment was terminated in October 2011. She should have been given a week's notice or payment in lieu. 99 As she worked a seven day week, she was entitled to overtime rates on the weekend at time and a half for the first two hours on a Saturday ($25.58) and double time thereafter, and double time for all work on a Sunday ($34.10): see Cleaning Services Award, cll 28.2 and 28.3. Accordingly, the underpayment in her case was $493.25, made up of $315.92 ($22.17 x 2.85 hours x 5 days) for Monday to Friday, $51.16 ($25.58 x 2 hours) for the first two hours on a Saturday, and $126.17 for the excess 0.85 hour on a Saturday and the 2.85 hours on a Sunday ($34.10 x 3.7 hours). 100 Rangana Dissanayake was a part-time level 1 Cleaning Services Employee working in Queensland. He had completed less than six months employment when his employment was terminated, so he should have received a minimum of one week's notice or payment in lieu. As he worked four hours a day seven days a week, his entitlement is also complicated by the need to take into account overtime rates for weekend work. What is more, he too was a permanent night shift worker. His base rate was $16.57. His rate for ordinary hours was $21.54. The overtime rate for the first two hours on Saturday was $24.86, and for the excess and also Sunday overtime $33.14. Consequently, the underpayment in his case is $679.36 (($21.54 x 20 hours) + ($24.86 x 2 hours) + ($33.14 x 6 hours)). 101 Barbara Piper was a part-time level 1 Cleaning Services Employee who was employed for only a month when her employment was terminated. She worked in NSW. Her base rate was $17.05 at the time her employment ended. Her ordinary rate was $21.77 because she worked afternoon shifts. Her working hours were 13.5 a week, made up of 2.5 hours a day Monday to Friday and one hour on a Sunday, the latter at double time rates of $34.10 per hour. She should have been paid $306.23 in lieu of one week's notice (($21.77 x 12.5 hours) + ($34.10 x 1 hour)). 102 Linda Robinson was dismissed in March 2012 after three and a half months service, so she, too, was entitled to a minimum of one week's notice. Her hourly rate of pay, as a level 3 Cleaning Services Employee in NSW, was $18.06 and for 38 hours $686.28, which is the extent of the underpayment in her case. 103 Lara Satchell was employed for about five months in 2012, so she was also entitled to a minimum of one week's notice. As a full-time administrative employee in NSW, classified as level 4 under the Clerks Award, her hourly rate at the time was $19.54 and her weekly base rate $742.52. The extent of the underpayment in her case, then, is $742.52. 104 Xiao Teng was employed in the ACT for two months in 2012. It follows that she should have been given a minimum of one week's notice. Her working hours averaged 25.8 hours per week spread over five days (Monday to Friday). She worked afternoon shifts. Her hourly rate as a level 1 Cleaning Services Employee at the time her employment was terminated was $22.17, so one week's pay was $571.99 and that is the extent to which she was underpaid for this contravention. 105 Robert Wilkey was a part-time level 1 Cleaning Services Employee working permanent night shifts in South Australia. He was summarily dismissed on or about 2 August 2012 after approximately a year and a half in the employ of GPS. He was therefore entitled to a minimum of two weeks' notice. Mr Wilkey had given notice of his resignation on 25 July, effective 12 August 2012. He was dismissed in a telephone conversation with Rosario when he asked to be paid his outstanding wages. On this basis the Ombudsman claims 10 days' pay. 106 Mr Wilkey worked three hours a day seven days a week at the time his employment was terminated. His pay rate for ordinary hours was $21.14 and his minimum award rate $17.05. His rate of pay for overtime hours worked on Saturdays and Sundays was $25.58 for the first two hours worked on Saturdays and $34.10 for subsequent hours worked on Saturdays and for hours worked on Sundays. He should have been paid a total of $755.64 in lieu of notice (($21.14 x 18 hours) + ($25.58 x 4 hours) + ($34.10 x 8 hours)). He was paid $650 in mid-September 2012 which he, himself, did not attribute to pay in lieu of notice but which the Ombudsman did. Accordingly, the Ombudsman claims the difference of $105.64. I am prepared to treat this amount as the limit of the employer's unfulfilled obligation. Thus, the extent of the underpayment in this case is only $105.64. 107 Wen Yang was entitled to one week's pay in lieu of notice as he had worked for two weeks when he was dismissed in November 2012. He was a part-time employee in the ACT. He worked a total of 62.95 hours over 13 days (none of which fell on a weekend) which amounts to an average of 4.84 hours a day. His rate of pay as an afternoon shift worker was $22.17. He should have been paid $536.51.
Contravention 7: Failing to pay the minimum rate prescribed by cl 16.1 of the Cleaning Services Award 108 This contravention is only concerned with Abraham Arguello. I found that Mr Arguello was paid less than the award rate for a period of six weeks before his termination in September 2013. His base rate of pay under the Cleaning Services Award was $724.50 per week. Over six weeks his minimum entitlement, then, was $4,347.00. He received two payments totalling $3,413.00 during that period. As in Mr Wilkey's case above (in contravention 6), it is far from clear whether those payments related to wages due at that time or to longstanding entitlements. As in Mr Wilkey's case, however, the Ombudsman has taken a conservative approach and attributed the payments to wages for work done in the last six weeks of Mr Arguello's employment. Consequently, the Ombudsman contends that the underpayment for contravention 7 is only $934.00. In the circumstances, I accept that this is the extent of the underpayment.
Contravention 8: Failing to pay administrative employees at a rate of pay at least equal to the Level 1 rate of pay prescribed by cl 16 and item A.2.5 of the Clerks Award 109 This contravention was proved in respect of four administrative employees: Aisling Dunn, Moona Hasan, Christine Meager, and Md Shamsuzzoha. 110 Aisling Dunn was employed full-time by GPS from 4 March 2013 until 19 April 2013. Her minimum rate of pay under the award was $18.23 per hour. I found that she was not paid at all for the period 1-19 April 2013. When she was paid, her pay slips show that she was paid at an hourly rate of $14.42 per hour. Based on a 5-day working week (a 38 hour week and so a 7.6 hour day) and assuming that she did not work the two public holidays in this period (Good Friday and Easter Monday), this means she worked 250.8 hours. She should therefore have received $4,572.08. In fact, she was only paid $2,179.85, leaving a shortfall of $2,392.23. 111 Moona Hasan's minimum rate under the award was $19.23 per hour. In her affidavit she said that she was hired to work every Tuesday and Wednesday from 9am to 5pm. In the period from 5 February 2013, when she started work for GPS, until 6 March 2013, there are records showing that she worked 92.25 hours. No records were produced of hours worked after that, although it is clear from Ms Hasan's affidavit that she did do some work after 6 March 2013 and her employment was not terminated until 26 March 2013 when she informed Enrico that she would not come into work until she had been paid her "past due salary/pay". 112 In her affidavit Ms Hasan deposed to sending Enrico a text message (which she annexed) at 5.59pm on 20 March 2013 (a Wednesday), asking him to approve the payment of her invoice "today so that I get my pay on time this time". The inference to be drawn from that evidence is that she worked on 20 March 2013. Moreover, Ms Hasan also said that the next time she was at work after 14 March 2013 she spoke to Enrico in his office asking him why she had not been paid and from then on she was required to sign "a log" when she arrived and left the office. Nevertheless, the Ombudsman makes no claim for the period after 6 March 2013. Based on her award rate of $19.23 per hour, and excluding any consideration of work performed after 6 March, Ms Hasan should have been paid a total of $1,773.97 for 92.25 hours worked up until that date. The only money she received, however, was $600, deposited in her bank account on 13 March 2013. It follows that she was underpaid at least $1,173.97. 113 Christine Meager worked a total of 49 hours between 27 November and 20 December 2012. Her minimum rate of pay under the award was $19.23, which means that she should have received a minimum of $942.27. She only received $612. So the extent of the underpayment in her case is $330.27. 114 Md Shamsuzzoha worked a total of 135 hours, of which 123 were ordinary hours, made up of 85 hours over the period from 15 to 30 June 2012 and 38 hours from 1 to 6 July 2012. He should have been paid at the rate of $17.52 in the first period and $18.23 in the second. It follows that he should have received a total of $2,181.94 ($1,489.20 + $692.74). Yet he was paid a total of just $398. The underpayment in his case, then, is $1,783.94.
Contravention 9: Failing to pay superannuation to administrative employees, contrary to cl 24.2 of the Clerks Award 115 No claim is made for compensation for this contravention.
Contravention 10: Failing to pay for overtime, contrary to cl 25 of the Clerks Award 116 Contravention 10 was proved in respect of two administrative employees who were not paid for working overtime: Lara Satchell and Md Shamsuzzoha. 117 Lara Satchell worked 10 overtime hours for which she should have been paid at the rate of $29.31 per hour, being one and a half times her minimum hourly rate of $19.54 and 13.35 overtime hours for which she should have been paid $39.08 per hour, being double the minimum rate. Thus, she should have been paid $293.10 for 10 hours and $521.72 for 13.35 hours, giving a total of $814.82. 118 Md Shamsuzzoha worked 6.5 hours overtime in the first two weeks of his employment (from 15 June until 30 June 2012) and 5.5 hours in the last week (1 to 6 July 2012). In the first period the overtime rates for his classification under the award (level 2, year 1) were $26.29 per hour for the first two hours and $35.05 per hour thereafter. In the second period they rose to $27.34 per hour in the first two hours and $36.45 thereafter. 119 Mr Shamsuzzoha worked four hours overtime in the first period which should have been paid at the lower rate of $26.29 per hour and 2.5 hours which should have been paid at the higher rate of $35.05 per hour. Thus, in the first period the underpayment was $192.79. In the second period he worked two hours overtime for which he should have been paid at the lower rate of $27.34 per hour and 3.5 hours for which he should have been paid at the higher rate of $36.45 per hour. So in the second period the underpayment in his case was $182.26. The total underpayment is $375.05.
Contravention 12: Failing to give part-time employees written agreements on patterns of work, contrary to cl 12.4(a) of the Cleaning Services Award 120 No compensation is sought for this contravention.
Contravention 13: Failing to pay 15% allowance to part-time employees, contrary to cl 12.4(b)(iii) of the Cleaning Services Award 121 This contravention was proved with respect to 15 employees: Paul Bacon, Juliana Botero Hernandez, Angela Bustos Alvarado, Mariana De Queiroz, Marco Diaz, Fawaz El Rahman, Marissa Hall, Freddy Herrera, Tammy May, Barbara Piper, Anna Plows, Dianne Sjoberg, Cheryl Sorrell, Tui Tane, and Tashi Wangchuck. When the revised summary sheets were provided, they showed that the Ombudsman did not press her claims for compensation under this head in relation to Ms May and Ms Tane, on the stated basis that their claims were captured under contraventions 22, 24 and 25. The Ombudsman also requested that the corresponding declaration 2.6 in the Liability Judgment be varied to remove these two employees from this contravention. But no claims for compensation were made under contravention 22 for these two employees. When I pointed this out to the Ombudsman, she asked that her claims for compensation in these respects be reinstated. She said that it had been a mistake to remove them and to request a consequential variation of declaration 2.6. I accept that this is so. The Ombudsman then provided further revised versions of the summary sheets for these two employees under this contravention to which I have had regard. 122 Paul Bacon's minimum rate of pay under the award was $16.57 per hour in the first year (to 30 June 2012) and $17.05 thereafter. To these sums a 15% allowance should have been added, which means that he should have been paid $19.06 per hour in the first period and $19.61 in the second. The Ombudsman's claim for this contravention is limited to 167 hours in the first period and 86.02 hours in the second. 123 In her summary sheet for this contravention the Ombudsman stated that Mr Bacon was paid a flat rate of $17.95 per hour throughout the Audit Period. 124 Mr Bacon was paid at the rate of $17.95 per hour when he was paid. But I found that he was not paid at all between 19 August and 6 November 2012 and that he never received back pay for most of this period. Liability Judgment [567]. The Ombudsman's calculations fail to take this into account, presumably because of a lack of documentation disclosing the extent of the arrears he said he had received. 125 Based on the assumption that Mr Bacon was paid $17.95 per hour throughout the Audit Period, the shortfall in his allowance is $1.11 per hour in the first period and $1.66 in the second. The limit of the underpayment claimed, then, is $185.37 for the first period and $142.79 for the second, a total of $328.16. 126 Juliana Botero Hernandez should have been paid at the hourly rate of $19.61, as her minimum rate under the award was $17.05 to which the 15% part-time allowance should have been added. In fact she received nothing for the 18 days (54.85 hours) she worked for GPS. The value to her of the 15% allowance was $2.56 per hour. Accordingly, the underpayment in this case is $140.42. 127 Angela Bustos Alvarado worked in NSW. In her case, compensation is claimed for this contravention in respect of 376.48 hours. Ms Bustos's minimum award rate increased from $16.57 per hour in the first two weeks of her employment (from 14 June to 30 June 2012) to $17.05 thereafter (to 24 December 2012). With the addition of the 15% allowance, she should have been paid an hourly rate of $19.06 rising to $19.61. Instead, she was paid $17.95 per hour from 14 June to 10 September 2012, $19.03 per hour from 21 September to 9 December 2012 and nothing thereafter. The difference in the figures means that she was underpaid the allowance by a total of $425.49. 128 Mariana de Queiroz worked in Western Australia from 7 February until 6 October 2012. From 1 July 2011 onwards her minimum rate of pay under the award was $16.57 per hour, rising to $17.05 per hour on 1 July 2012. With the addition of the 15% allowance, she should have been paid $19.06 per hour until 30 June 2012 inclusive and thereafter $19.61 per hour. In fact, she was paid $17.95 per hour from the time she started until 2 September 2012 and thereafter she was paid nothing. The value of the allowance that was not paid to her was $1.11 per hour until 30 June 2012, $1.66 per hour from 1 July 2012 until 2 September 2012, and $2.56 per hour from 3 September 2012 until 6 October 2012. The compensation claim for this contravention in relation to this employee is confined to 69.12 hours in the first period, 4.88 in the second, and 2.78 in the third. On that basis, the underpayment in her case is $91.94. 129 Marco Diaz, who worked in Queensland, should have been paid at the minimum award rate of $17.05 per hour. With the addition of the 15% allowance of $2.56, this sum rises to $19.61 per hour. Mr Diaz worked a total of 346.5 hours but was only paid $10.38 per hour. It follows that, the extent to which the allowance was underpaid is $887.04 ($2.56 x 346.5 hours). 130 Fawaz El Rahman's minimum rate under the award was $16.57 per hour and his ordinary rate incorporating the 15% allowance of $2.49 was $19.06 per hour. He was paid from 1 August to 29 November 2011 at the rate of $17.95 per hour and thereafter, until 19 December 2011 when his employment came to an end, he was paid nothing. He was therefore underpaid the allowance by $1.11 per hour until 29 November 2011 and $2.49 per hour thereafter. The Ombudsman does not claim compensation for all the hours worked, apparently to avoid double-counting. Instead, she claims for 177.89 hours in the period up to 29 November 2011 and 6.66 hours thereafter. On this basis Mr El Rahman was underpaid $214.04 (($1.11 x 177.89 hours) + ($2.49 x 6.66 hours)). 131 Marissa Hall's minimum rate of pay under the award was $17.05 per hour. The 15% allowance is $2.56. Ms Hall worked 54 hours and was paid nothing. The extent of the underpayment of her allowance is therefore $138.24. 132 Freddy Herrera's minimum award rate was $16.57 per hour rising to $17.05 on 1 July 2012. His ordinary rate under the award incorporating the 15% allowance was $19.06 in the first period and $19.61 in the second. His actual rate of pay was $17.95 per hour, except for the period from 4 January to 8 March 2013, when he was not paid at all. This means that his allowance was underpaid by $1.11 per hour until 30 June 2012, $1.66 between 1 July 2012 and 4 January 2013, and $2.56 thereafter. The number of hours he worked for which compensation is claimed in relation to this contravention is 47.71 in the first period, 5.89 in the second, and 3.96 in the third. Taking into account the period in which he was not paid (which the Ombudsman overlooked in her calculations), Mr Herrera was underpaid a total of $72.87 (($1.11 x 47.71 hours) + ($1.66 x 5.89 hours) + ($2.56 x 3.96 hours)). 133 Tammy May worked in South Australia, seven days a week, between 21 August 2010 and 22 January 2013. Her minimum rate under the award during the Audit Period was $16.57 until 30 June 2012 and $17.05 thereafter. Taking into account the 15% allowance, she should therefore have been paid at the hourly rate of $19.06 in the first period and $19.61 in the second. Instead, she received a flat rate of $17.95 per hour until 6 January 2013, after which she was not paid at all. The Ombudsman claims compensation for 666.42 hours of work up until 30 June 2012 and 287.73 hours after 1 July 2012. In calculating the underpayment under this contravention, the Ombudsman did not include any hours worked in the period from 6 to 22 January 2013 when Ms May was not paid. This is because - rightly or wrongly - in the absence of Praxeo records, the Ombudsman relied on pay slips to identify the hours of work. As Ms May did not receive any pay for her work between 6 and 22 January 2013, there is no pay slip referable to this period. The value of the claim is $1,217.36. Ms May was underpaid her allowance at least to this extent. 134 Barbara Piper received $12.90 per hour from 10 July 2012 until 3 August 2012 and nothing after that. With a minimum award rate of $17.05 per hour and the 15% allowance of $2.56, she should have been paid $19.61 per hour. Compensation for the 15% allowance is only sought in respect of 3.5 hours' work in the period after 3 August 2012, so the value of this claim is just $8.96. 135 The position with Anna Plows is more complicated because of periodic variations in both the hours she worked and the hourly rates. Her minimum rate under the award during the Audit Period was $16.57 until 30 June 2012 and $17.05 thereafter. Her ordinary rate of pay including the 15% allowance was $19.06 per hour until 20 June 2012 and $19.61 thereafter. Ms Plows was never paid at or above these rates. I accept the figures in the Ombudsman's summary sheet (pp 1869-1871) and, on the basis of those figures, the amount Ms Plows was underpaid for this contravention is $282.74. 136 Dianne Sjoberg was employed in South Australia. Her minimum rate of pay under the award during the Audit Period was $16.57 per hour. Her ordinary rate of pay including the 15% allowance was $19.06 per hour. But she was only paid $17.95 per hour. Accordingly, she was underpaid the allowance at the rate of $1.11 per hour. The Ombudsman seeks compensation with respect to 58.72 hours of work. I conclude that in this respect Ms Sjoberg was underpaid $65.18. 137 Cheryl Sorrell is in almost exactly the same position. She was paid at the same hourly rate as her sister and co-worker, Ms Sjoberg, and her hourly underpayment was therefore the same. The Ombudsman claims compensation for 45.04 hours of work. At $1.11 per hour, this means that Ms Sorrell was underpaid the allowance by $49.99. 138 Tui Tane worked in Western Australia, seven days a week, between 18 November 2011 and 5 February 2012. Her minimum rate under the award was $16.57. When the 15% allowance is taken into account, she should have been paid $19.06 per hour. Instead, she was paid a flat rate of $17.95 per hour. The Ombudsman is claiming compensation with respect to 18 hours of work. The difference is $1.11. It follows that she was underpaid the allowance to the extent of $19.98. 139 Tashi Wangchuck worked in the ACT from 3 to 31 July 2012. She was paid $17.95 per hour until 9 July 2012 and nothing thereafter. As her minimum award rate of pay was $17.05 per hour and her ordinary rate, incorporating the 15% allowance of $2.56, was $19.61 per hour, I conclude that the allowance was underpaid by $1.66 per hour up until 9 July 2012 and $2.56 thereafter. The Ombudsman claims compensation with respect to 18 hours of work in the period to 9 July 2012 and 46 hours thereafter. I find that the underpayment in the first period is $29.88 and in the second $117.76, giving a total of $147.64.
Contravention 14: Failing to pay broken shift allowance, contrary to cl 17.1 of the Cleaning Services Award 140 The broken shift allowance is 0.458% of the standard rate per day up to a maximum of 2.29% of the standard rate per week (calculated from the minimum weekly wage for a level 1 Cleaning Services Employee in cl 16). Up to and including 30 June 2012, the minimum weekly wage was $629.50 and the allowance was $2.88 per day. From 1 July 2012 onwards, the minimum weekly wage was $647.80 and the allowance was $2.97 per day. 141 This contravention was proved in relation to six employees: Angela Bustos Alvarado, Fawaz El Rahman, Helen Pakas, Dianne Sjoberg, Cheryl Sorrell, and Xiao Teng. None of these employees received any allowance for working broken shifts. 142 According to the Praxeo records, Angela Bustos Alvarado worked a broken shift on 24 December 2012. The broken shift allowance at the time was $2.97 per day. This is the extent of the underpayment in her case. 143 Fawaz El Rahman worked broken shifts on 47 days in the period between 3 August and 26 November 2011. The allowance then was $2.88 per day, which means that in this respect he was underpaid $135.36. 144 While it is likely that the underpayment for Helen Pakas is much greater than the amount claimed, the Ombudsman's claim is limited to the period from 16 April 2012 to 28 April 2013 because of a lack of documentation. In this period, the records show that Ms Pakas worked broken shifts on a total of 205 days, 43 days in the period from 17 April to 30 June 2012, and 162 days from 1 July 2012 to 19 April 2013. The broken shift allowance in the first period was $2.88 per day and in the second $2.97 per day. The underpayment, then, in the first period was $123.84 and in the second $481.14, resulting in a total underpayment of at least $604.98. 145 According to the Praxeo records, during the period from 2 August to 31 October 2011 Dianne Sjoberg worked a broken shift on 31 days. The broken shift allowance at the time was $2.88 per day. Ms Sjoberg was therefore underpaid in this respect by $89.28. 146 Cheryl Sorrell is recorded as having worked a broken shift on three days: 9, 10 and 11 August 2011. Her broken shift allowance for these days was $2.88 per day, which means that her unpaid entitlement is $8.64. 147 Xiao Teng is recorded as having worked 25 days of broken shifts from 15 October to 16 November 2012. The broken shift allowance at this point was $2.97 per day. Her unpaid entitlement is therefore $74.25.
Contravention 16: Failing to pay for travel time, contrary to cl 17.10 of the Cleaning Services Award 148 Contravention 16 concerns only Anna Plows, who was a part-time level 1 Cleaning Services Employee working in NSW between 3 May 2012 and 31 January 2013. She received no payment for travel time during her employment. Her minimum award rate was $16.57 per hour, rising to $17.05 per hour on 1 July 2012. She should have been paid for 1.71 hours' travel at the lower rate and 5.67 hours at the higher rate. It follows that GPS underpaid her a total of $125.00 in travel time.
Contravention 17: Failing to pay employees on a weekly or fortnightly basis, contrary to cl 20.1 of the Cleaning Services Award 149 No compensation is sought for this contravention.
Contravention 18: Failing to pay employees kept waiting, contrary to cl 20.3 of the Cleaning Services Award 150 No compensation is sought for this contravention.
Contravention 19: Failing to pay superannuation, contrary to cl 23.2 of the Cleaning Services Award 151 No compensation is sought for this contravention.
Contravention 22: Failing to pay penalty rates for early morning, afternoon and non-permanent night shift, contrary to cl 27.1(a) of the Cleaning Services Award 152 Contravention 22 was proved in relation to the following 22 employees: Alfonso Alcuitas, Wendy Bong, Mariana De Queiroz, Fawaz El Rahman, Andrea Grigoletto, Fiona Holland, Michael Kallee, Bibek Luitel, Robin Malla, Kian Mu, Helen Pakas, Jose Pena, Barbara Piper, Anna Plows, Tuula Rintala, Sumit Salhotra, Dianne Sjoberg, Cheryl Sorrell, Thomas Sung Hong, Xiao Teng, Sekson Thinathin, and Wen Yang. 153 These employees were all paid less than the relevant rate of pay for shiftwork prescribed by cl 27.1(a) and the transitional shiftwork rates set out in Schedule B of the award (which include the 15% allowance for part-time employees). 154 Alfonso Alcuitas worked part-time in Victoria on non-permanent night shifts. Between 1 July 2011 and 30 June 2012 he worked 892.22 hours for which he should have been paid at the rate of $21.54 per hour. Between 1 July and 17 September 2012 he worked 233.66 hours for which he should have been paid at the rate of $22.17 per hour. He was underpaid in the following amounts: $3.59 per hour for 848.36 hours and $4.97 per hour for 43.86 hours in the first period, and $4.22 per hour for 138.98 hours and $5.12 per hour for 94.68 hours in the second period. His total shiftwork underpayment was therefore $4,334.85 (($3.59 x 848.36 hours) + ($4.97 x 43.86 hours) + ($4.22 x 138.98 hours) + ($5.12 x 94.68 hours)). 155 Wendy Bong worked in NSW full-time from 1.00pm to 10.00pm Monday to Friday. He worked 76.5 hours between 1 and 13 February 2013, for which he was paid nothing. His minimum award rate of pay was $17.05 and so his shiftwork underpayment was $2.56 per hour, giving a total of $195.84 ($2.56 x 76.5 hours). 156 Mariana De Queiroz was employed part-time in Western Australia, working a number of morning, afternoon and non-permanent night shifts. Between 7 February and 30 June 2012, she worked 190.06 hours for which she should have been paid at the rate of $20.39 per hour. Between 1 July and 5 October 2012, she worked 251.40 hours for which she should have been paid $21.01 per hour. Yet throughout her employment, she was paid at a flat rate of $17.95 per hour except for 67.43 hours worked between 3 September and 5 October 2012, for which she was paid nothing. Therefore she was underpaid $2.44 per hour for 190.06 hours in the first period, $3.06 per hour for 183.97 hours in the second period, and $3.96 per hour for 67.43 hours between 3 September 2012 and 5 October 2012. The total shiftwork underpayment in her case was $1,293.72 ((190.06 hours x $2.44) + (183.97 hours x $3.06) + (67.43 hours x $3.96)). 157 Fawaz El Rahman was employed part-time in Victoria on shifts classified as morning, afternoon and non-permanent night shifts. Between 1 August and 19 December 2011, he worked 409.41 hours for which he should have been paid at the rate of $21.54 per hour. His shiftwork was underpaid by $3.59 per hour for 358.03 hours and $4.97 per hour for 51.38 hours. Mr El Rahman was therefore underpaid in shift penalties a total of $1,540.69 ((358.03 hours x $3.59) + (51.38 hours x $4.97)). 158 Andrea Grigoletto was employed part-time in NSW on afternoon shifts. He worked 56.50 hours for which he should have been paid $21.77 per hour. As he was paid only $18.00 per hour, he was underpaid $213.01 (56.50 hours x $3.77). 159 Fiona Holland was also employed part-time in NSW on afternoon shifts. Between 9 May and 30 June 2012, she worked 95.97 hours for which she should have been paid at the rate of $20.75 per hour. Between 1 and 19 July 2012, she worked 43.82 hours for which she should have been paid $21.77 per hour. She was underpaid for shiftwork in various amounts across these two periods: $2.80 per hour for 74.17 hours and $2.35 per hour for 21.80 hours, and $3.82 per hour for 43.82 hours in the second period. She was therefore underpaid in shift penalties a total of $426.30 ((74.17 hours x $2.80) + (21.80 hours x $2.35) + (43.82 hours x $3.82)). 160 Michael Kallee was employed part-time in the ACT on afternoon shifts. He worked 129.84 hours for which he should have been paid $21.54 per hour. As he was paid only $17.95 per hour, he was underpaid $466.13 (129.84 hours x $3.59). 161 Bibek Luitel was employed in NSW on a casual basis, working shifts for which he should have but did not receive a penalty rate. He worked 20.5 hours for which he should have been paid $20.82 per hour. As he was paid only $17.95 per hour, he was underpaid $58.84 in shift penalties (20.5 x $2.87 per hour). 162 Robin Malla was employed in Queensland part-time on afternoon shifts. Between 10 May and 30 June 2012, he worked 71.06 hours for which he should have been paid at the rate of $21.54 per hour. Between 1 July 2012 and 18 January 2013, he worked 294.89 hours for which he should have been paid $22.17 per hour. He was underpaid various amounts across these two periods: $3.59 per hour for 71.06 hours in the first period, and $4.22 per hour for 205.38 hours and $5.12 per hour for 89.51 hours in the second period. His total shiftwork underpayment was therefore $1,580.10 ((71.06 hours x $3.59) + (205.38 hours x $4.22) + (89.51 hours x $5.12)). 163 Kian Mu was employed in NSW full-time on early morning and afternoon shifts. He worked 1025.69 hours for which he should have been paid $19.06 per hour. Since he was only paid $17.95 per hour he was underpaid in shift penalties at the rate of $1.11 per hour, giving a total of $1,138.52 (1025.69 hours x $1.11). 164 Helen Pakas was employed full-time in NSW on early morning and afternoon shifts. She worked throughout the Audit Period, but the Ombudsman only claims for hours worked between 16 April 2012 and 28 April 2013 because she did not have evidence to show what payments were received outside this period. Between 16 April and 30 June 2012, Ms Pakas worked 328.4 hours for which she should have been paid at the rate of $19.06 per hour, and between 1 July 2012 and 28 April 2013, she worked 1,103.06 hours for which she should have been paid $19.61 per hour. As her pay varied greatly across these two periods, her underpayments under this contravention ranged from $0.90 per hour to $2.56 per hour. The amount of the underpayment claimed is $3,541.40 ((328.40 hours x $2.49) + (60.8 hours x $2.08) + (999.51 hours x $2.56) + (42.75 hours x $0.90)). I am satisfied that she was underpaid shift penalties in at least this amount. 165 Jose Pena was employed part-time in NSW on early morning and afternoon shifts. He worked 409 hours for which he should have been paid $21.77 per hour. Yet he was paid $16.75 per hour between 15 October 2012 and 22 February 2013, and nothing between 22 February and 9 March 2013. Therefore he was underpaid in shift penalties at the rate of $4.72 per hour, giving a total underpayment of $1,930.48 (409 hours x $4.72). 166 Barbara Piper was employed part-time in NSW on afternoon shifts. She worked 32.5 hours for which she should have been paid $21.77 per hour. Yet she was paid $13.11 per hour between 10 July 2012 and 3 August 2012, and nothing between 6 and 8 August 2012. Her minimum award rate was $17.05 per hour. Therefore she was underpaid in shift penalties at the rate of $4.72 per hour ($21.77 - $17.05). The total underpayment was $153.40 (32.5 hours x $4.72). 167 Anna Plows was employed part-time in NSW on afternoon and non-permanent night shifts. Between 3 May and 30 June 2012, she worked 42.5 hours for which she should have been paid at the rate of $20.75 per hour, and between 1 July and 9 December 2012, she worked 167.28 hours for which she should have been paid at the rate of $21.77 per hour. She was underpaid shift penalties in various amounts across these two periods: by $2.80 per hour for 14.3 hours, $1.87 per hour for 12.90 hours, and $2.80 per hour for 15.30 hours in the first period, and by $3.82 per hour for 26.86 hours, $3.37 per hour for 17.81 hours, $2.92 per hour for 113.67 hours and $3.82 per hour for 8.94 hours in the second period. The extent of the underpayment in her case is therefore $635.70 ((14.3 hours x $2.80) + (12.90 hours x $1.87) + (15.30 hours x $2.80) + (26.86 hours x $3.82) + (17.81 hours x $3.37) + (113.67 hours x $2.92) + (8.94 hours x $3.82)). 168 Tuula Rintala was employed part-time in NSW on early morning shifts. She worked 128.88 hours for which she should have been paid at the rate of $20.75 per hour. Since she was paid only $17.95 per hour ($2.80 less than the shiftwork rate), she was underpaid a total of $360.86 (128.88 hours x $2.80) in shift penalties. 169 Sumit Salhotra was employed part-time in Queensland on afternoon and non-permanent night shifts. He worked a total of 532.88 hours for which he should have been paid at the rate of $21.54 per hour. He was paid a flat rate of $17.95 per hour, except for the fortnight from 14 to 27 November 2011 when he received $11.42 per hour, and the fortnight from 28 November to 11 December 2011 when he received only $9.75 per hour. He was underpaid shift penalties by $3.59 per hour ($21.54 - $17.95) for 481.99 hours and $4.97 per hour ($21.54 - $16.57) for 50.89 hours. The total underpayment in his case, then, was $1,983.26 ((481.99 hours x $3.59) + (50.89 hours x $4.97)). 170 Dianne Sjoberg was employed part-time in South Australia on early morning, afternoon and non-permanent night shifts. Between 1 July 2011 and 1 January 2012 she worked 276.32 hours for which she should have been paid at the rate of $20.05 per hour, and between 1 January and 5 February 2012 she worked 14.39 hours for which she should have been paid at the rate of $20.51 per hour. She was paid $17.95 per hour throughout her employment. Therefore she was underpaid in shift penalties a total of $617.11 ((276.32 hours x $2.10) + (14.39 hours x $2.56)). 171 Cheryl Sorrell was employed part-time in South Australia on early morning, afternoon and non-permanent night shifts. Between 1 July 2011 and 1 January 2012 she worked 198.24 hours for which she should have been paid at the rate of $20.05 per hour, and between 1 January 2012 and 2 February 2012 she worked 13.54 hours for which she should have been paid at the rate of $20.51 per hour. She was paid $17.95 per hour throughout her employment. Therefore she was underpaid in shift penalties a total of $450.96 ((198.24 hours x $2.10) + (13.54 hours x $2.56)). 172 Thomas Sung Hong was employed part-time in NSW on afternoon and non-permanent night shifts. He worked 795 hours for which he should have been paid at the rate of $20.75 per hour. He was paid $17.95 per hour. Consequently, he was underpaid under this contravention by $2.80 per hour, giving a total underpayment of $2,226.00. 173 Xiao Teng was employed part-time in the ACT on afternoon shifts. She worked 148.41 hours for which she should have been paid $22.17 per hour (not $21.77, which was the NSW rate, as the Ombudsman submitted). Ms Teng was paid only $10.37 per hour on average. Her minimum award rate was $17.05 per hour. The difference between the hourly rate she should have been paid and the minimum rate is $5.12 per hour. The underpayment of shift penalties in her case is therefore $759.86 (148.41 x $5.12). 174 Sekson Thinathin was employed part-time in NSW on afternoon and non-permanent night shifts. His minimum award rate was $16.57. He worked 355.15 hours for which he should have been paid at the rate of $20.75 per hour. He was paid $17.95 per hour until 13 November 2011, and nothing between 13 November and 2 December 2011 when his employment came to an end. He was underpaid in shift penalties by $2.80 per hour for 310.32 hours and by $4.18 ($20.75 - $16.57) for 44.83 hours, totalling $1,056.29. 175 Wen Yang was employed part-time in the ACT on afternoon shifts. He worked 57.95 hours for which he should have been paid $22.17 per hour. His minimum award rate was $17.05 per hour. He was paid nothing. The difference between the hourly rate he should have been paid and the minimum rate is $5.12 per hour. For 57.95 hours of work, at $5.12 per hour, he was underpaid $296.70 in shift penalties.
Contravention 23: Failing to pay penalty rate for permanent night shift, contrary to cl 27.1(b) of the Cleaning Services Award 176 This contravention was proved in respect of six employees: Rangana Dissanayake, Barry Dowling, Alyson Hellyer, Freddy Herrera, Thomas Sung Hong, and Robert Wilkey. Some of these employees worked seven days a week. The Ombudsman makes no claim in relation to this contravention for the failure to pay the shift allowance for weekend work as that claim is incorporated elsewhere. 177 Rangana Dissanayake, a Queensland employee, received a flat hourly rate of $17.95, except for the period 17 to 28 October 2011 when he was not paid at all. His minimum rate under the award was $16.57 per hour. The permanent night shift allowance is 30% of the minimum rate, so the permanent night shift rate throughout his employment was $21.54 per hour. Consequently, he was underpaid in shift penalties by $3.59 per hour up until 17 October 2011, and by $4.97 per hour thereafter. He is recorded as having worked 350.24 night shift hours on weekdays during the Audit Period, 43.2 of these hours during the period between 17 and 28 October 2011when he was unpaid. 178 Despite the period of non-payment, the Ombudsman assumed that he received the flat rate of $17.95 throughout his entire employment. Correcting for this error, I find that Mr Dissanayake was underpaid a total of $1,316.98 (($3.59 x 307.04 hours) + ($4.97 x 43.2 hours)) in shift penalties. 179 Barry Dowling's minimum award rate was initially $16.57 per hour but rose to $17.05 per hour on 1 July 2012. As a NSW employee, he should have been paid $21.54 per hour until 30 June 2012 and $22.17 until his employment ended on 10 April 2013. His actual hourly pay rates varied wildly during the Audit Period. I accept the accuracy of the figures set out in the summary sheet for him (at pages 3141-3144). Based on that material, I find that he worked at least 843.75 hours on permanent night shift and was underpaid at least $3,745.41. 180 Alyson Hellyer, a NSW employee, was paid $17.95 per hour throughout her employment. Her award rate for permanent night shift in the first period (14 May to 30 June 2012) was $21.54 per hour and thereafter (until 30 August 2012) $22.17 per hour. Consequently she was underpaid $3.59 per hour until 30 June 2012 and $4.22 per hour from then on. Ms Hellyer worked permanent night shifts for 225.88 hours, made up of 99.19 hours in the first period and 126.69 in the second. Multiplying the hourly rate by the hours worked, she was underpaid a total of $890.72. 181 At all relevant times Freddy Herrera was also paid $17.95 per hour, except for the last three months of his employment, from 4 January to 10 March 2013, when he was paid nothing. As a permanent night shift worker employed in South Australia, where the rates were lower, he should have been paid $20.05 per hour from the beginning of the Audit Period (1 July 2011) and $20.51 per hour from 1 July 2012. Mr Herrera's minimum rate per hour under the award was $16.57 from 1 July 2011 and $17.05 from 1 July 2012. The underpayment per hour, then, is $2.10 in the first period, $2.56 until 3 January 2013, and $3.46 thereafter. Mr Herrera worked 1,013.11 hours in the first period, 454.03 from 1 July 2012 to 3 January 2013, and 183.08 hours from then until his employment ended. He was therefore underpaid a total of $3,923.31 in shift penalties ($2,127.53 in the first period, $1,162.32 in the second, and $633.46 in the last). 182 Thomas Sung Hong, a NSW employee, should have been paid $21.54 per hour for the first year of the Audit Period and $22.77 until the Audit Period came to an end (on 14 September 2013). Yet he was only paid $17.95 per hour throughout his employment. Accordingly, the deficit in his case is $3.59 per hour until 30 June 2012 and $4.82 per hour thereafter. He worked permanent night shift for 111.85 hours in the first period and 697.18 in the second, which means that he was underpaid $401.54 and $3,360.41, or $3,761.95. 183 Robert Wilkey also received a flat hourly rate of pay of $17.95 throughout his employment. Like Mr Herrera, as a South Australian employee he should have been paid $20.05 per hour in the first year of the Audit Period and $20.51 per hour in the second. Accordingly, he was underpaid $2.10 per hour in the first year and $2.56 in the second. He worked 730.02 hours on permanent night shift in the first year and 76.79 in the second, until 2 August 2012. The total underpayment in his case, then, is $1,533.04 ($2.10 x 730.02 hours) + $196.58 ($2.56 x 76.79 hours), giving a total of $1,729.62.
Contravention 24: Failing to pay Saturday penalty rates, contrary to cl 27.2 of the Cleaning Services Award 184 Contravention 24 relates to the non-payment of Saturday penalty rates in breach of cl 27.2(a) of the Cleaning Services Award. The applicable penalty rate under this provision is time and one half of the ordinary hourly rate for the employee's classification. "Ordinary hourly rate" is defined in cl 3.1 of the award to mean the minimum hourly rate for the classification. This penalty rate only applies to ordinary hours worked on a Saturday, and not overtime hours (see contravention 27 for overtime hours worked on a Saturday). 185 This contravention was proved in relation to 22 employees: Alfonso Alcuitas, Angela Bustos Alvarado, Mariana De Queiroz, Rangana Dissanayake, Barry Dowling, Fawaz El Rahman, Alyson Hellyer, Freddy Herrera, Fiona Holland, Robin Malla, Charles Mascarenhas, Tammy May, Kian Mu, Anna Plows, Tuula Rintala, Sumit Salhotra, Baljinder Singh, Thomas Sung Hong, Tui Tane, Sekson Thinathin, Robert Wilkey, and Wen Yang. All but one of these employees (Kian Mu) worked part-time and was therefore entitled to the 15% part-time allowance. This allowance is included in the calculation of the ordinary Saturday rate and is reflected in the compensation amounts set out below. Some of these employees were not paid at all for their Saturday work in the relevant period and their entire loss is claimed here. While neither the part-time allowance nor the minimum rate results from this contravention, they are losses resulting from GPS's conduct as proved. Since there is no dispute that they are not claimed anywhere else and the employees are entitled to be compensated for them, it is convenient to deal with them here in accordance with the approach taken by the Ombudsman. 186 Alfonso Alcuitas worked 2.15 ordinary Saturday hours on 2 July 2011, for which he should have been paid at the rate of $27.34 per hour. Mr Alcuitas was paid only $17.95 per hour, which means that he was underpaid by $9.39 per hour and for 2.15 hours $20.19. 187 Angela Bustos Alvarado worked 3.07 ordinary Saturday hours on 16 June 2012, for which she should have been paid at the rate of $26.77 per hour, and 2.77 hours on 18 August 2012 for which she should have been paid $27.96 per hour. Ms Bustos was paid only $17.95 per hour for this work, therefore she was underpaid by $8.82 per hour and $10.01 per hour respectively and in total $54.81 ((3.07 hours x $8.82) + (2.77 hours x $10.01)). 188 Mariana De Queiroz worked 8.36 ordinary Saturday hours between 7 February and 30 June 2012, for which she should have been paid $27.34 per hour, and 7.75 hours between 1 July and 6 October 2012 for which she should have been paid $28.13 per hour. Ms De Queiroz was also paid only $17.95 per hour for this work and so was underpaid by $9.39 per hour and $10.18 per hour respectively, giving a total $157.40 ((8.36 hours x $9.39) + (7.75 hours x $10.18)). 189 Rangana Dissanayake worked 3.09 ordinary Saturday hours on 2 July 2011, for which he should have been paid $27.34 per hour. Mr Dissanayake was paid at the rate of $17.95 per hour therefore he, too, was underpaid by $9.39 per hour and in total $29.02. 190 Barry Dowling worked 29.91 ordinary Saturday hours between 1 July 2011 and 30 June 2012, for which he should have been paid $26.77 per hour, and 2.97 hours on 18 August 2012 for which he should have been paid $27.96 per hour. Although Mr Dowling's rate of pay varied throughout his employment, he was paid at the rate of $17.95 per hour for these particular hours and so he was underpaid by $8.82 per hour and $10.01 per hour respectively. Consequently, the total underpayment in his case is $293.54 ((29.91 hours x $8.82) + (2.97 hours x $10.01)). 191 Fawaz El Rahman worked 7.35 ordinary Saturday hours on 10 December 2011 for which he should have been paid at the rate of $27.34 per hour. He was not paid at all for these hours. His loss is therefore $200.95 (7.35 hours x $27.34 per hour). 192 Alyson Hellyer worked on Saturdays, however most of her Saturday hours are claimed as overtime hours under contravention 27. To support her claim for compensation under this contravention, the Ombudsman tendered Praxeo records showing that she logged in at 4.17am on Saturday 28 April 2012 and logged out a minute later. 193 In other cases where a Praxeo record shows a one minute entry, the Ombudsman submitted that the record is incorrect, that it would be extremely unlikely that the employee only worked for one minute, and thus took an average of what the employee would have worked in other periods to determine the appropriate number of hours for that shift. I have accepted this approach as reasonable. In this case, however, the Ombudsman has not taken this approach, and has instead claimed $0.18, multiplying 0.02 hours by the underpayment of $8.82 ($26.77 - $17.95). I do not accept that this represents the extent of her underpayment. In the absence of further evidence or submissions demonstrating the likely hours she may have worked on 28 April 2012, or whether these hours should be covered by this contravention or contravention 27, I am unable to determine the extent of the underpayment in this case. In any event, the amount claimed is trivial. 194 I have taken this same approach in two other instances where the Ombudsman has made a claim for compensation for a minute's work. 195 Freddy Herrera worked 25.75 ordinary Saturday hours between 1 July 2011 and 30 June 2012, for which he should have been paid at the rate of $27.34 per hour, and 18.47 hours from 1 July 2012 to 8 March 2013 for which he should have been paid at the rate of $28.13 per hour. Mr Herrera was paid $17.95 per hour until 4 January 2013, after which he was paid nothing for the hours he worked. For the 4.46 ordinary Saturday hours he worked but was not paid at all, his loss is $28.13 per hour. For the hours he worked for which he was paid $17.95 per hour, the shortfall is $9.39 per hour for 25.75 hours and $10.18 per hour for 14.01 hours, a total of $509.87 ((4.46 hours x $28.13) + (25.75 hours x $9.39) + (14.01 hours x $10.18)). This was the extent to which he was underpaid. 196 Fiona Holland worked 15.03 ordinary Saturday hours for which she should have been paid at the rate of $26.77 per hour. She was paid $17.95 per hour for 10.13 of these hours and $18.40 for the remaining 4.90 hours. It follows that she was underpaid by $8.82 per hour for 10.13 hours and $8.37 per hour for 4.90 hours. Thus, in her case the total underpayment is $130.36. 197 Robin Malla worked 18.20 ordinary Saturday hours for which he should have been paid $28.13 per hour. Mr Malla was paid $17.95 per hour for 13.57 of these hours and $12.76 for the remaining 4.63 hours. Therefore he was underpaid by $10.18 per hour and $11.08 per hour respectively: a total of $189.44 ((13.57 hours x $10.18) + (4.63 hours x $11.08)). 198 Charles Mascarenhas worked 44 ordinary Saturday hours for which he should have been paid $27.96 per hour. Mr Mascarenhas was paid $10.28 per hour, which means that he was underpaid by $17.68 per hour. Over the 44 hours in question he was underpaid $777.92. 199 Tammy May worked 12.49 ordinary Saturday hours for which she should have been paid $27.34 per hour. Ms May was paid $17.95 per hour for these hours, and so was underpaid by $9.39 per hour. The underpayment in her case was therefore $117.28. 200 Kian Mu worked 7.6 ordinary Saturday hours on 2 July 2011 for which he should have been paid $23.32 per hour. He, too, was paid $17.95 per hour. His hourly underpayment was therefore $5.37 and the total $40.81. 201 Anna Plows worked 9.63 ordinary Saturday hours between 30 April and 30 June 2012 for which she should have been paid $26.77 per hour, and 45.61 hours between 1 July and 9 December 2012 for which she should have been paid $27.96 per hour. Ms Plows was paid between $17.95 and $18.88 per hour across both periods, and was underpaid by amounts between $7.89 and $10.01 per hour. The total underpayment was $507.94 ((6.31 hours x $8.82) + (3.32 hours x $7.89) + (9.69 hours x $10.01) + (4.14 hours x $9.56) + (31.78 hours x $9.11)). 202 Tuula Rintala worked 3.16 ordinary Saturday hours on 11 February 2012 for which she should have been paid $26.77 per hour. She was paid $17.95 per hour and was therefore underpaid by $8.82 per hour, resulting in a total underpayment of $27.87. 203 Sumit Salhotra worked 7.38 ordinary Saturday hours for which he should have been paid $27.34 per hour. He was paid $17.95 per hour for these hours and so was underpaid by $9.39 per hour and in total $69.30. 204 Baljinder Singh worked 12.68 ordinary Saturday hours for which he should have been paid $28.13 per hour. He was not paid at all for these hours. Accordingly, he was underpaid $356.69. 205 Thomas Sung Hong worked 15.23 ordinary Saturday hours for which he should have been paid $26.77 per hour and 7.34 hours for which he should have been paid $27.96 per hour. Mr Hong was paid $17.95 per hour. It follows that he was underpaid in Saturday penalty rates for these hours at the rate of $8.82 per hour and $10.01 per hour respectively and in total $207.80 ((15.23 hours x $8.82) + (7.34 hours x $10.01)). 206 Tui Tane worked 12.19 ordinary Saturday hours for which she should have been paid $27.34 per hour. She, too, was paid $17.95 per hour and so was underpaid at the rate of $9.39 per hour. The total underpayment in her case is therefore $114.46. 207 Sekson Thinathin worked 3.12 ordinary Saturday hours for which he should have been paid $26.77 per hour. He was also paid at the rate of $17.95 per hour for these hours. Consequently, he was underpaid by $8.82 per hour and in total $27.52. 208 Robert Wilkey worked 35.89 ordinary Saturday hours for which he should have been paid $27.34 per hour. Yet, he, too, was paid $17.95 per hour. It follows that he was underpaid by $9.39 per hour and in total $337.01. 209 Wen Yang worked five ordinary Saturday hours for which he should have been paid $28.13 per hour. He was not paid at all for this work. His loss at the rate of $28.13 per hour is $140.65.
Contravention 25: Failing to pay Sunday penalty rates, contrary to cl 27.2(b) of the Cleaning Services Award 210 Contravention 25 relates to the non-payment of Sunday penalty rates in breach of cl 27.2(b) of the Cleaning Services Award. The applicable penalty rate under this provision is double the ordinary hourly rate for the employee's classification. This rate only applies to ordinary hours worked on a Sunday, and not overtime hours (see contravention 28 for overtime hours worked on a Sunday). 211 This contravention was proved in relation to 21 employees: Alfonso Alcuitas, Angela Bustos Alvarado, Mariana De Queiroz, Rangana Dissanayake, Barry Dowling, Fawaz El Rahman, Fiona Holland, Michael Kallee, Khaga Kandel, Robin Malla, Tammy May, Kian Mu, Giang Ngo, Barbara Piper, Anna Plows, Tuula Rintala, Sumit Salhotra, Baljinder Singh, Sekson Thinathin, Robert Wilkey, and Wen Yang. All but three of these employees (Giang Ngo, Kian Mu, and Khaga Kandel) worked part-time and were therefore entitled to the 15% part-time allowance. As in the case of the previous contravention, this allowance is included in the calculation of the ordinary Sunday rate and is reflected in the compensation amounts set out below. Similarly, where employees were not paid at all for the Sundays worked, their losses are claimed under this head. As they are entitled to compensation for these losses and, since the Ombudsman is not claiming twice for the same amounts, it is convenient to deal with them here in accordance with the Ombudsman's approach. 212 Alfonso Alcuitas worked 4.32 ordinary Sunday hours on 3 July 2011 for which he should have been paid at the rate of $35.63 per hour and 6.23 hours on 22 July 2012 for which he should have been paid at the rate of $36.66 per hour. He was paid a flat rate of $17.95 per hour. Therefore he was underpaid by $17.68 per hour on the first occasion, and by $18.71 per hour on the second. His total underpayment was $192.94 (($17.68 x 4.32 hours) + ($18.71 x 6.23 hours)). The Ombudsman's figure is wrong in this case as she proceeded on the mistaken premise that the 6.23 hours were worked on 22 July 2011, rather than 2012, and so applied the wrong rate. 213 Angela Bustos Alvarado worked 3.17 ordinary Sunday hours on 17 June 2012 for which she should have been paid at the rate of $33.37 per hour and 3.47 hours on 23 September 2012 for which she should have been paid at the rate of $35.53 per hour. Ms Bustos was paid $17.95 per hour. Therefore she was underpaid by $15.42 per hour on the first occasion, and by $17.58 per hour on the second occasion, giving a total $109.88 (($15.42 x 3.17 hours) + ($17.58 x 3.47 hours)). 214 Mariana De Queiroz worked 1.38 ordinary Sunday hours on 25 March 2012 for which she should have been paid at the rate of $35.63 per hour, 1.3 hours on 8 July 2012 and 7.02 hours on 16 September 2012 for which she should have been paid $36.66 per hour. Ms De Queiroz was paid a flat rate of $17.95 per hour for these hours except for the 7.02 hours worked on 16 September 2012 when she was not paid at all. Her loss was therefore $306.07 (($17.68 x 1.38 hours) + ($18.71 x 1.3 hours) + ($36.66 x 7.02 hours)). 215 Rangana Dissanayake worked 2.52 ordinary Sunday hours on 3 July 2011 for which he should have been paid at the rate of $35.63 per hour. He was paid $17.95 per hour. Consequently, he was underpaid by $17.68 per hour and in total $44.55. 216 Barry Dowling worked 10.03 ordinary Sunday hours between 1 July 2011 and 30 June 2012 for which he should have been paid at the rate of $33.37 per hour and 2.97 hours on 19 August 2012 for which he should have been paid at the rate of $35.53 per hour. He was paid $17.95 per hour. Consequently, he was underpaid by $15.42 per hour in the first period, and $17.58 per hour in the second, resulting in a total underpayment of $206.87 (($15.42 x 10.03 hours) + ($17.58 x 2.97 hours)). 217 Fawaz El Rahman worked 5.12 ordinary Sunday hours on 11 December 2011 for which he should have been paid at the rate of $35.63 per hour. Contrary to the Ombudsman's assumption that he was paid $17.95 per hour and so was underpaid $17.68 per hour (an assumption she did not make elsewhere), I found that he was not paid for these hours (Liability Judgment at [285]). His loss was therefore $35.63 per hour and, over 5.12 hours, $182.43 (not $90.52 as the Ombudsman submitted). 218 Fiona Holland worked 12.31 ordinary Sunday hours between 10 and 30 June 2012 for which she should have been paid at the rate of $33.37 per hour and 10.20 hours between 8 and 15 July 2012 for which she should have been paid at the rate of $35.53 per hour. As Ms Holland was paid a flat rate of $17.95 per hour, she was underpaid by $15.42 per hour in the first period, and $17.58 per hour in the second. The total underpayment in her case, then, was $369.14 (($15.42 x 12.31 hours) + ($17.58 x 10.20 hours)). 219 Michael Kallee worked 4.17 ordinary Sunday hours on 18 March 2012 for which he should have been paid at the rate of $34.76 per hour. He was also paid $17.95 per hour so was underpaid by $16.81 per hour and $70.10 in total. 220 Khaga Kandel worked two ordinary Sunday hours on 24 March 2013 for which he should have been paid at the rate of $32.43 per hour. He was paid $5.21 per hour on average. He was therefore underpaid by $27.22 per hour and $54.44 in total. 221 Robin Malla worked 9.84 ordinary Sunday hours between 21 October and 2 December 2012 for which he should have been paid at the rate of $36.66 per hour. He was paid $17.95 per hour for these hours. Consequently, he was underpaid by $18.71 per hour and $184.11 in total. 222 Tammy May worked 9.07 ordinary Sunday hours between 3 July and 14 August 2011 for which she should have been paid at the rate of $35.63 per hour. She was paid $17.95 per hour for these hours, so was underpaid by $17.68 per hour and $160.36 in total. 223 Kian Mu worked 4.27 ordinary Sunday hours on 3 July 2011 for which he should have been paid at the rate of $29.80 per hour. He, too, was paid $17.95 per hour. Consequently, he was underpaid by $11.85 per hour and $50.60 in total. 224 Giang Ngo worked 2.5 ordinary Sunday hours on 24 February 2013 for which he should have been paid at the rate of $37.39 per hour. As he received no remuneration for those hours of work, his loss was $37.39 per hour and totals $93.48. 225 Barbara Piper worked two ordinary Sunday hours in July 2012 for which she should have been paid at the rate of $35.53 per hour. She was paid $12.90 per hour on average during this period. Accordingly she was underpaid by $22.63 per hour and $45.26 in total. 226 Anna Plows worked 4.58 ordinary Sunday hours between 6 May and 24 June 2012 for which she should have been paid at the rate of $33.37 per hour and 16.57 hours between 19 August and 9 December 2012 for which she should have been paid at the rate of $35.53 per hour. She was paid $17.95 per hour for 4.58 hours worked between 6 May and 24 June 2012, $18.88 per hour for 0.45 hours worked on 3 June 2012, $18.85 per hour for 10.69 hours worked between 19 August and 18 November 2012, and $17.95 per hour for 5.88 hours worked between 2 and 9 December 2012. The underpayment in her case, then, was $358.82 (($15.42 x 4.58 hours) + ($17.58 x 5.88 hours) + ($14.49 x 0.45 hours) + ($16.68 x 10.69 hours)), not $351.88, as the Ombudsman submitted. The Ombudsman omitted the hours worked on 3 June 2012 (for which Ms Plows was underpaid $6.52). As the figure was recorded on the Ombudsman's summary sheet, I took it that this was an oversight. 227 Tuula Rintala worked three ordinary Sunday hours on 12 February 2012 for which she should have been paid at the rate of $33.37 per hour. As she was paid $17.95 per hour, she was underpaid by $15.42 per hour and $46.26 in total. 228 Sumit Salhotra worked 22.55 ordinary Sunday hours between 14 August 2011 and 13 May 2012 for which he should have been paid at the rate of $35.63 per hour. He was paid the same rate of $17.95 per hour for these hours. I find that he was underpaid Sunday penalty rates by $17.68 per hour and in the total amount of $398.68 (not $399.74 as the Ombudsman submitted). 229 The Ombudsman's claim includes three additional periods for Mr Salhotra, each of one minute (on 30 October 2011, 11 December 2011, and 11 March 2013) drawn from the Praxeo records despite the fact that I found the Praxeo records to be unreliable in this respect (Liability Judgment [228]) and the Ombudsman's original approach was to treat such entries (correctly in my opinion) as errors (Liability Judgment [238]). In total, the amount claimed for these three periods was only $1.06. 230 In line with the approach I have taken to such claims, I will not count them towards the total underpayment in Mr Salhotra's case, as I do not accept that he only worked for one minute on any of these three occasions and I did not receive any submissions as to the number of hours he was likely to have worked on those occasions. 231 Baljinder Singh worked 4.88 ordinary Sunday hours between 5 and 12 August 2012 for which he should have been paid at the rate of $36.66 per hour. He was not paid anything for working these hours, so his loss is $178.90. 232 Sekson Thinathin worked 3.34 ordinary Sunday hours on 3 July 2011 for which he should have been paid at the rate of $33.37 per hour. He was paid $17.95 per hour and so was underpaid by $15.42 per hour and $51.50 in total. 233 Robert Wilkey worked 10.35 ordinary Sunday hours between 3 July 2011 and 11 March 2012 for which he should have been paid at the rate of $35.63 per hour. He was also paid $17.95 per hour. In his case that resulted in an underpayment of $17.68 per hour and $182.99 in total. 234 Wen Yang worked 4.25 ordinary Sunday hours on 11 November 2012 for which he should have been paid at the rate of $36.19 per hour. He was not paid for these hours so his loss is $153.81.
Contravention 26: Failing to pay part-time employees public holiday penalty rates, contrary to cl 27.3 of the Cleaning Services Award 235 Contravention 26 was proved in respect of 17 employees: Alfonso Alcuitas, Jessica Alvarado Palma, Mariana De Queiroz, Marco Diaz, Barry Dowling, Fawaz El Rahman, Alyson Hellyer, Freddy Herrera, Khaga Kandel, Charles Mascarenhas, Kian Mu, Anna Plows, Linda Robinson, Baljinder Singh, Tui Tane, Sekson Thinathin, and Robert Wilkey. 236 The public holiday penalty rate is 2.5 times an employee's minimum rate. The Ombudsman has added the 15% part-time loading to her figures, which has not been claimed elsewhere. 237 Alfonso Alcuitas worked on nine public holidays between 1 November 2011 and 11 June 2012 for which he should have been paid at the rate of $43.91 per hour. On the seven of them that fell between 1 November 2011 and 9 April 2012 inclusive he worked 34.30 hours and was paid $17.95 per hour (a deficit of $25.96). On Anzac Day 2012 he worked 5.97 hours for which he was paid $16.80 per hour (a deficit of $27.11) and on 11 June 2012 (the Queens's birthday holiday in Victoria), he worked 3.97 hours and was paid $9.49 per hour (a deficit of $34.42). It follows that he was underpaid a total of $1,188.92 ((34.30 x $25.96) + (5.97 x $27.11) + (3.97 x $34.42)). But the Ombudsman reduced the deficit in the last period by omitting the minimum award rate of $16.57 so as to confine her claim in this respect only to the amount referable to the public holiday penalty. The failure to pay the minimum award rate is claimed as compensation for contravention 32. Omitting this amount, Mr Alcuitas was underpaid $1,160.81. 238 Jessica Alvarado Palma was not paid at all for working three hours on Boxing Day 2012. The award rate for working on a public holiday was $45.18 per hour. Ms Alvarado's minimum rate was $17.05 per hour. So the public holiday underpayment was the difference between those two sums ($28.13) multiplied by 3 or $84.39. 239 Mariana De Queiroz worked on 6 April 2012 (Good Friday), 25 April 2012 (Anzac Day), and 1 October 2012 (the Queen's Birthday holiday in WA). She worked a total of 5.95 hours on Good Friday and Anzac Day and three hours on 1 October 2012. She was paid $17.95 per hour on the first two days (when she should have been paid $43.91 per hour) and nothing on the third (when she should have been paid $45.18 per hour). Deducting the amount paid ($17.95) from the public holiday rate of $43.91 ($25.96) and multiplying that figure by the number of hours worked (5.95) produces an underpayment for the first two days of $154.46. Deducting the minimum hourly rate of $17.05 from the public holiday rate of $45.18 ($28.13) and multiplying that figure by the number of hours worked (three) produces an underpayment for the third day of $84.39. The total underpayment in this case, then, is the sum of those two figures, which is $238.85. 240 Marco Diaz worked 4.5 hours on the Australia Day public holiday in 2013 for which he was paid $9.76 per hour. The award rate was $45.18 per hour. Deducting from the award rate the minimum rate of $17.05 produces an underpayment of $28.13 per hour. The underpayment to him, then, was $126.59. 241 Barry Dowling worked seven public holidays in 2012 when the public holiday rate was $43.91 per hour and the minimum rate $16.57 per hour and two in 2013 (New Year's Day and 28 January) when the public holiday rate was $45.18 per hour and the minimum rate $17.05 per hour. On the seven public holidays in 2012 and on New Year's Day 2013 he was paid $17.95 per hour and on the Australia Day public holiday in 2013 he was paid just $8.76 per hour. The extent of the hourly public holiday underpayment, then, in 2012 and for New Year's Day 2013 is the difference between the public holiday award rate and the amount Mr Dowling was paid ($25.96 in 2012 and $27.23 on New Year's Day 2013). The extent of the hourly public holiday underpayment on 28 January 2013 is the difference between the public holiday rate and the minimum rate ($28.13). Mr Dowling worked 15.20 hours for which he was underpaid $394.59 ($25.96 per hour), three hours for which he was underpaid $81.69 (at $27.23 per hour ), and three hours for which he was underpaid $84.39 (at $28.13 per hour). The total of these underpayments is $560.67. 242 Fawaz El Rahman worked 7.16 hours on the Melbourne Cup Day public holiday (1 November 2011) for which he was paid a flat rate of $17.95 per hour. He should have been paid $43.91 per hour. The difference is $25.96, which represents his hourly public holiday penalty underpayment, as his hourly rate exceeded the minimum hourly rate under the Cleaning Services Award of $16.57. Over 7.16 hours that results in a total underpayment of $185.87. 243 Alyson Hellyer worked 3.06 hours on the Queen's Birthday public holiday in 2012 (11 June 2012). Her minimum rate under the award was $16.57 per hour. She should have been paid $43.91 per hour, but she was paid $17.95 per hour. Her public holiday underpayment, then, was $25.96 per hour and over 3.06 hours was $79.44. 244 Freddy Herrera worked a total of 11 public holidays during the Audit Period. For all but the last of them (on 28 January 2013, when he was paid nothing) he was paid at the rate of $17.95 per hour. He should have been paid at the rate of $43.91 per hour for the first nine, which all took place before 1 July 2012, and at the rate of $45.18 per hour for the last two: 1 October 2012 (Labour Day) and 28 January 2013 (the Australia Day public holiday). The difference in the hourly rate between what he should have been paid up to 30 June 2012 and what he was actually paid is $25.96 and the difference in the hourly rate for the Labour Day public holiday (and therefore the hourly public holiday penalty underpayment) is $27.23. As Mr Herrera was not paid for the Australia Day public holiday, the hourly public holiday penalty underpayment in this case is $28.13, derived from deducing the minimum hourly rate of $17.05 from the public holiday rate of $45.18. Over the public holidays in 2012, excluding Labour Day, Mr Herrera worked a total of 41.73 hours and so his underpayment was $1,083.31. On the Labour Day public holiday he worked 5.89 hours and so his underpayment was $160.38. On the Australia Day public holiday he worked 3.96 hours and so his underpayment was $111.39. Consequently, his total underpayment was $1,355.08. 245 Khaga Kandel, who was a full-time employee, worked a total of 11.6 hours on 29 March 2013 (Good Friday) and 1 April 2013 (Easter Monday). His average hourly rate throughout his employment, based on the total amount he received and the hours he worked, was a mere $5.21. He should have been paid $42.63 per hour for working on these public holidays. His minimum rate of pay was $17.05. His public holiday penalty underpayment was therefore the difference between these last two sums of $25.58 per hour. Over 11.6 hours that results in a total underpayment of $296.73. 246 Charles Mascarenhas, who was a part-time employee, worked a total of 15.23 hours on 30 March 2013 (Easter Saturday), 1 April 2013 (Easter Monday) and 25 April 2013 (Anzac Day). He was paid only $10.28 per hour when he should have been paid $45.18 per hour. His minimum rate of pay was $17.05 per hour. The difference is $28.13 per hour. His underpayment for 15.23 hours work, then, is $428.42. 247 Kian Mu worked a total of 23.4 hours over four public holidays: 3 October 2011 (Labour Day), Christmas Day and Boxing Day 2011, and 2 January 2012 (the additional New Year's Day public holiday). He was paid only $17.95 per hour (above the minimum hourly rate of $16.57) when he should have been paid $41.43 per hour - a difference of $23.48 per hour. Over 23.4 hours this results in an underpayment of $549.43. 248 Anna Plows worked 2.03 hours on 11 June 2012, for which she was paid $17.95 per hour instead of the award rate of $43.91 - a shortfall of $25.96 per hour and an underpayment of $52.70. She also worked 2.10 hours on 1 October 2012, for which she was purportedly paid $37.70 per hour, when the award rate was $45.18 per hour - a shortfall of $7.48 per hour and an underpayment of $15.71. I say purportedly because the rate appears anomalous and is possibly inaccurate, but this is what is stated on the pay advice, Ms Plows made no complaint about it, and the Ombudsman accepts it. The result is that Ms Plows was underpaid a total of $68.41. 249 Linda Robinson worked a total of 27.45 hours over four public holidays (Boxing Day 2011, 27 December 2011, 2 January 2012, and Australia Day 2012). She was paid at the rate of $16.99 per hour for the first three, instead of the public holiday rate of $45.15 per hour and less than the minimum rate under the award of $18.06 per hour. For the last, while there is no bank record of actual payment, there is a pay slip disclosing a rate of $18.04 per hour. The difference between the hourly public holiday award rate and the minimum award rate is $27.09. In total, Ms Robinson was underpaid by $743.62. 250 Baljinder Singh worked 2.13 hours on 15 August 2012, the Royal Queensland Show public holiday. The public holiday rate was $45.18 per hour and the minimum award rate $17.05 per hour. Mr Singh was paid nothing, so the underpayment in his case is $28.13 per hour, being the difference between the public holiday rate and the minimum rate. Over 2.13 hours that totals $59.92. 251 Tui Tane worked 8.65 hours over three public holidays during the Audit Period. She should have been paid $43.91 per hour but was only paid $17.95 per hour. As her minimum award rate was $16.57 per hour, her underpayment was the difference between the public holiday rate and the rate at which she was paid. That difference is $25.96 per hour. Based on 8.65 hours worked, Ms Tane was underpaid $224.55. 252 Sekson Thinathin worked on a number of public holidays, only one of which fell during the Audit Period: 3 October 2011 (the Labour Day public holiday). Mr Thinathin worked 4.20 hours that day and was paid at the rate of $17.95 per hour. The public holiday rate under the award was $43.91 per hour. The underpayment was $25.96 per hour, the difference between these two sums (as Mr Thinathin was paid in excess of the minimum award rate of $16.57). Over 4.20 hours the total underpayment was $109.03. 253 Robert Wilkey worked six public holidays from 3 October 2011 to 11 June 2012 inclusive. Throughout he was paid the flat rate of $17.95 an hour, above the minimum rate under the award but well short of the public holiday rate of $43.91. Thus, for each hour he worked on those public holidays he was underpaid by $25.96. As he worked a total of 20.09 hours, he was underpaid $521.54.
Contravention 27: Failing to pay part-time employees for overtime worked on Monday-Saturday, contrary to cl 28.2 of the Cleaning Services Award
Contravention 28: Failing to pay for overtime part-time employees for overtime worked on a Sunday, contrary to cl 28.3 of the Cleaning Services Award 254 Contravention 27 relates to the non-payment of penalty rates for overtime hours worked between Monday and Saturday, in breach of cl 28.2 of the Cleaning Services Award, and was proved in relation to 25 employees. The applicable penalty rate under this provision is time and a half for the first two hours and double time thereafter. 255 Contravention 28 relates to the non-payment of penalty rates for overtime hours worked on a Sunday, in breach of cl 28.3 of the award, and was proved in relation to 24 employees. The applicable penalty rate under this provision is double time. 256 It is convenient to deal with these two contraventions together because they both relate to the failure to pay overtime rates and most of the employees affected by one of these contraventions are also affected by the other. This is because overtime, as defined by cl 28.6 of the award, includes all time worked in excess of five days per week. As many of the employees covered by these two contraventions worked part-time, seven days a week, I found that their hours worked on Saturdays were overtime hours caught by cl 28.2 of the award and their hours worked on Sundays were overtime hours caught by cl 28.3. 257 The following 21 employees were covered by both contraventions: Alfonso Alcuitas, Jessica Alvarado Palma, Angela Bustos Alvarado, Mariana De Queiroz, Rangana Dissanayake, Barry Dowling, Fawaz El Rahman, Alyson Hellyer, Freddy Herrera, Robin Malla, Tammy May, Kian Mu, Jose Pena, Anna Plows, Tuula Rintala, Sumit Salhotra, Dianne Sjoberg, Thomas Sung Hong, Tui Tane, Sekson Thinathin, and Robert Wilkey. 258 Alfonso Alcuitas worked seven nights a week and was paid a flat hourly rate of $17.95. His minimum award rate of pay was $16.57 per hour until 1 July 2012, and $17.05 per hour thereafter. This means that, in his case, before 1 July 2012 the time and a half rate was $24.86 per hour and the double time rate $33.14 per hour, and thereafter $25.58 per hour and $34.10 per hour respectively. He was paid various amounts over the course of his employment, between $16.18 per hour and $17.95 per hour. Between 16 August and 17 September 2012 he was not paid at all. He worked 101.99 overtime hours on Saturdays between 1 July 2011 and 30 June 2012, which should have been paid at time and a half, and 148.01 hours which should have been paid at double time. Between 1 July and 17 September 2012 he worked 20 hours, which should have been paid at time and a half, and 32.76 hours which should have been paid at double time. He worked 264.31 overtime hours on Sundays between 1 July 2011 and 30 June 2012, and 55.25 hours between 1 July and 17 September 2012. Mr Alcuitas should have received $9,071.24 for his Saturday overtime hours and $10,643.26 for his Sunday overtime hours, but only received $4,648.91 for his Saturday overtime hours and $5,202.56 for his Sunday overtime hours. This results in underpayments of: (1) $4,422.33 for contravention 27; and (2) $5,440.70 for contravention 28. 259 Jessica Alvarado Palma worked seven nights a week. Consequently, her Saturdays and Sundays had to be paid at overtime rates. Her minimum award rate was $17.05 per hour, which means that she should have been paid $25.58 per hour for the first two hours worked on a Saturday, and $34.10 per hour for all subsequent hours worked on a Saturday and all hours worked on a Sunday. Ms Alvarado was paid a flat hourly rate of $18.00 except for the period 10 to 23 December 2012 when she was paid $12.82 per hour, and the period 24 December 2012 to 18 January 2013 when she was not paid anything. The Ombudsman's calculations proceed on the erroneous assumption that Ms Alvarado was paid $18.00 per hour throughout her employment. I have corrected for this mistake. 260 Each Saturday between 26 November and 9 December 2012, Ms Alvarado worked four hours for which she was underpaid $7.58 per hour ($25.58 - $18.00) and two hours for which she was underpaid $16.10 per hour ($34.10 - $18.00). On Saturdays between 10 and 23 December 2012, Ms Alvarado worked four hours for which she was underpaid $12.76 per hour ($25.58 - $12.82) and two hours for which she was underpaid $21.28 per hour ($34.10 - $12.82). On Saturdays between 24 December 2012 and 18 January 2013 Ms Alvarado worked two hours for which she was underpaid $25.58 per hour, and one hour for which she was underpaid $34.10 (no payment made). On Sundays between 26 November and 9 December 2012, Ms Alvarado worked six hours for which she was underpaid $16.10 per hour ($34.10 - $18.00). On Sundays between 10 and 23 December 2012, she worked six hours for which she was underpaid $21.28 per hour ($34.10 - $12.82) and on Sundays between 24 December 2012 and 18 January 2013 she worked nine hours for which she was underpaid $34.10 per hour (no payment made). She was therefore underpaid overtime to the following extent: (1) $241.38 resulting from contravention 27 (($7.58 x 4 hours) + ($16.10 x 2 hours) + ($12.76 x 4 hours) + ($21.28 x 2 hours) + ($25.58 x 2 hours) + ($34.10 x 1 hour)); and (2) $531.18 resulting from contravention 28 (($16.10 x 6 hours) + ($21.28 x 6 hours) + ($34.10 x 9 hours)). 261 Angela Bustos Alvarado worked seven nights a week and was paid flat hourly rates of $17.95 between 14 June and 10 September 2012 and $19.33 between 21 September and 9 December 2012. Between 10 and 22 December 2012 she was not paid at all. 262 From 14 to 30 June 2012 Ms Bustos worked 6.10 hours overtime on Saturdays, four hours of which should have been paid at the rate of time and a half ($24.86 per hour) and 2.10 hours of which should have been paid at the rate of double time ($33.14 per hour). In the same period she worked 3.22 hours on Sundays for which she should have been paid at the same rate of $33.14 per hour. 263 From 1 July to 24 December 2012, Ms Bustos worked 33.62 hours overtime on Saturdays for which she should have been paid at time and a half ($25.58 per hour) and 12.81 hours for which she should have been paid at double time ($34.10 per hour) and 74.08 hours on Sundays for which she should have been paid at the same rate of $34.10 per hour. 264 Accordingly, Ms Bustos should have been paid $1,465.85 for overtime hours worked on Saturdays and $2,632.84 for overtime hours worked on Sundays. For contravention 27, the Ombudsman subtracted the total amount she was paid ($847.98) from the total amount she should have been paid ($1,465.85) to reach a figure of $617.87, representing the total underpayment. 265 For contravention 28, however, the Ombudsman mistakenly recorded Ms Bustos as having received $0 for the overtime hours she worked on Sundays in the same period, and claimed the full $2,632.84 as compensation for that loss. Apart from the period between 10 and 24 December 2012, Ms Bustos received a flat hourly rate for all overtime hours she worked on Sundays. The true underpayment, therefore, was substantially less than the sum claimed. Ms Bustos was paid $1,315 ((36.71 hours x $17.95) + (33.94 hours x $19.33)). This amount should have been subtracted from $2,632.84 (the amount that should have been paid), so that the true underpayment was $1,317.84. 266 I find, then, that Ms Bustos was underpaid as follows: (1) $617.87 resulting from contravention 27; and (2) $1,317.84 resulting from contravention 28. 267 Mariana De Queiroz worked three hours a night, seven nights a week and was paid a flat hourly rate of $17.95, except for the period of 3 September to 5 October 2012 when she received no pay. 268 Between 7 February and 30 June 2012, she worked 24.41 overtime hours on weekdays and Saturdays which should have been paid at the rate of $24.86 per hour (time and a half), 16.16 overtime hours which should have been paid at the rate of $33.14 per hour (double time) and 39.73 hours on Sundays, which should have been paid at the double time rate of $33.14. 269 Between 1 July and 6 October 2012, Ms De Queiroz worked 20.55 overtime hours which should have been paid at the rate of $25.58 per hour and 14.56 overtime hours which should have been paid at the rate of $34.10 per hour, and 26.66 hours which should have been paid at the rate of $34.10 per hour (double time on Sundays). 270 She was therefore underpaid by $6.91 per hour for 24.41 overtime hours, $15.19 for 55.89 overtime hours, $7.63 for 14.2 overtime hours, and $16.15 for 30.36 overtime hours. She received no payment for 10.78 Monday to Saturday overtime hours and 6.43 Sunday overtime hours. She was therefore underpaid: (1) $999.58 as a result of contravention 27; and (2) $1,149.48 as a result of contravention 28. 271 Rangana Dissanayake worked seven days a week and, but for the period from 17 to 28 October 2011 (including one weekend) when he was not paid at all, he was paid a flat hourly rate of $17.95, regardless of which day he worked. On Saturdays he worked 26 hours for which he should have been paid at the rate of time and a half and 37.06 hours for which he should have been paid at the rate of double time. He worked 47.54 hours on Sundays, which should have been paid at double time. Based on the minimum rate of $16.57 per hour at the time, he should have been paid $24.86 per hour for the first two hours worked on a Saturday, and $33.14 per hour for subsequent hours on a Saturday and all hours worked on a Sunday. This means that, except for the weekend in October 2011, for which he was not paid (and which the Ombudsman overlooked) Mr Dissanayake was underpaid by $6.91 per hour for the first two hours worked on a Saturday, and by $15.19 per hour for other overtime hours on Saturdays and Sundays. On the October 2011 weekend when he was not paid at all, he was underpaid by $24.86 per hour for the first two of 6.03 hours he worked on the Saturday and by $33.14 per hour for the remaining 4.03 hours and for 1.6 hours on the Sunday. Taking into account the aberrant weekend and allowing for the amount already credited to him, he was underpaid: (1) $850.84 (not $742.60 as the Ombudsman submitted) as a result of contravention 27; and (2) $750.85 (not $722.14 as the Ombudsman submitted) as a result of contravention 28. 272 Barry Dowling worked seven days a week, and was paid a flat hourly rate, which varied across his employment, between $6.87, $8.46, $8.75, $17.39, $17.95, and $19.09. He should have been paid the overtime rates as follows: between 1 July 2011 and 30 June 2012, 72 hours at the rate of $24.86 per hour and 35.98 hours at the rate of $33.14 on Saturdays, and 125.47 hours at the rate of $33.14 on Sundays, and between 1 July 2012 and 10 April 2013, 12 hours at the rate of $25.58, 6.81 hours at the rate of $34.10 on Saturdays, and 33.4 hours at the rate of $34.10 on Sundays. In the result, he should have been paid $3,521.48 for overtime on Saturdays and $5,297.02 for overtime on Sundays. 273 There is an error in the Ombudsman's calculation of the total amount that Mr Dowling should have been paid for overtime worked on Saturdays. It appears on the face of the calculations that the Ombudsman omitted $306.96 for the 12 hours which should have been paid at the rate of $25.58. I have therefore not accepted this particular calculation. The other calculations relevant to contravention 27 appear to be correct. 274 For overtime worked on Saturdays, Mr Dowling received $2,232.32, made up as follows: from 1 July 2011 to 30 June 2012, $1,938.24 ($17.95 x 107.98 hours); from 1 to 8 July 2012, $53.31 ($17.95 x 2.97 hours); from 9 to 22 July 2012, $113.39 ($19.09 x 5.94 hours); from 23 July to 19 August 2012, $106.98 ($17.95 x 5.96 hours); and from 20 August to 2 September 2012, $20.40 ($6.87 x 2.97 hours). 275 For overtime worked on Sundays, Mr Dowling received $2,766.60, made up as follows: from 1 July 2011 to 30 June 2012, $2,252.19 ($17.95 x 125.47 hours); from 1 to 8 July 2012, $106.80 ($17.95 x 5.95 hours); from 9 to 22 July 2012, $122.18 ($19.09 x 6.40 hours); from 23 July to 19 August 2012, $107.70 ($17.95 x 6 hours); from 20 to 26 August 2012, $20.95 ($6.87 x 3.05 hours); from 1 to 6 January 2013, $53.85 ($17.95 x 3 hours); from 7 to 20 January 2013, $50.76 ($8.46 x 6 hours); and from 21 to 31 January 2013, $52.17 ($17.39 x 3 hours). 276 Therefore, Mr Dowling was underpaid: (1) $1,289.16 resulting from contravention 27 ($3,521.48 - $2,232.32); and (2) $2,530.42 resulting from contravention 28 ($5,297.02 - $2,766.60). 277 Fawaz El Rahman worked seven days a week, at a flat rate of $17.95 per hour, except for the period 30 November to 19 December 2011 when he was not paid at all. His minimum rate of pay was $16.57 per hour. Therefore, his overtime rates were $24.86 at time and a half, and $33.14 at double time. He was underpaid the following amounts: $6.91 per hour for 63.3 hours on Mondays to Saturdays ($24.86 - $17.95), $15.19 per hour for 46.13 hours on Mondays to Saturdays ($33.14 - $17.95), $24.86 per hour for 4.14 hours on Mondays to Saturdays (no payment made), $33.14 per hour for 11.27 hours on Mondays to Saturdays (no payment made) and $15.19 per hour for 81.21 hours on Sundays ($33.14 - $17.95) and $33.14 per hour for 7.59 hours on Sundays (no payment made). 278 If follows that Mr El Rahman was underpaid the following amounts: (1) $1,614.52 resulting from contravention 27 (($6.91 x 63.3 hours) + ($15.19 x 46.13 hours) + ($24.86 x 4.14 hours) + ($33.14 x 11.27 hours)); and (2) $1,485.11 resulting from contravention 28 (($15.19 x 81.21 hours) + ($33.14 x 7.59 hours)). 279 Alyson Hellyer also worked seven days a week, at a flat rate of $17.95 per hour. Her minimum rate of pay was $16.57 per hour until 1 July 2012, and $17.05 per hour thereafter. Therefore, in the period before 1 July 2012 she should have been paid $24.86 per hour for the first two hours on a Saturday, and $33.14 per hour thereafter on Saturdays and for all hours on Sundays. In the period after 1 July 2012, she should have been paid $25.58 per hour for the first two hours worked on Saturdays and $34.10 thereafter and on Sundays. 280 Ms Hellyer was underpaid the following amounts: $6.91 per hour for 13.62 hours on Saturdays ($24.86 - $17.95), $15.19 per hour for 4.82 hours on Saturdays ($33.14 - $17.95), $7.63 per hour for 15.42 hours on Saturdays ($25.58 - $17.95), $16.15 per hour for 13.45 hours on Saturdays ($34.10 - $17.95), $15.19 per hour for 23.21 hours on Sundays ($33.14 - $17.95), and $16.15 per hour for 44.06 hours on Sundays ($34.10 - $17.95). 281 The Ombudsman calculated the loss in the summary sheet for contravention 27 on the assumption that Ms Hellyer had worked a total of 48.42 overtime hours. The origin of this figure is obscure. The overtime hours listed in the sheet and in the summary of hours attached, which are derived from the Praxeo records, are as follows: 13.62, 4.82, 15.42, and 13.45. The total number is 47.31, not 48.42. I conclude that the higher figure was an arithmetical error. 282 Ms Hellyer was underpaid: (1) $502.20 resulting from contravention 27 (($6.91 x 13.62 hours) + ($15.19 x 4.82 hours) + ($7.63 x 15.42 hours) + ($16.15 x 13.45 hours)); and (2) $1,064.13 resulting from contravention 28 (($15.19 x 23.21 hours) + ($16.15 x 44.06 hours)). 283 Freddy Herrera also worked seven days a week. When he was paid, he was paid at a flat rate of $17.95 per hour. His minimum rate of pay was $16.57 per hour, too, until 1 July 2012 and $17.05 per hour thereafter. Consequently, his overtime rates were the same as Ms Hellyer's. 284 Mr Herrera was underpaid the following amounts for overtime hours worked Monday to Saturday: $6.91 per hour for 90.75 hours ($24.86 - $17.95), $15.19 per hour for 106.65 hours ($33.14 - $17.95), $7.63 per hour for 36.55 hours ($25.58 - $17.95), $16.15 per hour for 45.66 hours ($34.10 - $17.95), $25.58 per hour for 16 hours (no payment), and $34.10 per hour for 25.3 hours (no payment). 285 He was underpaid the following amounts for overtime hours worked on Sundays: $15.19 per hour for 216.86 hours ($33.14 - $17.95), $16.15 per hour for 89.29 hours ($34.10 - $17.95) and $34.10 per hour for 42.64 hours (no payment). 286 Consequently, Mr Herrera was underpaid: (1) $4,535.40 as a result of contravention 27; and (2) $6,190.15 as a result of contravention 28. 287 Robin Malla was paid at the flat hourly rate of $17.95, except for the period from 24 December 2012 to 6 January 2013 when he received $12.76 per hour, and the period from 7 to 20 January 2013 when he received $7.50 per hour. 288 The Ombudsman only claims for overtime hours worked between 3 December 2012 and 19 January 2013. During this period Mr Malla's minimum award rate was $17.05 per hour. Consequently, for overtime worked on Monday to Saturday he should have been paid $25.58 for the first two hours and $34.10 for all subsequent hours and all overtime hours worked on Sunday. 289 Mr Malla was underpaid the following amounts for overtime worked Monday to Saturday: $7.63 per hour for 5.64 hours on Saturdays ($25.58 - $17.95), $16.15 per hour for 0.74 hours on Saturdays ($34.10 - $17.95), $12.82 per hour for two hours on Saturdays ($25.58 - $12.76), $21.34 per hour for 2.63 hours on Saturdays ($34.10 - $12.76), $18.08 per hour for four hours on Saturdays ($25.58 - $7.50), $26.60 per hour for 7.42 hours on Saturdays ($34.10 - $7.50). 290 He was underpaid the following amounts for overtime worked on Sundays: $16.15 per hour for 6.38 hours ($34.10 - $17.95), $21.34 per hour for 9.26 hours ($34.10 - $12.76), and $26.60 per hour for 11.42 hours ($34.10 - $7.50). 291 In total Mr Malla was underpaid: (1) $406.44 as a result of contravention 27; and (2) $604.42 as a result of contravention 28. 292 Tammy May worked seven days a week. During the Audit Period she worked at the flat rate of $17.95 per hour, although at times she was paid significantly less and was reimbursed for the difference sometime later. Her minimum rate of pay was $16.57 per hour until 1 July 2012 and $17.05 thereafter. 293 The Ombudsman contends that Ms May was underpaid the following amounts: $6.91 per hour for 94 hours on Saturdays ($24.86 - $17.95), $15.19 per hour for 42.66 hours on Saturdays ($33.14 - $17.95), $7.63 per hour for 30.34 hours on Saturdays ($25.58 - $17.95), $16.15 per hour for 28.96 hours on Saturdays ($34.10 - $17.95), $15.19 per hour for 216.91 hours on Sundays ($33.14 - $17.95), and $16.15 per hour for 57.55 hours on Sundays ($34.10 - $17.95). 294 There are two errors in the Ombudsman's calculations for contraventions 27 and 28. 295 First, in the revised summary sheet for contravention 27, no allowance was made for the payment made to Ms May for the hours she worked. Consequently, the Ombudsman claims the full amount of $5,514.23. 296 Secondly, in the revised summary sheet for contravention 28, the Ombudsman made an error in the final calculation, switching around two numbers so that instead of subtracting $4,926.56 (the amount Ms May received for Sunday overtime), she subtracted $4,296.56. I have corrected for these errors. 297 I conclude that the underpayments in Ms May's case are as follows: (1) $1,996.74 resulting from contravention 27; and (2) $4,224.30 resulting from contravention 28. 298 Kian Mu also worked seven days a week, at the flat rate of $17.95 per hour. His minimum award rate was $16.57 per hour throughout his employment. He was underpaid overtime for Mondays to Saturdays at $6.91 per hour for 31.54 hours ($24.86 - $17.95), $15.19 per hour for 91.84 hours ($33.14 - $17.95), and for Sundays at $15.19 per hour for 52.26 hours ($33.14 - $17.95). In total he was underpaid: (1) $1,612.99 as a result of contravention 27; and (2) $793.83 as a result of contravention 28. 299 Jose Pena worked Monday to Saturday between 11 and 23 February 2013, and seven days per week between 24 February and 9 March 2013. His minimum award rate of pay was $17.05 per hour. He was paid $16.75 per hour on average, except for the period from 22 February until 9 March 2013 when he received no payment at all. He was underpaid the following amounts for overtime hours worked on weekends: $8.83 per hour for two hours ($25.58 - $16.75) and $17.35 per hour for 1.5 hours on Saturday 16 February 2013 ($34.10 - $16.75), $25.58 per hour for six hours on other Saturdays (no payment), $34.10 per hour for 8.5 hours on other Saturdays (no payment) and $34.10 per hour for four hours on Sunday 24 February 2013 and four hours worked on Sunday 3 March 2013 (no payment). In total Mr Pena was underpaid: (1) $487.01 as a result of contravention 27; and (2) $272.80 as a result of contravention 28. 300 Anna Plows worked 2.35 overtime hours on Saturday 12 May 2012 and various overtime hours on Sundays between 12 May and 11 November 2912. Her wages varied from $17.95 to $18.88 per hour. Her minimum award rate was $16.57 per hour until 1 July 2012, and $17.05 thereafter. She was underpaid the following amounts for overtime hours worked on Saturday 12 May 2012: $6.91 per hour for two hours ($24.86 - $17.95) and $15.19 per hour for 0.35 hours ($33.14 - $17.95). She was underpaid the following amounts for overtime hours worked on Sundays: $15.19 per hour for 6.45 hours ($33.14 - $17.95), $14.26 per hour for 1.22 hours ($33.14 - $18.88), $16.15 per hour for 6.78 hours ($34.10 - $17.95), $15.70 per hour for 3.15 hours ($34.10 - $18.40), and $15.25 per hour for 5.64 ($34.10 - $18.85). In total she was underpaid: (1) $19.14 as a result of contravention 27; and (2) $360.34 as a result of contravention 28. 301 Tuula Rintala worked seven days a week between 10 February and 5 April 2012. She was paid a flat rate of $17.95 per hour. Her minimum award rate was $16.57 per hour throughout her employment. She was underpaid the following amounts for overtime hours worked on weekends: $6.91 per hour for 12 hours on Saturdays ($24.86 - $17.95), $15.19 per hour for 8.64 hours on Saturdays ($33.14 - $17.95), and $15.19 per hour for 26.5 hours on Sundays ($33.14 - $17.95). In total she was underpaid: (1) $214.16 as a result of contravention 27; and (2) $402.54 as a result of contravention 28. 302 Sumit Salhotra often worked six days a week, the sixth day being overtime hours, and on several occasions his sixth day of work was a Sunday. He was also paid a flat rate of $17.95 per hour, except for the fortnight from 14 to 27 November 2011 when he received $11.42 per hour, and the fortnight from 28 November to 11 December 2011 when he received only $9.75 per hour. His minimum award rate was also $16.57 per hour throughout his employment, so he should have received $24.86 for time and half hours and $33.14 for double time hours. I interpolate that there is an error in the Ombudsman's calculations in the revised summary sheet for contravention 28, where the overtime rate of pay is recorded as $35.63. 303 The Ombudsman's summary sheets for both contraventions proceed on the assumption that Mr Salhotra was paid a flat rate of $17.95 throughout his employment, although he was paid a lower amount between 14 November and 11 December 2011. All of the hours claimed under this contravention, however, fall outside this period, except for two one-minute time entries on Saturday 19 November and Saturday 3 December 2011. The Ombudsman is claiming $0.28 ($6.91 x 0.4 hours) for these two entries. For the reasons given earlier (at [230]), I do not accept that Mr Salhotra only worked one minute on either occasion and will not take this into account. I take the same approach to another one minute Praxeo entry on Sunday 6 November 2011 which the Ombudsman included in her claim under contravention 28, amounting to just $0.30 ($15.19 x 0.2 hours). 304 Mr Salhotra was therefore underpaid the following amounts for overtime hours worked on weekends: $6.91 per hour for 5.85 hours on Saturdays ($24.86 - $17.95), $15.19 per hour for 2.24 hours on Saturdays ($33.14 - $17.95), and $15.19 per hour for 34.50 hours on Sundays ($33.14 - $17.95). In total he was underpaid: (1) $74.45 as a result of contravention 27; and (2) $524.06 as a result of contravention 28. 305 Dianne Sjoberg worked seven days a week, also at a flat rate of $17.95 per hour. Her minimum award rate was always $16.57 per hour. Accordingly, she was underpaid the following amounts in overtime: $6.91 per hour for 16 hours on Saturdays ($24.86 - $17.95), $15.19 per hour for 9.81 hours on Saturdays ($33.14 - $17.95), and $15.19 per hour for 19.91 hours on Sundays ($33.14 - $17.95). In total she was underpaid: (1) $259.57 as a result of contravention 27; and (2) $302.44 as a result of contravention 28. 306 Thomas Sung Hong worked seven days a week for most of his period of employment, also at the flat rate of $17.95 per hour. His minimum award rate of pay was $16.57 per hour until 1 July 2012, and $17.05 thereafter. He was underpaid the following amounts in overtime: $6.91 per hour for 103.25 hours on Saturdays ($24.86 - $17.95), $15.19 per hour for 251.90 hours on Saturdays ($33.14 - $17.95), $7.63 per hour for 79.73 hours on Saturdays ($25.58 - $17.95), $16.15 per hour for 60.99 hours on Saturdays ($34.10 - $17.95), $15.19 per hour for 193.88 hours on Sundays ($33.14 - $17.95), and $16.15 per hour for 155.23 hours on Sundays ($34.10 - $17.95). I interpolate that there is an error in the Ombudsman's calculations in the revised summary sheet for contravention 28, where the old figure of 355.92 overtime hours is used to calculate the payment Mr Hong received for overtime, rather than the revised figure of 349.11 hours quoted elsewhere on the revised summary sheet. 307 Corrected for error, the amounts Mr Hong was underpaid in overtime are: (1) $6,133.15 as a result of contravention 27; and (2) $5,452.00 for contravention 28. 308 Tui Tane worked seven days a week on at least three occasions, 16 to 22 January 2012, 23 to 29 January 2012, and 30 January to 5 February 2012. She was also paid at a flat rate of $17.95 per hour and her minimum award rate was $16.57 per hour. She was underpaid the following amounts for overtime hours Monday to Saturday: $6.91 per hour for six hours ($24.86 - $17.95) and $15.19 per hour for 2.93 hours ($33.14 - $17.95). She was underpaid $15.19 per hour for 18.44 hours on Sundays ($33.14 - $17.95). In total she was underpaid: (1) $85.97 as a result of contravention 27; and (2) $280.10 as a result of contravention 28. 309 Sekson Thinathin worked seven days a week, for a flat rate of $17.95 per hour, except for the period 13 November to 2 December 2011 when he was not paid at all. His minimum award rate was $16.57 per hour, as his employment ended on 2 December 2011 before the rates changed. He was underpaid the following amounts for overtime hours worked on weekends: $6.91 per hour for 36.15 hours on Saturdays ($24.86 - $17.95), $15.19 per hour for 19.21 hours on Saturdays ($33.14 - $17.95), $24.86 per hour for four hours on Saturdays (no payment), $33.14 per hour for 2.47 hours on Saturdays (no payment), $15.19 per hour for 72.04 hours on Sundays ($33.14 - $17.95), and $33.14 per hour for 11.21 hours on Sundays (no payment). 310 In her summary sheet for contravention 27 the Ombudsman overlooked the fact that Mr Thinathin was not paid between 13 November and 2 December 2011. I have corrected for this error. 311 The underpayments to Mr Thinathin, then, were: (1) $722.89 as a result of contravention 27 (($6.91 x 36.15 hours) + ($15.19 x 19.21 hours) + ($24.86 x 4 hours) + ($33.14 x 2.47 hours)); and (2) $1,465.79 as a result of contravention 28 (($15.19 x 72.04 hours) + ($33.14 x 11.21 hours)). 312 Robert Wilkey also worked seven days a week and was paid at a flat rate of $17.95 per hour. His minimum award rate of pay was also $16.57 per hour until 1 July 2012 and $17.05 thereafter. He was underpaid the following amounts for overtime hours worked on weekends: $6.91 per hour for 74 hours on Saturdays ($24.86 - $17.95), $15.19 per hour for 55.31 hours on Saturdays ($33.14 - $17.95), $7.63 per hour for eight hours on Saturdays ($25.58 - $17.95), $16.15 per hour for 4.81 hours on Saturdays ($34.10 - $17.95), $15.19 per hour for 152.33 hours on Sundays ($33.14 - $17.95), and $16.15 per hour for 16.94 hours on Sundays ($33.14 - $17.95). In total he was underpaid: (1) $1,490.22 as a result of contravention 27; and (2) $2,587.47 as a result of contravention 28. 313 The following four employees were only covered by contravention 27: Khaga Kandel, Giang Ngo, Helen Pakas, and Tashi Wangchuck. 314 Khaga Kandel worked overtime on six occasions between 19 March and 10 April 2013. He worked a total of 9.20 hours for which he should have been paid at the rate of time and a half and 8.20 hours for which he should have been paid at double time. His minimum award rate was $17.05 per hour. Consequently, his time and a half rate is $25.58 per hour and his double time rate $34.10 per hour. Mr Kandel was paid $800 over the course of his employment - an average of $5.21 per hour. This means that he was underpaid by $20.37 per hour for the first two overtime hours per day and by $28.89 per hour for overtime hours thereafter. 315 His total underpayment as a result of contravention 27 is therefore $424.30 (($20.37 x 9.20 hours) + ($28.89 x 8.20 hours)). 316 Giang Ngo worked 0.4 overtime hours on 20 February 2013 (24 minutes in excess of 7.6 hours in one day). Mr Ngo should have been paid for this overtime at the rate of $29.84 per hour but he was never paid at any time. The underpayment in respect of overtime is $11.94 ($29.84 x 0.4 hours). 317 Helen Pakas worked throughout the Audit Period. It will be recalled that the Ombudsman is only claiming compensation, however, for the period from 16 April 2012 until 28 April 2013. Between 16 April 2012 and 30 June 2012, Ms Pakas worked 80.5 hours of overtime that should have been paid at the rate of $24.86 per hour (time and a half) and 32.26 hours of overtime that should have been paid at the rate of $33.14 per hour (double time). Between 1 July 2012 and 19 April 2013, she worked 306.81 hours of overtime that should have been paid at the rate of $25.58 (time and a half) and 84.41 hours of overtime that should have been paid at the rate of $34.10 (double time). Taking into account the payments made to Ms Pakas during these periods (between $13.65 and $18.71 per hour, totalling $7,921.78), the total underpayment in her case resulting from contravention 27 is $5,863.94. 318 Tashi Wangchuck worked overtime on Saturday 21 July 2012 for three hours for which she was not paid. Her minimum award rate was $17.05 per hour, which means that she should have been paid for overtime at $25.58 per hour for the first two hours, and $34.10 per hour for the third. The total underpayment in her case, then, is $85.26. 319 The following three employees were only covered by contravention 28: Fiona Holland, Baljinder Singh, and Cheryl Sorrell. 320 Fiona Holland worked 3.45 overtime hours on Sunday 1 July 2012. Her minimum award rate at that time was $17.05, which means that she should have been paid overtime at $34.10 per hour. Instead, she was paid only $17.95 per hour. It follows that, as a result of contravention 28, she was underpaid $55.72 (3.45 hours x ($34.10 - $17.95)). 321 Baljinder Singh worked three overtime hours on Sunday 19 August 2012 and 2.65 overtime hours on Sunday 26 August 2012. He should have been paid overtime at $34.10 per hour, but he was not paid at all. The underpayment as a result of contravention 28 is therefore $192.67 (5.65 hours x $34.10). 322 Cheryl Sorrell worked 2.03 hours of overtime on Sunday 4 September 2011 and 2.05 hours of overtime on Sunday 11 September 2011. She should have been paid $33.14 per hour for these hours. Instead, she was paid a flat rate of $17.95 per hour. Consequently, as a result of her contravention 28, she was underpaid $61.98 (4.08 hours x ($33.14 - $17.95)).
Contravention 29: Failing to pay for overtime worked on a public holiday, contrary to cl 28.4 of the Cleaning Services Award 323 This contravention was proved in relation to six employees: Barry Dowling, Khaga Kandel, Tammy May, Linda Robinson, Thomas Sung Hong, and Robert Wilkey. 324 Clause 28.4 of the Cleaning Services Award provides that overtime hours worked on public holidays must be paid at the rate of double time and one half. 325 Barry Dowling worked 5.77 hours overtime on two public holidays during the Audit Period for which he was paid at the rate of $17.95 per hour, which means that he was paid $103.57 for these hours. He should have been paid at the rate of $41.43 per hour, which means that he should have been paid $239.05. He was therefore underpaid $135.48. 326 Khaga Kandel worked 3.4 hours overtime on public holidays between 15 March and 19 April 2013 for which he was paid in total $17.71 (on average $5.21 per hour). He should have been paid $144.94, based on the public holiday award rate of $42.63 per hour. The difference is therefore $127.23. 327 Tammy May worked 9.52 hours overtime on public holidays between 25 December 2011 and 8 April 2012. The overtime rate under the award was $41.43 per hour. She should have been paid $394.41 but she only received a total of $173.80 ($23.20 for overtime worked on Christmas Day in 2011, $43.44 for overtime worked on 1 January 2012, and $107.16 for overtime worked on the Easter weekend in April 2012). Consequently, she was underpaid $220.61. 328 Linda Robinson worked 1.15 hours overtime on 1 January 2012 and 1.15 hours on 26 January 2012. She should have been paid $103.85 for these hours, having regard to the award rate of $45.15 per hour. Based on an hourly rate of pay of $18.04, Ms Robinson was paid $41.49 for the 2.3 hours. The difference and therefore the underpayment was $62.36. 329 Thomas Sung Hong worked 10.6 hours for working overtime on public holidays for which he was paid only $12.87 per hour, in total $136.42. At the award rate of $41.43 per hour, he should have been paid a total of $439.16 for these hours. He was therefore underpaid $302.74. These figures were set out in the original summary sheet for Mr Hong in relation to this contravention. A revised summary sheet was provided which subtracts twice the amount Mr Hong was paid, $136.42, giving a total underpayment of $166.32 ($302.74 - $136.42). I have taken this as an error and rely on the calculations provided in the original summary sheet. 330 Robert Wilkey worked 3.25 hours overtime for which he received $58.34 (3.25 x $17.95). He should have been paid at the rate of $41.43 per hour. For 3.25 hours this means he should have been paid $134.65. He was therefore underpaid $76.31.
Contravention 30: Failing to pay annual leave loading contrary to cl 29.4 of the Cleaning Services Award 331 Contravention 30 was proved in relation to six employees: Mariana de Queiroz, Barry Dowling, Tammy May, Helen Pakas, Thomas Sung Hong, and Robert Wilkey. It relates to the failure to pay employees who took annual leave a 17.5% loading on top of the employee's ordinary time rate of pay in breach of cl 29.4(b) of the Cleaning Services Award. 332 Mariana De Queiroz took 15 hours of annual leave but was paid nothing for it. Her ordinary time rate of pay was $16.57 per hour. She should therefore have been paid $248.55 as ordinary pay for this leave (15 hours x $16.57) and $43.50 for the 17.5% annual leave loading. 333 Barry Dowling took four periods of annual leave throughout the course of his employment. Due to the lack of available evidence proving that he was not paid for it, I found only that he was not paid the 17.5% annual leave loading for 24 hours of annual leave recorded on a pay slip dated 21 September 2012: Liability Judgment at [858]. As Mr Dowling's minimum rate of pay under the award at that time was $17.05, he should have been paid $409.20 as ordinary pay (24 hours x $17.05) and $71.61 for the annual leave loading. 334 Tammy May took 7.53 hours of annual leave but was not paid for it. When this leave was taken, her minimum rate of pay under the award was $16.57 per hour. Therefore, Ms May should have been paid $124.77 as ordinary pay for these hours (7.53 hours x $16.57) and $21.83 for the 17.5% annual leave loading. 335 Helen Pakas took annual leave in the following periods: 6 to 9 April 2010, 28 December 2011 to 27 January 2012, 22 to 28 March 2012, 13 to 18 September 2012, and 24 December 2012 to 28 January 2013. Ms Pakas was not paid the 17.5% annual leave loading for the last three periods in which she took a total of 235.6 hours leave. Her ordinary time rate of pay for the 38 hours of annual leave taken before 1 July 2012 was $629.66, as during this time her minimum rate of pay under the award was $16.57 per hour. For the 197.6 hours of leave taken after 1 July 2012, her ordinary time rate of pay was $3,369.08, as her minimum rate of pay at that time was $17.05 per hour. The annual leave loading payable on these two amounts was $110.19 and $589.59 respectively. Consequently the annual leave loading underpayment for Ms Pakas was $699.78. 336 Thomas Sung Hong took four weeks of annual leave (40 hours) in October 2013, for which he was never paid. It follows that he did not receive the annual leave loading either. He should have received his minimum award rate of $17.49 as ordinary pay (totalling $699.60) and therefore $122.43 in annual leave loading. 337 Robert Wilkey took 30 hours of annual leave between 7 and 20 May 2012, for which he was not paid. His minimum award rate was $16.57 per hour. Over 30 hours his minimum rate was $497.10 which means that the value of the 17.5% loading is $86.99.
Contravention 31: Failing to pay non-award employees the national minimum wage in contravention of s 293 of the Act 338 This contravention was proved in the case of two employees: Martyn Jones and Paul Saint James. 339 Martyn Jones was a full-time employee who worked a total of 249.34 hours from 14 February to 8 April 2013. The national minimum wage in this period was $15.96 per hour. He should therefore have been paid a minimum of $3,979.47. In fact he was paid $3,025. The deficit is $954.47. 340 Paul Saint James was not paid for the fortnight leading up to 20 December 2012. The national minimum wage was $15.96 per hour then, too. As Mr Saint James worked full-time (38 hours per week), he should have been paid at least $606.48 per week in this period. Since he was not paid at all for these two weeks, he was underpaid $1,212.96.
Contravention 32: Failing to pay employees in full in contravention of s 323 of the Act 341 Section 323 of the FW Act relevantly provides: 323 Method and frequency of payment (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. Note 1: This subsection is a civil remedy provision (see Part 4-1). Note 2: Amounts referred to in this subsection include the following if they become payable during a relevant period: (a) incentive-based payments and bonuses; (b) loadings; (c) monetary allowances; (d) overtime or penalty rates; (e) leave payments. … 342 I found that, with the exception of Janil Modi and Victoria Hardie, GPS did not pay any of the nominated employees in full. This means that the contravention was proved in relation to 49 employees. But the Ombudsman is only claiming compensation for the losses suffered by 25 of them on the basis that the other affected employees will be fully compensated for their underpayments under other contraventions. While I am not convinced that all other affected employees will be fully compensated for their underpayments under other contraventions, I will make that assumption. After all, it is for the Ombudsman to formulate her claim, not the Court. 343 The 25 employees in question are Alfonso Alcuitas, Jessica Alvarado Palma, Wendy Bong, Juliana Botero Hernandez, Angela Bustos Alvarado, Mariana De Queiroz, Marco Diaz, Barry Dowling, Fawaz El Rahman, Marissa Hall, Freddy Herrera, Khaga Kandel, Robin Malla, Charles Mascarenhas, Giang Ngo, Helen Pakas, Jose Pena, Barbara Piper, Linda Robinson, Sumit Salhotra, Baljinder Singh, Xiao Teng, Sekson Thinathin, Tashi Wangchuck, and Wen Yang. The underpayments claimed as compensation for this contravention consist of the minimum award rates that were not paid or the shortfall in the minimum award rates. Notwithstanding note 2 to s 323, the Ombudsman makes no claim with respect to incentive-based payments and bonuses, loadings, monetary allowances, overtime or penalty rates, or leave payments. Presumably this is because the failure to pay amounts of this kind is dealt with elsewhere. 344 Alfonso Alcuitas was paid $9.49 per hour for 47.83 hours worked between 1 and 15 June 2012, and was paid nothing for 94.68 hours worked between 16 August and 17 September 2012. His minimum award rate during the first of these two periods was $16.57 per hour. During the second period his minimum award rate was $17.05 per hour. In the first period he was underpaid at least $338.63 (($16.57 - $9.49) x 47.83 hours) and in the second $1,614.29 ($17.05 x 94.68 hours). The total amount is $1,952.92. 345 Jessica Alvarado Palma was paid $12.82 per hour for 30 hours worked between 10 and 23 December 2012 and was paid nothing for 33 hours worked between 24 December 2012 and 18 January 2013. Her minimum award rate during both these periods was $17.05 per hour. She was underpaid at least $126.90 (($17.05 - $12.82) x 30 hours) and $562.65 ($17.05 x 33 hours), giving a total of $689.55. 346 Wendy Bong was paid nothing for 76.50 hours worked between 1 and 13 February 2013. His minimum award rate during this period was $17.05 per hour. The total minimum amount he should have been, but was not, paid was therefore $1,304.33 ($17.05 x 76.50 hours). I find that he was underpaid at least this amount. 347 Juliana Botero Hernandez was paid nothing for 54.85 hours worked between 20 March and 8 April 2013. Her minimum award rate during this period was $17.05 per hour. Consequently, she was underpaid at least $935.19 ($17.05 x 54.85 hours). 348 Angela Bustos Alvarado was paid nothing for 30.9 hours worked between 10 and 22 December 2012. Her minimum award rate during this period was also $17.05 per hour. She was underpaid at least $526.85 ($17.05 x 30.9 hours). 349 Mariana De Queiroz was paid nothing for 70.43 hours worked between 3 September 2012 and 5 October 2012. Her minimum award rate during this period was $17.05 per hour, which means that she was underpaid at least $1,200.83 ($17.05 x 70.43 hours). 350 Marco Diaz was paid $9.76 per hour for 351 hours worked between 11 December 2012 and 5 April 2013. His minimum award rate during this period was $17.05 per hour. The difference and the extent of the (claimed) underpayment is therefore $2,558.79 (($17.05 - $9.76) x 351 hours). 351 Barry Dowling was paid $6.87 per hour for 29.76 hours worked between 20 and 31 August 2012, and was paid $8.46 per hour for 30 hours worked between 7 and 20 January 2013. His minimum award rate for both these periods was $17.05 per hour. It follows that he was underpaid a minimum of $302.96 (($17.05 - $6.87) x 29.76 hours) in the first period and $257.70 (($17.05 - $8.46) x 30 hours) in the second, giving a total of $560.66. 352 Fawaz El Rahman was paid nothing for 46.7 hours worked between 30 November and 19 December 2011. His minimum award rate during this period was $16.57 per hour, which means that he was underpaid at least $773.82 ($16.57 x 46.7 hours). 353 Marissa Hall was paid nothing for 54 hours worked between 18 March and 12 April 2013. Her minimum award rate during this period was $17.05 per hour. Consequently, the minimum payment that should have been, but was not, made to her was $920.70 ($17.05 x 54 hours). 354 Freddy Herrera was paid nothing for 182.38 hours worked between 4 January and 8 March 2013. His minimum award rate during this period was $17.05 per hour, so the total minimum amount he should have been, but was not, paid was $3,109.58 ($17.05 x 182.38 hours). 355 Khaga Kandel was paid $5.21 per hour for 130.7 hours worked between 15 March 2013 and 19 April 2013. His minimum award rate during this period was $17.05 per hour. The shortfall in his minimum pay was therefore $1,547.49 (($17.05 - $5.21) x 130.7 hours). 356 Robin Malla was paid $12.76 per hour for 32.41 hours worked between 24 December 2012 and 6 January 2013, and was paid $7.50 per hour for 57.10 hours worked between 7 and 20 January 2013. His minimum award rate during both periods was $17.05 per hour. He was therefore underpaid at least $684.35, made up of $139.04 (($17.05 - $12.76) x 32.41 hours) in the first period and $545.31 (($17.05 - $7.50) x 57.10 hours) in the second. 357 Charles Mascarenhas was paid $10.28 per hour for 158.31 hours worked between 14 March and 11 May 2013. His minimum award rate during this period was $17.05 per hour. He was therefore underpaid at least $1,071.76 (($17.05 - $10.28) x 158.31 hours). 358 Giang Ngo was paid nothing for 41.6 hours worked between 19 February and 8 March 2013. His minimum award rate during this period was $17.05 per hour, which means that he should have been, but was not, paid a minimum amount of $709.28 ($17.05 x 41.6 hours). 359 As I have already observed, Helen Pakas worked for GPS through the entire Audit Period but the Ombudsman's claim is limited to the period between 16 April 2012 and 28 April 2013. During this period, Ms Pakas was paid at the following hourly rates: (1) $15.60 for 267.93 hours worked between 17 April 2012 and 10 June 2012; (2) $15.40 for 62.07 hours worked between 11 and 24 June 2012; (3) $15.60 for 147.46 hours worked between 9 July 2012 and 5 August 2012; (4) $16.85 for 76 hours worked between 6-19 August 2012; (5) $15.60 for 334.23 hours worked between 20 August 2012 and 28 October 2012; (6) $13.65 for 76 hours worked between 29 October 2012 and 11 November 2012; and (7) $15.60 for 459.37 hours worked between 12 November 2012 and 28 April 2013. 360 Ms Pakas's minimum award rate during the first two of these periods was $16.57 per hour, and $17.05 per hour during the latter five periods. Consequently, she was underpaid the following minimum amounts: (1) $259.89 (($16.57 - $15.60) x 267.93 hours); (2) $72.62 (($16.57 - $15.40) x 62.07 hours); (3) $213.82 (($17.05 - $15.60) x 147.46 hours); (4) $15.20 (($17.05 - $16.85) x 76 hours); (5) $484.63 (($17.05 - $15.60) x 334.23 hours); (6) $258.40 (($17.05 - $13.65) x 76 hours); and (7) $666.09 (($17.05 - $15.60) x 459.37 hours). The total is $1,970.65. 361 Jose Pena was paid $16.75 per hour for 338 hours worked between 15 October 2012 and 21 February 2013 and was paid nothing for 71 hours worked between 22 February and 9 March 2013. His minimum award rate across both periods was $17.05 per hour. He was therefore underpaid a minimum amount of $1,311.95, consisting of $101.40 (($17.05 - $16.75) x 338 hours) in the first period and $1,210.55 ($17.05 x 71 hours) in the second. 362 Barbara Piper was paid $13.11 per hour for 28.5 hours worked between 10 July and 3 August 2012, and nothing for 7.5 hours worked between 6 and 8 August 2012. Her minimum award rate during both of these periods was $17.05 per hour. It follows that she was underpaid a minimum of $240.16, consisting of $112.29 (($17.05 - $13.11) x 28.5 hours) in the first period and $127.87 ($17.05 x 7.5 hours) in the second. 363 Linda Robinson was paid below her minimum award rate as follows: (1) $11.79 for 81.75 hours worked between 1 and 11 December 2011; (2) $13.09 for 94 hours worked between 12 and 25 December 2011; (3) $16.99 for 82.6 hours worked between 26 December 2011 and 8 January 2012; and (4) $18.04 for 86.7 hours worked between 23 January and 5 February 2012. 364 Ms Robinson's minimum award rate (as a level 3 Cleaning Services Employee) throughout all four periods was $18.06 per hour. She was therefore underpaid the following minimum amounts: (1) $512.57 (($18.06 - $11.79) x 81.75 hours); (2) $467.18 (($18.06 - $13.09) x 94 hours); (3) $88.38 (($18.06 - $16.99) x 82.6 hours); and (4) $1.73 (($18.06 - $18.04) x 86.7 hours). The total is $1,069.86. 365 Sumit Salhotra was paid $11.42 per hour for 25.37 hours worked between 14 and 27 November 2011 and $9.75 per hour for 25.52 hours worked between 28 November and 11 December 2011. His minimum award rate during both periods was $16.57 per hour. He was therefore underpaid a minimum amount of $304.71, consisting of $130.66 (($16.57 - $11.42) x 25.37 hours) in the first period and $174.05 (($16.57 - $9.75) x 25.52 hours) in the second 366 Baljinder Singh was paid nothing for 38.25 hours worked between 1 and 28 August 2012. His minimum award rate during this period was $17.05 per hour. He should have been, but was not, paid a minimum amount of $652.16 ($17.05 x 38.25 hours). 367 Xiao Teng was paid $10.34 for 148.41 hours worked between 17 September and 16 November 2012. Her minimum award rate during this period was $17.05 per hour. She was therefore underpaid a minimum amount of $995.83 (($17.05 - $10.34) x 148.41 hours). 368 Sekson Thinathin was paid nothing for 44.83 hours worked between 13 November and 2 December 2011. His minimum award rate during this period was $16.57 per hour. He should have been, but was not, paid a minimum of $742.83 ($16.57 x 44.83 hours). 369 Tashi Wangchuck was paid nothing for 43 hours worked between 10 and 31 July 2012. Her minimum award rate during this period was $17.05 per hour. She should have been, but was not, paid a minimum of $733.15 ($17.05 x 43 hours). 370 Wen Yang was paid nothing for 57.95 hours worked between 1 and 16 November 2012. His minimum award rate during this period was $17.05 per hour. Consequently, he should have been, but was not, paid a minimum of $988.05 ($17.05 x 57.95 hours). 371 Having regard to the way the Ombudsman framed her compensation claim, each of the emphasised sums constitutes the extent of the relevant underpayment.
Contravention 33: Taking adverse action against Moona Hasan in contravention of s 340 of the Act 372 I found that Ms Hasan was dismissed by GPS because she had exercised a workplace right, making repeated inquiries about her failure to receive her wages, and finally making a complaint that she would not work until she received them. 373 The Ombudsman limited her claim to compensation for this contravention to the amount of pay in lieu of notice that Ms Hasan should have received had she not, in effect, been summarily dismissed. As the Ombudsman submitted, this was a conservative approach and may well understate the true extent of Ms Hasan's loss. 374 Ms Hasan worked for GPS between 5 February and 28 March 2013. She was entitled to, but did not receive, a minimum period of one week's notice or payment in lieu "at the full rate of pay for the hours [she] would have worked had the employment continued until the end of the minimum period of notice": s 117(2) and (3). Her minimum hourly award rate was $19.23. The Ombudsman did not submit that her ordinary rate was any higher than this. Ms Hasan was a part-time employee, typically working eight hours a day two to three days a week. The Ombudsman claim is limited to her minimum award rate for two eight hour days. Accordingly, I find that she should have been, but was not, paid $307.68 in lieu of notice and this is the extent to which she is to be compensated as a result of the adverse action taken against her by GPS.
Summary 375 In summary, then, the underpayments were as follows: No Contravention Employee Amount ($) 1 Failing to pay annual leave when leave taken, contrary to s 90(1) of the Act Tammy May $124.77 Robert Wilkey $497.10 2 Failing to pay accrued untaken annual leave on termination, contrary to s 90(2) of the Act Alfonso Alcuitas $2,962.40 Abraham Arguello $11,354.58 Paul Bacon $387.26 Juliana Botero Hernandez $84.34 Rangana Dissanayake $566.00 Barry Dowling $1,167.06 Fawaz El Rahman $959.01 Marissa Hall $82.94 Freddy Herrera $3,777.93 Fiona Holland $307.24 Michael Kallee $225.26 Charles Mascarenhas $350.62 Tammy May $1,950.99 Christine Meager $84.95 Kian Mu $2,063.08 No Contravention Employee Amount ($) Jose Pena $708.91 Barbara Piper $66.65 Mariana De Queiroz $1,342.47 Tuula Rintala $222.40 Linda Robinson $940.28 Sumit Salhotra $919.48 Baljinder Singh $88.57 Dianne Sjoberg $600.70 Cheryl Sorrell $432.52 Thomas Sung Hong $3,655.96 Tui Tane $243.92 Xiao Teng $349.99 Sekson Thinathin $751.31 Tashi Wangchuck $93.75 Robert Wilkey $1,214.96 Wen Yang $109.11 3 Failing to pay personal leave, contrary to s 99 of the Act Linda Robinson $391.18 4 Failing to pay for public holidays ordinarily worked, contrary to s 116 of the Act Jessica Alvarado Palma $102.30 Angela Bustos Alvarado $97.19 Robin Malla $51.48 Helen Pakas $388.74 Thomas Sung Hong $133.48 Xiao Teng $51.15 6 Failing to give adequate notice or payment in lieu, contrary to s 117(2) of the Act Abraham Arguello $5,769.24 Wendy Bong $647.90 Angela Bustos Alvarado $493.25 Rangana Dissanayake $679.36 Barbara Piper $306.23 Linda Robinson $686.28 Lara Satchell $742.52 Xiao Teng $571.99 Robert Wilkey $105.64 No Contravention Employee Amount ($) Wen Yang $536.51 7 Failing to pay minimum award rates under the Cleaning Services Award, contrary to s 45 of the Act Abraham Arguello $934.00 8 Failing to pay minimum award rates under the Clerks Award, contrary to s 45 of the Act Aisling Dunn $2,392.23 Moona Hasan $1,173.97 Christine Meager $330.27 Md Shamsuzzoha $1,783.94 10 Failing to pay overtime under the Clerks Award, contrary to s 45 of the Act Lara Satchell $814.82 Md Shamsuzzoha $375.05 13 Failing to pay part-time allowance under the Cleaning Services Award, contrary to s 45 of the Act Paul Bacon $328.16 Juliana Botero Hernandez $140.42 Angela Bustos Alvarado $425.49 Mariana De Queiroz $91.94 Marco Diaz $887.04 Fawaz El Rahman $214.04 Marissa Hall $138.24 Freddy Herrera $72.87 Tammy May $1,217.36 Barbara Piper $8.96 Anna Plows $282.74 Dianne Sjoberg $65.18 Cheryl Sorrell $49.99 Tui Tane $19.98 Tashi Wangchuck $147.64 14 Failing to pay broken shift allowance under the Cleaning Services Award, contrary to s 45 of the Act Angela Bustos Alvarado $2.97 Fawaz El Rahman $135.36 Helen Pakas $604.98 Dianne Sjoberg $89.28 Cheryl Sorrell $8.64 Xiao Teng $74.25 16 Failing to pay for travel time under the Clerks Award, contrary to s 45 of the Act Anna Plows $125.00 No Contravention Employee Amount ($) 22 Failing to pay penalty rates for early morning, afternoon and non-permanent night shift under the Cleaning Services Award, contrary to s 45 of the Act Alfonso Alcuitas $4,334.85 Wendy Bong $195.84 Mariana De Queiroz $1,293.72 Fawaz El Rahman $1,540.69 Andrea Grigoletto $213.01 Fiona Holland $426.30 Michael Kallee $466.13 Bibek Luitel $58.84 Robin Malla $1,580.10 Kian Mu $1,138.52 Helen Pakas $3,541.40 Jose Pena $1,930.48 Barbara Piper $153.40 Anna Plows $635.70 Tuula Rintala $360.86 Sumit Salhotra $1,983.26 Dianne Sjoberg $617.11 Cheryl Sorrell $450.96 Thomas Sung Hong $2,226.00 Xiao Teng $759.86 Sekson Thinathin $1,056.29 Wen Yang $296.70 23 Failing to pay penalty rates for permanent night shift under the Cleaning Services Award, contrary to s 45 of the Act Rangana Dissanayake $1,316.98 Barry Dowling $3,745.41 Alyson Hellyer $890.72 Freddy Herrera $3,923.31 Thomas Sung Hong $3,761.95 Robert Wilkey $1,729.62 24 Failing to pay Saturday penalty rates under the Cleaning Services Award, contrary to s 45 of the Act Alfonso Alcuitas $20.19 Angela Bustos Alvarado $54.81 Mariana De Queiroz $157.40 Rangana Dissanayake $29.02 Barry Dowling $293.54 No Contravention Employee Amount ($) Fawaz El Rahman $200.95 Freddy Herrera $509.87 Fiona Holland $130.36 Robin Malla $189.44 Charles Mascarenhas $777.92 Tammy May $117.28 Kian Mu $40.81 Anna Plows $507.94 Tuula Rintala $27.87 Sumit Salhotra $69.30 Baljinder Singh $356.69 Thomas Sung Hong $207.80 Tui Tane $114.46 Sekson Thinathin $27.52 Robert Wilkey $337.01 Wen Yang $140.65 25 Failing to pay Sunday penalty rates under the Cleaning Services Award, contrary to s 45 of the Act Alfonso Alcuitas $192.94 Angela Bustos Alvarado $109.88 Mariana De Queiroz $306.07 Rangana Dissanayake $44.55 Barry Dowling $206.87 Fawaz El Rahman $182.43 Fiona Holland $369.14 Michael Kallee $70.10 Khaga Kandel $54.44 Robin Malla $184.11 Tammy May $160.36 Kian Mu $50.60 Giang Ngo $93.48 Barbara Piper $45.26 Anna Plows $358.82 Tuula Rintala $46.26 Sumit Salhotra $398.68 No Contravention Employee Amount ($) Baljinder Singh $178.90 Sekson Thinathin $51.50 Robert Wilkey $182.99 Wen Yang $153.81 26 Failing to pay penalty rates under the Cleaning Services Award for working on public holidays, contrary to s 45 of the Act Alfonso Alcuitas $1,160.81 Jessica Alvarado Palma $84.39 Mariana De Queiroz $238.85 Marco Diaz $126.59 Barry Dowling $560.67 Fawaz El Rahman $185.87 Alyson Hellyer $79.44 Freddy Herrera $1,355.08 Khaga Kandel $296.73 Charles Mascarenhas $428.42 Kian Mu $549.43 Anna Plows $68.41 Linda Robinson $743.62 Baljinder Singh $59.92 Tui Tane $224.55 Sekson Thinathin $109.03 Robert Wilkey $521.54 27 Failing to pay penalty rates for overtime worked Monday to Saturday as required by the Cleaning Services Award, contrary to s 45 of the Act Alfonso Alcuitas $4,422.33 Jessica Alvarado Palma $241.38 Angela Bustos Alvarado $617.87 Mariana De Queiroz $999.58 Rangana Dissanayake $850.84 Barry Dowling $1,289.16 Fawaz El Rahman $1,614.52 Alyson Hellyer $502.20 Freddy Herrera $4,535.40 Khaga Kandel $424.30 Robin Malla $406.44 Tammy May $1,996.74 No Contravention Employee Amount ($) Kian Mu $1,612.99 Giang Ngo $11.94 Helen Pakas $5,863.94 Jose Pena $487.01 Anna Plows $19.14 Tuula Rintala $214.16 Sumit Salhotra $74.45 Dianne Sjoberg $259.57 Thomas Sung Hong $6,133.15 Tui Tane $85.97 Sekson Thinathin $722.89 Tashi Wangchuck $85.26 Robert Wilkey $1,490.22 28 Failing to pay penalty rates for Sunday overtime as required by the Cleaning Services Award, contrary to s 45 of the Act Alfonso Alcuitas $5,440.70 Jessica Alvarado Palma $531.18 Angela Bustos Alvarado $1,317.84 Mariana De Queiroz $1,149.48 Rangana Dissanayake $750.85 Barry Dowling $2,530.42 Fawaz El Rahman $1,485.11 Alyson Hellyer $1,064.13 Freddy Herrera $6,190.15 Fiona Holland $55.72 Robin Malla $604.42 Tammy May $4,224.30 Kian Mu $793.83 Jose Pena $272.80 Anna Plows $360.34 Tuula Rintala $402.54 Sumit Salhotra $524.06 Baljinder Singh $192.67 Dianne Sjoberg $302.44 Cheryl Sorrell $61.98 No Contravention Employee Amount ($) Thomas Sung Hong $5,452.00 Tui Tane $280.10 Sekson Thinathin $1,465.79 Robert Wilkey $2,587.47 29 Failing to pay penalty rates for overtime worked on public holidays as required by the Cleaning Services Award, contrary to s 45 of the Act Barry Dowling $135.48 Khaga Kandel $127.23 Tammy May $220.61 Linda Robinson $62.36 Thomas Sung Hong $302.74 Robert Wilkey $76.31 30 Failing to pay annual leave loadings as required by the Cleaning Services Award, contrary to s 45 of the Act Mariana De Queiroz $43.50 Barry Dowling $71.61 Tammy May $21.83 Helen Pakas $699.78 Thomas Sung Hong $122.43 Robert Wilkey $86.99 31 Failing to pay non-award employees the national minimum wage, contrary to s 293 of the Act Martyn Jones $954.47 Paul Saint James $1,212.96 32 Failing to pay employees in full at least monthly, contrary to s 323 of the Act Alfonso Alcuitas $1,952.92 Jessica Alvarado Palma $689.55 Wendy Bong $1,304.33 Juliana Botero Hernandez $935.19 Angela Bustos Alvarado $526.85 Mariana De Queiroz $1,200.83 Marco Diaz $2,558.79 Barry Dowling $560.66 Fawaz El Rahman $773.82 Marissa Hall $920.70 Freddy Herrera $3,109.58 Khaga Kandel $1,547.49 Robin Malla $684.35 Charles Mascarenhas $1,071.76 Giang Ngo $709.28 No Contravention Employee Amount ($) Helen Pakas $1,970.65 Jose Pena $1,311.95 Barbara Piper $240.16 Linda Robinson $1,069.86 Sumit Salhotra $304.71 Baljinder Singh $652.16 Xiao Teng $995.83 Sekson Thinathin $742.83 Tashi Wangchuck $733.15 Wen Yang $988.05 33 Taking adverse action against Moona Hasan, contrary to s 340 of the Act Moona Hasan $307.68 Total $223,552.34
The award of compensation 376 The Ombudsman only seeks compensation to the extent of the underpayments. I will therefore order that GPS pay compensation in the sum of $223,552.34. 377 Since I found that Enrico was involved in the contravention by GPS of s 340 of the FW Act (contravention 33), GPS and Enrico are jointly and severally liable to pay the compensation for it.
Interest 378 Section 547 of the FW Act makes provision for pre-judgment interest on any amount a party is required to pay under the Act except for a pecuniary penalty. In making an order for the payment of such an amount, the Court must, on application, include interest, unless good cause is shown to the contrary: s 547(2). In determining the amount of interest, the Court is obliged to take into account the period between the day the relevant cause of action arose and the day the order is made: s 547(3). 379 In her Third Further Amended Application, filed on 15 December 2015, the Ombudsman applied for interest. Interest should be included. No good cause for not doing so has been shown. 380 The Ombudsman sought interest in accordance with Practice Note GPN-INT. That relevantly provides as follows: 2.1 Section 51A(1)(a) of the Federal Court Act provides for the making of orders for the inclusion of interest in judgments. 2.2 Parties and their lawyers should expect that where, pursuant to s 51A(1)(a), interest in respect of a pre-judgment period is to be included in a judgment, the Court will have regard to the following rates, being rates agreed upon by the Discount and Interest Rate Harmonisation Committee established following a referral by the Council of Chief Justices of Australia and New Zealand: (a) in respect of the period from 1 January to 30 June in any year - the rate that is 4% above the cash rate last published by the Reserve Bank of Australia before that period commenced; and (b) in respect of the period from 1 July to 31 December in any year - the rate that is 4% above the cash rate last published by the Reserve Bank of Australia before that period commenced. (Emphasis added.) 381 The Practice Note relates to interest made under s 51A(1)(a). It makes no mention of awards of interest under the FW Act. Still, s 51A(1)(a) is in relevantly identical terms to s 547 and none of the respondents submitted that the proposed rates should not apply. Accordingly, interest will be included in the judgment at the rates referred to in cl 2.2 of the Practice Note. 382 The remaining question is: over what period(s) and on what sum(s) should interest be awarded? 383 The Ombudsman's submissions on this question were as follows: Where (as here) the claims are for underpayments under an industrial instrument over a period of time, it is the present policy position of the Fair Work Ombudsman to seek interest from the date it commenced proceedings. Nevertheless, as an alternative to that approach, it may be appropriate to exercise a discretion to apply interest to a pre-judgment amount to a lump sum amount payable to each employee from a fixed point in time, for example, the date of the cessation of their employment. That is especially the case where the cost involved in calculating interest to each underpayment to each employee on each day they were underpaid will be a laborious task and the cost involved would likely be disproportionate to the actual sums in issue. In Fair Work Ombudsman v Shrek Pty Ltd and Anor [2010] FMCA 907 at [92]-[93], Cameron FM determined a total amount payable to each employee in respect of particular underpayments and then applied a lump sum amount for interest based in the prescribed interest rate from the approximate mid-point of each employee's employment with the respondent employer in that case. A similar approach was taken in Fair Work Ombudsman v Kentwood Industries Pty Ltd (No 2) [2010] FCA 1156 at [212]-[213] where McKerracher J applied interest to the lump sum amounts payable to each employee. 384 The difficulty with the Ombudsman's "policy position" is that it invites the Court not to take account of the period between the accrual of the cause of action and the commencement of the proceeding, contrary to the express terms of the FW Act. 385 In my view interest should be payable from the time GPS was required to pay the sums to which the compensation relates. Nevertheless, for ease of calculation, I will order that interest be payable in each case from the time the employee's employment came to an end. To assist in this process, Appendix B to these reasons identifies the employees concerned, the amounts of compensation, and the periods during which they were employed.
The power to impose pecuniary penalties 386 All the contraventions involve breaches of "civil remedy provisions" of the FW Act. That means that the Court has the power to make orders for the payment of pecuniary penalties: FW Act, s 546(1). An order for a pecuniary penalty may be made in addition to any other order: FW Act, s 546(5). The penalty, or part of it, may be made payable to the Commonwealth, a particular organisation, or a particular person: FW Act, s 546(3). The Court is not precluded from making an order against Rosario for the payment of a pecuniary penalty as penalties or fines imposed by courts are not provable debts in bankruptcy: Bankruptcy Act, s 82(3). I am well satisfied that this is a proper case for the imposition of pecuniary penalties.
General principles applicable to the imposition of civil penalties 387 Civil penalties, like sentences for criminal offences, are fixed by a process of "instinctive synthesis", that is to say, after taking "due account" of all the relevant factors (which may pull in opposite directions), a court will conclude that a particular penalty should be imposed: Wong v The Queen (2001) 207 CLR 584 at [76]; Markarian v The Queen (2005) 228 CLR 357 at 374; TPG Internet Pty Ltd v Australian Competition and Consumer Commission (2012) 210 FCR 277 at [145]. Relevant factors in a case like the present include: the nature and extent of the contravening conduct and the circumstances in which it took place, whether the conduct was deliberate, whether senior management was involved, whether the contraventions are truly distinct or arose out of the one course of conduct, the nature and extent of loss or damage, whether the contravener has previously engaged in similar conduct, the size of the business enterprise, and the existence and extent of any contrition, corrective action, and cooperation with the regulator: see, for example, Kelly v Fitzpatrick [2007] FCA 1080 (Tracey J) at [14]. 388 In contrast to the criminal law, however, where, in sentencing, retribution and rehabilitation are also relevant, the primary, if not the only, purpose of a civil penalty is to promote the public interest in compliance with the law. This is achieved by imposing penalties that are sufficiently high to deter the wrongdoer from engaging in similar conduct in the future (specific deterrence) and to deter others who might be tempted to contravene (general deterrence). The penalty for each contravention or course of conduct is to be no more and no less than is necessary for that purpose: see Commonwealth v Director, Fair Work Building Industry Inspectorate; Construction, Forestry, Mining and Energy Union v Director, Fair Work Building Industry Inspectorate [2015] HCA 46, (2015) 90 ALJR 113, 255 IR 87, 326 ALR 476 (Commonwealth v FWBII) at [55] (French CJ, Kiefel, Bell, Nettle and Gordon JJ). 389 Where multiple contraventions are being penalised, it is necessary to ensure that the aggregate penalty is "not unjust or out of proportion to the circumstances of the case": Mornington Inn Pty Ltd v Jordan (2008) 168 FCR 383 at [42]. This is commonly referred to as the "totality principle". If the aggregate of the individual penalties is unjust or disproportionate to the overall culpability of the respondents, then adjustments will need to be made to some of the penalties for the individual contraventions: see, for example, Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683. As Goldberg J explained in Australian Competition and Consumer Commission v Australian Safeway Stores Pty Ltd (1997) 145 ALR 36 at 53: [A] sentencer or penalty fixer must, as an initial step, impose a penalty appropriate for each contravention and then as a check, at the end of the process, consider whether the aggregate is appropriate for the total contravening conduct involved …
The maximum penalties 390 In Markarian at 372 Gleeson CJ, Gummow, Hayne and Callinan JJ observed that: [C]areful attention to maximum penalties will almost always be required, first because the legislature has legislated for them; secondly, because they invite comparison between the worst possible case and the case before the court at the time; and thirdly, because in that regard they do provide, taken and balanced with all of the other relevant factors, a yardstick. 391 It is beyond doubt that these observations apply equally to the imposition of civil penalties: see, for example, Australian Competition and Consumer Commission v Reckitt Benckiser (Australia) Pty Ltd [2016] FCAFC 181 at [154]-[155]. 392 Pecuniary penalties for contraventions of the civil remedy provisions of the FW Act are fixed under s 546(2) of the Act by reference to the table to s 539(2), which denotes which of the provisions of the Act are civil remedy provisions and specifies the number of penalty units for contraventions of these provisions. Where the order is to be made against an individual, the pecuniary penalty must not be more than the maximum number of penalty units referred to in the relevant item in column 4 of the table and, where the order is to be made against a corporation, it must not be more than five times the maximum: FW Act, s 546(2). For all relevant purposes, those figures are 60 units for an individual and 300 units for a body corporate, except in the case of the contraventions of ss 535(2) and 536(1) of the Act, where they are 30 units for an individual and 150 units for a body corporate. 393 "Penalty unit" has the meaning given by s 4AA(1) of the Crimes Act 1914 (Cth): FW Act, s 12. Up until 28 December 2012, "penalty unit" was defined in s 4AA(1) as the amount of $110. On that date, an amendment to s 4AA, introduced by the Crimes Legislation Amendment (Serious Drugs, Identity Crime and Other Measures) Act 2012 (Cth), came into force. The effect of the amendment, which substituted "$170" for "$110", was to increase penalties under Commonwealth laws by increasing the size of a penalty unit. According to the Explanatory Memorandum to the amending bill, the purpose of the amendment was to ensure that the penalties for contraventions of Commonwealth laws kept pace with inflation and held their value over time. I note parenthetically that the amount is now $180, but it will increase to $210 from 1 July 2017, and that thereafter it will increase every three years in line with the Consumer Price Index: see Crimes Amendment (Penalty Unit) Act 2017 (Cth). 394 The penalty increase only applies to offences committed after the amendment commenced: Crimes Act, s 4F(1). Contraventions of the civil remedy provisions of the FW Act, however, are not offences (FW Act, s 549) and s 7(2)(d) of the Acts Interpretation Act 1901 (Cth), which preserves existing penalties where Acts have been amended, only applies to penalties for offences. Does this mean that the amendment applies regardless of when the contraventions took place? I think not. Although the definition of "penalty unit" in the FW Act does not refer to s 4F of the Crimes Act, it is inconceivable that, in specifying that a penalty unit has the meaning given by s 4AA of that Act, Parliament did not intend that the section would apply according to its operation under that Act. In any case, the presumption against retrospectivity would apply such that, absent express words or necessary intendment, the new provision would not have retrospective effect. Jessup J came to a similar conclusion in Murrihy v Betezy.com.au Pty Ltd (No 2) (2013) 221 FCR 118 at [28]. His Honour applied the reasoning in Samuels v Songalia (1977) 16 SASR 397, a case involving two traffic offences which had occurred about three weeks before the penalties for the offences increased. The Full Court in Samuels, hearing the legal question on a stated case, held that the new penalties did not apply. Bray CJ explained (at 399-400): Counsel for both parties were agreed that the new penalties created by the Act of 1976 did not apply to offences committed before that Act came into operation. It is to my mind obviously inconsistent with elementary principles of justice that they should. Penalties are imposed in order to deter the forbidden conduct and we have to assume that they have some deterrent effect. A man cannot be deterred from committing a forbidden act by fear of a sanction which is not in existence at the time he commits the act. 395 I respectfully agree with Jessup J that contraventions occurring before the commencement of the amending Act must be determined by reference to the definition of "penalty unit" as it stood at the time of the contraventions. 396 Thus, in the present case, for those contraventions that occurred before 28 December 2012, a penalty unit is $110, and for those that occurred on and after that date it is $170. Some of the contraventions, however, occurred both before and after the increased penalty came into effect. The Ombudsman submitted that, where contraventions involve a course of conduct spanning the period both before and after the increase, the higher amount should apply or at least be taken into account. She relied on R v White (BC9101745, NSWCCA, 25 July 1991, unreported), a case in which the Court of Criminal Appeal was concerned to determine the maximum penalty for a conspiracy to defraud the Commonwealth of sales tax which had occurred over a period of time during which the maximum penalty had increased. In that case, Gleeson CJ, with whom Hunt J agreed, said (at 12): The question whether the relevant maximum penalty in the present case was the penalty as amended or the penalty prior to amendment is one to be answered by reference to the intention of Parliament, which in turn is to be discerned by the application of the ordinary principles of statutory construction. I can see no reason to attribute to Parliament an intention that the amended maximum penalty should apply only in cases where the conspiracy in question was first entered into subsequent to the amendment, and should not apply to conspiracies that were on foot at the time of the amending legislation. In particular I can see no reason for concluding that Parliament intended that conspiracies pursued following the amendment would be punished more severely if they were entered into after the amendment, and less severely if they were entered into prior to the amendment. 397 Lee J, with whom Gleeson CJ and Hunt J agreed, observed that "it would not be inappropriate" for a sentencing judge to bear in mind an increase in penalty that has taken place during the currency of the conspiracy and take it into account in fixing sentence (at 11). 398 While the analogy is not a perfect one, I conclude that by parity of reasoning the same principle applies to contraventions of the FW Act involving a course of conduct which began before the amendment and continued after it came into effect. 399 It follows that, save for the contraventions of ss 535(2) and 536(1), the maximum penalties are these: (1) for each contravention that occurred entirely before 28 December 2012: $33,000 for GPS and $6,600 for Rosario; (2) for each contravention that occurred entirely on or after 28 December 2012: $51,000 for GPS and $10,200 for Enrico and Rosario; and (3) for each contravention that involved conduct that occurred both before and after 28 December 2012: $51,000 for GPS and $10,200 for Rosario. 400 For the contraventions of ss 535(2) and 536(1) they are either $16,500 or $25,500 for GPS and $3,300 or $5,100 for Rosario. 401 Nonetheless, in relation to the contraventions involving courses of conduct spanning the two periods, I will take into account in the determination of the penalty the fact that the lower amount applied for part of the period.
Contraventions arising out of a course of conduct 402 Unless a court has previously imposed a pecuniary penalty on the person for an earlier contravention of the same civil remedy provision, two or more contraventions of certain civil remedy provisions are taken to constitute a single contravention if they are committed by the same person and arose out of a course of conduct by that person. Section 557 of the FW Act provides as follows: 557 Course of conduct (1) For the purposes of this Part, 2 or more contraventions of a civil remedy provision referred to in subsection (2) are, subject to subsection (3), taken to constitute a single contravention if: (a) the contraventions are committed by the same person; and (b) the contraventions arose out of a course of conduct by the person. (2) The civil remedy provisions are the following: (a) subsection 44(1) (which deals with contraventions of the National Employment Standards); (b) section 45 (which deals with contraventions of modern awards); (c) section 50 (which deals with contraventions of enterprise agreements); (d) section 280 (which deals with contraventions of workplace determinations); (e) section 293 (which deals with contraventions of national minimum wage orders); (f) section 305 (which deals with contraventions of equal remuneration orders); (g) subsection 323(1) (which deals with methods and frequency of payment); (h) subsection 323(3) (which deals with methods of payment specified in modern awards or enterprise agreements); (i) subsection 325(1) (which deals with unreasonable requirements to spend amounts); (j) subsection 417(1) (which deals with industrial action before the nominal expiry date of an enterprise agreement etc.); (k) subsection 421(1) (which deals with contraventions of orders in relation to industrial action); (l) section 434 (which deals with contraventions of Ministerial directions in relation to industrial action); (m) subsection 530(4) (which deals with notifying Centrelink of certain proposed dismissals); (n) subsections 535(1) and (2) (which deal with employer obligations in relation to employee records); (o) subsections 536(1) and (2) (which deal with employer obligations in relation to pay slips); (p) subsection 745(1) (which deals with contraventions of the extended parental leave provisions); (q) section 760 (which deals with contraventions of the extended notice of termination provisions); (r) subsection 785(4) (which deals with notifying Centrelink of certain proposed terminations); (s) any other civil remedy provisions prescribed by the regulations. (3) Subsection (1) does not apply to a contravention of a civil remedy provision that is committed by a person after a court has imposed a pecuniary penalty on the person for an earlier contravention of the provision. 403 This case involves 32 separate contraventions. Only two of them - the contraventions of ss 340 and 357 - are not caught by s 557. 404 The Ombudsman argued that s 557 required the grouping together of a number of the contraventions. In her written submissions, she proposed three alternative approaches. 405 The first approach grouped together what were said to be similar contraventions under the two awards, such as the failure to pay overtime rates under different provisions of the awards (contraventions 10, 27, 28 and 29) and contraventions with purportedly common elements, such as the annual leave provisions under the NES, both non-payment of annual leave taken during employment and non-payment of untaken accrued annual leave at the end of the employment (contraventions 1 and 2). This approach contemplated 19 groups of contraventions, resulting in an overall maximum penalty of $994,500 for GPS, and 14 groups, resulting in an overall maximum penalty of $137,700 for Rosario. 406 The second approach involved grouping the contraventions together by reference to the nature of the entitlement or requirement and/or its subject matter, so that contraventions under an award or under the NES would be grouped together. This approach would result in 15 groups of contraventions and an overall maximum penalty of $721,500 for GPS and 11 groups, resulting in an overall maximum penalty of $107,100 for Rosario. 407 The third approach was to group contraventions by subject matter in a manner similar to the second approach, but by grouping them again by another element such as a time period. The Ombudsman did not elaborate upon this approach, estimate the number of groupings that would result, or calculate the overall maximum penalties that would follow from it. 408 At the hearing the Ombudsman settled on a fourth approach, being an amended version of the first. She proposed that the following contraventions be taken to constitute single contraventions, committed by, and arising out of, a course of action taken by GPS: (1) contraventions 1 and 2, as both relate to the failure to pay annual leave entitlements; (2) contraventions 5 and 6 that relate to the failure to give adequate written notice on termination of employment and payment in lieu; (3) contraventions 17 and 18, each of which concerns the failure to pay wages on time; (4) contraventions 14, 22 and 23, each of which relates to the non-payment of shift allowances (including broken shift, early morning, afternoon, non-permanent night and permanent night shifts); (5) contraventions 24 and 25, as both relate to the failure to pay weekend penalties; (6) contraventions 26 and 29, as both relate to the failure to pay the correct rate for work done on public holidays; (7) contraventions 27 and 28, as both relate to failure to pay overtime; and (8) contraventions 35 and 36, as both relate to failures of record-keeping. 409 This approach would result in 23 groups of contraventions, giving an aggregate maximum penalty of between $778,500 and $1,111,500 for GPS and 17 groups, giving an aggregate maximum penalty of between $112,500 and $143,100, for Rosario. 410 None of these approaches should be adopted. In my opinion, none is justified by the FW Act or by general sentencing principles and, to the extent that the judgments of this Court upon which the Ombudsman relied (Fair Work Ombudsman v Kentwood Industries Pty Ltd (No 3) [2011] FCA 579 at [47] and Fair Work Ombudsman v Lifestyle SA Pty Ltd [2014] FCA 1151) appear to endorse the grouping of contraventions in this way, I respectfully disagree with them. 411 In determining the correct approach the starting point must be the text and purpose of s 557. 412 As Jessup J observed in in Murrihy at [33] (cited with approval by the Full Court in Rocky Holdings Pty Ltd v Fair Work Ombudsman (2014) 221 FCR 153 at [22]): Section 557(1) refers to "2 or more contraventions of a civil remedy provision". This is in my view, an instance where a statutory intention to the contrary of the primary operation of s 23 of the [Acts Interpretation Act 1901 (Cth)] [in any Act words in the singular number include the plural] appears, whether by the terms of that section itself with respect to the period before 27 December 2011 or by s 2(2) of that Act with respect to the period since that date: see items 2 and 49 of Sched 1 to the Acts Interpretation Amendment Act 2011 (Cth). The contrary intention appears from the subject-matter of s 557, namely, the circumstances under which multiple contraventions are collapsed into a single contravention. In this context, I take the view that the reference to a civil remedy provision in the singular was a conscious, specific one. The section should not, in my view, be given a broader operation than that for which the legislature expressly provided. (Emphasis added.) 413 The Explanatory Memorandum to the Fair Work Bill 2008 offered two examples of the way s 557(1) was intended to operate: 2189 For example, if a company contravenes a single term of a modern award in respect of ten employees, these ten contraventions are taken to be a single contravention. This means that the maximum penalty that the Court can impose for the contravention is 300 penalty units. 2190 Similarly, if a company contravenes five separate terms of a modern award in respect of ten employees, these 50 contraventions are taken to be five contraventions. This means that the maximum penalty that the Court can impose is five times a maximum penalty of 300 penalty units. 414 In Rocky Holdings, to which the Ombudsman did not refer in her submissions, the Full Court (North, Flick and Jagot JJ), observed at [18] that: The object and purpose of provisions such as s 557 and its predecessor provisions is to ensure that an "offender is not punished twice for what is essentially the same criminality". 415 In Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v QR Ltd (No 2) [2010] FCA 652 at [16], in a passage which was not the subject of criticism on the appeal (QR Ltd v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia [2010] FCAFC 150; (2010) 204 IR 142), and which was approved by the Full Court in Rocky Holdings at [20], Logan J expressed the opinion that: [T]he course of conduct must be associated with the particularised term of the particularised instrument. That is the contravention of the term of the … instrument. One does not look at course of conduct for the purposes of s 557 at a level of abstraction divorced from the contravened provision as particularised (ie the term in question and the … instrument in question). 416 In Rocky Holdings at [26] the Full Court accepted the Ombudsman's submission that "s 557 operates to group together contraventions of the same provision [of the NES] or term [of a modern award]". Here, the Ombudsman took into account the fact that the company contravened the same provision of the NES or the same term of the relevant modern award in relation to multiple employees by pleading contraventions of a particular provision of the NES or a particular term of the relevant award as a single contravention. The course she proposes for dealing with the question of penalty in this case is unjustified by s 557. 417 In Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union [2017] FCAFC 53 at [88], however, Dowsett and Rares JJ held that s 557 does not cover the field and does not exclude "the common law principle of taking into account, when imposing a penalty, whether the conduct complained of constituted a single course of conduct". 418 Similarly, in Fair Work Ombudsman v South Jin Pty Ltd (No 2) [2016] FCA 832 at [25], White J said that s 557(1) does not exhaust the situations in which a course of conduct may be relevant to the imposition of penalties for offences of this kind. His Honour observed that whether a contravention forms part of a course of conduct may also be relevant to the assessment of penalties by indicating that the particular contraventions before the Court are not isolated, by reducing the scope for leniency, or by indicating that "two or more contraventions really reflect a single incursion by the contravener (scil.) into unlawful conduct". 419 Here, contravention 34 concerns the making of false representations as to the nature of the contractual relationship in contravention of s 357. Although the representations were made to a number of employees at different times and although s 357 is not covered by s 557, it was pleaded as a single contravention and it will be penalised accordingly. The question is: what is to be done in relation to the other contraventions? 420 In Pearce v The Queen (1998) 194 CLR 610 at [40] McHugh, Hayne and Callinan JJ observed that: To the extent to which two offences of which an offender stands convicted contain common elements, it would be wrong to punish that offender twice for the commission of the elements that are common. No doubt that general principle must yield to any contrary legislative intention, but the punishment to be exacted should reflect what an offender has done; it should not be affected by the way in which the boundaries of particular offences are drawn. Often those boundaries will be drawn in a way that means that offences overlap. To punish an offender twice if conduct falls in that area of overlap would be to punish offenders according to the accidents of legislative history, rather than according to their just deserts. 421 Whether that occurs in a particular case is to be decided by reference to common sense and not semantics: Pearce at [42]. 422 In reliance on what was said in Pearce at [40], in Australian Ophthalmic Supplies Pty Ltd v McAlary-Smith (2008) 165 FCR 560 at [93] Buchanan J endorsed the grouping by a federal magistrate of 22 contraventions into categories and the fixing of penalties for the categories "to accommodate 'some degree of overlap'". 423 The Court should certainly have regard to common elements in contraventions so as not to penalise a respondent twice for the same conduct. It seems to me, however, with the greatest respect, that grouping contraventions in such a way as to impose one penalty for multiple contraventions is wrong. As Jessup J observed in General Manager of the Fair Work Commission v Thomson (No 4) [2015] FCA 1433 at [10], "by taking [such an approach], the court would be failing to engage directly and specifically with the consequences of the contravention of each statutory norm". Moreover, it is inconsistent with Pearce. To understand why it is necessary to consider what happened in that case and what else was said in the judgment. 424 Pearce was charged and convicted of a number of offences including two (counts 9 and 10 of the indictment) which were based on identical facts and which both involved the infliction of grievous bodily harm: maliciously inflicting grievous bodily harm with intent to do the victim grievous bodily harm in contravention of s 33 of the Crimes Act 1900 (NSW) (charge 9) and breaking and entering a dwelling-house and, while therein, inflicting grievous bodily harm on the victim in contravention of s 110 of the Act (charge 10). The two charges arose out of a single episode when Pearce broke into the victim's home and assaulted him. 425 The trial judge imposed the same term of imprisonment for both offences, but ordered that the terms be served concurrently with each other. In so doing, the High Court held (Kirby J dissenting in this respect) that the trial judge had fallen into error. McHugh, Hayne and Callinan JJ said (at [45]-[49]): 45 To an offender, the only relevant question may be "how long", and that may suggest that a sentencing judge or appellate court should have regard only to the total effective sentence that is to be or has been imposed on the offender. Such an approach is likely to mask error. A judge sentencing an offender for more than one offence must fix an appropriate sentence for each offence and then consider questions of cumulation or concurrence, as well, of course, as questions of totality. 46 Sentencing is not a process that leads to a single correct answer arrived at by some process admitting of mathematical precision. It is, then, all the more important that proper principle be applied throughout the process. 47 Questions of cumulation and concurrence may well be affected by particular statutory rules. If, in fixing the appropriate sentence for each offence, proper principle is not applied, orders made for cumulation or concurrence will be made on an imperfect foundation. 48 Further, the need to ensure proper sentencing on each count is reinforced when it is recalled that a failure to do so may give rise to artificial claims of disparity between co-offenders or otherwise distort general sentencing practices in relation to particular offences. 49 Looked at overall, it may well be said that the effect of the sentences imposed on this appellant was not disproportionate to the criminality of his conduct. Nevertheless, we consider that the individual sentences imposed on counts 9 and 10 were flawed because they doubly punished the appellant for a single act, namely, the infliction of grievous bodily harm. Further, to make the sentences imposed on those two counts wholly concurrent may also be said to reveal error in that to do so failed to take account of the differences in the conduct which were the subject of punishment on each count … (Emphasis added, footnotes omitted.) 426 Consequently, the appeal was allowed in part, the order of the NSW Court of Criminal Appeal dismissing the appellant's application for leave to appeal against sentence set aside, and the matter remitted to that court to be dealt with consistently with the majority's reasons. 427 On the remittal the Court of Criminal Appeal allowed the appeal, quashed the sentence in respect of count 10 and substituted a fixed term of two years backdated to the time he pleaded guilty to the charge, to be served concurrently with the other sentences. 428 In Director, Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union (2015) 229 FCR 331 (FWBII v CFMEU) (overturned by the High Court in Commonwealth v FWBII, but on a different point), the Full Court pointed out at [40] that: In sentencing for multiple criminal offences, absent any specific statutory provision permitting a single global sentence, the Court must fix a sentence for each contravention. The Court must then consider the "totality principle": Mill v The Queen (1988) 166 CLR 59 at 63; Pearce v The Queen (1998) 194 CLR 610 at [45]-[49]; Johnson v The Queen (2004) 78 ALJR 616; 205 ALR 346 at [18]-[20]. Once an appropriate sentence is fixed for each offence, the Court must determine whether the sentences should be cumulative or concurrent in order to address the principle of totality. In other words once appropriate sentences are determined in relation to each individual offence, the aggregate must be reviewed to ensure that it is just and appropriate for all the offences. If not, the sentence should be adjusted by making some of the sentences concurrent or partly concurrent. (Emphasis added.) 429 In Construction, Forestry, Mining and Energy Union v Williams [2009] FCAFC 171; (2009) 262 ALR 417 the Full Court (Moore, Middleton and Gordon JJ) set aside penalties imposed under the Building and Construction Industry Improvement Act 2005 (Cth) against the union and a union organiser, Robert Mates, for two contraventions of s 43 of that Act, one for procuring a stoppage of work, the other for threatening to do so. The Court held that the primary judge erred by failing to treat the two contraventions as a single course of conduct, observing at [23]: On the facts as found, what occurred was that Mr Mates said things at [a meeting of workers at a Melbourne building site] which both resulted in and induced a stoppage designed to achieve a particular objective [the employment of an occupational health and safety representative on site] and then indicated that the state of affairs would continue unless his demands were met (the employment of the person). 430 The Full Court described Mr Mates' "criminality" for relevant purposes (at [25]) as "a continuum of acts intended to induce the builder to employ the labourer with duties relating to occupational health and safety". 431 The Full Court then proceeded to "resentence" the appellants. In doing so they applied the law as it was explained by Owen JA in Royer v Western Australia [2009] WASCA 139 at [21]-[31] about the operation and application of the "one transaction principle" as the single course of conduct principle is described in Western Australia, much of which is reproduced in the judgment in Williams. It is unnecessary to refer to this explanation in great detail. It is sufficient to note what his Honour said at [22]: At its heart, the one transaction principle recognises that, where there is an interrelationship between the legal and factual elements of two or more offences with which an offender has been charged, care needs to be taken so that the offender is not punished twice (or more often) for what is essentially the same criminality. The interrelationship may be legal, in the sense that it arises from the elements of the crimes. It may also be factual, because of a temporal or geographical link or the presence of other circumstances compelling the conclusion that the crimes arise out of substantially the same act, omission or occurrences. 432 The Full Court in Williams also endorsed the following remarks of Wells J in Attorney-General (SA) v Tichy (1982) 30 SASR 84 at 92-93, which Owen JA had extracted at [24] of his judgment in Royer: It is both impracticable and undesirable to attempt to lay down comprehensive principles according to which a sentencing judge may determine, in every case, whether sentences should be ordered to be served concurrently or consecutively. According to an inflexible Draconian logic, all sentences should be consecutive, because every offence, as a separate case of criminal liability, would justify the exaction of a separate penalty. But such a logic could never hold. When an accused is on trial it is part of the procedural privilege to which he is entitled that he should be made aware of precisely what charges he is to meet. But the practice and principles of sentencing owe little to such procedure; what is fitting is that a convicted prisoner should be sentenced, not simply and indiscriminately for every act that can be singled out and brought within the compass of a technically identifiable conviction, but for what, viewing the circumstances broadly and reasonably, can be characterised as his criminal conduct. Sometimes, a single act of criminal conduct will comprise two or more technically identified crimes. Sometimes, two or more technically identified crimes will comprise two or more courses of criminal conduct that, reasonably characterized, are really separate invasions of the community's right to peace and order, notwithstanding that they are historically interdependent; the courses of criminal conduct may coincide with the technical offences or they may not. Sometimes, the process of characterization rests upon an analysis of fact and degree leading to two possible answers, each of which, in the hands of the trial judge, could be made to work justice. The practice of imposing either concurrent or consecutive sentences cannot avoid creating anomalies, or apparent anomalies, from time to time. What must be done is to use the various tools of analysis to mould a just sentence for the conduct of which the prisoner has been guilty. Where there are truly two or more incursions into criminal conduct, consecutive sentences will generally be appropriate. Where, whatever the number of technically identifiable offences committed, the prisoner was truly engaged upon one multi-faceted course of criminal conduct, the judge is likely to find concurrent sentences just and convenient. 433 In Williams the Full Court said that these principles apply to the imposition of fines (and, by inference, pecuniary penalties), although the manner in which they are applied will vary from case to case. While acknowledging that this was not an exhaustive list, the Full Court observed that individual "fines" could be lowered or accumulated. It did not suggest, however, that a single penalty could be imposed for two or more contraventions. When it "resentenced" the union, the Full Court did not "group" the two contraventions and impose a single penalty for them both. What it did was to impose "separate fines for the two offences which when aggregated would represent a single penalty appropriate to punish the single course of conduct concerned". That is quite a different matter. 434 In Construction, Forestry, Mining and Energy Union v Cahill [2010] FCAFC 39; (2010) 269 ALR 1 the primary judge penalised the union and Mr Mates on the basis of three contraventions of s 43 of the Building and Construction Industry Improvement Act occurring on three different days at three different locations. The maximum penalty for a single contravention of s 43 was $110,000 in the case of the union and $22,000 for Mr Mates. The primary judge imposed a penalty of $18,500 on the union and $2,500 on Mr Mates for each of the first two contraventions and $38,500 on the union and $5,000 on Mr Mates in respect of the third contravention. The appellants alleged that in so doing the judge had erred, amongst other things, by failing to determine the penalty on the basis that they were engaged in a "single course of conduct". The appeal was dismissed. 435 Middleton and Gordon JJ pointed out at [39] that the "course of conduct" or "one transaction principle": recognises that where there is an interrelationship between the legal and factual elements of two or more offences for which an offender has been charged, care must be taken to ensure that the offender is not punished twice for what is essentially the same criminality. That requires careful identification of what is "the same criminality" and that is necessarily a factually specific enquiry. Bare identity of motive for commission of separate offences will seldom suffice to establish the same criminality in separate and distinct offending acts or omissions. 436 Gilmour J referred to these remarks in Fair Work Ombudsman v AJR Nominees Pty Ltd (No 2) [2014] FCA 128 at [65] and concluded that "two different contraventions of the NES, like contraventions of two different terms of an award, are to be treated as two separate contraventions". 437 Sadly, in the present case little or no attempt was made to identify "the same criminality" involved in the various contraventions. Similarity of subject matter, which appears to be the basis of the Ombudsman's suggested groupings and the approach taken in some of the judgments to which I have referred, is not or at least not necessarily synonymous with similarity of "criminality". In my respectful opinion, the Full Court in FWBII v CFMEU correctly recognised (at [46]) that what was said in Cahill "may have been erroneously interpreted by some as justifying single global penalties where there is a course of conduct". 438 It is true, of course, that in this case, considered at a very high level of abstraction, most of the contraventions were part of a single course of conduct: the exploitation of employees for monetary gain or the failure to pay minimum award rates and statutory entitlements. In this sense these contraventions could be described as "a multi-faceted course of conduct". But no party suggested that the respondents should be penalised on this basis and it would be quite wrong to do so. 439 There is one final point about the course of conduct principle that I would make. It is the same point emphasised by Middleton and Gordon JJ in Cahill at [42]: A court is not compelled to utilise the principle because, as Owen JA said in Royer at [28], "[d]iscretionary judgments require the weighing of elements, not the formulation of adjustable rules or benchmarks". The exercise of the sentencing discretion does not fall to be exercised in a vacuum. It is a matter of judgment to be exercised according to the facts of each case and having regard to conflicting sentencing objectives: see McHugh J in AB v R (1999) 198 CLR 111; 165 ALR 298; [1999] HCA 46 at [14]. For the same reasons, and contrary to the appellants' submissions, even if offences are properly characterised as arising from the one transaction or a single course of conduct, a judge is not obliged to apply concurrent terms if the resulting effective term fails to reflect the degree of criminality involved. Or, in the case of fines, a judge is not obliged to start from the premise that if there is a single course of conduct, the maximum fine is, in the present case, $110,000 for the CFMEU and $22,000 in the case of Mr Mates.
The evidence 440 The Ombudsman relied on the evidence adduced at the liability hearing and on the findings in the Liability Judgment. 441 The Ombudsman also read an affidavit sworn by Lucia Juliana Lopez Hernandez, who worked as a cleaner for GPS from 4 April 2016 until 9 May 2016, well after this proceeding had commenced but while judgment on liability was reserved. Ms Lopez's evidence is deeply troubling, not least because on 21 December 2015 I made orders, amongst other things, restraining GPS from engaging employees on terms and conditions of employment which do not comply with the Cleaning Services Award and the NES, and from representing to people who are, or would, in substance be engaged under a contract of employment that the contract is a contract for services. Orders to this effect were also made against Rosario and Enrico. 442 In her affidavit, Ms Lopez described the circumstances of her engagement, the work she did, and the conditions in which she was employed. I accept her evidence. Ms Lopez worked three hours a day, usually in the morning. She worked exclusively for GPS in the period cleaning a building called "Attractivity" in Alexandria, an inner city suburb of Sydney. She was directed as to the work she had to do and told by Rosario and Simona Cecchetelli, GPS's "Client Relationship Manager", what days she was to work. She had no choice. She used equipment and supplies stored in the cleaning room at the premises. She was given a t-shirt to wear whilst working which carried a GPS logo. Once or twice a week Rosario would check her work. It was GPS that told her what she would be paid ($1,188 per month). GPS gave her a 30-page contract which she signed without reading it in full. On or about 14 April 2016 GPS emailed her with an "invoice template", which she was required to return, completed, each fortnight. She did as she was instructed. She sent the first invoice to Rosario on 18 April 2016, a second in early May and a third later in May. The invoices covered the periods from 4 to 17 April 2016, 18 April to 1 May 2016, and 2 May to 9 May 2016, except for 3 and 4 May when she did not work. Yet she was paid nothing. 443 In all these respects - the work she did, the manner in which, and the conditions under which, she worked - Ms Lopez was no different from the cleaners the subject of the Liability Judgment. It is true that the contract she signed described her as a contractor. In this respect, however, she was no different from the many others who I found were in fact employees. The question of whether Ms Lopez was a contractor rather than an employee depends on the proper characterisation of her work, not the label that was given to the relationship. 444 In late April 2016, more than a fortnight after she had sent the first invoice, Ms Lopez rang Rosario. He told her he could not help her and she should call "accounts". She spoke to "Mohsin" in accounts. He told her that "GPS had a whole month or 30 days" to pay her and that they would pay her first invoice by 17 May 2016. On 18 May 2016 Ms Lopez called Ms Cecchetelli. Ms Cecchetelli told her she could do nothing for her and she should contact "accounts". Ms Lopez rang Rosario. He said: I'm a busy man. I don't know why you're calling me. You have to speak to accounts not me. 445 The next day Ms Lopez contacted Mohsin again. He told her that she had been paid that day. But, when she checked her bank account, she found that she had not. On 20 May 2016 Ms Lopez emailed Mohsin to inform him and to ask again when she would be paid. Rosario and Ms Cecchetelli were copied into the email. Mohsin called her and told her that she needed to speak to "the manager of accounts, Mohammed" and that he had not authorised the payments. He asked her to ring him back the following Monday (23 May 2016). On the Monday she spoke to Ms Cecchetelli, telling her that she had checked her account and there was no money from GPS. She confirmed what she said in an email to "GPS management" (including Rosario and Ms Cecchetelli). Ms Cecchetelli, who described herself as "Business Manager", replied to the email, telling her that "our accounts payable" was not in the office but would be back on Wednesday and that if she had "further questions" she should not hesitate to contact Mohsin in the office then. 446 An increasingly desperate Ms Lopez emailed Mohsin the next day, 24 May 2016, pleading with him to answer her calls or emails. She sent a separate email to "the GPS email", Rosario, and Ms Cecchetelli saying that she had tried to contact Mohsin without success. On the Wednesday, 25 May 2016 she emailed Mohsin again asking whether he knew anything about her payment. It appears that there was no reply. On Thursday 26 May 2016 she sent a text to Rosario. He told her he was going into a meeting and she needed to talk to "accounts". The next day she sent a text to Mohsin. He told her to call the manager of "accounts", "Mohammed". When she called Mohammed he told her he did not know who she was. She told him she needed the money and had not been paid. He said he had no idea what she was talking about. She became very upset, searched the internet looking for "legal resources" and then called the Ombudsman. The person to whom she spoke advised her to contact GPS again and tell the company that she had been in touch with the Ombudsman. 447 Ms Lopez then emailed Ms Cecchetelli informing her that she had contacted the Ombudsman and attached her invoices. Shortly afterwards, Ms Cecchetelli rang her and they had a conversation to the following effect: Ms Cecchetelli: What did you say … to Fair Work? … The invoices have been done incorrectly. If you come to the office, I will show you what to do. Ms Lopez: Can you do them? I cannot go to the office. Maybe you could send me an email or tell me on the phone what is wrong with the invoices. Ms Cecchetelli: Are you recording this conversation? Ms Lopez: No. Ms Cecchetelli: Well, your English is not very good is it? Ms Lopez: … Okay I'll come so we can do the invoices properly. 448 The next day Ms Lopez met Ms Cecchetelli at the GPS office. Ms Cecchetelli told her that the invoice number was missing and that she would have to organise her GST "through her ABN", but first she would have to register for GST. Ms Lopez tried to register for GST online, but was unsuccessful. On 29 May 2016, with the assistance of an interpreter, she spoke to someone at the Australian Tax Office (ATO). The ATO "officer" informed her that if she did not have a company or company name and earned less than $75,000 a year, there was no reason to register, adding: "it is an excuse for your employer to pay you less". 449 After sending several emails to Ms Cecchetelli and Rosario, Ms Lopez spoke with Rosario on the phone. They arranged to meet at the GPS office with Mohammed from accounts. Ms Lopez had difficulties understanding Rosario and Mohammed and they both laughed at her. She deposed to having a conversation to the following effect: Mohammed: Because you fixed the invoices and sent them again, you have to wait 30 days for payment. Ms Lopez: I need the money. I need to pay school fees. Obviously, I have been working because I need the money. Rosario: You can't understand because of your English. Mohammed: We should pay her. Rosario: I wasted my time training you … you did the invoices wrong. Ms Lopez: But I did them again and they confirmed they were all right. You can't make that excuse now because accounts told me they were all right, so you can't say they're not right. Mohammed: You have to wait 30 days. 450 In short, whenever Ms Lopez tried to get paid for the work she did, she was given the run around. 451 At the hearing, Rosario objected to the evidence, arguing, in effect, that it was irrelevant because Ms Lopez was a contractor, not an employee. He also said "we've been in communication with her and the conduct - the conduct is - we're doing everything, or I'm doing everything in my power not to have this conduct ongoing". This assertion was not supported by evidence. Ms Lopez was not required for cross-examination. 452 For the reasons given in the Liability Judgment at [37]-[130], Ms Lopez was undoubtedly an employee and, for the reasons given at [131]-[181], GPS was her employer. The evidence was plainly relevant as it could rationally affect the assessment of the probability of contrition and the weight to be given to deterrence and specific deterrence in particular. It shows that, notwithstanding the institution of this proceeding and the evidence and submissions served on the respondents, GPS has continued to conduct itself in the manner disclosed in the Liability Judgment. 453 As at the date of the hearing, Ms Lopez had not received any payment. On 10 February 2017, however, shortly after the hearing concluded and nine months after Ms Lopez stopped working for GPS, Rosario sent an email to the Court's registry advising that Ms Lopez was paid the previous day.
GPS 454 The maximum penalties for the contraventions found are set out in the following table. No. Contravention Penalty 1 Failing to pay annual leave, contrary to ss 90(1) and 44 of the Act $33,000 2 Failing to pay accrued untaken annual leave on termination, contrary to ss 90(2) and 44 of the Act $33,000-$51,000 3 Failing to pay basic rates for personal leave, contrary to ss 99 and 44 of the Act $33,000 4 Failing to pay for absences on public holidays or part thereof, contrary to ss 116 and 44 of the Act $33,000-$51,000 5 Failing to give written notice of termination of employment, contrary to ss 117(1) and 44 of the Act $33,000 6 Failing to give adequate notice or payment in lieu, contrary to ss 117(2) and 44 of the Act $33,000-$51,000 7 Failing to pay the minimum rate prescribed by cl 16.1 of the Cleaning Services Award, contrary to s 45 of the Act $51,000 8 Failing to pay administrative employees at a rate of pay at least equal to the Level 1 rate of pay prescribed by cl 16 and item A.2.5 of the Clerks Award, contrary to s 45 of the Act $33,000-$51,000 9 Failing to pay superannuation in accordance with cl 24.2 of the Clerks Award, contrary to s 45 of the Act $33,000-$51,000 10 Failing to pay for overtime as required by cl 25 of the Clerks Award, contrary to s 45 of the Act $33,000 12 Failing to provide written agreements specifying work patterns to part-time employees as required by cl 12.4(a) of the Cleaning Services Award, contrary to s 45 of the Act $33,000-$51,000 13 Failing to pay 15% allowances to part-time employees as required by cl 12.4(b)(iii) of the Cleaning Services Award, contrary to s 45 of the Act $33,000-$51,000 14 Failing to pay broken shift allowances, contrary to cl 17.1 of the Cleaning Services Award and in contravention of s 45 of the Act $33,000-$51,000 16 Failing to pay for travel time, contrary to cl 17.10 of the Cleaning Services Award and in contravention of s 45 of the Act $33,000-$51,000 No. Contravention Penalty 17 Failing to pay employees on a weekly or fortnightly basis, contrary to cl 20.1 of the Cleaning Services Award and in contravention of s 45 of the Act $33,000-$51,000 18 Failing to pay employees kept waiting, contrary to cl 20.3 of the Cleaning Services Award and in contravention of s 45 of the Act $33,000-$51,000 19 Failing to pay superannuation, contrary to cl 23.2 of the Cleaning Services Award and in contravention of s 45 of the Act $33,000-$51,000 22 Failing to pay penalty rates for early morning, afternoon and non-permanent night shift, contrary to cl 27.1(a) of the Cleaning Services Award and in contravention of s 45 of the Act $33,000-$51,000 23 Failing to pay penalty rates for permanent night shift, contrary to cl 27.1(b) of the Cleaning Services Award and in contravention of s 45 of the Act $33,000-$51,000 24 Failing to pay Saturday penalty rates, contrary to cl 27.2 of the Cleaning Services Award and in contravention of s 45 of the Act $33,000-$51,000 25 Failing to pay Sunday penalty rates, contrary to cl 27.2(b) of the Cleaning Services Award and in contravention of s 45 of the Act $33,000-$51,000 26 Failing to pay public holiday penalty rates, contrary to cl 27.3 of the Cleaning Services Award and in contravention of s 45 of the Act $33,000-$51,000 27 Failing to pay for overtime worked on Monday-Saturday, contrary to cl 28.2 of the Cleaning Services Award and in contravention of s 45 of the Act $33,000-$51,000 28 Failing to pay for overtime worked on Sunday, contrary to cl 28.3 of the Cleaning Services Award and in contravention of s 45 of the Act $33,000-$51,000 29 Failing to pay for overtime worked on a public holiday, contrary to cl 28.4 of the Cleaning Services Award and in contravention of s 45 of the Act $33,000-$51,000 30 Failing to pay annual leave loading, contrary to cl 29.4 of the Cleaning Services Award and in contravention of s 45 of the Act $33,000-$51,000 31 Failing to pay the national minimum wage, in contravention of s 293 of the Act $33,000-$51,000 32 Failing to pay employees in full, in contravention of s 323 of the Act $33,000-$51,000 33 Taking adverse action against Moona Hasan, in contravention of s 340 of the Act $51,000 No. Contravention Penalty 34 Falsely representing employment contracts as contracts for services, in contravention of s 357 of the Act $33,000-$51,000 35 Failing to keep proper employee records, in contravention of s 535(2) of the Act $16,500-$25,500 36 Failing to provide pay slips, in contravention of s 536(1) of the Act $16,500-$25,500
455 Generally speaking, the contravening conduct can properly be characterised as serious. There was no lawful justification for any of it. It was the result of a calculated attempt to avoid paying minimum award rates and statutory entitlements. It took place over a period of more than two years and affected a total of 51 employees, the vast majority of whom were vulnerable to exploitation of this kind. 456 Many of these employees were foreign nationals on temporary visas, including student visas which restricted the number of hours during which they could work. Many had limited English language skills and were unlikely to have been familiar with Australian labour laws. Many, if not all, were struggling financially. Several had been unemployed for some time before securing work with the company. Some were treated by GPS as slaves. 18 of the 49 employees in respect of whom compensation was sought (37% of the cohort) were not paid anything for periods ranging from two weeks to two months. Repeated requests for payment were generally ignored. Some employees quit as a result. On several occasions employees were dismissed for having the temerity to insist on receiving what they perceived to be their outstanding wages (substantially less than their due) before doing any more work. 457 It is self-evident that GPS profited from its exploitation of these employees. 458 Understandably, GPS's conduct caused the employees considerable hardship. Many had to borrow to meet household expenses. At least one went without food. One Columbian engineering student, Freddy Herrera, for example, who worked for GPS five hours a day, seven days a week, and was grossly underpaid throughout his employment, was forced to return home when his visa expired because GPS's failure to pay him "adequately" meant that he could not meet his expenses and did not have enough money to apply for another visa. Another engineering student, Fawaz El Rahman, who had to drive to various work sites, was unable to continue work when irregular wage payments meant that he could not afford to renew the registration on his car. He was also unable to afford furniture in his apartment because of his financial instability. He deposed that his experience of working with GPS caused him and his wife, a victim of crime who was dependent upon him for support, "severe mental and financial stress". Another employee, Paul Bacon, now in his late 60s, said that he suffered "a great amount of stress and anxiety as a result of not being paid by GPS". Yet another, Mariana de Queiroz, deposed to "struggling with bills and paying rent" and stated that GPS's failure to pay her a month's wages or her accrued annual leave imposed "a big financial and emotional burden" on her and her family. Xiao Teng was supporting her partner who was undergoing chemotherapy and when GPS stopped paying her they struggled to survive. 459 The contravening conduct occurred against the following background and in the following circumstances. 460 GPS did not merely fail to comply with its obligations; it deliberately set out to do so. There were two aspects to its scheme. One was the establishment of National Contractors as a putative labour hire company through which its workforce would be nominally engaged. In the absence of any legitimate business objective or other rational explanation, I found that the evident purpose of this arrangement was to illegitimately advantage GPS. It was also a deceit practised upon the companies for whose work GPS had successfully tendered on the basis of representations that it did not sub-contract its work. The other way it set out to underpay its employees was by attempting to disguise employees as independent contractors. Hapless employees were required to sign contracts falsely representing the nature of the employment relationship and obtain ABN numbers for non-existent businesses. 461 When employees complained, their complaints were usually ignored or they were given the run around. Ms Lopez's experience is typical of the treatment meted out to employees during the Audit Period. As counsel for the Ombudsman put it at one point in his closing argument: A different type of excuse that Rosario raised was to blame management. He is management, as is Enrico. This is Kafkaesque. The employees complain to the accounts department. The accounts department say, "You will have to take it up with [Rosario]." They complain to [Rosario]. They get pushed back to the accounts department. 462 There are no mitigating factors. 463 GPS was uncooperative with the Ombudsman. Indeed, GPS's response to the employees' complaints and the application in this Court alike could fairly be described as obfuscatory, if not obstructive. 464 No contrition was exhibited at any point and nothing that either Enrico or Rosario said indicated that the company's officers had any insight into their wrongdoing. Enrico, the sole director of the company, submitted that there were "no excuses of the breaches occurring" and that they only occurred because of "a national rollout of an agreement prior to the business and poor management". The first supposed reason is obscure and was never elaborated upon in argument. As to the second, Enrico submitted: Coming back to the poor management was that there was National Contractors and other companies that were conducting themselves, which I wasn't aware, in not doing the right thing by staff. 465 The conduct was, indeed, inexcusable. And there was certainly poor management. But there are two problems with the submission. First, it is by no means a complete explanation for what occurred. Secondly, the propositions that the conduct was attributable to other companies and not GPS and that Enrico was unaware of the way the employees were treated cannot be accepted. They fly in the face of the evidence and are completely at odds with the findings made in the Liability Judgment. 466 It was GPS, not National Contractors, that was running the business and employing the staff. Enrico unquestionably knew what was going on. For a start, the uncontradicted evidence was that "not a single cent goes out without Ross and Enrico's signature"; that they checked everything the accounts department did; and that "[n]othing goes without their authorisation": Liability Judgment at [966]. Enrico hired and fired Moona Hasan and was repeatedly informed that she had not been paid: Liability Judgment at [887]-[917], reproduced in part below at [530]. At the time Christine Meager was engaged, Enrico told her she would be paid $18 an hour "as a subcontractor" and that she would need to have an ABN and submit invoices: Liability Judgment [99]. Rosario told Abraham Arguello that the purpose of requiring that staff obtain ABNs was to avoid "any problem with Fair Work Australia" and enable the company to pay "whenever and whatever" it wanted: Liability Judgment [963]. When Ms Meager did not receive monies owing to her in December 2012, she wrote to Enrico and Rosario asking them to pay her and foreshadowing legal action if they did not: Liability Judgment [1038]. 467 Aisling Dunn complained to Enrico that she had been underpaid: Liability Judgment [1041]. So did Paul Saint James: Liability Judgment [1115]. In four emails sent to Enrico in December 2012 Mr Saint James repeatedly requested GPS to pay outstanding wages: Liability Judgment [874]. 468 After Lara Satchell resigned, she sent an email to Rosario, copied to Enrico and the human resources and accounts departments of GPS, expressing her "disappointment" at the way she had been treated by GPS and complaining that it had not adhered to its legal obligations: Liability Judgment [169]. After complaints by cleaning staff were made to GPS's clients about non-payment for work done, emails were sent to Enrico and Rosario: Liability Judgment [172]. Thomas Sung Hong pressed Rosario and Enrico for his superannuation and his outstanding pay. When he did, he was instantly dismissed and forcibly removed from the GPS office: Liability Judgment [633]. In September 2012 Enrico and Rosario attended a meeting at the premises of one of GPS's clients, the Star of the Sea apartments, to deal with complaints made to the management of the apartments about GPS's treatment of its workers: Liability Judgment [125]. 469 As the evidence of Ms Lopez demonstrates, the offending behaviour continues. Plainly, the institution of the proceeding was insufficient to deter GPS. What is more, GPS seems to have contravened the orders made on 21 December 2015. 470 The amount of the penalty for any contravention should not merely mark the Court's disapproval of the conduct. The impact on the respondent is important. The penalty is to be fixed at such a level as to make it clear to the contravener "that the cost of courting a risk of contravention of the Act cannot be regarded as acceptable cost of doing business": Singtel Optus Pty Ltd v Australian Competition and Consumer Commission [2012] FCAFC 20; (2012) 287 ALR 249 at [68], approved by the High Court in Australian Competition and Consumer Commission v TPG Internet Pty Ltd (2013) 250 CLR 640 at [64] and followed by Buchanan J in Fair Work Ombudsman v Jetstar Airways Ltd [2014] FCA 33 at [52]. 471 What that level is will depend in part on the size of the company. Little evidence was given touching on the size of the GPS business. The evidence adduced by the Ombudsman, however, reveals that during the Audit Period GPS operated in every Australian State and the Australian Capital Territory and also New Zealand and had cleaning contracts with a number of different businesses. The Ombudsman carried out Land and Property Information searches in 2015 which disclosed that GPS did not hold any land or property in NSW, Victoria, the ACT, the Northern Territory, South Australia, Western Australia or Tasmania. But no evidence was adduced to show the current income or assets of the company. 472 Enrico submitted that the business had "downsized and downscaled dramatically since 2014" but there was no evidence to support the submission. 473 Both he and Rosario also submitted that corrective action had been taken but there is no evidence to support that submission either. In any case, even if I were to accept what was said at face value, the action allegedly taken was desultory. 474 Two matters were mentioned. One was the undertaking of an audit of the contracts for cleaning staff. The other was the institution of a virtual "help desk". I will deal with the second matter first. 475 As I understood the submission, an employee with an issue about his or her pay or conditions can now telephone a GPS operator who will issue the employee with a ticket and within 48 hours the employee's concerns would be addressed or "closed". Neither Rosario nor Enrico indicated how the concerns would be addressed. Enrico explained that this ticketing system ensures that a complaint or inquiry can be "identified straight away with a serial number" and "they" know "when the first inquiry started". This was aptly described by counsel for the Ombudsman as "an electronically generated way of giving employees the run around, as opposed to actually resolving the issue". 476 I now turn to the first matter: the audit. This was not an initiative of GPS. It was the subject of a Court order, made at the request of the Ombudsman. 477 One of the orders I made in August last year was that GPS undertake, or engage a third party to undertake, an audit of its compliance with the FW Act and the two modern awards. I also ordered that GPS engage a person or organisation with professional qualifications in workplace relations to provide training to GPS on its workplace obligations under the Act and the two awards, within six months of the date of the order. While no evidence was offered to indicate that either of these or two related orders had been complied with, both Rosario and Enrico made submissions purportedly directed to these questions. 478 Rosario said that they had contracted one Bernard O'Donnell, whom he described as "an auditor" and to whom Enrico referred as "GPS's external accountant", to "go through" the existing contracts. He said that audits for 43 cleaners had been completed and 57 were still to be finalised. Enrico submitted that he was also currently reviewing GPS's contracts to see whether staff members are properly characterised as employees or contractors. Both Rosario and Enrico also stated that they had engaged a barrister, Anthony Britt, to review the contracts GPS had with its contractors as well as its employment contracts. 479 When I asked Enrico why the audit was assigned to an accountant, he replied that Mr O'Donnell was not only an accountant, but also one of the original solicitors on the case who represented GPS (KP O'Donnell). Enrico then referred to him as "a consultant" who "specialised in industrial and commercial employment" but no longer a solicitor. 480 In 2015 Mr O'Donnell's name was removed from the roll of local legal practitioners after he was found to have engaged in professional misconduct, amongst other things, for misappropriating from a client with dementia over $40,000 for his personal use, wilfully misleading the Guardianship Tribunal, providing false information to the Law Society and a trust account investigator, and attempting to mislead the Legal Services Commissioner in the course of his investigation: Legal Services Commissioner v O'Donnell [2015] NSWCATOD 17. It is fair to say that he was a singularly inappropriate choice as an auditor. 481 It is apparent from these submissions that Enrico and Rosario have little judgment and no understanding of the company's legal responsibilities to the people it employs - even at this late stage of the proceeding. A review of the company's contracts to see whether staff are properly characterised as employees or contractors will do nothing to ensure that employees are paid their lawful entitlements. As I made plain in the Liability Judgment, the question of whether a person is an employee or an independent contractor is not determined merely by an analysis of the contractual terms. Since the point seems to have been lost on the Puccis, it is convenient to repeat what I said at [39] of that judgment: The question of whether someone is an employee or an independent contractor is not to be determined by what they may be called or, indeed, what they may call themselves. A label, consensual or otherwise, cannot affect "the inherent character" of the relationship: Curtis v Perth and Fremantle Bottle Exchange Co Ltd (1914) 18 CLR 17 at 25 (Isaacs J). It is the substance or reality of the relationship that counts: Hollis v Vabu Pty Ltd (2001) 207 CLR 21 at [24], [58]. Further, as the majority observed in Hollis v Vabu at [24]: [T]he relationship between the parties … is to be found not merely from these contractual terms. The system which was operated thereunder and the work practices imposed by Vabu go to establishing "the totality of the relationship" between the parties; it is this which is to be considered. (Citations omitted.) 482 In all the circumstances, the risk that GPS will reoffend is exceedingly high. This means that considerable weight should be given in the fixing of the penalties to the need for specific deterrence.
Contravention 1: Failing to pay annual leave, contrary to s 90(1) of the Act 483 Section 90(1) has two elements. They are first, that an employee has taken a period of annual leave and second, that the employer failed to pay the employee for that period at the employee's base rate of pay. The elements of s 90(2) are first, that an employee has a period of annual leave outstanding when the employment ends and second, that the employer did not pay the employee for that period. The contraventions of s 90(1) and s 90(2) (contraventions 1 and 2) occurred at different times. The first contravention involved two employees; the second contravention, 31. It is beside the point that both contraventions relate to non-payment of annual leave entitlements under the FW Act. The "criminality" or culpability in each case is not the same. No question of double punishment arises. 484 Contravention 1 took place in August 2011 and May 2012. It affected two employees. The total amount of the underpayment was $621.87. I impose a penalty of $1,500.
Contravention 2: Failing to pay accrued untaken annual leave on termination, contrary to s 90(2) of the Act 485 This contravention is more serious. As I have said, it affected 31 employees. The total amount of the underpayment was $38,064.64. In 22 of these cases it occurred before the increase in penalty and I take this into account. I impose a penalty of $25,000.
Contravention 3: Failing to pay basic rates for personal leave, contrary to s 99 of the Act 486 This contravention affected only one employee. It took place in March 2012. The amount of the underpayment was $391.18. The employee, Linda Robinson, took leave on 14 March because she was unwell. A medical practitioner issued her with a WorkCover certificate certifying that she was unfit for work until 28 March because of an "anxiety neurosis secondary to harassment and bullying at work place". The certificate was forwarded to her supervisors and the GPS "directors" and, not only was she not paid for the leave, but she was summarily dismissed whilst on leave. In the absence of any evidence as to why she was dismissed, it is reasonable to infer that it was connected with her request for personal leave. In these circumstances, the contravention is not a trivial one. I impose a penalty of $1,000.
Contravention 4: Failing to pay employees for public holidays or part thereof when they would ordinarily have worked, contrary to s 116 of the Act 487 Four employees were involved in this contravention. The total amount of underpayment was $824.34. The conduct occurred over a 12-month period before and after 28 December 2012. I impose a penalty of $4,000.
Contravention 5: Failing to give written notice of termination of employment, contrary to s 117(1) of the Act 488 Four employees were alleged to have been subjected to this conduct and I found the allegation proved in all four cases. There is no explanation for the conduct. Moreover, as I observed at [392] of the Liability Judgment, the evidence indicated that it was not isolated. Three of the four employees were terminated before 28 December 2012 and one (Angela Bustos Alvarado) after that date. I impose a penalty of $6,000.
Contravention 6: Failing to give adequate notice or payment in lieu, contrary to s 117(2) of the Act 489 This contravention occurred over a period of two years and affected 10 employees. The total underpayment was $10,538.92. There is an overlap with contravention 5 but only in the case of three of the four employees (Lara Satchell, Xiao Teng, and Wen Yang). In eight of the 10 cases the conduct occurred before 28 December 2012. 490 In Fryar v System Services Pty Ltd (1996) 137 ALR 321 at 330 von Doussa J explained the purpose of providing notice: A period of notice is to give an employee the opportunity to adjust to the change in circumstances which is to occur and to seek other employment: Matthews v Coles Myer Ltd (1993) 47 IR 229. The period may be worked out … and it often is, as it is recognised that the employee's prospects of obtaining other employment may be better if the search is undertaken while the employee remains in employment: see for example Sinclair v Anthony Smith & Associates Pty Ltd (IRC of A, von Doussa J, 1 December 1995, unreported) at 8. 491 Payment in lieu of notice at least provides income to an employee for a period while she or he is seeking work. 492 I regard this contravention as more serious than contravention 5 and would impose a penalty of $12,500.
Contravention 7: Failing to pay the minimum rate prescribed by cl 16.1 of the Cleaning Services Award 493 This contravention involved only one employee, Abraham Arguello. It occurred in August to September 2013. Mr Arguello worked for GPS seven days a week, often over 80 hours. He was a State Manager, employed on a salary ranging from $82,000 to $100,000. Yet, in the last six weeks of his employment he was not even paid the minimum rates prescribed under the award. 494 The amount of the underpayment was $934. I impose a penalty of $3,500.
Contravention 8: Failing to pay administrative employees at a rate of pay at least equal to the Level 1 rate of pay prescribed by cl 16 and item A.2.5 of the Clerks Award 495 I found that GPS failed to pay at least the minimum level 1 award rates to four administrative employees; two before the increase in the maximum penalty, two after. One of these employees, Aisling Dunn, was entitled to be paid at the level 2 rate. The others were Level 3 employees. The extent of the underpayment was $5,680.41. I impose a penalty of $10,000.
Contravention 9: Failing to pay superannuation to administrative employees, contrary to cl 24.2 of the Clerks Award 496 This contravention involved five employees and occurred both before and after 28 December 2012. The Ombudsman did not seek compensation for this contravention and made no attempt to establish the extent of the contributions that were not made. I impose a penalty of $5,000.
Contravention 10: Failing to pay for overtime, contrary to cl 25 of the Clerks Award 497 This contravention concerned two employees. It occurred before 28 December 2012. The underpayment was $1,189.87. I impose a penalty of $2,000.
Contravention 12: Failing to provide written agreements specifying work patterns to part-time employees, contrary to cl 12.4(a) of the Cleaning Services Award 498 This contravention involved 21 employees and occurred both before and after 28 December 2012. The purpose of requiring written agreements of this kind is to enable part-time employees to have some certainty or predictability about their hours of work so that they can plan their lives. For this reason, as the Ombudsman submitted, the contravention is not innocuous. I impose a penalty of $7,500.
Contravention 13: Failing to pay 15% allowance to part-time employees, contrary to cl 12.4(b)(iii) of the Cleaning Services Award 499 This contravention was proved in relation to 15 employees and occurred both before and after 28 December 2012. The extent of the underpayment was $4,090.05. I impose a penalty of $7,500.
Contravention 14: Failing to pay broken shift allowance, contrary to cl 17.1 of the Cleaning Services Award 500 The evident purpose of this provision, as the Ombudsman submitted, is to compensate employees for the inconvenience of an unpaid break in a shift. This contravention occurred in relation to six employees and in all but one case before 28 December 2012. The underpayment was $915.48. I impose a penalty of $3,000.
Contravention 16: Failing to pay for travel time, contrary to cl 17.10 of the Cleaning Services Award 501 This contravention affected only one employee, Anna Plows. The amount of the underpayment was just $125. I impose a penalty of $500.
Contravention 17: Failing to pay employees on a weekly or fortnightly basis, contrary to cl 20.1 of the Cleaning Services Award 502 Contravention 17 is concerned with the failure to pay employees covered by the Cleaning Services Award either weekly or fortnightly and no later than the Thursday of each pay week. 503 This contravention occurred in 29 cases, both before and after 28 December 2012. Four of the employees concerned (Wendy Bong, Marissa Hall, Giang Ngo and Wen Yang) were paid nothing during the time they were employed by GPS: Liability Judgment [564]. One (Paul Bacon) was not paid for a period of two and a half months: Liability Judgment [567]. Another employee in this cohort, Barry Dowling, tried many times to recover his pay but GPS rarely responded to his requests. On the rare occasions he managed to get through to Rosario he was either given assurances that things would be "worked out" or told to speak to a supervisor. Alfredo Pucci, the father of Rosario and Enrico, insisted, in effect, that he work without pay: see Liability Judgment at [570]. 504 The contravention is serious, widespread, and inexcusable. No employee should ever be treated in this way. I impose a penalty of $30,000.
Contravention 18: Failing to pay employees kept waiting, contrary to cl 20.3 of the Cleaning Services Award 505 Contravention 17 is concerned with paying employees on time and contravention 18 with the failure to pay the penalty for non-payment at the requisite time. There is no apparent overlap between the two contraventions. 506 This contravention was proved in the same 29 cases, 13 before 28 December 2012, the rest either entirely or partially after that date. I impose a penalty of $25,000.
Contravention 19: Failing to pay superannuation, contrary to cl 23.2 of the Cleaning Services Award 507 The Ombudsman adduced no evidence to indicate the extent of the superannuation underpayment and did not pursue a claim for compensation arising from it. 508 The contravention affected some 22 employees. It occurred both before and after 28 December 2012. In some cases GPS issued pay slips indicating that superannuation had been paid into an employee's superannuation account when in fact it had not. That is an aggravating feature of this contravention. I impose a penalty of $25,000.
Contravention 22: Failing to pay penalty rates for early morning, afternoon and non-permanent night shift, contrary to cl 27.1(a) of the Cleaning Services Award 509 This contravention also affected 22 employees but most of the conduct occurred before 28 December 2012. The underpayment amounts to $25,260.02. I impose a penalty of $20,000.
Contravention 23: Failing to pay penalty rate for permanent night shift, contrary to cl 27.1(b) of the Cleaning Services Award 510 This contravention was proved in six cases, straddling both periods. The extent of the underpayment was $15,367.99. I impose a penalty of $15,000.
Contravention 24: Failing to pay Saturday penalty rates, contrary to cl 27.2 of the Cleaning Services Award
Contravention 25: Failing to pay Sunday penalty rates, contrary to cl 27.2(b) of the Cleaning Services Award 511 The elements of these two contraventions are distinct and they affect different employees but there is some overlap. 512 Contravention 24 was proved in relation to 22 employees, contravention 25 in relation to 21. 17 employees are affected by both contraventions. The conduct straddles both periods. The extent of the underpayment for contravention 24 is $4,310.83 and for contravention 25, $3,441.19. 513 I impose a penalty of $10,000 for contravention 24, but to avoid double punishment I impose a penalty of $4,000 for contravention 25.
Contravention 27: Failing to pay part-time employees for overtime worked on Monday-Saturday, contrary to cl 28.2 of the Cleaning Services Award
Contravention 28: Failing to pay for overtime part-time employees for overtime worked on a Sunday, contrary to cl 28.3 of the Cleaning Services Award 514 Contravention 27 concerns the failure to pay penalty rates to cleaners for overtime worked on weekdays and Saturdays and contravention 28 concerns the failure to pay penalty rates to cleaners for Sunday overtime. In most cases the conduct occurred before 28 December 2012. 515 21 employees were affected by both contraventions, four employees only by contravention 27, and three only affected by 28. To the extent that there are similarities in the wrongdoing, I take that into account. The extent of the underpayment under contravention 27 is $34,961.45 and $38,040.32 under contravention 28. I impose a penalty of $22,000 for contravention 27 and $8,000 for contravention 28.
Contravention 26: Failing to pay part-time employees public holiday penalty rates, contrary to cl 27.3 of the Cleaning Services Award
Contravention 29: Failing to pay for overtime worked on a public holiday, contrary to cl 28.4 of the Cleaning Services Award 516 Contraventions 26 and 29 are both concerned with failing to pay for work done on a public holiday at the higher public holiday rate. Contravention 26 relates to the failure to pay employees double time and a half for all ordinary hours worked on a public holiday contrary to cl 27.3 of the Cleaning Services Award and contravention 29 relates to the failure to pay double time and a half for overtime worked on a public holiday contrary to cl 28.4. 517 Contravention 26 affected some 17 employees. The extent of the underpayment was $6,793.35. In most cases the conduct occurred before 28 December 2012. I impose a penalty of $9,000. 518 Contravention 29 affected six employees and in only one case did the conduct take place after 28 December 2012. The extent of the underpayment was $924.73. To avoid double punishment, I impose a penalty of $1,000.
Contravention 30: Failing to pay annual leave loading, contrary to cl 29.4 of the Cleaning Services Award 519 This contravention was proved in six cases and occurred in both periods. The extent of the underpayment was $1,046.14. I impose a penalty of $2,000.
Contravention 31: Failing to pay non-award employees the national minimum wage, in contravention of s 293 of the Act 520 This contravention concerned two employees and cuts across both periods: Paul Saint James and Martyn Jones. The extent of the underpayment was $2,167.43. The failure to pay an employee the national minimum wage is a serious matter, regardless of the extent of any underpayment. But the gravity of this conduct is compounded by the way in which Mr Jones was treated when he tried to recover even the lower amount ($15 an hour instead of $16.37). I repeat what I said at [1112]-[1113] of the Liability Judgment: 1112 In trying to recover payment for his wages, Mr Jones described a pattern familiar from many of the witnesses' evidence. Mr Jones contacted Rosario and Alfredo, Mr Kanbar, Mr Modi, and another accountant, "Muneeb". One of the accountants told Mr Jones that he couldn't pay him because "Ross [wa]sn't there to authorise it". Rosario told Mr Jones to talk to the accountant, then changed his mind and told Mr Jones to "go f*** [him]self" and said that Mr Jones would "never get [his] money". Sometime later Rosario told Mr Jones that the accountants would organise his pay. Alfredo, when Mr Jones told him that he had not been paid, said that he needed to talk to Rosario about it. Mr Jones' final contact with Rosario was a text message on 29 July 2013: Hi Ross, it's now been 5 weeks since we first spoke about you getting the accountant to pay me my back pay from March & April. We've also spoken a couple of times since and each occasion you said the accountant should've paid the money into my account. This hasn't occurred as of yet. I did send you my bank account details last week. Is there a problem with the money? Regards, Martyn 1113 Rosario did not respond. 521 I impose a penalty of $10,000 for this contravention.
Contravention 32: Failing to pay employees in full, in contravention of s 323 of the Act 522 Section 323 requires that employers pay employees in full and in money, by one or a combination of authorised methods of payment, and at least monthly. 523 49 employees were affected by this contravention and the conduct occurred over the entire Audit Period. 524 As the Ombudsman submitted, this contravention is one of the most serious. In the Ombudsman's words: The evidence before the Court upon which it made findings in the Liability Judgement established that the vast majority of employees were not paid in full, or at all. Further, as noted above, the findings made by the Court recognised that many of these employees chased payment from GPS on a regular basis, only to be met with abuse, indifference or obfuscation: see Liability Judgment at [408], [896]-[905], [917]-[918], [1076] and [1112]. This contravention demonstrates a most serious example of gross exploitation of the most vulnerable, low paid employees. 525 As Ms Lopez's evidence demonstrates, this conduct is ongoing. 526 To some extent, however, this conduct is captured by the other contraventions, such as the failure to pay minimum rates, loadings, overtime or penalty rates, monetary allowances, and leave payments. To the extent that s 323(1) requires that an employer pay an employee at least monthly, there is also the possibility of an overlap between contravention 17 (the failure to pay cleaners weekly or fortnightly). 527 The Ombudsman took this into account in her approach to compensation for this contravention, claiming only the minimum award rate of pay for employees who were underpaid or not paid at all, and then only where the minimum rate was not claimed under another contravention. I also take it into account in order to avoid the risk of penalising GPS twice for the same conduct. 528 The underpayment claimed under this contravention is $27,555.45. 529 I impose a penalty of $25,000.
Contravention 33: Taking adverse action against Moona Hasan, in contravention of s 340 of the Act 530 This conduct occurred in the circumstances described at [887]-[917] of the Liability Judgment. In short, I found that Moona Hasan was constructively dismissed after making numerous inquiries about why she had not been paid, many of them unanswered, ultimately refusing to turn up for work until she received her outstanding pay. I have awarded her $307.68 in compensation, representing the minimum payment in lieu of notice. The evidence speaks more eloquently than any abbreviated summary, so it is convenient to refer to it. In the passage below, extracted from the Liability Judgment, Ms Voytenko is Kristina Voytenko a human resources manager with GPS; Jay is Janil Modi, the assistant accountant; Joe is Joseph Tuiamau, the business development manager; and Enrico, of course, is Enrico Pucci. 887 Ms Hasan … was told that she had to submit invoices for the work she had done. She did as she was told, and on 20 February 2013 submitted her first invoice for work she had undertaken on 5, 6, 7, 11, 12 and 13 February 2013. The total amount was $935. When she inquired by text message of Ms Voytenko on 25 February 2013 wanting to know "when [her] first pay [would] be processed", Ms Voytenko did not reply. 888 On 6 March 2013 or thereabouts she spoke to Mr Modi and he asked her to email the invoice again. Although she obliged the same day, she was not paid. 889 On 8 March 2013 she sent another text message to Ms Voytenko asking for an estimated time for payment. Once again, her message went unanswered. Later that evening she sent a text message to Mr Tuaimau: Hi, Joe, its Moona here. Sorry to bother you at this odd hour. Just wanted to bring to your notice that I haven't been paid yet since I started working on 5th Feb. I spoke to Jay when I wasn't paid in the last pay run and he advised that I will get paid in the next pay run which was due yesterday. I am out of money and this is frustrating for me. Please resolve this issues for me, I will be really greatful. Thanks. 890 On 12 March 2013 Ms Hasan spoke to Enrico about her outstanding invoices. She said in her affidavit that she could not recall "the specifics of the conversation" but the next day at 2.17pm she sent him the following text message: Hello Enrico - Moona here, as per our yesterday conversation and your words I am expecting my first payroll to be processed today. Will i get my salary by tonight? 891 There was no response. 892 A little over two hours later she sent a second text message: I am still waiting for your response. 893 Still, she received no answer, but sometime during the afternoon $600 was deposited into her bank account purportedly by National Contractors. 894 On 14 March 2013 Ms Hasan sent a text to Mr Modi: Hey jay moona here. Not got accurate amount in my account. Why? Only 600$ please advise. 895 No advice was forthcoming. Mr Modi did not reply. Ms Hasan then called him and asked why her pay was $350 short. He told her that Enrico had checked her invoice and said that she had been "late on many days" and "didn't work extra hours when asked". Ms Hasan told Mr Modi this was wrong. 896 When Ms Hasan was next at work sought out Enrico in his office. She asked him why she had not been paid. He became angry and said: "First you are coming late, and then you mention hours in your invoices that you didn't work". He told her she needed to keep a log of the hours she was in the office. Ms Hasan denied claiming any pay for hours she was not in the office. She said this was the first time she had heard any complaint about her attendance at work. She also said that she had never been told that she needed to keep a log of her hours. But from then on she said that "the administration lady", whose name she could not recall, kept a log for her and she signed it when she arrived and left the office and it was then given to Ms Voytenko or Enrico to countersign. 897 A week later, on 20 March 2013, Ms Hasan sent a third text message to Enrico: Please approve my first invoice so today so that i get my pay on time this time. Thanks Moona Hasan. 898 There was no reply. 899 The following day, after first approaching Mr Modi without success, she tried Enrico again: Hello Enrico - Kindly approve my first invoice so today so that i get my pay on time this time. Thanks Moona Hasan. 900 As before, her request fell upon deaf ears. 901 Then on 22 March 2013 Ms Hasan sent another text to Mr Modi: Hello why haven't I received my pay yet. I texted rick [Enrico Pucci]. Plz reply fast m waiting. 902 Mr Modi asked what Enrico's response was. Ms Hasan replied: He never replies. Now whats the problem with the first invoice I just don't get it. … at least tell me the reason. 903 Mr Modi said that he did not have the reason. 904 Later that afternoon, Ms Hasan sent a fifth text message to Enrico pleading with him to pay her: Hello Enric - I havent received my first invoice pay yet. I worked for 15 days since the date i have joined (5 feb 2013), however you have paid me only for 6 days till now. Please process my pay as i am getting out of money. 905 Enrico did not reply and Ms Hasan received no further payment from GPS (or National Contractors). 906 On 26 March 2013 Ms Hasan decided not to go into the office until she had received all of her outstanding pay. At some time during the morning Mr Tuaimau called her asking where she was and for the tender on which she had been working. She told him she would give it to him after she received her pay, adding "why would I work if you don't pay me?". He told her she needed to talk to Enrico about pay. Ms Hasan replied that she had tried to call him but he never answered the phone and never replied to her text messages. 907 At 9.55am that day Ms Hasan sent her last text message to Enrico. This time, however, she also sent it to Mr Tuaimau: Hello Enrico and Joe - I am not coming to office until i receive my past due salary/pay. Thanks. 908 On this occasion she received a response and a swift one at that, but it was not the response she sought. At 10.02am Enrico replied by text: Moona there is no need to return as you have a banded (sic) your job and a tender due. Thank you and all the best. 909 This last text generated two further ones from Ms Hasan at 10.08am and 11.46am respectively to which there was no reply: What about my dues for the period i worked for? Enrico what about my dues for the period i worked for? 910 Ms Hasan was not provided with any further work and her outstanding wages were not paid. 531 This behaviour was disgraceful. No-one should have to work without being paid and requests for payment of outstanding wages should never be ignored. Ms Hasan was not the only employee treated in this way, although for some inexplicable reason she was the only one the subject of an adverse action claim. 532 When I invited Enrico to respond to the Ombudsman's submissions, the first thing he did was dispute my finding, claiming that he did not personally dismiss Ms Hasan. When I reminded him of my finding, he replied that: Ms Hasan was only engaged for a very short period of time on, I think, sporadic of two to three days per week. And understand that from the time that she was engaged to the time that she left there was issues with her performance. 533 There was, of course, no evidence to support these allegations and even if true, they were, in any event, beside the point. 534 Almost as an afterthought, Enrico claimed to be sorry, though not for anything he had done. He said: I am sorry that she suffered a form of loss through, obviously, income, but, your Honour, understanding that as far as I'm aware she was purely a contractor and on a freelance agreement where it was upon request, and I wasn't aware at that time that she was - she was deemed or looking at being deemed an employee. Through the evidence you will see invoices that she supplied. 535 These remarks were disingenuous. There was no evidence to suggest that Ms Hasan had made any such request. Indeed, her unchallenged, uncontradicted evidence was to the opposite effect. It was GPS - Enrico's company - that required its employees to submit invoices. Ms Hasan deposed that she had an ABN but that she only acquired it to enable her to work for GPS and that she did not have an ABN when she applied for the job. The terms and conditions upon which Ms Hasan was engaged appear at [85]-[94] of the Liability Judgment. I found, in effect, that they bore none of the hallmarks of an independent contractual relationship and that she, like the other individuals in question, was an employee. 536 I impose a penalty of $15,000.
Contravention 34: Falsely representing employment contracts as contracts for services, in contravention of s 357 of the Act 537 This conduct was proved to have occurred in relation to nine employees, both before and after the increase in penalty. It was the vehicle through which GPS set out to deprive its employees of their legal rights. As I mentioned earlier, this was a deceit practised not only upon the employees concerned, but also upon GPS's customers. 538 This is a particularly serious contravention and, notwithstanding the institution of this proceeding, the submissions made by the Pucci brothers suggest that the representations continue to be made. Section 357 is an important legislative protection against the exploitation of labour. Gilmour J observed in Australian Building and Construction Commissioner v Inner Strength Steel Fixing Pty Ltd [2012] FCA 499 at [14] that: The legislature has prohibited the practice of sham contracting because it undermines the protections afforded to employees by Australian industrial relations laws and instruments. Sham contracting arrangements enable employers to avoid legal obligations such as payment of payroll tax, workers compensation premiums, employee entitlements and superannuation contributions. 539 Furthermore, as his Honour said at [30]: The establishment of unlawful sham contract arrangements is objectively serious. Sham contracting, by its nature, provides a company with an unfair advantage over its competitors in that the company's operating expenses are unlawfully reduced, making it more competitive against its rivals and providing increased company revenue. 540 For these reasons it is critically important that the penalty be sufficiently high to deter employers in general, and GPS and its management in particular, from behaving in this way again. I impose a penalty of $35,000.
Contravention 35: Failing to keep proper employee records, in breach of s 535(2) of the Act 541 Contravention 35 relates to GPS's failure, contrary to s 535(2) of the Act, to make and keep for seven years records for each of its employees who are entitled to such payments, details of the loading or penalty rates, other monetary allowances or separately identifiable entitlements, the number of overtime hours worked each day or the start and finishing times for overtime, leave taken and leave owing, and superannuation details as prescribed by the Fair Work Regulations 2009 (Cth). It affected 51 employees. 542 Contravention 36 relates to GPS's failure to provide pay slips to 11 employees within one working day of payment contrary to s 536(1) of the Act. 543 The only thing the two contraventions have in common is that they both relate to documents. They have no common elements. They should be treated as two distinct contraventions and not as a single course of conduct. 544 Contravention 35 occurred during both before and after 28 December 2012. 545 Without accurate and complete records, the extent to which an employer is complying with its other obligations is difficult, if not impossible, to determine. The failure to make and keep proper records can frustrate the operation of the Act. In the present case, as the Ombudsman submitted, it has worked a substantial injustice both on the employees of GPS and on the Ombudsman: The direct result of the failure to keep prescribed pay records is that the former employees and the [Ombudsman] have been unable in many respects to identify their entitlements or their non-payment. Moreover, the [Ombudsman] has been placed in the invidious position of having to rely upon incomplete and incoherent records to make out a case in respect of a number of former employees of GPS. In part this led to the Ombudsman having to rely upon inferential based reasoning or 'bootstrap' arguments, some of which have been rejected by the Court. Although the [Ombudsman]accepts that [she] bore the burden of proof in respect of the matters, the absence of records that were required to have been kept meant that potentially a greater number and other contraventions have been unable to be established or ventilated before the Court. This is a serious matter that places GPS's conduct at the highest level of seriousness. 546 I agree. I impose a penalty of $13,000.
Contravention 36: Failing to provide pay slips, in breach of s 536(1) of the Act 547 Contraventions of s 536(1) were proved in relation to 11 employees but the conduct was not isolated or occasional. They occurred during both periods. 548 I respectfully agree with the remarks made by Riethmuller FM in Fair Work Ombudsman v Taj Palace Tandoori Indian Restaurant Pty Ltd [2012] FMCA 258 at [66]-[67] to the effect that the requirement for the provision of pay slips is an important means of guarding against the exploitation of vulnerable workers. His Honour observed at [67]: Proper pay slips allow employees to understand how their pay is calculated and therefore easily obtain advice. Pay slips provide the most practical check on false record keeping and underpayments, and allow for genuine mistakes or misunderstandings to quickly be identified. Without proper pay slips employees are significantly disempowered, creating a structure within which breaches of the industrial laws can easily be perpetrated. 549 These consequences are evident in the present case. A stark example is the case of Helen Pakas. Ms Pakas worked for GPS throughout the entire Audit Period. Yet, the Ombudsman only claimed compensation in respect of the underpayments to her during the period 16 April 2012 until 28 April 2013 on the stated basis that, owing to the lack of records, there was no evidence of payments received outside this period to substantiate her claims for underpayment. 550 I impose a penalty of $12,000.
Conclusion 551 The aggregate of these sums is $370,000. 552 I do not consider that it would be unjust or disproportionate to the culpability of the company to require that GPS pay this amount. The level of culpability and the extent of the contravening conduct far exceeds, for example, that which attracted an aggregate penalty of $145,000 in Director, Fair Work Building Industry Inspectorate v Foxville Projects Group Pty Ltd [2015] FCA 492, a case in which (in contrast to the present) the contravener admitted its wrongdoing and cooperated with the Ombudsman. Further, since GPS offered no evidence as to its financial position, there is no basis for concluding that the aggregate would be so crushing as to warrant a reduction of the total: see, for example, Director of the Fair Work Building Industry Inspectorate v Stephenson [2014] FCA 1432; (2014) 146 ALD 75 at [152]-[153] (White J).
Enrico Pucci 553 Enrico was found to be involved in contravention 33, Ms Hasan's dismissal. Indeed, he was the person who constructively dismissed her and who ignored her repeated requests for payment. It is apparent that he is not contrite. Indeed, by seeking to go behind the findings made in the Liability Judgment, his submissions demonstrate that he has no insight into his conduct and raise the very real prospect that he will continue to engage in conduct of this kind unless a penalty is imposed which is high enough to deter him. There is one factor and one factor only which counts in Enrico's favour. That is that there is no evidence that he has previously engaged in similar conduct. 554 The maximum penalty for an individual for this contravention is $10,200. I impose a penalty of $3,000.
Rosario Pucci 555 I found that Rosario was involved in contraventions 1, 2, 5-10, 12, 13, 17-19, 22-25, 27, 28, 30-32 and 34-36. In some instances I found that Rosario was involved in contraventions affecting a single employee but it is highly unlikely that these were isolated cases. 556 As I mentioned earlier, the maximum penalty for an individual ranges from $6,600 for a contravention committed before 28 December 2012 and $10,200 on and from that date. 557 Rosario was well aware of an employer's obligations under the FW Act. As I noted in the Liability Judgment (at [1021]), on 14 September 2009 Sally-Ann Wong, a Fair Work inspector, emailed Rosario with details of the relevant awards and legislation following a discussion she had apparently had with him three days earlier. In the email Ms Wong pointed out that the FW Act applied from 1 July 2009, superseding the Workplace Relations Act 1996 (Cth). She included a link to both Acts. She also advised that the Government intended to "roll out a set of modern awards in January 2010 to replace the current NAPSA system". This was a reference to the Notional Agreement Preserving the Cleaning and Building Services Contractors (State) Award. She stated: "It is more than likely that your business will be covered by modern awards" and she attached a link to information on modern awards and the modern awards themselves. She added: For your cleaning staff, they will probably be covered by the Cleaning Services Award 2010. I noticed that the award does not allow for notice of termination to be deducted from monies owing to employees who don't provide notice. You may wish to browse the award for yourself here: http://www.alrc.gov.au/award/mod/awards/ cleaning.pdf, bearing in mind the awards do not come into force until 1 Jan 2010. (Original emphasis.) 558 On 19 August 2010 the Ombudsman wrote to Rosario at the registered office of RPEP Holdings (also the registered office of GPS from 1 September 2010). The letter detailed the results of an investigation into a complaint by, or concerning the employment of, Andres Scheffer, allegedly an employee of RPEP Holdings. It stated that Mr Scheffer was covered by the award, because RPEP Holdings was not covered by an enterprise agreement. It also stated: On 1 January 2010 the Cleaning Services Award 2010 commenced operation. Clause 4.1 of this award provides that "this industry award covers employers throughout Australia in the contract cleaning services industry and their employees in the classifications listed in Schedule D." Schedule D of the Cleaning Services Award 2010 provides for the classification of a Cleaning Services Employee Level one (CSE 1). Therefore employees of RPEP Holding (sic) are covered by the Cleaning Services Award 2010 after 1 January 2010. 559 The letter continued, discussing, among other things: the relevant base or ordinary rates under the award; the substance of cl 27.2(a) and (b) of the award relating to the requirements for payment of weekend penalty rates at time and a half on Saturdays and double time and a half on Sundays; the way weekend pay should be calculated in order to comply with the award; the requirement in cl 27.3 to pay double time and half on public holidays; the method of calculating those rates; the substance of cl 16.1 of the award, including the rates that were prescribed until 1 July 2011; the obligation under cl 29.4 of the award to pay annual leave "as per the National Employment Standard (NES)), 17.5% leave loading"; and the terms of s 87 of the FW Act, which provides for an employee's entitlement to annual leave. 560 On 31 August 2010 Rosario telephoned the Ombudsman's "infoline" seeking information on penalty rates under the Cleaning Services Award. 561 Through 2010 and 2011 the Ombudsman's office was periodically corresponding with Rosario about contraventions of the Cleaning Services Award and the Clerks Award. Correspondence of this nature continued through the Audit Period. 562 In October 2010 the Ombudsman launched proceedings in the Federal Magistrates Court (now the Federal Circuit Court) against Wash and Go (then in liquidation) and Rosario, alleging that the company had contravened various provisions of the Workplace Relations Act with respect to three Wash and Go employees and that Rosario was knowingly involved in those contraventions within the meaning of s 728 of that Act. Rosario was the sole director of Wash and Go until its deregistration. 563 On 16 December 2011, after a hearing 10 days earlier, an agreed penalty of $4,400 was imposed on Rosario for his involvement in the contraventions by Wash and Go: Fair Work Ombudsman v Pucci [2011] FMCA 997 (the Wash and Go case). The contraventions related to underpayment of award wages to three employees, attracting a maximum penalty of $17,800; the failure to pay annual leave to two of these employees, attracting a maximum penalty of $13,200; and the failure to provide pay slips to all three, attracting a maximum penalty of $16,500. 564 This conduct is relevant in the same way as previous convictions are relevant in criminal sentencing: Stephenson at [78]. In that case, White J referred to the explanation given by King CJ in R v McInerney (1986) 42 SASR 111 at 113: Offences committed prior to sentence for the offence under consideration may affect the sentence in two ways. They may diminish or abrogate any leniency by reason of good character. They may, moreover, lead to a greater sentence than would otherwise be imposed, although within the proper limits indicated by the facts of the immediate crime, for the purpose of personal deterrence; the prisoner's record may indicate that greater punishment is needed to protect the public by deterring him from further crime. Where the other offences have been committed before the commission of the immediate offence, their relevance is clear in the generality of cases. The offender has committed the offence not as a first offender but as a person whose character is affected by previous offending. He must be sentenced against the background of his record … The effect of the prior offences is more cogent if they have been the subject of conviction before the immediate offence. In such cases, the offender has committed the immediate offence notwithstanding the formal judgment and condemnation of the law in respect of the earlier offences and notwithstanding the warning as to the future which the conviction experience implies. 565 In her reasons for judgment in the Wash and Go case Emmett FM noted (at [17]): The respondent [Rosario] offered an unreserved apology to each of Ms Burns, Ms Nady and Mr Litson for the hardship his conduct has caused them. The respondent told the Court that he never intended to be in a position of responsibility or control over employees again. He expressed contrition for his conduct. Although late in the piece, I accept the sincerity of the apologies proffered by the respondent to each of Ms Burns, Ms Nady and Mr Litson one of whom was in Court to hear the apology. The respondent offered to provide a written apology to each of Ms Burns, Ms Nady and Mr Litson, however, an order to that effect was not sought by the applicant. 566 The statements Rosario made to the court in that case ring hollow now. Even if the apology was sincere, what is to be made of the professed intention never again to be in a position of responsibility or control over employees? At the very time he made this announcement, Rosario was occupying a position of great responsibility at GPS and, as the evidence in this case reveals, he was exercising considerable control over its employees. 567 I do not know whether Rosario paid the penalty. No evidence was led on this question. In the absence of any evidence from the Ombudsman that he did not, I shall assume that he did. 568 There are no mitigating factors in the present case. Like his brother, Rosario exhibited no contrition or insight into his conduct and the submissions he made tend to underscore his lack of insight. This time he offered no apology and made no admissions. He did acknowledge in his submissions that the contraventions were "very serious" but, like his brother, he contended that the business was trying to resolve them. The evidence, however, does not support this contention. 569 Rosario told the Court he was involved in the establishment of either Wash and Go or RPEP Holdings, both Pucci companies purportedly supplying employees to GPS, but contended that it would not be open to the Court to infer from the evidence that he was involved with the establishment of National Contractors. Not long afterwards, however, recalling that he had been a director of the company, he conceded that such a finding would be open. Nevertheless, he insisted he had nothing to do with the sham contracting scheme. He claimed that he reported to Ms Voytenko and was merely "following instructions": I was following instructions from Kristina Voytenko. She had made a decision where she wanted to move away from engaging employees, then to wanting to implement contractors. 570 I reject these contentions. There is no evidence to support them and they are not credible. I concluded (at [136] of the Liability Judgment) that National Contractors was not in an independent relationship with GPS. To the contrary, I found that National Contractors, like the other purported hire companies, functioned, not as an independent business, but as an instrument of GPS. GPS was run by the Pucci family. Rosario was its Chief Operating Officer. Ms Voytenko was a human resources manager in her early twenties. All the evidence indicated that Rosario was the master, Ms Voytenko the servant. 571 I also reject Rosario's submission that he "never conducted the first interview" with any of the employees. This submission, too, is contrary to the evidence and the findings. I referred above (at [20]) to the interview Rosario conducted with Robert Wilkey. In addition, Abraham Arguello's uncontradicted evidence was that, when he applied for a job as State Operations Manager for GPS, it was Rosario who interviewed him (Liability Judgment at [158]). Rosario also interviewed Alfonso Alcuitas (Liability Judgment at [1055]) and was present at Christine Meager's job interview in November 2013 (Liability Judgment at [99]). 572 As I made clear in my Liability Reasons, I have no doubt that Rosario was intimately involved in the establishment of the scheme to disguise the true nature of the employment relationship. Perhaps the best evidence of this came from Mr Arguello. I referred to it in the Liability Judgment at [110]. It bears repeating here: In about July 2012 Mr Arguello, then Queensland State Manager, queried why cleaners were telling him that they had received documents from National Contractors and were to be transferred "from TFN [presumably, 'tax file number'] to ABN". Rosario told him that "everyone has to be on ABN from now on", "so that they became subcontractors, like it or not". He explained that he did not want to have any problem with Fair Work Australia (now the Fair Work Commission) and said to Mr Arguello: [A]s a subcontractor the company could pay them whenever and whatever they want because they are subcontracted and there is not a specific law about subcontractors. 573 The history of offending, the want of contrition, and the lack of candour call for the imposition of substantial penalties. 574 I determine that Rosario should pay the following penalties.
Contravention 1: Non-payment of annual leave, contrary to s 90(1) of the Act 575 I found that Rosario was knowingly involved in the contravention of s 90(1) in relation to one of the two employees concerned: Robert Wilkey. The underpayment to him was $497.10 or 80% of the total. The maximum penalty is $6,600. Mr Wilkey repeatedly pressed for this and other outstanding payments and was given the run around. Rosario apparently told his State Manager that Mr Wilkey's holiday pay would be transferred into his account (Liability Judgment at [973]) and, when it was not, that he was "dealing with pay roll" (Liability Judgment at [974]) or making sure that the matter was followed up (Liability Judgment at [975]). These were all empty promises. I impose a penalty of $1,300.
Contravention 2: Non-payment of annual leave on termination, contrary to s 90(2) of the Act 576 The maximum penalty for this contravention is also $6,600. This is not the first time Rosario was involved in a contravention by a company of a statutory requirement to pay accrued annual leave on termination. Two of the three employees who were the subject of the 2010 prosecution were not paid their accrued annual leave when they finished working for Wash and Go. 577 I found that Rosario was involved in the contravention affecting Ms Holland: Liability Judgment at [986]. I impose a penalty of $1,800.
Contravention 5: Failing to give written notice of termination, contrary to s 117(1) of the Act 578 I found that Rosario was involved in the contravention concerning Lara Satchell. I impose a penalty of $1,300.
Contravention 6: Failing to give adequate notice or payment in lieu, contrary to s 117(2) of the Act 579 I found that Rosario was involved in this contravention at least in Ms Satchell's case. Rosario dismissed her instantly, told her that her notice period had been "worked out" but no pay in lieu of notice was forthcoming: Liability Judgment at [1007]-[1015]. The maximum penalty is $6,600. I impose a penalty of $1,300.
Contravention 7: Failing to pay the minimum rate prescribed by cl 16.1 of the Cleaning Services Award 580 This is the contravention involving Abraham Arguello only. As this contravention took place after 28 December 2012, the maximum penalty was $10,200. I impose a penalty of $2,000.
Contravention 8: Failing to pay award rates to administrative employees 581 I found that Rosario was involved in the contraventions involving Ms Meager and Mr Shamsuzzoha. Both contraventions occurred before 28 December 2012. Rosario ignored Ms Meager's request that she be paid what she understood to be the money due to her despite her indication that she might bring legal proceedings if the money was not paid: Liability Judgment at [1038]-[1039]. He assured Mr Shamsuzzoha that he would be paid soon after he managed to speak with him, but he never was: Liability Judgment at [1042]. 582 The maximum penalty is $6,600. I impose a penalty of $2,000.
Contravention 9: Failing to pay superannuation to administrative employees, contrary to cl 24.2 of the Clerks Award 583 I found that Rosario was involved in the contravention relating to Christine Meager: Liability Judgment at [1047]. The maximum penalty is $6,600. I impose a penalty of $1,300.
Contravention 10: Failing to pay overtime, contrary to cl 25 of the Clerks Award 584 I found that Rosario was involved in the failure to pay overtime to Lara Satchell: Liability Judgment at [1051]. Again, the maximum penalty is $6,600. I impose a penalty of $1,300.
Contravention 12: Failing to provide written agreements specifying work patterns to part-time employees, contrary to cl 12.4(a) of the Cleaning Services Award 585 I found that Rosario knew that new employees hired on a part-time basis did not receive such agreements and that he was at least involved in the contravention by GPS in respect of Alfonso Alcuitas whom he directly hired: Liability Judgment at [1055]. Mr Alcuitas's employment ended before 28 December 2012, which means that the maximum penalty is $6,600. I impose a penalty of $1,000.
Contravention 13: Failing to pay 15% allowance to part-time employees, contrary to cl 12.4(b)(iii) of the Cleaning Services Award 586 I found that Rosario was involved in this contravention at least in the case of Anna Plows: Liability Judgment at [1062]. I impose a penalty of $1,300.
Contravention 17: Failing to pay employees on a weekly or fortnightly basis, contrary to cl 20.1 of the Cleaning Services Award
Contravention 18: Failing to pay employees kept waiting, contrary to cl 20.3 of the Cleaning Services Award 587 I was satisfied that Rosario was involved in GPS's contravention of both sub-clauses of the award in relation to 13 of the 29 employees: Liability Judgment at [1076]-[1077]. In each of these cases the employees had made complaints to him and in a number of these cases were threatened with reprisals or punished for doing so. 588 Marco Diaz, for example, a Columbian national on a student visa, was threatened with deportation when he complained that he had been underpaid. When Andrea Grigoletto, an Italian national, also on a student visa, complained that he had been underpaid, Rosario replied words to the effect of "kiss my arse". Rosario threatened to dismiss Kian Mu, an East Timorese immigrant, for disclosing to staff at the gym where he worked that he had not been paid. 589 Like many others, Anna Plows made repeated attempts to get paid. When she was finally able to speak to Rosario, she told him that she had not been paid for sick leave, public holidays and "half of January" and that she would not attend work the following day unless she was paid what she was owed. That generated the following response: You have left the workplace without giving notice. You've stood down so too bad, you're sacked and you're not getting any money until you give your notice. You also breached your employment contract by speaking to the client (AMF) about your wages. I know that you posted an ad on Gumtree regarding the practices of GPS. Don't come back to work. 590 Ms Plows remonstrated with him. She said she did not know what he was talking about. She had not spoken to anyone at AMF and she had not posted an advertisement. She assured him she would recover her money, telling him she would report him, to which he replied: "Yeah, do it". 591 Rosario's conduct is reprehensible. The maximum penalty for both contraventions is $10,200. I impose a penalty of $8,000 for the first and $6,000 for the second.
Contravention 19: Failing to pay superannuation, contrary to cl 23.2 of the Cleaning Services Award 592 I found that Rosario was involved in at least eight cases: the seven purported contractors, whom he set out to deceive, and Thomas Sung Hong. The maximum penalty is $10,200. I impose a penalty of $6,000.
Contravention 22: Failing to pay allowances for early morning, afternoon and non-permanent night shift, contrary to cl 27.1(a) of the Cleaning Services Award 593 My findings in relation to Rosario's involvement in this contravention are at [1083]-[1086] of the Liability Judgment. Rosario insisted that the cleaners be paid at a flat rate. Consequently, I found that he was involved in all 22 cases. The maximum penalty is $10,200. I impose a penalty of $6,000.
Contravention 23: Failing to pay penalty rate for permanent night shift, contrary to cl 27.1(b) 594 This is the contravention referred to above at [13]-[25]. The maximum penalty is $6,600. I impose a penalty of $1,300.
Contravention 24: Failing to pay Saturday penalty rates, contrary to cl 27.2 of the Cleaning Services Award
Contravention 25: Failing to pay Sunday penalty rates, contrary to cl 27.2(b) of the Cleaning Services Award 595 These contraventions are in the same class as contravention 22. The maximum penalty in each case is $10,200. I impose a penalty of $6,000 in relation to contravention 24 and $3,000 for contravention 25.
Contravention 27: Failing to pay penalty rates for weekly and Saturday overtime, contrary to cl 28.2 of the Cleaning Services Award
Contravention 28: Failing to pay penalty rates for Sunday overtime, contrary to cl 28.2 of the Cleaning Services Award 596 I found that Rosario was involved in these contraventions, at least to the extent that they concerned the failure to pay penalty rates to Mr Alcuitas and Mr El Rahman: Liability Judgment at [1103]-[1105]. Both these employees stopped working for GPS before December 2012. I impose a penalty of $1,300 in respect of each of the two contraventions.
Contravention 30: Failing to pay annual leave loading, contrary to cl 29.4 of the Cleaning Services Award 597 I found that Rosario was involved in the contravention to the extent that it concerned the failure to pay the loading to Robert Wilkey: Liability Judgment at [1109]. The maximum penalty is $6,600. I impose a penalty of $1,300.
Contravention 31: Failing to pay the national minimum wage, in breach of s 293 of the Act 598 My findings in this regard are at [1110]-[1115] of the Liability Judgment. I was only satisfied that Rosario was involved in the contravention concerning Martyn Jones. Rosario treated Mr Jones shamefully. 599 The maximum penalty is $10,200. I impose a penalty of $5,000.
Contravention 32: Failing to pay employees in full, in breach of s 323 of the Act 600 In finding that Rosario was involved in GPS's contravention of s 323, I relied solely on Rosario's involvement in, and knowledge of, the other underpayment contraventions for which he has already been penalised. So as to avoid double punishment, I decline to impose a penalty on Rosario for this contravention.
Contravention 34: Falsely representing employment contracts as contracts for services, in breach of s 357 of the Act 601 In the Liability Judgment I found, at [963], that: Whether or not Rosario was the architect of the scheme to move employees from employment contracts to contracts for service, he certainly directed the process. He told Mr Arguello that "everyone" had to be on an ABN "so that they become subcontractors, like it or not". Lorne Jones, who was responsible for hiring new cleaners, was told by Rosario that "they must have an ABN", because "all the cleaners are subcontractors, even the people in head office are subcontractors". Ms Satchell gave evidence to similar effect. To Mr Arguello, Rosario explained the purpose of the "ABN" scheme: to avoid "any problem with Fair Work Australia" and enable the company to pay them "whenever and whatever they want because they are subcontracted and there is not a specific law about subcontractors". Mr Arguello said that Rosario told him to "terminate" anyone who didn't want to "go on an ABN" (I take it that this was a reference to the "termination" of their employment only). 602 Rosario's conduct in this regard is shameful. I impose a penalty of $8,000.
Contravention 35: Failing to keep proper employee records, in breach of s 535(2) of the Act 603 I found that Rosario was well aware of an employer's record-keeping obligations and that he had been informed of them more than once before the Audit Period commenced. As Chief Operating Officer of the company he should have ensured that they were adhered to. The maximum penalty is $5,100. I impose a penalty of $3,500.
Contravention 36: Failing to provide pay slips, in breach of s 536(1) of the Act 604 The maximum penalty for this contravention is also $5,100. The failure to provide pay slips was a feature of the prosecution of Wash and Go in 2010. Rosario offered no explanation as to why the company he subsequently managed would conduct itself in the same way. I impose a penalty of $3,000.
Conclusion 605 The aggregate of these amounts is $74,300. 606 In some instances the proportion of the maximum penalty is higher than the proportion GPS has been ordered to pay. That is because GPS is entitled to be treated as a first offender. Rosario, on the other hand, has a history of offending. 607 I have had regard to the totality principle but I can see no reason to reduce the aggregate. Rosario submitted that over the last eight years he has had "some personal issues" relating to his and his wife's financial status. He did not elaborate and, in the absence of any evidence as to what that might mean, I take it to be a reference to his bankruptcy. I accept that he is bankrupt but he has been employed throughout his bankruptcy in a senior executive position for a national company. In the absence of any evidence to the contrary, I infer that he has been paid a salary. Income he derived since he became bankrupt does not vest in his trustee in bankruptcy (Re Gillies; Ex Parte Official Trustee in Bankruptcy (1993) 42 FCR 571 at 577), although he is required to make contributions to his trustee from income earned above a certain threshold (currently $23,687.30): Bankruptcy Act, Part VI, Div 4B. Rosario adduced no evidence, however, to indicate that the imposition of a penalty of the magnitude contemplated by the aggregate of the above sums would have a crushing effect on him or to indicate that it was otherwise unjust. I consider the aggregate amount appropriate, just, and proportionate to the nature and magnitude of the contravening conduct.
Costs 608 The Court's power to award costs is governed by the terms of s 570 of the FW Act. Relevantly, a respondent to proceedings relating to a matter arising under the Act may only be ordered to pay the costs of another party if the court is satisfied that its "unreasonable act or omission" caused the other party to incur the costs: s 570(2)(b). The Ombudsman originally applied for orders that GPS pay its costs and, pursuant to r 40.02(b) of the Federal Court Rules 2011 (Cth), that the costs be fixed in the amount of $401,231.23. 609 Ultimately, however, the Ombudsman asked that costs be reserved until after publication of this judgment and I will make an order to that effect. I certify that the preceding six hundred and nine (609) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Katzmann.
Associate: Dated: 24 May 2017 APPENDIX A Table of slips and clerical errors in Liability Judgment Para Employee(s) Description Declaration 3 Paul Saint James and Martyn Jones The word "free" should be inserted after the words "award/agreement". [33(3)], [995] Linda Robinson References to "s 97" in these two paragraphs and in the third row of each of the two tables in Annexure B should be replaced by "s 99". [268], [269] Juliana Botero Hernandez and Jessica Alvarado Palma These employees' names were switched by accident indicating that the contravention was proved in respect of Ms Alvarado but not Ms Botero, when in fact it had been proved in respect of Ms Botero and not Ms Alvarado. [339] Paul Saint James The reference to "2013" should be replaced by "2012". [394] Angela Bustos Alvarado The words "dated 12 January 2013" should be replaced by "received by the Ombudsman on 14 February 2013". [399], [405] Abraham Arguello, Wendy Bong, Angela Bustos Alvarado, Rangana Dissanayake, Barbara Piper and Linda Robinson References to "s 90(2)" in these two paragraphs should be replaced by "s 117(2)". [706] Tui Tane The reference to "cl 27.2(b)" should be replaced by "cl 27.1(b)". [762] Jessica Alvarado I overlooked one pay slip. The words "save for one payment of $500" should be inserted after the words "18 January 2013". This error makes no difference to the findings or orders but reduces the amount of compensation payable for the contravention. [767] Fawaz El Rahman The third sentence ("His Praxeo records also reveal that he worked on Labour Day, 3 October 2011") should be deleted. I found that Mr El Rahman worked in Victoria, but 3 October 2011 was a public holiday only in NSW. [775] Linda Robinson The reference to "Boxing Day 2012" should be replaced by "Boxing Day 2011". [812] Tuula Rintala The date "15 April 2012" should be replaced by "5 April 2012". Para Employee(s) Description [879] Martyn Jones This paragraph refers to the National Minimum Wage Order in 2013, when the applicable National Minimum Wage Order was the 2012 order. This, too, makes no difference to the findings or orders. [986] Fiona Holland The reference to "s 87(1)" should be replaced by "s 90(2)". various Wendy Bong Wendy Bong is apparently a man. Consequently, wherever the female pronoun is used to refer to him, the male pronoun should be substituted.
APPENDIX B Employees' periods of service Employee Period of employment Compensation Alfonso Alcuitas 28 June 2011 - 17 September 2012 $20,487.14 Jessica Alvarado Palma 26 November 2012 - 18 January 2013 $1,648.80 Abraham Arguello 9 October 2010 - 14 September 2013 $18,057.82 Paul Bacon January 2009 - 7 December 2012 $715.42 Wendy Bong 1 February 2013 - 13 February 2013 $2,148.07 Juliana Botero Hernandez 20 March 2013 - 8 April 2013 $1,159.95 Angela Bustos Alvarado 14 June 2012 - 28 January 2013 $3,646.15 Mariana De Queiroz 7 February 2012 - 6 October 2012 $6,823.84 Marco Diaz 11 December 2012 - 5 April 2013 $3,572.42 Rangana Dissanayake 17 May 2011 - 28 October 2011 $4,237.60 Barry Dowling March 2010 - 10 April 2013 $10,560.88 Aisling Dunn 4 March 2013 - 19 April 2013 $2,392.23 Fawaz El Rahman 1 August 2011 - 19 December 2011 $7,291.80 Andrea Grigoletto January 2013 - 5 April 2013 $213.01 Marissa Hall 18 March 2013 - 12 April 2013 $1,141.88 Moona Hasan 5 February 2013 - 26 March 2013 $1,173.97 Alyson Hellyer 14 May 2012 - 30 August 2012 $2,536.49 Freddy Herrera 8 September 2010 - 8 March 2013 $23,474.19 Fiona Holland 9 May 2012 - 19 July 2012 $1,288.76 Martyn Jones 14 February 2013 - 8 April 2013 $954.47 Michael Kallee 27 February 2012 - 25 May 2012 $761.49 Khaga Kandel 15 March 2013 - 19 April 2013 $2,450.19 Bibek Luitel 9 May 2012 - 25 May 2012 $58.84 Robin Malla 10 April 2012 - 27 February 2013 $3,700.34 Charles Mascarenhas 14 March 2013 - 11 May 2013 $2,628.72 Tammy May 21 August 2010 - 22 January 2013 $10,034.24 Christine Meager 27 November 2012 - 20 December 2012 $415.22 Kian Mu 9 September 2010 - 13 January 2012 $6,249.26 Giang Ngo 19 February 2013 - 8 March 2013 $814.70
Employee Period of employment Compensation Helen Pakas 27 October 2008 - Unknown $13,069.49 (still employed by GPS in May 2015) Jose Pena 15 October 2012 - 9 March 2013 $4,711.15 Barbara Piper 10 July 2012 - 8 August 2012 $820.66 Anna Plows 3 May 2012 - 31 January 2013 $2,358.09 Tuula Rintala 30 January 2012 - 5 April 2012 $1,274.09 Linda Robinson 1 December 2011 - 16 March 2012 $3,893.58 Paul Saint James 22 October 2012 - 20 December 2012 $1,212.96 Sumit Salhotra 19 May 2011 - 21 May 2012 $4,273.94 Lara Satchell 24 January 2012 - 21 June 2012 $1,557.34 Md Shamsuzzoha 15 June 2012 - 6 July 2012 $2,158.99 Baljinder Singh 1 August 2012 - 28 August 2012 $1,528.91 Dianne Sjoberg 17 January 2011 - 5 February 2012 $1,934.28 Cheryl Sorrell 31 January 2011 - 3 February 2012 $1,004.09 Thomas Sung Hong 4 January 2010 - November 2013 $21,995.51 Tui Tane 18 November 2011 - 5 February 2012 $968.98 Xiao Teng 17 September 2012 - 16 November 2012 $2,803.07 Sekson Thinathin 13 January 2011 - 2 December 2011 $4,927.16 Tashi Wangchuck 3 July 2012 - 31 July 2012 $1,059.80 Robert Wilkey 15 March 2011 - 2 August 2012 $8,829.85 Wen Yang 1 November 2012 - 16 November 2012 $2,224.83
SCHEDULE OF PARTIES NSD 659 of 2014 Respondents Fourth Respondent: ENRICO PUCCI
Fair Work Ombudsman
Grouped Property Services Pty Ltd
d (No 2) [2014] FCA 128 Fair Work Ombudsman v Grouped Property Services Pty Ltd [2016] FCA 1034; (2016) 152 ALD 209 Fair Work Ombudsman v Jetstar Airways Ltd [2014] FCA 33 Fair Work Ombudsman v Kentwood Industries Pty Ltd (No 3) [2011] FCA 579 Fair Work Ombudsman v Lifestyle SA Pty Ltd [2014] FCA 1151 Fair Work Ombudsman v South Jin Pty Ltd (No 2) [2016] FCA 832 Fair Work Ombudsman v Taj Palace Tandoori Indian Restaurant Pty Ltd [2012] FMCA 258 Fair Work Ombudsman v Pucci [2011] FMCA 997 Fryar v System Services Pty Ltd (1996) 137 ALR 321 General Manager of the Fair Work Commission v Thomson (No 4) [2015] FCA 1433 Kelly v Fitzpatrick [2007] FCA 1080 Legal Services Commissioner v O'Donnell [2015] NSWCATOD 17 Markarian v The Queen (2005) 228 CLR 357 Mornington Inn Pty Ltd v Jordan (2008) 168 FCR 383 Murrihy v Betezy.com.au Pty Ltd (No 2) (2013) 221 FCR 118 Pearce v The Queen (1998) 194 CLR 610 QR Ltd v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia [2010] FCAFC 150; (2010) 204 IR 142 R v McInerney (1986) 42 SASR 111 R v White (BC9101745, NSWCCA, 25 July 1991, unreported) Re Gillies; Ex Parte Official Trustee in Bankruptcy (1993) 42 FCR 571 Rocky Holdings Pty Ltd v Fair Work Ombudsman (2014) 221 FCR 153 Royer v Western Australia [2009] WASCA 139 Samuels v Songalia (1977) 16 SASR 397 Singtel Optus Pty Ltd v Australian Competition and Consumer Commission [2012] FCAFC 20; (2012) 287 ALR 249 TPG Internet Pty Ltd v Australian Competition and Consumer Commission (2012) 210 FCR 277 Wong v The Queen (2001) 207 CLR 584
Compensation
[2012] FMCA 258
[2011] FMCA 997
[2009] WASCA 139
[2010] FMCA 907
(1982) 30 SASR 84
(1997) 145 ALR 36
(2013) 250 CLR 640
(2008) 165 FCR 560
(1993) 32 NSWLR 683
(2015) 90 ALJR 113
(2010) 269 ALR 1
(2009) 262 ALR 417
(2015) 229 FCR 331
(1996) 137 ALR 321
(2005) 228 CLR 357
(2008) 168 FCR 383
(2013) 221 FCR 118
(1998) 194 CLR 610
(2010) 204 IR 142
(1986) 42 SASR 111
(1993) 42 FCR 571
(2014) 221 FCR 153
(1977) 16 SASR 397
(2012) 287 ALR 249
(2012) 210 FCR 277
(2001) 207 CLR 584
(1995) 61 FCR 385
(2009) 263 ALR 384
(2001) 53 NSWLR 463
(2015) 231 FCR 298
(1988) 166 CLR 59
(2004) 78 ALJR 616
(1999) 198 CLR 111
(1914) 18 CLR 17
(2001) 207 CLR 21
(1993) 47 IR 229