Fair Work Ombudsman v Ho

Solicitor for the Appellant Office of the Fair Work Ombudsman

AND: PUI SHAN CHRISTINE HO Respondent

order made by: RAPER, SHARIFF AND DOWLING JJ DATE OF ORDER: 30 aUGUST 2024

1. The time within which the respondent is to file a notice of contention be extended to 26 April 2024.
2. The appeal is allowed.
3. Order 3 of the primary judge made on 11 August 2023 be set aside.
4. The respondent pay pecuniary penalties totalling $27,720.00 to the Commonwealth within 28 days. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

INTRODUCTION 1 This appeal concerns the determination of civil penalties under the Fair Work Act (2009) and whether separate contraventions, arising from breaches of different terms of a modern award, may be treated as one contravention by operation of s 557 of the Act. 2 The appellant, the Fair Work Ombudsman, appeals from a decision of a single judge of this Court. In that decision, the primary judge found that Polytrade Employment Services (PES), by paying a flat rate to five of its employees (the relevant employees), had failed to pay minimum hourly rates, minimum engagement periods, casual loadings, overtime rates, shift loadings and weekend and public holiday penalties under the Waste Management Award 2010. The primary judge found that failure by PES constituted 11 breaches of the Award and as a result 11 contraventions of s 45 of the Act. 3 PES employed the relevant employees to work at one of two waste recycling facilities operated by Polytrade Pty Ltd. The respondent to the appeal, Ms Pui Shan Christine Ho, was the sole director, secretary and shareholder of PES. She was also a 10% shareholder of Polytrade. Mr Man Seng Cheng, Ms Ho's husband, held the remaining 90% shareholding in Polytrade and was its sole director and secretary. 4 The primary judge found that Polytrade, Ms Ho and Mr Cheng were each "involved in" eight of PES's contraventions pursuant to s 550 of the Act (the accessorial liability provision). By that provision they were "taken to have contravened" s 45 of the Act. 5 The primary judge imposed 11 penalties on PES for its 11 separate breaches of the Award. His Honour found that s 557 of the Act (the course of conduct provision) did not permit the grouping of the 11 contraventions of s 45 by PES. His Honour imposed eight penalties on Polytrade and Mr Cheng for the eight separate contraventions in which they were involved. The primary judge found that s 557 of the Act did not apply to the contraventions of Polytrade and Mr Cheng, with a "considerable degree of hesitation" given that was the position for which both Polytrade and Mr Cheng had contended. His Honour found that Ms Ho was involved in eight separate contraventions by PES but, by operation of s 557 of the Act, he found that those contraventions constituted a single contravention. He imposed one penalty on Ms Ho. 6 By her one ground of appeal the Ombudsman submits that the primary judge erred in applying s 557 of the Act to find that Ms Ho's eight contraventions of s 45 constituted one contravention. Rather, the Ombudsman says on the proper construction of s 557, as determined by the Full Court of this Court in Rocky Holdings Pty Ltd v Fair Work Ombudsman [2014] FCAFC 62; 221 FCR 153, that section groups contraventions of the same term of an award, and not contraventions of s 45, for both primary contravenors and accessories. The Ombudsman says that the primary judge should have found Ms Ho engaged in eight contraventions of s 45 of the Act and accordingly had eight penalties imposed. 7 Ms Ho concedes the primary judge was wrong to treat her eight contraventions of s 45 as one contravention by operation of s 557 of the Act. However, by her proposed Notice of Contention, for which leave was sought to file outside the time required by the Federal Court Rules 2011 (Cth), she contends that the same result would, and should, have been achieved by operation of s 556 of the Act (the civil double jeopardy provision), or the one transaction principle, or the totality principle. The Ombudsman consented to leave being granted for the Notice of Contention to be filed out of time. At the hearing of the appeal, the Court decided to determine that leave together with the appeal. 8 For the reasons that follow, the Court finds that the primary judge erred in his application of s 557 in respect of Ms Ho. Ms Ho's eight contraventions should not have been found to constitute one contravention. Further, whilst leave is granted for Ms Ho to file the Notice of Contention out of time, the Court finds that s 556, the one transaction principle, and the totality principle do not have the result that Ms Ho's eight contraventions should constitute one contravention. 9 Having found error the Court considers that the most efficient course is for it to reassess the penalties to be imposed on Ms Ho and determines, for the reasons set out below, that Ms Ho pay a penalty in the sum of $27,720.

NOTICE OF APPEAL 10 As identified above the Ombudsman's one ground of appeal concerned the application of s 557 of the Act to the conduct of Ms Ho. That ground provided: The learned primary judge erred by finding that: (a) where s 557(1) of the Fair Work Act 2009 (Cth) ("FW Act") operated such that the primary contravenor contravened eight terms of the Waste Management Award 2010 (relevantly to the present Respondent, the Third Respondent before the learned primary judge) and hence committed eight contraventions of s 45 of the FW Act (J[39(1)]-[39(8)], J[43], J[86]-[93]); and (b) where the Respondent was taken, by operation of s 550(1) of FW Act, also to have committed those eight contraventions of s 45 of the FW Act (J[44]-[45]); s 557(1) of the FW Act operated such that the Respondent's eight contraventions were taken to be a single contravention (at J[132], based on (in particular) reasoning at J[103]-[108], J[110]-[131] and J[133]-[135]) and by imposing one penalty (J[154]-J[158]). (Emphasis removed.) 11 Section 557 of the Act relevantly provides: (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) section 44 (which deals with contraventions of the National Employment Standards); (b) section 45 (which deals with contraventions of modern awards); …

The primary judge's findings on the conduct of Ms Ho 12 Ms Ho's Amended Defence admitted, amongst other matters, that she was "a person responsible, in a practical sense, for ensuring that PES complied with its legal obligations under the FW Act". The primary judge determined that matter was "plainly significant". He reasoned that given PES did not comply with those obligations, it must be the case that Ms Ho failed to discharge that responsibility. The primary judge found at [129] (Fair Work Ombudsman v PTES 928 Pty Ltd [2023] FCA 934, to be referred to as J): …in other words, that she should be understood, by that failure (or those failures), to have engaged in conduct in the form of an omission (or omissions). But the omission was, in each case, the same: it subsisted in Ms Ho's failure to ensure that which she was responsible for ensuring (namely, that PES complied with its legal obligations under the FW Act - specifically, with its obligation under s 45 not to contravene the terms of the Award). 13 The primary judge described the position of Ms Ho as different from the position of PES. He concluded that the Award imposed multiple obligations on PES and that, for the purposes of s 45 of Act, the contravention of its terms was the failure to make the payments that each individual requirement of the Award compelled. However, for Ms Ho, the primary judge found that the Award did not bind her, and s 45 of the Act did not compel her to abide by its terms. Rather, he said that the only relevant obligation was to "ensure that PES complied with its legal obligations under the FW Act". The primary judge found that Ms Ho failed in that obligation on multiple occasions "but each occasion involved the same conduct (that is, the same omission)". Accordingly, he concluded: That understood, s 557(1) is applicable. Although she must be understood to have engaged (indeed, I have found that she did engage) in multiple contraventions of s 45 - specifically, in each of the eight Accessorial Contraventions - they must, for the purposes of pt 4 1 of the FW Act (and, in particular, s 546), be "…taken to constitute a single contravention". 14 For the reasons set out below, the primary judge was in error to treat the multiple contraventions of different Award terms, as a single contravention, when assessing the appropriate penalty Ms Ho was liable to pay.

The primary judge's treatment of Rocky Holdings and Lohr 15 In dealing with the question of s 557 and Ms Ho's conduct, the primary judge was referred to and addressed Rocky Holdings and Fair Work Ombudsman v Lohr [2018] FCA 5; 356 ALR 424 (and its primary decision Fair Work Ombudsman v Safecorp Security Group Pty Ltd [2017] FCCA 348).

Rocky Holdings and its application to Ms Ho 16 In Rocky Holdings the employer paid its employee a flat rate of pay. That flat rate relevantly resulted in breaches of six different award terms. The employer admitted the contraventions of the six different award terms (and as a result six contraventions of s 45 of the Act). Two directors of the employer admitted they were "involved in" the six contraventions of s 45 as accessories pursuant to s 550 of the Act. However, the employer and directors contended that s 557 required only one penalty to be imposed on each of them in respect of the six contraventions of s 45. The primary judge, Emmett J, disagreed and relevantly imposed six penalties on the employer and directors. On the appeal the parties agreed that the appeal should be determined on the basis that the contraventions arose from the same course of conduct, where for the purposes of s 557(1) a relevant "course of conduct" can relate only to contraventions of a civil penalty provision. The relevant issue of construction on the appeal was whether "a civil penalty provision" means s 45 of the Act or "a provision" of "a term" of an award. That question arose for both the employer, as the primary contravenor, and the directors, as accessories. 17 The Full Court concluded at [13] that: The reference in s 557(1) to "a civil remedy provision referred to in subsection (2)" discloses that it is the provision which is relevant. Section 557(2) identifies each of ss 44(1) and 45 as a civil remedy provision. It is the substance of those provisions which create the proscriptions. Section 44(1) proscribes contraventions of a provision of the NES. Section 45 proscribes contravention of a term of a modern award. 18 The Full Court accepted (and set out at [13]) the submissions of the Ombudsman that: section 557 also operates on contraventions which relevantly occur when a term of an award or a provision of an NES is contravened. This now occurs indirectly through the operation of sections 44 and 45. In the case of s. 45 (for example), the contravention occurs when a term of a modern award is contravened. Thus the effect of subsection 557(1) in relation to contraventions of s. 45 is that: …2 or more contraventions of (a term of an award) are, subject to subsection 3, taken to constitute a single contravention… 19 In support of its conclusion the Full Court also had regard to the Explanatory Memorandum to the Fair Work Bill 2008 (Cth) where it provided two examples of the operation of s 557(1) as follows: 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. 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. 20 Those two examples are consistent with the Full Court's construction. 21 The effect, in Rocky Holdings, was that multiple breaches of the same award term could be taken to constitute a single course of conduct and as a result one contravention of s 45. However, the resulting six contraventions of s 45 could not be grouped so as to constitute one contravention of s 45. In other words, the Full Court determined that s 557 operates, with respect to s 45, only on breaches of the same award term; s 557 does not group contraventions of different award terms. 22 Rocky Holdings has been followed by single judges and a Full Court of this Court. Those single judge decisions include: Fair Work Ombudsman v Commonwealth Bank of Australia [2024] FCA 81 at [59] (Bromwich J); Fair Work Ombudsman v IE Enterprises Pty Ltd [2021] FCA 60 at [13] (Anderson J), Enkel v We R Finance Pty Ltd [2020] FCA 1668 at [66]-[67] (Jackson J), Fair Work Ombudsman v Phua & Foo Pty Ltd [2018] FCA 137 at [35] (Siopis J), Fair Work Ombudsman v South Jin Pty Ltd (No 2) [2016] FCA 832 at [24] (White J), and Fair Work Ombudsman v Devine Marine Group Pty Ltd [2015] FCA 370; 234 FCR 122 at [12] (White J). The Full Court, in Parker v Australian Building and Construction Commissioner [2019] FCAFC 56; 270 FCR 39 at [286] (Besanko and Bromwich JJ), by analogous reasoning, endorsed the Rocky Holdings reasoning, when determining that contraventions of different enterprise agreement terms, comprise separate contraventions. 23 By analogy with Ms Ho, the Ombudsman contended that Ms Ho's eight breaches of different Award terms, and resulting eight contraventions of s 45, could not be grouped so as to constitute one contravention. Both the Ombudsman and Ms Ho contended that the primary judge failed to apply Rocky Holdings. 24 This Court agrees that where the primary judge found the eight contraventions of s 45 of the Act (for breaches of eight different Award terms) constituted one contravention, he erroneously failed to apply Rocky Holdings. 25 The primary judge did apply Rocky Holdings in respect of the conduct of PES. At [87] he determined: As concerns its failure to pay casual loadings … I do not accept that PES's contraventions should be seen by operation of s 557(1) as a single contravention for the purposes of pt 4-1 of the FW Act. The Award obligation to pay a casual loading in respect of ordinary hours of work was separate to the Award obligation to pay a casual loading in respect of other hours of work. Contraventions of those obligations involve (and, in this case, involved) different species of omission and, therefore, sufficiently different conduct: Rocky Holdings Pty Ltd v Fair Work Ombudsman (2014) 221 FCR 153 (North, Flick and Jagot JJ …). 26 In this passage, the primary judge emphasised the different omissions for different obligations and accordingly the "sufficiently different conduct" of PES. However, when dealing with Ms Ho, the primary judge determined that Ms Ho had engaged in an omission, that for each Award term was the same. Namely, a failure to discharge the responsibility for ensuring that PES complied with its legal obligations under the Act. 27 The conclusion in Rocky Holdings did not depend on the employer, or the accessories, engaging in separate acts or omissions. Rather, the parties agreed that all of the contraventions arose out of a course of conduct. The chapeau to s 557(1) asks whether there are "2 or more contraventions of a civil remedy provision". If there are, they will be taken to constitute a single contravention if they were "committed by the same person" (s 557(1)(a)) and "arose out of a course of conduct" (s 557(1)(b)). Rocky Holdings construed the expression "2 or more contraventions of a civil remedy provision" in the chapeau as relevantly "2 or more contraventions of a term of an award". Rocky Holdings determined that s 557(1) cannot group contraventions of different award terms, whether subss 557(1)(a) and (b) are satisfied or not. That was equally true for PES and Ms Ho. The primary judge was wrong to find that Ms Ho's eight contraventions of s 45 constituted one contravention for the purposes of s 557(1) of the Act.

Lohr and its application to Ms Ho 28 Lohr, like the present case and Rocky Holdings, involved the payment to employees of a flat rate of pay. The primary judge in Lohr, Manousaridis J, found that those flat rates resulted in 12 breaches of 12 different award terms and as a result 12 contraventions of s 45 by the employer. Mr Lohr was found to be involved in those 12 contraventions as an accessory under s 550 of the Act. Judge Manousaridis followed Rocky Holdings in holding that s 557 grouped multiple contraventions of a single award term but did not group contraventions of different terms. However, Manousaridis J then reasoned that the "one transaction principle" enabled him to treat the 12 contraventions as one contravention at common law. On appeal, Bromwich J determined, applying Rocky Holdings, that s 557 did not operate so as to allow multiple contraventions of s 45, arising from breaches of different award terms, to be treated as one contravention. He then reasoned that the common law "one transaction principle" or "course of conduct principle" did not enable the 12 contraventions to be treated as one contravention. Bromwich J set out and accepted the following two submissions of the Ombudsman in the appeal at [33]: The written submissions for the FWO on these grounds summarised the error asserted to have been made by the primary judge as follows (emphasis in original; footnotes omitted): 24. First, properly understood, the "one transaction" or "course of conduct" principle does not permit a sentencing judge to impose a single sentence for multiple contraventions on the basis that they formed part of a course of conduct, except where that is a course agreed or accepted by the parties. Absent a statutory provision that provides otherwise, a sentencing judge is required to impose a separate penalty for each contravention, having considered whether the penalties need to be adjusted to avoid the aggregate penalty being excessive. The Primary Judge did not do that. 25. Second, s.557 of the Act is the express statutory manifestation of the one transaction or course of conduct principle. By enacting s.557 Parliament has determined how multiple contraventions arising from a course of conduct are to be treated. Having applied s.557 of the Act it was not open for the Primary Judge to further consolidate the 12 contraventions into one contravention by applying that principle, in effect, again. 29 Bromwich J then concluded at [34]: Even if s 557 allows for the continued application of the course of conduct principle, which may be doubted, the application of s 557 to the facts of this case meant that there was no remaining work for the course of conduct principle to do. The fact of flat rates of pay cannot operate to deny the multiplicity of contraventions that this approach was found by his Honour to have produced. His Honour therefore erred in further consolidating the number of contraventions from 12 to one… 30 Relevantly for Ms Ho, Bromwich J made clear that the course of conduct principle had no work to do where there was one decision to pay one flat rate, and that decision led to breaches of different terms of the award. 31 In the present case, the primary judge determined that Lohr was of "limited, if any, assistance". He did so in part on the basis of his view that Lohr was concerned with "the sequential application of both s 557(1) and the so-called 'course of conduct' principle". However, in Lohr Bromwich J determined that both s 557(1) and the common law did not allow multiple breaches of different award terms to be treated as one contravention of s 45. The primary judge also formed the view that Lohr, and the first instance decision in Lohr (Safecorp), did not examine the specific accessorial conduct of Mr Lohr. It appears to us that Manousaridis J did examine those circumstances (See Safecorp at [124]-[126], [139], [142] and [146]). 32 In our view, the findings of Bromwich J in Lohr supported the Ombudsman's position before the primary judge in this case that Ms Ho's eight contraventions of s 45 of the Act should not have been taken to constitute one contravention.

Conclusions on the notice of appeal 33 As described above, Ms Ho concedes the primary judge was wrong to treat her eight contraventions of s 45 as one contravention by operation of s 557 of the Act. It was proper for her to do so. As the Full Court in Rocky Holdings determined, s 557 operates only on breaches of the same award term. Section 557 does not treat contraventions of different award terms as one contravention. Accordingly, Ms Ho's eight breaches of different Award terms, and resulting eight contraventions of s 45, could not be treated as constituting one contravention. This conclusion is also consistent with the holding of Bromwich J in Lohr which is correct and results from a construction of the expression "2 or more contraventions of a civil remedy provision" contained in the chapeau to s 557. This construction applies whatever the outcome of s 557(1)(a) and (b) and applies to both primary contravenors and accessories. 34 In all of those circumstances, ground 1 is made out and the appeal is allowed. In place of the primary judge's findings, this Court determines that Ms Ho committed eight contraventions of s 45 of the Act.

Consequences of the error 35 Having found error, it is necessary to reassess the penalty to be imposed on Ms Ho. The parties in their written submissions proceeded on the basis that the matter would be remitted to the primary judge for the reassessment of penalty. However, at the hearing the parties, in response to questions from the Court, agreed that the Full Court is able to conduct any reassessment and that that course is more efficient than a remittal. 36 This Court considers it appropriate that it reassess the penalties to be imposed on Ms Ho. This course is consistent with s 37M of the Federal Court of Australia Act 1976 (Cth) which provides that the overarching purpose of civil practice and procedure is to facilitate the just resolution of disputes as quickly, inexpensively and efficiently as possible. This is especially so where the total range of penalties to be imposed on Ms Ho is relatively modest. 37 To facilitate this course a timetable was agreed for the provision of further submissions on penalty after the hearing of the appeal. The timetable provided for the appellant to file and serve submissions on penalty by 7 June 2024, the respondent by 14 June 2024, and the appellant in reply by 28 June 2024. This Court addresses those submissions and reassesses the penalty below.

NOTICE OF CONTENTION 38 As set out above, when the respondent filed her submissions in the appeal on 26 April 2024, she sought an extension of time to file a notice of contention. The proposed notice of contention provided: 1. By operation of s 556 of the Fair Work Act 2009 (Cth) (FW Act) the Court is precluded from imposing more than one penalty on the Respondent by reason of her involvement in the contraventions of Polytrade Employment Services Pty Ltd (PES) arising from her conduct in approving and/or processing payroll, and/or failing to ensure that PES complied with its minimum payment obligations under the FW Act. 2. Further or in the alternative the Court should affirm the judgment against the Respondent on the basis that it is a just outcome having regard to the character of the Respondent's conduct and the distinction between that conduct and the conduct of PES as primary contravenor. 39 The proposed notice of contention was filed nearly seven months out of time. There was no explanation for that delay. The notice of contention raised a ground not argued before the primary judge; namely, whether s 556 applied so as to restrict the court to the imposition of one penalty for the conduct of the appellant. Nevertheless, the Ombudsman consented to leave being granted for the proposed notice of contention to be filed and relied upon out of time. 40 For the reasons that follow this Court grants the extension of time for the filing of the proposed notice of contention but rejects both grounds contained in the notice.

Leave to extend time for the filing of the notice of contention 41 The Rules provide that a notice of contention is to be filed 21 days after the notice of appeal is filed. Here the notice of appeal was filed on 8 September 2023. The proposed notice of contention was filed on 26 April 2024. 42 A principal consideration, when exercising the discretion to grant leave for a notice of contention to be filed outside the 21 day period, is the proper administration of justice and the need to ensure that a decision has been made in a procedurally fair manner and in accordance with law: see SZMTJ v Minister for Immigration and Citizenship (No 2) [2009] FCA 486; 232 FCR 282 at [13]. 43 In Peter Vogel Instruments Pty Ltd v Fairlight.Au Pty Ltd [2016] FCAFC 172; 343 ALR 387 the Full Court stated at [92]: We consider that the grant of an extension will be governed by familiar considerations applicable to discretionary matters concerning case management. Any such assessment necessarily involves many potentially competing considerations in light of the overarching purpose set out in section 37M of the Federal Court of Australia Act 1976 (Cth), being to facilitate the just resolution of disputes according to law and as quickly, inexpensively and efficiently as possible. The significance of case management principles in determining the outcome of interlocutory applications is now widely accepted; Aon Risk Services Australia Limited v Australian National University [2009] HCA 27; (2009) 239 CLR 175 at [111] - [114]; Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Limited [2013] HCA 46; (2013) 250 CLR 303 at [51], [52], [56], [57]; Cement Australia Pty Ltd v Australian Competition and Consumer Commission [2010] FCAFC 101; (2010) 187 FCR 261 at [45]. 44 As explained, the notice of contention was filed well outside the period provided for by the Rules, and it was filed 24 days before the hearing of the appeal. However, the Ombudsman consents to the extension of time. The Ombudsman does not complain that she has had insufficient time to address the arguments advanced in the notice. The Ombudsman does not complain that she will suffer any prejudice by an extension of time. 45 The notice of contention did not delay or unduly extend the time of the hearing of the appeal. The hearing was able to be heard on the day and in the time allocated. There was no complaint that the notice added significantly to the cost of the hearing. Whilst we discourage the late filing of notices of contention, in the present circumstances, including the Ombudsman's consent, this Court will extend the time for that filing.

Does s 556, the double jeopardy provision, result in one contravention by Ms Ho? 46 The respondent submits, by ground 1 of her notice of contention, that s 556 of the Act operates to preclude the Court from imposing on her more than one penalty. 47 Section 556 provides: If a person is ordered to pay a pecuniary penalty under a civil remedy provision in relation to particular conduct, the person is not liable to be ordered to pay a pecuniary penalty under some other provision of a law of the Commonwealth in relation to that conduct. 48 The respondent contends that s 556 should be read "in the same way" as s 557 so that "some other provision of a law of the Commonwealth" includes "different award obligations". Therefore, she says, by reliance on the Full Court in Construction, Forestry, Maritime, Mining and Energy Union v Australian Building and Construction Commissioner [2019] FCAFC 201; 272 FCR 290, that the reference in s 556 to "particular conduct" is a reference to what she "actually did". She says that what she actually did was to "transfer money to the relevant employees by the process described in her affidavit". That she submits is the "single positive act". 49 We reject the respondent's submission. First, s 556 refers to "some other provision of a law of the Commonwealth". An award is enforceable by operation of s 45 of the Act, which provides that a person must not contravene a term of a modern award, but an award is not itself a law of the Commonwealth. As we have found, breaches of multiple award terms result in multiple breaches of s 45 of the Act. Section 556 does not have operation in relation to multiple contraventions of the same provision in the Act: See Australian Building and Construction Commissioner v Huddy (No 2) [2017] FCA 1088 at [61] per White J. 50 Second, the appellant in her submission identified the contrast between ss 556 and 557. As we have found above, the relevant construction of s 557 turns on the expression "2 or more contraventions of a civil remedy provision"; multiple breaches of s 45 relating to different award terms do not constitute "2 or more contraventions of a civil remedy provision". The Ombudsman submits, and we accept, that is because the substance of such contraventions differ and not because the award terms are different provisions of a law of the Commonwealth. As submitted by the Ombudsman, the expression "some other provision of the law of the Commonwealth" in s 556 cannot be read in the same way as the expression "2 or more contraventions of a civil remedy provision" in s 557. 51 Third, if the respondent's approach was correct then it would significantly undermine the application of s 557. The operation of s 557 requires that Ms Ho be liable for eight contraventions. Despite this Ms Ho contends s 556 could then be applied to reduce that number to one. Such an approach would undermine the object at s 3(b) of the Act to ensure relevant and enforceable minimum terms and conditions through modern awards. It would also, as the Ombudsman contends, lead to the anomalous result, criticised by Rocky Holdings, that the same maximum penalty would apply to a person who had contravened multiple terms of an award on multiple occasions, as to a person who had contravened one term on one occasion. 52 Ground 1 of the notice of contention fails.

Does the 'one transaction principle' result in one contravention by Ms Ho? 53 By apparent reliance on ground 2 of her notice of contention, Ms Ho contends that if s 556 does not result in one penalty for her, then the application of common law principles achieves the same result. Ms Ho submits that if it is accepted that Ms Ho engaged in a single positive contravening act, then the "one transaction principle" should apply, resulting in one penalty. 54 In Australian Building and Construction Commission v Construction, Forestry, Mining and Energy Union [2017] FCAFC 113; 254 FCR 68 (ABCC v CFMEU) the Full Court said at [148]: The important point to emphasise is that, contrary to the Commissioner's submissions, neither the course of conduct principle nor the totality principle, properly considered and applied, permit, let alone require, the Court to impose a single penalty in respect of multiple contraventions of a pecuniary penalty provision. There is no doubt that, in an appropriate case involving multiple contraventions, the Court should consider whether the multiple contraventions arose from a course or separate courses of conduct. If the contraventions arose out of a course of conduct, the penalties imposed in relation to the contraventions should generally reflect that fact, otherwise there is a risk that the respondent will be doubly punished in respect of the relevant acts or omissions that make up the multiple contraventions. That is not to say that the Court can impose a single penalty in respect of each course of conduct. Likewise, there is no doubt that in an appropriate case involving multiple contraventions, the Court should, after fixing separate penalties for the contraventions, consider whether the aggregate penalty is excessive. If the aggregate is found to be excessive, the penalties should be adjusted so as to avoid that outcome. That is not to say that the Court can fix a single penalty for the multiple contraventions. (Emphasis added.) 55 The Full Court then identified at [149] some limited circumstances where a single penalty may be imposed for multiple contraventions. None of those are relevant here. The Full Court said: In an appropriate case, however, the Court may impose a single penalty for multiple contraventions where that course is agreed or accepted as being appropriate by the parties. It may be appropriate for the Court to impose a single penalty in such circumstances, for example, where the pleadings and facts reveal that the contraventions arose from a course of conduct and the precise number of contraventions cannot be ascertained, or the number of contraventions is so large that the fixing of separate penalties is not feasible, or there are a large number of relatively minor related contraventions that are most sensibly considered compendiously. As revealed generally by the reasoning in Commonwealth v Director, FWBII, there is considerably greater scope for agreement on facts and orders in civil proceedings than there is in criminal sentence proceedings. As with agreed penalties generally, however, the Court is not compelled to accept such a proposal and should only do so if it is considered appropriate in all the circumstances. It is also at the very least doubtful that such an approach can be taken if it is opposed or the proceedings are defended. 56 Those paragraphs were endorsed by the Full Court in Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Registered Organisations Commissioner [2020] FCAFC 232; 283 FCR 404 at [81]-[82]. Statements to the same effect were made by Full Courts in Australian Competition and Consumer Commission v Yazaki Corporation [2018] FCAFC 73; 262 FCR 243 and Transport Workers' Union of Australia v Registered Organisations Commissioner (No 2) [2018] FCAFC 203; 267 FCR 40. 57 Consistent with those authorities, the one transaction principle does not, in the present circumstances, permit a reduction or limit on the number of penalties. The application of the one transaction principle does not lead to the result that Ms Ho engaged in one contravention of the Act. Nothing in the authorities above (together with Rocky Holdings and Lohr) leads to the result that Ms Ho's supposed single act of underpayment by the payment of a flat rate results in only one contravention. 58 Ground 2 of the notice of contention, as it is directed to the one transaction principle, fails.

Does the totality principle result in one contravention by Ms Ho? 59 By further apparent reliance on Ground 2 of her notice of contention, Ms Ho submits that the application of the "totality principle" leads to the imposition of only one penalty. 60 That submission misunderstands the role of totality. In Mornington Inn Pty Ltd v Jordan [2008] FCAFC 70; 168 FCR 383 at [42], Stone and Buchanan JJ described the totality principle (in contradistinction to the course of conduct principle) as "a final check to be applied to ensure that a final, total or aggregate, penalty is not unjust or out of proportion to the circumstances of the case". In ABCC v CFMEU, the Full Court at [116], citing Mill v The Queen [1988] HCA 70; 166 CLR 59, referred to the totality principle as being imposed "to review the aggregate sentence and consider whether the aggregate is 'just and appropriate'". 61 Nothing in that final check or review permits multiple contraventions of s 45 to be reduced to one contravention. We repeat the above statement of the Full Court in ABCC v CFMEU, with emphasis on the reference to totality, at [148]: The important point to emphasise is that, contrary to the Commissioner's submissions, neither the course of conduct principle nor the totality principle, properly considered and applied, permit, let alone require, the Court to impose a single penalty in respect of multiple contraventions of a pecuniary penalty provision. (our emphasis) 62 Ground 2 of the notice of contention, as it is directed to the totality principle, fails.

RE-ASSESSMENT OF PENALTIES 63 As identified above, this Court has determined to re-assess the penalties to be imposed upon Ms Ho. 64 In that re-assessment the Ombudsman seeks the imposition of penalties on Ms Ho totalling $27,720. The Ombudsman relies on the matters set out below and emphasises the need for parity with Mr Cheng, who had penalties imposed by the primary judge totalling $27,720. Ms Ho, as a consequence of the submissions above, maintains that a single penalty should be imposed of not more than $12,600.

Principles 65 In her written submissions on penalty, the Ombudsman referred to and relied upon her penalty submissions filed before the primary judge. There was no meaningful dispute between the parties on the principles regarding the imposition of penalties. Those principles are uncontroversial. The relevant principles can be summarised as follows: (a) Section 546 confers a discretion that is to be exercised judicially, that is, fairly and reasonably having regard to the subject matter, scope and purpose of the legislation: see Australian Building and Construction Commissioner v Pattinson [2022] HCA 13; 274 CLR 450 at [40] (Kiefel CJ, Gageler, Keane, Gordon, Steward and Gleeson JJ). (b) Civil penalties are imposed primarily, if not solely, for the purpose of deterrence: see Pattinson at [15] (Kiefel CJ, Gageler, Keane, Gordon, Steward and Gleeson JJ). That is, the purpose of the penalty is to promote the public interest in compliance and to attempt to put a price on a contravention that is sufficiently high to deter repetition by the contravenor and by others who are in a position to contravene legislation: see Commonwealth v Director, Fair Work Building Industry Inspectorate [2015] HCA 46; 258 CLR 482 (the Agreed Penalties Case) at [55]). (c) A penalty is appropriate if it is no more than might be considered to be reasonably necessary to deter further contraventions of a like kind by the contravenor and others: Pattinson at [9]. (d) Whilst the imposition of the penalty is at large, there should be some "reasonable relationship between the theoretical maximum and the final penalty imposed": Australian Competition and Consumer Commission v Reckitt Benckiser (Australia) Pty Ltd [2016] FCAFC 181; 340 ALR 25 at [156]. The reasonable relationship should be considered by reference to the need for deterrence: Pattinson at [55]. (e) Whilst the Court's task is to determine what is an appropriate penalty, the authorities have identified several factors which inform the assessment of a penalty of appropriate deterrent value. However, such factors should not be approached as a rigid catalogue or checklist: Pattinson at [18]-[19], citing French J in Trade Practices Commission v CSR Ltd [1990] FCA 521; [1991] ATPR ¶41-076 at 52,152-53. The factors set out by French J were: the nature and extent of the contravening conduct; the amount of loss or damage caused; the circumstances in which the conduct took place; the size and power of the contravening company; the deliberateness of the contravention and the period over which it extended; whether the contravention arose out of the conduct of senior management; whether the company has a corporate culture conducive to compliance; and, whether the company has shown a disposition to co‑operate with the authorities responsible for the enforcement in relation to the contravention.

The admissions of Ms Ho relevant to penalty 66 In the pleadings before the primary judge, Ms Ho admitted: (a) she was the sole director, secretary and shareholder of PES; (b) she was (at relevant times) performing the role of Chief Financial Officer of PES; (c) she was responsible for processing and approving the payroll for employees of PES (including the relevant employees); (d) she was responsible, in a practical sense for ensuring PES complied with its legal obligations under the Act; (e) she was responsible for directing the transfer of pay to PES employees (including the relevant employees) and for the payment of some business expenses; (f) she knew the Award applied to the employment of the relevant employees; (g) she knew the hours worked by the relevant employees; (h) she knew the nature of the work performed by the relevant employees; (i) she knew the amounts paid to the relevant employees by PES; and (j) she knew the amounts paid to the relevant employees were insufficient to satisfy the minimum Award entitlements of the employees. 67 None of those admissions are challenged or withdrawn in the appeal. This Court reassesses the penalties on the basis of those admissions, together with the matters below.

The findings of the primary judge and matters relevant to penalty 68 In her submissions on the reassessment of penalty the Ombudsman relied upon what she described as the "unchallenged factual findings" of the primary judge. The Ombudsman identified those relevant factual findings of the primary judge under the following headings: (1) The contraventions: J[39]-[45]; (2) The quantum of the underpayment, its effect on relevant employees, and their vulnerability: J[78]-[80]; (3) Characteristics of the contravenors: J[81]-[82]; (4) Co-operation, contrition and corrective action: J[83]-[84]; (5) The accessories' complicity: J[155], J[162]; (6) Specific and general deterrence: J[85], [157]-[158]. 69 To that list we add the primary judge's conclusions on prior contravening conduct and the Ombudsman's submissions on parity.

The contraventions 70 Save for the dispute about the primary judge's decision that Ms Ho's eight contraventions constituted one contravention, there was no dispute that the primary judge found that Ms Ho was accessorily liable for the following contraventions (see J[39], [44] and [45]): (a) Failure to pay each of the relevant employees the rates of pay to which they were entitled under the Award in respect of their ordinary hours of work; (b) Failure to pay each of the relevant employees the casual loading to which they were entitled under the Award in respect of their ordinary hours of work; (c) Failure to pay each of the relevant employees the casual loading to which they were entitled under the Award in respect of work that they performed outside of his ordinary hours of work; (d) Failure to pay each of the relevant employees the night shift loading to which they were entitled under the Award in respect of work that they performed during night shifts; (e) Failure to pay each of the relevant employees the overtime rates of pay to which they were entitled under the Award in respect of overtime work that they performed; (f) Failure to pay each of the relevant employees the rates of pay to which they were entitled under the Award in respect of shifts that they worked on (or predominantly on) Saturdays; (g) Failure to pay each of the relevant employees the rates of pay to which they were entitled under the Award in respect of shifts that they worked on (or predominantly on) Sundays; and (h) Failure to pay each of the relevant employees the rates of pay to which they were entitled under the Award in respect of shifts that they worked on (or predominantly on) public holidays. 71 The re-assessment of the penalties is undertaken on the basis of these eight accessorial contraventions by Ms Ho.

The quantum of the underpayment and its effect 72 The primary judge set out his findings on the quantum of the underpayments and the relative vulnerability of the employees at J[78]-[80]. It was agreed that the total amount underpaid was $194,249.70 over a period of 20 months. The primary judge concluded that the relevant employees were paid between 53-58% of what the Award required that they be paid. His Honour described that circumstance as "on any view, those are damning figures": J[78]. 73 At J[79]-[80] the primary judge reached the following conclusions about the personal circumstances of the relevant employees: …All are from migrant backgrounds and have limited to negligible written and verbal English skills. At least two of them were recent arrivals in Australia who had limited (if any) employment history here. The three who gave evidence by affidavit all noted what might otherwise fairly be presumed: that they possessed little if any knowledge about their workplace rights or the existence of (or their entitlements under) the Award. All deposed to having experienced difficulty finding employment in Australia. Further, it could hardly be doubted that the Relevant Employees worked hard for what they did receive. Those who gave evidence deposed to working 12-hour shifts, usually six and sometimes seven days per week. For that, they received a flat rate of $22 for every hour that they worked (regardless of when). 74 Ms Ho does not challenge those findings. Reassessment of the penalties, as applicable to Ms Ho, takes those conclusions into account.

Characteristics of the contravenors 75 The primary judge made findings about the character of the contravenors at J[81]-[82]. His Honour concluded that PES is or was "on any view, a sizeable operation" and that Polytrade "is (or was) self-described as one of the 'three largest recycling companies in Victoria'". His Honour inferred, with respect to both PES and Polytrade, that "they were possessed of not insignificant means". The primary judge's inference as to means was in part drawn from the fact that PES "(and, it would seem, the other respondents)" had identified underpayments over other periods totalling approximately $2,200,000.00. The primary judge found those underpayments have since been rectified (J[82]), and the ability to raise those funds supported the inference as to means. 76 Insofar as it is relevant to the reassessment of penalty for Ms Ho, the Court finds that both PES and Polytrade were large and sizeable operations. Their size is relevant where Ms Ho accepts that "she held a position of significant responsibility [in PES], in which she was complicit in the underpayment contraventions". That position afforded Ms Ho the ability to use the "not insignificant means" available to PES to ensure compliance with the Award and the Act obligations.

Ms Ho's complicity 77 At J[155] the primary judge concluded that Ms Ho contravened s 45 knowingly; "in other words, that she was knowingly complicit in what PES did". At J[162] his Honour concluded that whatever was done, or not done, was "with knowledge that the Relevant Employees would be paid less than what the Award entitled them to be paid". Again, none of those conclusions were challenged before this Court and are relied upon in this reassessment. 78 Reliance is also placed on Ms Ho's admissions set out above, and Ms Ho's acceptance in the appeal that she was "complicit in [the] underpayment contraventions". 79 The Ombudsman submitted that consideration ought to be given to Ms Ho's conduct as compared to that of Mr Chen (the other individual accessory), given penalties have already been ordered by the primary judge in relation to his conduct and the Court ought to apply the "parity principle". It may be accepted that the Court may utilise the "parity principle" as an analytical tool when assessing what may be considered reasonably necessary to deter further contraventions of the Act: see Pattinson at [45]. A marked disparity in penalty as between individuals that would give rise to a "justifiable sense of grievance" is to be avoided: see Postiglione v The Queen [1997] HCA 26; 189 CLR 295 at 301 (Dawson and Gaudron JJ), 309 (McHugh J), 322-23 (Gummow J), 335-36 (Kirby J). However, the deployment of this tool forms part of, but does not replace, the Court's task of assessing Ms Ho's conduct and the appropriate penalty in the circumstances to achieve specific and general deterrence. 80 Ms Ho submits that she was not involved in recruitment, setting or changing pay rates or anything beyond transferring pay. She contends, by comparison, that Mr Cheng was in effective control not only of Polytrade, but of employee entitlements. The Ombudsman responds that Mr Cheng denied responsibility for recruitment and setting rates. We are not able, on the evidence before us, to determine Mr Cheng's responsibility for recruitment and setting rates. However, and in any event, the significant aspects of culpability are: the responsibility for compliance with the Award and Act obligations; the knowledge of the Award obligations; and the knowledge that the payments made did not meet those obligations. In those respects, there is no difference between Mr Cheng and Ms Ho. Both of them made the same admissions in respect of that responsibility and knowledge. 81 Whilst we accept, as contended for by Ms Ho, that she had no personal involvement with the employees and had never been on site, her admissions as to her responsibility to those employees and her knowledge of their underpayments must be taken into account. 82 Ms Ho suggests that it was Polytrade that benefitted from the underpayments rather than PES. Mr Cheng held a 90% shareholding in Polytrade. However, Ms Ho, for a time, held a 10% shareholding in Polytrade and was the sole shareholder of PES. We accept the submission of the Ombudsman that Ms Ho did not deny receiving some benefit as the result of her shareholding, and further that any reduction in the costs of Polytrade provided a benefit to PES. 83 Whilst we have given some discount to Ms Ho for the reduced need for specific deterrence, the primary judge also gave such a discount to Mr Cheng on the basis that he was "no longer in business (or, at least, not in the business of waste recycling)": J[165].

Prior contravening conduct 84 The primary judge concluded that Ms Ho has not previously been found to have contravened a civil remedy provision of the Act: J[157]. His Honour found that was also so for each of the other respondents: J[156]-[157], [165]. Reassessment is undertaken on this basis.

Co-operation, contrition and corrective action 85 The primary judge addressed the considerations of co-operation, contrition and corrective action. At J[83] his Honour concluded that PES "(perhaps together with Polytrade)" appeared to have acted responsibly once conscious of the need to address the underpayments and that PES "facilitated that appellant's efforts to ascertain the extent of the Relevant Employees' underpayment and agreed to admit the contraventions that were later alleged against it". His Honour also found, "more significantly, that PES took measures of its own to correct the underpayments before proceedings were commenced". 86 As to the corrective action and contrition of PES, the primary judge found at J[84] that "[a]udit processes were established and maintained to ensure that Award non-compliance would not repeat" and that those measures "reflect an acceptance on the part of PES (at the least) that what occurred ought not to have". 87 Dealing particularly with Ms Ho, the primary judge was not able to determine what role Ms Ho played in remediating PES's contraventions, but was satisfied "that she showed an equivalent degree of cooperation (which the applicant acknowledges), and I accept that she possesses an equivalent acceptance that her conduct was wrong": J[156]. 88 None of those conclusions of the primary judge were challenged before this Court and are relied upon in this reassessment.

Specific and general deterrence 89 The primary judge determined on the evidence before him that PES was "no longer operating at the two relevant sites" and accordingly that the "need specifically to deter PES from further Award contraventions does not loom as largely as might otherwise be the case". However, his Honour found that the "need to deter other employers generally in that regard very much does [loom large]": J[85]. 90 As to Ms Ho, the primary judge again found that specific deterrence did not "loom as largely" as it might in other matters because of his conclusions that: Ms Ho is no longer (or will soon no longer be) involved in "commercial operations generally". She deposed to the "process [having] taken its toll on [her]" and to having no desire to ever "have the burden of such responsibilities again". 91 The Ombudsman complains, and this Court accepts, that there is no evidence to confirm that Ms Ho did in fact cease involvement. However, Ms Ho's evidence before the primary judge was that her business involvement would cease on the sale of Polytrade's business. She was not cross-examined on that evidence. There was evidence that that sale occurred on 1 June 2022. Account is taken of this evidence and the reduced need for specific deterrence. 92 As to general deterrence, his Honour found that "the court must strive to impose upon Ms Ho a penalty sufficient to deter others in positions similar to hers from doing (or failing to do) as she did": J[158]. So much was accepted by Ms Ho. She submitted, that "others in Ms Ho's position, like Ms Ho, must more than anything understand the gravity of their roles and duties to be deterred from engaging in conduct of this nature".

Penalties to be imposed on Ms Ho and any other relief 93 In all the circumstances, including each of the relevant findings of the primary judge and each of the matters above, we are satisfied that it is appropriate to impose the following eight penalties for the eight contraventions. They are the penalties contended for by the Ombudsman and are equivalent to the penalties imposed on Mr Cheng. We consider the penalties are not only appropriate in all of the circumstances, but are proportionate to the contravening conduct, have a reasonable relationship to the theoretical maximum penalties available and are sufficient to deter others from similar conduct. For the contravention described above at: …a penalty equal to this percentage of the maximum: …which equates to a penalty of: [67(a)] 20% $2,520.00 [67(b)] 30% $3,780.00 [67(c)] 20% $2,520.00 [67(d)] 30% $3,780.00 [67(e)] 40% $5,040.00 [67(f)] 30% $3,780.00 [67(g)] 30% $3,780.00 [67(h)] 20% $2,520.00 TOTAL $27,720.00

94 The only relief sought by the Ombudsman in the appeal was the setting aside of the order made by the primary judge imposing one penalty upon Ms Ho. We will make that order, together with an order imposing the above penalties, and requiring that those penalties be paid to the Commonwealth within 28 days. We have not addressed the need and utility of declarations, because they were not sought and were not raised on the appeal. Section 570(1) of the Act restricts the Court in awarding costs. No costs order was sought or will be made. I certify that the preceding ninety-four (94) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Raper, Shariff and Dowling.