Fair Work Ombudsman v Kassiou Constructions Pty Ltd [2025] FedCFamC2G 808

In paragraph 36 the words 'and failures to comply with record-keeping obligations' have been removed.

In paragraph 51 the words 'to pay' have been inserted into the sentence after 'however I accept that he intended'.

In paragraph 80 the numbering of the second subparagraph has been changed to '(b)'.

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

1. Pursuant to s 546(1) of the Act, within twenty-eight (28) days of this order:

(a) Kassiou Constructions pay a pecuniary penalty to the Commonwealth in the sum of $37,560; and

(b) Ilias Kassiou pay a pecuniary penalty to the Commonwealth in the sum of $6,573.

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

Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).

1. Kassiou Constructions Pty Ltd is a construction company. It was registered on 25 July 2007, and has built approximately 600 new houses in Darwin. Ilias Kassiou is a director and secretary of Kassiou Constructions. He is also the minority shareholder. The majority shareholder, and other director of Kassiou Constructions is Ilias Kassiou's step-father, Louis Kassiou.
2. In most years, Kassiou Constructions employed 5 - 6 employees. On 16 July 2012, it employed Paul Andrade on a full-time basis as a construction worker level 3, under the Building and Construction General On-site Award 2010. Mr Andrade stopped working for Kassiou Constructions on 22 January 2021.
3. Mr Andrade left his employment with Kassiou Constructions on favourable terms. At the time, both parties were aware that Mr Andrade had not been paid the amount of his accrued, but not taken, annual leave, and there was some understanding between them that the entitlements would be paid over time.
4. However, on 19 July 2023, approximately 1 ½ years later, Mr Andrade made a request for assistance from the Office of the Fair Work Ombudsman because he had received no payments from Kassiou Constructions. In July and September 2023, Fair Work Inspector Jenna Willson commenced an investigation in relation to Kassiou Constructions' compliance with the Fair Work Act 2009 (Cth) in relation to Mr Andrade's employment.
5. As a result of information obtained during the investigation, Fair Work Inspector Willson formed a reasonable belief that Kassiou Constructions had contravened s 90(2) of the Act by failing to pay Mr Andrade the amount equivalent to his undertaken paid annual leave when his employment ended.
6. In around August 2023, Louis Kassiou left Darwin and moved interstate. The relationship between the directors deteriorated. It appears that the directors stopped communicating about Kassiou Constructions' affairs. However, Kassiou Constructions continued to operate, and Ilias Kassiou continued to perform construction work.
7. On 15 September 2023, Fair Work Inspector Willson gave Kassiou Constructions a Compliance Notice that alleged it had contravened s 90(2) of the Act. The Compliance Notice required Kassiou Constructions to, amongst other things, calculate and pay Mr Andrade the amount owing to him in respect of accrued, untaken paid annual leave by 13 November 2023, and to provide evidence of compliance by 20 November 2023.
8. Kassiou Constructions did not comply with the Compliance Notice, nor provide any reasonable excuse for failing to do so.
9. On 23 October 2023, Ilias Kassiou registered Lux Key Group Pty Ltd. He is the only director and shareholder of that company.
10. On 23 November 2023, after the time for compliance with the Compliance Notice had lapsed, the Office of the Fair Work Ombudsman wrote to Kassiou Constructions and asked the directors to advise if the company had a reasonable excuse for not complying with the Compliance Notice. It put the directors on notice that the Fair Work Ombudsman may commence legal action if a reasonable excuse is not provided.
11. In early-2024, the Building Practitioners Board cancelled Kassiou Constructions' registration as a building practitioner. That decision was unsuccessfully appealed by Kassiou Constructions.
12. On 5 February 2024, the Office of the Fair Work Ombudsman emailed the directors of Kassiou Constructions. The email stated that Kassiou Constructions had not provided evidence of payment, or a reasonable excuse to the Office of the Fair Work Ombudsman in response to the Compliance Notice. Kassiou Constructions was strongly urged to make the payments to Mr Andrade that were necessary to rectify the contraventions, and to provide proof of payment. Further emails were sent on 6 February 2024 and 7 February 2024. No response was received to any of these emails.
13. These proceedings were commenced on 3 July 2024, against Kassiou Constructions and Ilias Kassiou, as a person alleged to be involved in the contravention of a civil remedy provision by Kassiou Constructions.
14. On 20 July 2024, shortly after service, Ilias Kassiou wrote to the Office of the Fair Work Ombudsman, stating that he is not the sole director of the company and that Louis Kassiou should also be named as a respondent in the proceedings. In the same email, Ilias Kassiou indicated that Louis Kassiou had moved to Sydney, and that he had not been working with him, or helping with the company since he left. He said that he has been trying to close the company, but that had been difficult because the directors were in dispute.
15. The Office of the Fair Work Ombudsman responded to Mr Kassiou's concerns about proceedings not being issued against Louis Kassiou on 23 July 2024 by email. With reference to the statement of claim, the email pointed out the basis upon which it was alleged that Ilias Kassiou was a person involved in the company's contravention in accordance with s 550, and that the Office of the Fair Work Ombudsman did not have any evidence of Louis Kassiou's involvement in the contravention.
16. In a phone call afterwards, on the same day, Ilias Kassiou questioned why proceedings had been issued against him, even though Louis Kassiou is the majority shareholder of the company. He said that the company was being wound up, and expressed a view that it was unfair he would be liable, when Louis Kassiou is the majority shareholder. A further email sent on 29 July 2024 set the Fair Work Ombudsman's position out in further detail, and added that should it receive evidence of Louis Kassiou's involvement in the company's contravention, it may consider amending the application to add him as a respondent.
17. The communications sent from the Office of the Fair Work Ombudsman to Ilias Kassiou on 23 July 2024 and 29 July 2024 also sought his co-operation for service of the proceedings to be effected upon him. No response to that correspondence was received. On 22 August 2024, an application to dispense with the requirement for service on Ilias Kassiou by hand under rule 6.06(1) of the Federal Circuit and Family Court of Australia (Division 2) General Federal Law Rules 2021 was made.
18. On 29 August 2024, orders were made in these terms. Orders were also made that Kassiou Constructions and Ilias Kassiou file and serve a notice of address for service by 14 September 2024 and a defence by 26 September 2024. Neither Kassiou Constructions, nor Ilias Kassiou, complied with these orders.
19. On 15 October 2024, a notice of address for service was filed on behalf of Ilias Kassiou. On 16 October 2024, correspondence was sent to the court by a law firm instructed by Louis Kassiou, notwithstanding that he is not a respondent in a personal capacity, and Kassiou Constructions had not taken any step in the proceeding. The firm stated it did not act for Kassiou Constructions, and no further steps were taken by the firm, or by Louis Kassiou in relation to the matter.
20. On 17 October 2024, there was no appearance by or on behalf of Kassiou Constructions at a directions hearing. On behalf of Ilias Kassiou, it was submitted that he did not intend to file a defence and response and that he would admit the contraventions alleged against him. He sought directions in relation to the filing and service of evidence and submissions as to mitigation of penalty.
21. By the Fair Work Ombudsman's application, on 4 December 2024, default judgement was entered against Kassiou Constructions, pursuant to rule 13.05(2) of the Rules. As such, Kassiou Constructions is taken to have admitted to contravening s 716(5) of the Act, by failing to comply with the Compliance Notice.
22. Summary judgement was also entered against Ilias Kassiou under rule 13.10(1)(b)(ii) of the Rules, as a result of his admission to the conduct alleged in the Fair Work Ombudsman's claim, and the indications made on his behalf that he will not file any response or defence. Accordingly, Ilias Kassiou is taken to have contravened s 716(5) of the Act, by failing to comply with the Compliance Notice, himself.
23. On 4 December 2024, a penalty hearing was listed on 6 May 2025. Orders were also made extending the time for Kassiou Constructions' compliance with the Compliance Notice by 28 days. Kassiou Constructions again did not do so, and nor did it appear at the penalty hearing on 6 May 2025.
24. As at 1 April 2025, Mr Andrade has not received any payments from Kassiou Constructions.
25. In these proceedings, the Office of the Fair Work Ombudsman seeks orders that both Kassiou Constructions and Ilias Kassiou pay a pecuniary penalty to the Commonwealth pursuant to s 546(1) of the Act, within 28 days.
26. Accordingly, the central issues for determination are the quantification of the pecuniary penalty in each instance.

WHAT IS THE APPROPRIATE QUANTUM OF THE PECUNIARY PENALTY THAT KASSIOU CONSTRUCTIONS AND ILIAS KASSIOU SHOULD BE ORDERED TO PAY?

1. In assessing the appropriate penalty, the court has a broad discretion. The purpose of imposing civil penalties is "primarily, if not solely, the promotion of the public interest in compliance with the provisions of the Act, by the deterrence of further contraventions of the Act."[1]
2. The penalty should be one that the court "considers fairly and reasonably to be appropriate to protect the public interest from future contraventions."[2] The court is required to assess the gravity and seriousness of the offending having regard to all relevant facts and circumstances.
3. The court is guided by the range of well-settled, non-exhaustive considerations that are relevant to the assessment of the appropriate penalty, so as to determine an outcome that is an instinctive synthesis of the various factors. These considerations include:

(a) the nature and extent of the conduct which led to the breach;

(b) the circumstances in which the conduct took place;

(c) the nature and extent of any loss or damage sustained as a result of the breach;

(d) whether there has been similar previous conduct by the respondent;

(e) whether the breach was properly distinct or arose out of one course of conduct;

(f) the size of the business enterprise involved;

(g) whether or not the breach was deliberate;

(h) the involvement of senior management in the breach;

(i) whether the party committing the breach has shown contrition;

(j) whether the party committing the breach has taken corrective action;

(k) whether the party committing the breach has cooperated with enforcement authorities;

(l) the need to ensure compliance with minimum standards by provision of an effective means for investigation and enforcement of employee entitlements; and

(m) the need for specific and general deterrence.

1. The list of possible relevant considerations is not to be regarded as a "rigid catalogue of matters for attention" as if it were a legal checklist. The court's task remains to determine what is an "appropriate" penalty in the circumstances of the particular case."[3]
2. In submitting that, in each instance, the appropriate penalty is in the range of between 70% to 80% of the maximum penalty of $46,950 and $9,390 respectively, the Fair Work Ombudsman emphasises the relevant application of general and specific deterrence, the nature, extent, circumstances and deliberateness of the conduct and the nature and extent of the loss or damage sustained as a result of the breach. The Fair Work Ombudsman also makes submissions about the application of the extent to which each party ought to be taken to have shown contrition, taken corrective action, and co-operated with the authorities.
3. In submitting that the appropriate penalty is in the range of less than 50% of the maximum, Ilias Kassiou has pointed to his personal circumstances and the financial circumstances and company status of Kassiou Constructions. He says that Mr Andrade was a valued employee. He gave evidence that when Mr Andrade left employment, he told him that his entitlements would be paid when Kassiou Constructions sold real estate, it being the owner of Unit 1, Dean Street, Roseberry, and a vacant block of land at 22 Billygoat Street in Zuccoli. He said that Mr Andrade would have been paid his outstanding leave entitlements had Kassiou Constructions been in a financial position to do so.
4. According to searches conducted by the Office of the Fair Work Ombudsman, Kassiou Constructions is the registered proprietor of 22 Billygoat Street, and Apt 1 3 Deane Crescent, Roseberry.

1. At the time of the contravention on 13 November 2023, the maximum penalty that the court may impose for a contravention of s 716(5) by Kassiou Constructions and Ilias Kassiou is $46,950 and $9,390 respectively.
2. In Pattinson, the High Court stated that, "What is required is that there be "some reasonable relationship between the theoretical maximum and the final penalty imposed". That relationship is established where the maximum penalty does not exceed what is reasonably necessary to achieve the purpose of s 546: the deterrence of future contraventions of a like kind by the contravenor and by others."[4]

1. Failures to comply with compliance notices are serious. The penalties are required to deter against non-compliance as undermining statutory enforcement mechanisms. In Pattinson, the High Court observed "The theory of s 546 is that the financial disincentive involved in the imposition of a pecuniary penalty will encourage compliance with the law by ensuring that contraventions are viewed by the contravenor and others as an economically irrational choice."[5]
2. The failure to comply with a Compliance Notice undermines the utility of the statutory framework as an alternative to litigation where there is a reasonable belief that workplace laws have been contravened, such as by the non-payment and underpayment of employee entitlements. Further, unless employers comply with their record-keeping obligations, an effective safety net for employees is difficult to maintain, and the effectiveness of the regulator's ability to detect and protect workplace entitlements is frustrated.[6]
3. That is evident in this case, where Mr Andrade's entitlements over the period of his employment have not been calculated, notwithstanding that it is accepted that there are outstanding entitlements. In a telephone discussion with Fair Work Inspector Willson on 1 April 2025, Mr Andrade confirmed that not only has he not received any payments from Kassiou Constructions, he does not expect to. He essentially expressed frustration that the directors have moved on with their financial affairs in their own interests, whilst he is still owed entitlements.
4. Accordingly, the penalties "should be of a kind that it would be likely to act as a deterrent in preventing similar contraventions by like-minded persons or organisations."[7]

1. Kassiou Constructions is still registered with the Australian Securities and Investments Commission. There is a need to ensure that the penalties act to deter it from future contraventions. There is also a need to ensure that the penalties specifically deter Ilias Kassiou from any similar future conduct.
2. Ilias Kassiou may employ staff in the future, as may Kassiou Constructions.
3. Further, over the course of the investigation, during the period after the Compliance Notice was issued, and the time since these proceedings were instituted, Kassiou Constructions has displayed a disregard for its obligations under the Act. It did so in circumstances where it was taking steps and exercising rights in its own interests, such as appealing the Building Practitioners Board's decision to cancel its registration as a building practitioner in early-2024, at the same time as it effectively ignored repeated communication from the Office of the Fair Work Ombudsman.
4. Similarly, Ilias Kassiou established Lux Key Group on 23 October 2023. He has not given any evidence about Lux Key Group.
5. The relationship between the directors of Kassiou Constructions may have deteriorated, but Kassiou Constructions was still performing building work. Ilias Kassiou was still a director, and was still earning money for the company and being paid for his work. Once proceedings were issued, Ilias Kassiou's primary initial concern was his perceived unfairness of being named as a respondent, when Louis Kassiou, as the majority shareholder, was not. As was effectively explained to Ilias Kassiou, the company shareholding arrangements were not relevant to his involvement and participation in Kassiou Constructions' non-compliance, for the reasons that were particularised and set out. Ilias Kassiou's early complaints in this regard were beside the point.
6. In these circumstances, I consider there is a need for the pecuniary penalty to have regard to specific deterrence, and for the pecuniary penalty to discourage Kassiou Constructions and Ilias Kassiou from engaging in like conduct again.

Nature, extent, and circumstances of the contravening conduct

1. From August 2023, when Louis Kassiou left Darwin, Ilias Kassiou continued to perform construction work for Kassiou Constructions, drawing approximately $4,000 each month for his labour. He estimates that between August 2023 and January 2024, he generated income of approximately $120,000 for Kassiou Constructions.
2. Ilias Kassiou says that Louis Kassiou prevented the sale of 22 Billygoat Street in May 2024, and is impeding the sale of Deane Crescent. He also says he is frustrating his attempts to wind Kassiou Constructions up. In an email sent to the Office of the Fair Work Ombudsman on 20 July 2024, he said that Louis Kassiou had not been working with him or the company since he left Darwin, and that he wanted to pay off the company's debts.
3. However, notwithstanding the disputes between directors that were taking place, Kassiou Constructions has not made any attempt to calculate the amounts that are owed to Mr Andrade. It has not made any payments to Mr Andrade at all, notwithstanding that it continued to operate as a builder, including over the period that the directors became in dispute.
4. In my view, the complete failure by Kassiou Constructions and Ilias Kassiou to engage with the Office of the Fair Work Ombudsman in relation to the breach is a significant matter. Mr Andrade worked for Kassiou Constructions for some 9 years. Ilias Kassiou may well have intended Mr Andrade to be paid his annual leave entitlements from the sale of assets, however the respondents' failure to make any calculations and rectify the accepted non-payment of entitlements has not only frustrated the function of the Office of the Fair Work Ombudsman, it has left Mr Andrade unaware of what the precise quantum of his entitlement is, for payments to be made to him.
5. In the circumstances, I consider that the failure to comply with the Compliance Notice is serious, and undermines the compliance notice regime.

1. Ilias Kassiou's response to his involvement in Kassiou Constructions' non-compliance with the Compliance Notice was initially consistent with the personal disharmony between the directors. He wrongly focused on subjective concepts of unfair treatment toward himself, however I accept that he intended to pay Mr Andrade his leave entitlements upon the sale of 22 Billygoat Street or Deane Crescent.
2. Whilst I accept that Ilias Kassiou believed Mr Andrade would be paid his leave entitlements upon the sale of either of these properties, he has not directly acknowledged that the outstanding leave entitlements have still not been calculated, more than 4 years after Mr Andrade's employment ended, and more than 1 ½ years after the Compliance Notice was issued.
3. Notwithstanding Ilias Kassiou's complete lack of engagement with the Office of the Fair Work Ombudsman initially, including in relation to service of the proceedings upon him, I accept his decision to admit and not contest the proceedings is evidence of contrition, notwithstanding that Mr Andrade's entitlements have not been calculated.
4. Further, Ilias Kassiou ultimately gave evidence in these proceedings that he regrets the position of Mr Andrade, and would pay his entitlement if he was able to do so. Notwithstanding that evidence was given by way of affidavit only on 17 April 2025, and there is no evidence that Ilias Kassiou has expressed these sentiments to Mr Andrade directly, I accept it as evidence of some contrition.
5. Kassiou Constructions has made no response to the non-compliance with the Compliance Notice. Kassiou Constructions has been entirely unresponsive with the Office of the Fair Work Ombudsman, notwithstanding numerous communications.
6. Kassiou Constructions failed to comply with orders for the filing and service of material. It failed to attend the penalty hearing. The penalty hearing was held against the background of default judgment being ordered, and without the benefit of any formal admissions, evidence or submissions made by the company.
7. In the circumstances, I find no basis to apply any mitigation in the pecuniary penalty to Kassiou Constructions, and I accept that the penalty to be ordered for Ilias Kassiou ought to be discounted, having regard to his co-operation in the proceedings, and the evidence of his contrition.

The need to ensure compliance with minimum standards by the provisions of an effective means for investigation and enforcement of employee entitlements

1. It is an object of the Act to promote a guaranteed safety net of fair, relevant, and enforceable minimum terms and conditions for all employees.[8] The efficacy of statutory notices would be hindered or made redundant if the recipients perceive that failure to comply will not carry meaningful consequences.[9]
2. In my view the penalty to be imposed must serve the purpose of promoting compliance with the minimum standards to which employees are entitled. That purpose has been frustrated by the respondents' conduct.

The nature and extent of loss or damage sustained as a result of the breach

1. The court's focus is on the loss caused by the failure to comply with the Compliance Notice, rather than the underlying contraventions. However, financial loss to Mr Andrade of his lawful entitlements, including the delay in receiving his payments, is a relevant loss that flows from the breach that is before the court.[10] In this case, the loss has deprived Mr Andrade of the benefit of being paid annual leave entitlements in an unknown sum, spanning an unknown period. It has left him without receipt of any payments for more than 4 years after his employment ended, and without any expectation that he will receive any payments.
2. There is also a public loss caused by the failure to comply with the Compliance Notice. In Fair Work Ombudsman v Soma Kitchen & Anor (No.2) [2020] FCCA 2583, Judge Kendall observed, " ... the purpose of s 716 is to provide an alternative to litigation. That is, it is designed to prevent litigation. Litigation is timely and expensive. It is also not controversial that Court resources are limited and this Court actively promotes alternative resolution methods in order to reduce unnecessary expenditure. Here, that purpose has been systematically undermined." [11]
3. The respondents' failures have defeated the purpose of the Compliance Notice to prevent litigation, and have caused public funds to be incurred by both the office of the Fair Work Ombudsman and the Court in connection with and in the conduct of these proceedings.

The size of the business enterprise and personal circumstances

1. I have taken into account the matters that are particular to Kassiou Constructions, and Ilias Kassiou. As a consequence of Kassiou Constructions' failure to engage with the proceedings, there is no evidence about matters such as its financial circumstances. This has limited the ability to assess what Kassiou Constructions may do in the future, as a company that has operated since 2007, and has routinely employed employees. I accept in all the circumstances, that at least for the time being, Kassiou Constructions has ceased trading, and owes unparticularised debts referred to by Ilias Kassiou.
2. Kassiou Constructions' failure to engage with the Office of the Fair Work Ombudsman, or the proceedings, is largely unexplained. The disputes between directors may provide some explanation, but it is not a complete answer. The company took other litigious steps in early 2024. Each director has taken some steps in relation to these proceedings in respect of their own personal interests, but not of the company's.
3. Further, on 24 February 2025, Louis and Maria Kassiou obtained a freezing order in the Supreme Court of New South Wales against Ilias Kassiou, restraining his ability to dispose of or deal with any of Kassiou Constructions' property received since 1 June 2023, including the proceeds of the sale of any real property and plant and equipment owned by the company. Ilias Kassiou's evidence is that he is contesting these proceedings.
4. Ilias Kassiou now works as a subcontractor for other builders in the building industry. He earns $1,500 gross each week. He does not have any superannuation entitlements and his major asset is a property in greater Darwin, where he lives. That property has a mortgage of approximately $620,000, and the monthly repayments have been suspended as a result of a hardship application that was made.
5. The size and financial circumstances of a respondent may be a relevant consideration in determining the appropriate penalty, even though those circumstances do not exculpate contraventions of the Act.[12] Whether the respondents may not be able to pay the pecuniary penalties is also not to the point because the dominant, if not only, purpose of a pecuniary penalty order is protective.[13]

1. As I have observed, the Office of the Fair Work Ombudsman made repeated attempts to contact Kassiou Constructions after it issued the Compliance Notice on 15 September 2023, but no response was made.
2. This occurred around the same time that Louis Kassiou left Darwin, and Ilias Kassiou performed construction work for Kassiou Constructions, drawing personal income, and income for the company over the following 6 months, stopping only when the Building Practitioners Board cancelled Kassiou Constructions' registration as a building practitioner.
3. Ilias Kassiou also took steps to incorporate Lux Key Group on 23 October 2023.
4. In the circumstances, where the directors were pursuing their own interests, but chose not to comply with the Compliance Notice, I assess the respondents' conduct as deliberate.

1. The penalty must be proportionate, in that it must strike a "reasonable balance between deterrence and oppressive severity."[14] The penalty must not be crushing or oppressive, but it must bear relativity to the seriousness of the conduct that has been engaged in.
2. I consider the circumstances of this matter to be serious. Mr Andrade was a long serving employee for Kassiou Constructions, which generally employed a small number of people. He was employed for many years, and it is not known how long he was not paid his annual leave entitlements for, or what the total sum of the unpaid amounts is.
3. In my view there is a need for general deterrence and a need to ensure that there is compliance with minimum standards by the provision of an effective means for investigation and enforcement of employee entitlements and loss. I take into account the loss and damage that is associated with the respondents' contravening conduct.
4. The penalty should be enough that it is not seen as "the cost of doing business."[15] Mr Andrade has expressed some frustration in seeing the directors effectively move on from the company, leaving him without any payment of his entitlements. Clearly, the directors of Kassiou Constructions have expended personal time and money, including in litigation against each other, and have not taken any steps in respect of the Compliance Notice, or the obligations to Mr Andrade. As I have said, I accept that there should be some mitigation of the penalty to be imposed on Ilias Kassiou, due to his co-operation, and the evidence that exists of some level of contrition.
5. In my view, the primary relevant factors to determine the appropriate penalties to be imposed are general deterrence, the nature, extent, circumstances and deliberateness of the conduct, the nature and extent of the loss or damage sustained as a result of the breach, and specific deterrence. I have also taken into account the decline of Kassiou Constructions' operations, but note that took place in the context of its builders registration being cancelled, a decision which was unsuccessfully appealed. I also take into account the financial circumstances of Ilias Kassiou, his co-operation once he elected to engage with these proceedings, and the statement of regret that he has made in these proceedings.
6. I do not accept the submission made on Ilias Kassiou's behalf that a penalty in the range of less than 50% of the maximum is appropriate. Louis Kassiou's refusal to agree to the sale of Kassiou Constructions assets started taking place in May 2024, well after the Compliance Notice was issued. The freezing order was made more recently still on 24 February 2025. Notwithstanding those matters, as I have said, there is an unexplained failure to calculate the amounts owing to Mr Andrade, in breach of the Compliance Notice.
7. The penalty must still be imposed and at a meaningful level, and to this end the financial circumstances of the respondents is relevant. However, in my view a penalty in the range of less than 50% of the maximum would fail to satisfy the protective need of the order. The reality is that Ilias Kassiou earns an income as a subcontractor, and there is evidence of some capacity to pay.
8. In my view, weighing all the relevant factors together, I consider that pecuniary penalties fixed at 80% of the maximum for Kassiou Constructions is appropriate, and 70% of the maximum in the case of Ilias Kassiou.
9. I will order that pursuant to s 546(1) of the Act, within 28 days of this order:

(a) Kassiou Constructions pay a pecuniary penalty to the Commonwealth in the sum of $37,560; and

(b) Ilias Kassiou pay a pecuniary penalty to the Commonwealth in the sum of $6,573.

I certify that the preceding eighty (80) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Liveris.

[1] Australian Building and Construction Commissioner v Pattinson [2022] HCA 13; (2022) 274 CLR 450 at [9].

[3] Pattinson at [19] (citations omitted).

[4] Pattinson at [10] (citations omitted); see also [55].

[6] Fair Work Ombudsman v Rum Runner Trading Pty Ltd [2018] FCCA 1129 at [96] - [97].

[7] Ponzio v B & P Caelli Constructions Pty Ltd (2007) 158 FCR 543; [2007] FCAFC 65 at [93].

[9] Fair Work Ombudsman v Big Daddy's Pty Ltd [2022] FedCFamC2G 786 at [42].

[10] Fair Work Ombudsman v Corporation Sun Pty Ltd & Anor [2020] FCCA at [35]; Fair Work Ombudsman v Hess [2021] FCCA 1883 at [35].

[12] Fair Work Ombudsman v Hiyi Pty Ltd & Ors [2016] FCCA 1634 at [46] - [47].

[13] Fair Work Ombudsman v Foot & Thai Massage Pty Ltd (in liq) [2017] FCA 1242 at [949.

[14] Pattinson at [41]; see also NW Frozen Foods Pty Ltd v Australian Competition and Consumer Commission [1996] FCA 1134; (1996) 71 FCR 285 at 293.

[15] Australian Competition and Consumer Commission v TPG Internet Pty Ltd [2013] HCA 54; (2013) 250 CLR 640 at [66].