Fair Work Ombudsman v Printpot Pty Ltd [2025] FedCFamC2G 1971

1. The Respondent contravened section 716(5) of the Fair Work Act 2009 (Cth) by failing to comply with a Compliance Notice addressed to it issued on 23 July 2021.

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

Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 24.04(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth)), or to record a variation to the order pursuant to r 24.04 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth).

1. This proceeding was brought by the Fair Work Ombudsman under the Fair Work Act 2009 (Cth) (FW Act) and concerns the alleged contravention of that Act by the respondent (Printpot). It was alleged that Printpot failed to comply with a Compliance Notice issued on 23 July 2021 and addressed to it which alleged that it had contravened the Pastoral Award 2010 and the FW Act. These asserted contraventions arose from the alleged underpayment of Printpot's employee, Michael Turvey, over the period 1 July 2018 to 24 February 2020. Printpot's director was Garry Shelton.
2. The matter was listed to determine as a preliminary matter whether Printpot had contravened the FW Act. These reasons concern that issue.

1. Printpot operates a wheat farm in Carinda, near Walgett, in New South Wales.

1. In or around January 2021, Fair Work Inspector (FWI) Keene commenced an investigation into Printpot in respect of its employment of Mr Turvey. The Ombudsman alleged that after conducting his investigation, FWI Keene formed the belief that in the period 1 July 2018 to 24 February 2020:

(a) the Award covered and applied to Printpot in respect of Mr Turvey;

(b) Mr Turvey was employed by Printpot as a full-time farmhand paid at a rate of $20 per hour, was classified as a Farm and Livestock Hand Level 1, was not paid the applicable minimum rate in respect of ordinary hours worked pursuant to cl.28 of the Award and had accrued but not taken an amount of annual leave;

(c) Printpot failed to pay Mr Turvey the minimum wage applicable to him in respect of ordinary hours worked;

(d) Mr Turvey's employment was terminated on 24 February 2020; and

(e) on termination, Printpot did not pay Mr Turvey any accrued but untaken annual leave or leave loading pursuant to cl.23.4(b)(i) of the Award.

1. The Ombudsman alleged that FWI Keene formed a reasonable belief that Printpot had contravened:

(a) clause 28 of the Award, concerning minimum rates of pay; and

(b) section 90(2) of the FW Act, concerning the compulsory commutation of annual leave entitlements unused at the time an employment ends.

Section 90 of the FW Act is part of the National Employment Standards.

1. On 23 July 2021, FWI Keene gave Printpot the Compliance Notice. The notice required Printpot to remedy the direct effects of the underpayment of Mr Turvey by 31 January 2022 by:

(a) calculating and paying to the Employee the outstanding entitlements it was required to pay to the Employee during the Period and upon termination of his employment, as specified in the Compliance Notice;

(b) calculating and paying any additional superannuation contributions required to be paid on the outstanding entitlements referred to in ... (a); and

(c) preparing a schedule outlining its calculations of the outstanding entitlements and any superannuation contributions required to be paid for the Employee referred to in ... (a) and ... (b) above.

1. The Compliance Notice also required Printpot to:

produce reasonable evidence to the [Ombudsman] of its compliance with the Compliance Notice by 7 February 2022, by producing:

(a) the schedule [outlining its calculations of the outstanding entitlements and any superannuation contributions required to be paid]; and

(b) proof that full payment had been made to the Employee.

1. Printpot did not take the Specified Action or produce evidence of its compliance by 7 February 2022 and so failed to comply with the Compliance Notice.

1. In her amended statement of claim, the Ombudsman sought a declaration that Printpot had contravened s.716(5) of the FW Act by failing to comply with the Compliance Notice. The Ombudsman also sought orders requiring Printpot to pay her $54,522.29, plus interest, in respect of wages and annual leave entitlements owed to Mr Turvey and to calculate and pay related superannuation contributions. She also sought the imposition of pecuniary penalties on Printpot.
2. In its response filed 3 April 2024, Printpot admitted that:

(a) the Compliance Notice was a compliance notice given to it in accordance with s.716(2) of the FW Act;

(b) the Compliance Notice required it to take specified actions by 31 January 2022 and produce reasonable evidence of compliance by 7 February 2022;

(c) the Compliance Notice met the formal requirements of s.716(3) of the FW Act;

(d) it had not taken the Specified Action or by 7 February 2022 produced to the Ombudsman evidence of compliance; and

(e) it had failed to comply with the Compliance Notice and had contravened s.716(5) of the FW Act.

Fair Work Act

1. At all material times the FW Act relevantly provided:

90 Payment for annual leave

...

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

...

(1) This section applies if an inspector reasonably believes that a person has contravened one or more of the following:

(a) a provision of the National Employment Standards;

(b) a term of a modern award;

(2) The inspector may, except as provided by subsection (4), give the person a notice requiring the person to do either or both of the following within such reasonable time as is specified in the notice:

(a) take specified action to remedy the direct effects of the contravention referred to in subsection (1) [including to calculate and pay the amount of any underpayment];

(b) produce reasonable evidence of the person's compliance with the notice.

...

Person must not fail to comply with notice

(5) A person must not fail to comply with a notice given under this section.

(6) Subsection (5) does not apply if the person has a reasonable excuse.

(1) A person who has been given a notice under section 716 may apply to the Federal Court, the Federal Circuit and Family Court of Australia (Division 2) or an eligible State or Territory Court for a review of the notice on either or both of the following grounds:

(a) the person has not committed a contravention set out in the notice

(b) the notice does not comply with subsection 716(2) or (3).

(2) At any time after the application has been made, the court may stay the operation of the notice on the terms and conditions that the court considers appropriate.

(3) The court may confirm, cancel or vary the notice after reviewing it.

1. Clause 28 of the Award particularised minimum wage rates.

1. In his affidavit affirmed 19 April 2024, Mr Turvey deposed to having had a conversation with Mr Shelton in around March or April 2018 during which he was offered a job performing general farm work on a property located in Carinda. Mr Turvey commenced his employment as a full-time farmhand on 1 July 2018 and worked for Printpot until his resignation on 24 February 2020.
2. In the course of his employment, Mr Turvey performed general farmhand duties such as ploughing, repairing fences, moving items around and feeding livestock.

1. During his employment, Mr Turvey worked 40 hours per week on average and Mr Shelton had agreed to pay him $700 net per week.
2. Mr Turvey recalled that, on:

(a) 25 March 2019;

(b) 7 November 2019;

(c) 8 November 2019;

(d) 16 January 2020;

(e) 8 February 2020; and

(f) 9 February 2020,

he took leave without pay from Printpot as he could not work because there had been excessive rainfall.

(a) he was paid his wages by cheque on an irregular basis;

(b) in the period 24 July 2018 to 25 June 2019, he was paid a total of $11,900 in wages; and

(c) he was not paid any amount by Printpot for work performed after 25 June 2019.

1. Mr Turvey deposed to taking five days of annual leave in April 2019 and to taking no other annual leave while working for Printpot. Mr Turvey deposed that he had not received any payment from Printpot in relation to outstanding accrued but untaken annual leave entitlements.

1. FWI Keene deposed that on 11 January 2021 the Ombudsman received a request for assistance from Mr Turvey, who complained that he had worked for Printpot from 1 July 2018 to 24 February 2020 at the rate of $20 an hour but had not been paid for all the weeks he had worked. FWI Keene deposed that during his investigation he spoke to Mr Turvey and they had a conversation to the following effect:

Mr Turvey: I worked a total of 70 weeks for Printpot but I was only paid for 17 of those weeks from the start of my employment. I earned approximately $11,000 before tax.

FWI Keene: What duties did you perform in your role with Printpot?

Mr Turvey: I performed general farm work while working for Printpot, including ploughing, moving items around and fencing. This was my first job in the farming sector. Previously I worked for 14 years in the automotive industry. I am also owed my unpaid annual leave entitlements.

FWI Keene: Have you raised this issue with Printpot?

Mr Turvey: I never raised this issue with Printpot.

FWI Keene: Did you take any annual leave during your employment with Printpot?

Mr Turvey: No, I did not take any annual leave during my employment with Printpot.

1. FWI Keene deposed that he spoke to Mr Turvey's wife on 18 May 2021 and they had a conversation to the following effect:

FWI Keene: Are you authorised to speak for Mr Turvey?

Mrs Turvey: Yes I am authorised to speak on Michael's behalf. Michael was paid for 17 weeks of work over the whole employment period. He never received any payslips at all and received payment from Printpot via cheque. Payments to Michael were also not consistent, sometimes he was paid weekly and sometimes fortnightly.

1. FWI Keene also spoke to Mr Shelton who told him that Mr Turvey had agreed to wages of $20 per hour for a 40 hour week. Mr Shelton also said that he had supplied Mr Turvey and his family with a house to live in and with the power to the house but at the time of their conversation he was short of cash because of drought. He said that he and Mr Turvey had agreed that he would pay Mr Turvey what he owed when he harvested a crop that he could sell and complained that:

1. FWI Keene deposed that in the course of his investigation, he formed the belief that:

(a) Printpot was a corporation which operated a wheat farm;

(b) Printpot employed Mr Turvey;

(c) Printpot was covered by the Pastoral Award 2010 (Award) (as in force at that time) in relation to its employment of Mr Turvey;

(d) Mr Turvey performed duties consistent with the classification of a Farm and Livestock Hand Level 1 employee pursuant to Clause 27.1 of the Award;

(e) Mr Turvey performed work for Printpot on a full-time basis;

(f) Mr Turvey was only paid by Printpot for a total of 17 weeks of work; and

(g) Mr Turvey was not paid amounts that he was owed for accrued but untaken annual leave upon termination of his employment.

1. FWI Keene deposed that, based on those matters, he believed that from 1 July 2018 to 24 February 2020:

(a) Printpot contravened clause 28 of the Award by failing to pay Mr Turvey the minimum weekly rate for a Farm and Livestock Hand Level 1 employee in respect of the ordinary hours he worked; and

(b) Printpot contravened section 90(2) of the FW Act by failing to pay to Mr Turvey for his accrued but untaken annual leave on the termination of his employment, including any loadings Mr Turvey was entitled to pursuant to clause 23.5(b)(i) of the Award.

1. FWI Keene deposed that having formed that belief he gave the Compliance Notice to Printpot and then on 9 February 2022 sent it a letter notifying it that it had failed to comply with the Compliance Notice.
2. FWI Keene deposed that on 19 April 2024, he calculated the total gross amount owing to Mr Turvey under the Compliance Notice to be $53,629.29. That sum comprised:

(a) $48,820.13 in respect of Printpot's failure to pay Mr Turvey the minimum rate for a Farm and Livestock Hand Level 1 employee in respect of ordinary hours worked; and

(b) $4,809.16 in respect of Printpot's failure on the termination of his employment to pay Mr Turvey for his accrued but untaken annual leave.

1. Mr Shelton filed an affidavit sworn 23 March 2023 in which he deposed to Mr Turvey having been employed on 1 July 2018 on the following basis:

I made it clear that continous [sic] employment would depend on seasonal income and that wages my [sic] be affected or delayed.

Mr Shelton also deposed to providing rental accommodation for Mr Turvey, his wife and three children from 1 July 2018.

1. Mr Shelton deposed that in or about May 2019 he advised Mr Turvey that the season's crop might fail and that he might not get paid until the farm could generate enough income to pay his wages. Mr Shelton deposed that Mr Turvey continued working for Printpot and he assumed that Mr Turvey was receiving Centrelink payments to support himself and his family.
2. Mr Shelton deposed that:

(a) he told Mr Turvey that if he damaged any equipment on the farm while working, he would be liable to pay for the repairs himself;

(b) wages were paid to Mr Turvey from 20 July 2018 to 21 June 2019;

(c) in February 2020, Mr Turvey ceased working for Printpot and left the farm;

(d) from 2019 to 2022, mortgagees took possession of his properties and as a consequence he became very depressed and ill. His mortgagees sold a number of properties for undervalue and use the proceeds of sale to reduce debt. He deposed to eventually having refinanced one of the properties in October 2022;

(e) in late November 2022, he had two operations and suffered heart problems;

(f) he had assured Mr Turvey that he would do his best to pay what was owing to him less rent, utilities and damaged equipment; and

(g) he received correspondence from the Ombudsman over a period of time but it was only when Mr McLaughlin, a financial adviser and negotiator, pointed out the "seriousness" of the claims that he responded to them.

1. Admissions made by Printpot in its response have already been identified. The same document also put in issue the following matters relevant to the question of contravention:

(a) whether FWI Keene had believed prior to serving the Compliance Notice that:

(i) the Award covered and applied to Printpot in respect of Mr Turvey;

(ii) Mr Turvey:

• (A) had been employed by Printpot as a full-time farmhand at a rate of $20 per hour;
• (B) had been classified as a Farm and Livestock Hand Level 1;
• (C) had not been paid the applicable minimum rate pursuant to cl.28 of the Award for ordinary hours worked; and
• (D) had accrued but not taken annual leave;

(iii) Printpot had failed to pay Mr Turvey his applicable minimum wage in respect of ordinary hours worked;

(iv) Mr Turvey's employment had been terminated on 24 February 2020; and

(v) on termination, Printpot failed to pay Mr Turvey for any accrued but untaken annual leave or leave loading pursuant to cl.23.4(b)(i) of the Award; and

(b) whether, based on those matters, FWI Keene had formed a reasonable belief prior to serving the Compliance Notice that Printpot had contravened:

(i) clause 28 of the Award; and

(ii) section 90(2) of the FW Act.

1. If either of those questions were to be answered in the negative, the precondition for the issuing of the Compliance Notice found in s.716(1) of the FW Act would not be satisfied and the notice would be void and ineffective.

1. As recorded earlier in these reasons, FWI Keene deposed to having believed, prior to issuing the Compliance Notice, that the matters summarised in [22] and [23] above were facts. He was not required for cross-examination and, given his evidence concerning what he was told by Mr and Mrs Turvey and Mr Shelton, I see no reason not to accept his evidence that he held that belief. It can also be inferred from the evidence that FWI Keene accepted that Mr Turvey had been paid at a rate of $20 per hour and that his employment had terminated on 24 February 2020.

1. "Belief" was described by the High Court in George v Rockett [1990] HCA 26; (1990) 170 CLR 104 in the following terms:

The objective circumstances sufficient to show a reason to believe something need to point more clearly to the subject matter of the belief, but that is not to say that the objective circumstances must establish on the balance of probabilities that the subject matter in fact occurred or exists: the assent of belief is given on more slender evidence than proof. Belief is an inclination of the mind towards assenting to, rather than rejecting, a proposition and the grounds which can reasonably induce that inclination of the mind may, depending on the circumstances, leave something to surmise or conjecture.

(at 116)

1. The requirement that FWI Keene's belief was reasonable does not arise in this case from legal implication but is posed by the words of the statute. Whether it was reasonable of FWI Keene to have believed that Printpot breached cl.28 of the Award and s.90(2) of the FW Act depends on the rationality of that belief and the intelligibility of the process by which it was reached: ABT17 v Minister for Immigration and Border Protection [2020] HCA 34; (2020) 94 ALJR 928 at 936 [19] - [20] per Kiefel CJ, Bell, Gageler and Keane JJ; BHL19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 94; (2020) 277 FCR 420 at 444-445 [131] - [138] per Wigney J. As Wigney J said in BHL19, the role of a court in circumstances such as the present is to evaluate:

... the decision with a view to determining whether, having regard to the terms, scope, and purpose of the relevant statutory power, the decision ... falls outside the range of lawful outcomes. (at 445 [137])

1. I conclude that it was reasonable of FWI Keene to believe that Printpot had breached cl.28 of the Award and s.90(2) of the FW Act. I have reached this conclusion because the foundational, factual matters which FWI Keene deposed to having believed, summarised above at [22], point to an intelligible process of reasoning having been followed and provide a rational factual basis for his consequential belief that the provisions cited in the Compliance Notice had been contravened.

1. To the extent that there might have been an agreement that Printpot would not have to pay Mr Turvey until it was in funds, any such agreement, if oral, would be ineffective as an individual flexibility arrangement and so incapable of postponing the payment obligations imposed on Printpot by the Award. Further, no written evidence which might suggest that an individual flexibility arrangement had in fact been entered into has been shown to have been presented to FWI Keene.
2. Further, Printpot did not allege in this proceeding that it had a reasonable excuse under s.716(5) of the FW Act for not acting on the Compliance Notice within its deadline. Notwithstanding that various potentially extenuating circumstances were advanced by Mr Shelton, they did not amount to much more than assertions of lack of liquidity and disagreement with the total amounts owed. The disagreement has not been adequately identified and particularised and the statements concerning liquidity are insufficiently particularised and evidenced to be relied on with any confidence. The assertions, as presented, are too insubstantial to amount to reasonable excuses for non-compliance.
3. Mr Shelton also deposed to health problems, but these postdated the deadlines for compliance specified in the Compliance Notice, namely 31 January 2022 and 7 February 2022.

1. For the foregoing reasons I find that the respondent contravened the Compliance Notice as alleged. There will be a declaration accordingly.
2. The matter will be listed for directions preparatory to a future hearing on compensation and penalty.

I certify that the preceding thirty-nine (39) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Cameron.