Fair Work Ombudsman v Sureguard Security Pty Ltd

BARKER J: 1 This judgment concerns the penalties that should be imposed on the respondent for its admitted contraventions of the Fair Work Act 2009 (Cth) (FW Act). 2 As set out below, the parties have agreed the facts relating to the admitted contraventions, as well as the declarations and the nature of the orders they propose should be made. 3 In particular, the parties consent to the Court granting the following relief: (1) Declarations that the respondent contravened the following civil penalty provisions: (a) section 45 of the FW Act (by contravening cl 14.1 of the Security Services Industry Award 2010 (Cth) (Modern Award), by failing to provide the relevant employees listed below with the required minimum rate of pay under the Modern Award; (b) section 45 of the FW Act (by contravening cl 10.5(b) of the Modern Award), by failing to pay the casual employees the required casual loading under the Modern Award; (c) section 45 of the FW Act (by contravening cl 22.3 of the Modern Award), by failing to pay the relevant employees listed below the required night span penalty under the Modern Award; (d) section 45 of the FW Act (by contravening cl 22.3 of the Modern Award), by failing to pay the relevant employees listed below the required permanent night shift penalty under the Modern Award; (e) section 45 of the FW Act (by contravening cl 22.3 of the Modern Award), by failing to pay the relevant employees listed below the required Saturday span penalty under the Modern Award; (f) section 45 of the FW Act (by contravening cl 22.3 of the Modern Award), by failing to pay the relevant employees listed below the required Sunday span penalty under the Modern Award; (g) section 45 of the FW Act (by contravening cl 22.3 of the Modern Award), by failing to pay the relevant employees listed below the required public holiday span penalty under the Modern Award; (h) section 45 of the FW Act (by contravening cl 23.3 of the Modern Award), by failing to pay the relevant employees listed below the required overtime rate of pay for Monday - Friday under the Modern Award; (i) section 45 of the FW Act (by contravening cl 23.3 of the Modern Award), by failing to pay the relevant employees listed below the required overtime rate of pay for Saturday under the Modern Award; (j) section 45 of the FW Act (by contravening cl 23.3 of the Modern Award), by failing to pay the relevant employees listed below the required overtime rate of pay for Sunday under the Modern Award; (k) section 45 of the FW Act (by contravening cl 23.3 of the Modern Award). by failing to pay the relevant employees listed below the required overtime rate of pay for public holidays under the Modern Award; and (l) section 45 of the FW Act (by contravening cl 15.1(a) of the Modern Award), by failing to pay the relevant employees listed below the required broken shift allowance under the Modern Award. (2) An order that the respondent pay penalties pursuant to s 546(1) of the FW Act for its contraventions of the FW Act. (3) An order pursuant to s 546(3)(a) of the FW Act that all pecuniary penalties imposed be paid into the Consolidated Revenue Fund of the Commonwealth of Australia within 28 days of the Court's orders. (4) An order pursuant to s 545(1) of the FW Act requiring: (a) all persons engaged by the respondent who have managerial responsibility for decisions regarding wages and conditions, at the expense of the respondent, to engage a suitably qualified compliance professional or legal practitioner with expertise in workplace relations law to conduct training, either jointly or individually, to occur within three months of the date of the Court's orders, in relation to compliance with: (i) wages and work-related entitlements under the Modern Award; (ii) accrual and payment of entitlements under the National Employment Standards contained in Part 2-2 of the FW Act; and (b) the respondent to notify the applicant in writing, within seven days of the training, of the attendees and the name(s) of the person(s) who conducted the training.

Agreed facts 4 The facts and admissions agreed by the parties (statement of agreed facts (SOAF), should be set out in full, and are as follows: THE APPLICANT 1. The Applicant is and was at all material times: (a) a statutory appointee of the Commonwealth appointed by the Governor-General by written instrument pursuant to Division 2 of Part 5-2 of the Fair Work Act 2009 (Cth) (FW Act); (b) a Fair Work Inspector pursuant to section 701 of the FW Act; and (c) a person with standing to bring these proceedings pursuant to subsection 539(2) of the FW Act RESPONDENT - SUREGUARD SECURITY PTY TD 2. The Respondent, Sureguard Security Pty Ltd (ACN 104 202 646), is and was at all relevant times; (a) a company incorporated under the Corporations Act 2001 (Cth); (b) able to be sued in and by its corporate name; (c) a "constitutional corporation" within the meaning of section 12 of the FW Act; (d) a "national system employer'' within the meaning of section 14 of the FW Act; (e) a business operating a security enterprise which provides security guards for static and mobile patrols (the Business); and (f) operating from 3/13 Beale Way, Rockingham Western Australia. MR FRASER AND THE CASUAL EMPLOYEES 3. At all relevant times, the Respondent engaged security guards to perform security services for its third party clients. 4. During the period 29 December 2014 to 10 January 2016 (Employment Period), the Respondent employed Colin Ross Fraser (Mr Fraser) as a security guard on a full time basis. 5. During the Employment Period, the Respondent also employed each of the following individuals as security guards: (a) Garry Scott Anthony (Mr Anthony); (b) Alida Blankendaal (Ms Blankendaal); (c) Daniel Craig Bootsma (Mr Bootsma); (d) Michael Joseph Buckless (Mr Buckless); (e) George Allan Carian (Mr Carian); (f) Christie Renee Eddy (Ms Eddy); (g) Peter John Eddy (Mr Eddy); (h) Clive Essery (Mr Essery); (i) Ralph Glodek (Mr Glodek); (j) Murray Leigh Johns (Mr Johns); (k) Deakon Luscious King (Mr King); (l) Joshua Paul Martin (Mr Martin); (m) James Andrew McCormick (Mr McCormick); (n) Benjamin James McMahon (Mr McMahon); (o) Scott Pinchbeck (Mr Pinchbeck); (p) John Leslie Pride (Mr Pride); (q) Nathan Ray Rosman (Mr Rosman); (r) Maria Senzio (Ms Senzio); (s) Shane Andrew Simpson (Mr Simpson); (t) David Adam Vander Ven (Mr Vander Ven); and (u) Philip John Vasilenko (Mr Vasilenko), (collectively referred to as the Casual Employees). 6. The Casual Employees were employed by the Respondent as casual employees. 7. Mr Fraser and the Casual Employees performed the following duties on a day to day basis for the Respondent: protect, patrol, guard or watch a specific site or area of a site (the Level 1 Duties). 8. In addition to these duties, Mr Fraser and eight of the Casual Employees also performed the following duties on a regular basis for the Respondent: to patrol a number of sites using a patrol vehicle (the Level 2 Duties). 9. The eight Casual Employees who carried out Level 1 Duties and Level 2 Duties were: (a) Mr Anthony; (b) Mr Carian; (c) Ms Eddy; (d) Mr Eddy; (e) Mr Johns; (f) Mr Pride; (g) Mr Rosman; and (h) Mr Vasilenko. 10. During the Employment Period, Mr Fraser and each of the Casual Employees were generally paid: (a) Between $21.50 and $24.00 per hour for static guard work; and (b) $25 per hour for patrol work. RELEVANT LEGISLATION AND APPLICABLE INDUSTRIAL INSTRUMENT 11. At all relevant times the Respondent was bound by the FW Act in respect of the employment of the Mr Fraser and the Casual Employees. 12. At all relevant times the Respondent: (a) was covered by the Security Services Industry Award 2010 (Modern Award) in relation to the employment of the Mr Fraser and the Casual Employees; and (b) the Modern Award applied to the Respondent. 13. At all relevant times, Mr Fraser and the Casual Employees were within the scope of the classification structure provided at Schedule C of the Modern Award in one of the following classifications: (a) Security Officer Level 1 (Level 1), during the hours in which they performed Level 1 Duties; or (b) Security Officer Level 2 (Level 2), during the hours in which they performed Level 2 Duties. UNDERPAYMENT CONTRAVENTIONS Contraventions of clause 14.1 of the Modern Award - Failure to pay minimum rates of pay 14. At all relevant times, the Respondent was required to pay the minimum rate for ordinary hours prescribed by clause 14.1 of the Modern Award. 15. During the Employment Period, the Respondent failed, at times, to pay the following employees the minimum rate for ordinary hours worked: (a) Ms Blankendaal; (b) Mr Essery; (c) Mr McMahon; (d) Ms Senzio; and (e) Mr Simpson. 16. During the period 29 December 2014 to 12 July 2015 (First Pay Rate Period), the Respondent was required to pay each of the employees listed at paragraph 15 above the minimum rate of pay of: (a) $18.95 per hour for all ordinary hours in respect of Level 1 Duties; and (b) $19.49 per hour for all ordinary hours in respect of Level 2 Duties. 17. During the period from 13 July 2015 (the first full pay period on or after 1 July 2015) to 10 January 2016 (Second Pay Rate Period), the Respondent was required to pay the employees listed in paragraph 15 above the minimum rate of: (a) $19.42 per hour for all ordinary hours in respect of Level 1 Duties; and (b) $19.98 per hour for all ordinary hours in respect of Level 2 Duties. 18. During the Employment Period, the employees listed in paragraph 15 above worked the ordinary hours as set out in Table 1. 19. The amounts paid by the Respondent to the employees listed in paragraph 15 above in respect of the hours worked, referred to in paragraph 18 above, were insufficient to satisfy their entitlements to minimum rates of pay for ordinary hours worked, pursuant to clause 14.1 of the Modern Award, causing the them to be underpaid the amount set out in Table 1. 20. By reason of the matters in paragraphs 14 to 19 above, the Respondent: (a) contravened a provision of a modern award, being clause 14.1 of the Modern Award; and (b) thereby contravened section 45 of the FW Act. which is a civil remedy provision under subsection 539(2) of the FW Act. Contraventions of clause 10.5(b) of the Modern Award - Failure to pay casual loading 21. At all relevant times, pursuant to the matters in paragraph 6 above, the Respondent was required to pay the Casual Employees a casual loading pursuant to clause 10.5(b) to the Modern Award. 22. During the First Pay Rate Period, the amount of casual loading required to be paid to the Casual Employees was: (a) $4.74 per hour for all ordinary hours in respect of Level 1 Duties; and (b) $4.87 per hour for all ordinary hours in respect of Level 2 Duties. 23. During the Second Pay Rate Period, the amount of casual loading required to be paid to the Casual Employees was: (a) $4.86 per hour for all ordinary hours in respect of Level 1 Duties; and (b) $5.00 for all ordinary hours in respect of Level 2 Duties. 24. During the Employment Period, each of the Casual Employees worked ordinary hours which attracted the casual loading as described in paragraphs 22 and 23 above, as set out in Table 2. 25. By reason of the matters in paragraphs 21 to 24 above, the amounts paid by the Respondent to the Casual Employees were insufficient to satisfy their entitlement to casual loading, pursuant to clauses 10.5(b) to the Modern Award, causing the Casual Employees to be underpaid the amounts set out in Table 2. 26. By reason of the matters at paragraphs 21 to 25 above, the Respondent: (a) contravened a provision of a modern award, being clause 10.5(b) of the Modern Award; and (b) thereby contravened section 45 of the FW Act, which is a civil remedy provision under subsection 539(2) of the FW Act. Contraventions of clause 22.3 of the Modern Award - Failure to pay Night Span Penalty 27. At all relevant times, the Respondent was required to pay the following employees an additional penalty amount for all hours worked from 0000 to 0600 hours, and from 1800 to 2400 hours, during the period from 0000 Monday to 2400 Friday, pursuant to clause 22.3 of the Modern Award (Night Span Penalty): (a) Mr Anthony: (b) Mr Bootsma; (c) Mr Carian; (d) Mr Essery; (e) Mr Fraser; (f) Mr Glodek; (g) Mr Johns; (h) Mr King; (i) Mr Martin; (j) Mr McCormick; (k) Mr McMahon; (l) Mr Pinchbeck; (m) Mr Pride; (n) Mr Rosman; (o) Mr Simpson; and (p) Mr Vander Ven. 28. During the First Pay Rate Period, the Night Span Penalty required to be paid to the employees listed in paragraph 27 above was: (a) $4.11 per hour for all ordinary hours in respect of Level 1 Duties; and (b) $4.23 per hour for all ordinary hours in respect of Level 2 Duties. 29. During the Second Pay Rate Period, the Night Span Penalty required to be paid to the employees listed in paragraph 27 above was: (a) $4.21 per hour for all ordinary hours in respect of Level 1 Duties; and (b) $4.34 per hour for all ordinary hours in respect of Level 2 Duties. 30. During the Employment Period, the employees listed in paragraph 27 above worked ordinary hours which attracted the Night Span Penalty, as set out in Table 3. 31. By reason of the matters in paragraphs 27 to 30 above, the amounts paid by the Respondent to each of the employees listed in paragraph 27 above were insufficient, pursuant to clause 22.3, causing each of them to be underpaid the amounts set out in Table 3. 32. By reason of the matters in paragraphs 27 to 31 above, the Respondent: (a) contravened a provision of a modern award, being clause 22.3 of the Modern Award; and (b) thereby contravened section 45 of the FW Act, which is a civil remedy provision under subsection 539(2) of the FW Act. Contraventions of clause 22.3 of the Modern Award - Failure to pay Permanent Night Shift Penalty 33. At all relevant times, the Respondent was required to pay the following employees an additional penalty amount for working permanent night shift pursuant to clause 22.3 of the Modem Award (Permanent Night Shift Penalty): (a) Mr Anthony; (b) Ms Blankendaal; (c) Mr Bootsma; (d) Mr Carian; (e) Ms Eddy (f) Mr Eddy; (g) Mr Fraser; (h) Mr Johns; (i) Mr Pride; (j) Mr Rosman; (k) Ms Senzio; (l) Mr Simpson; and (m) Mr Vasilenko. 34. During the First Pay Rate Period, the Permanent Night Shift Penalty required to be paid to the employees listed in paragraph 33 above was: (a) $5.69 per hour for all ordinary hours in respect of Level 1 Duties; and (b) $5.85 per hour for all ordinary hours in respect of Level 2 Duties. 35. During the Second Pay Rate Period. the Permanent Night Shift Penalty required to be paid to the employees listed in paragraph 33 above was: (a) $5.83 per hour for all ordinary hours in respect of Level 1 Duties; and (b) $5.99 per hour for all ordinary hours in respect of Level 2 Duties. 36. During the Employment Period, each of the employees listed in paragraph 33 above worked ordinary hours which attracted the Permanent Night Shift Penalty, as set out in Table 4. 37. By reason of the matters in paragraphs 33 to 36 above, the amounts paid by the Respondent to each of the employees listed in paragraph 33 above were insufficient, pursuant to clause 22.3, causing each of them to be underpaid the amounts set out in Table 4. 38. By reason of the matters in paragraphs 33 to 37 above, the Respondent: (a) contravened a provision of a modern award, being clause 22.3 of the Modern Award; and (b) thereby contravened section 45 of the FW Act, which is a civil remedy provision under subsection 539(2) of the FW Act. Contraventions of clause 22.3 of the Modem Award - Failure to pay Saturday Span Penalty 39. At all relevant times, the Respondent was required to pay the following employees an additional penalty amount for all hours worked from 0000 to 2400 hours on a Saturday, pursuant to clause 22.3 to the Modern Award (Saturday Span Penalty): (a) Mr Anthony; (b) Ms Blankendaal; (c) Mr Bootsma; (d) Mr Carian; (e) Ms Eddy; (f) Mr Eddy; (g) Mr Essery; (h) Mr Fraser; (i) Mr Glodek; (j) Mr Johns; (k) Mr King; (l) Mr Martin; (m) Mr McCormick; (n) Mr McMahon; (o) Mr Pinchbeck; (p) Mr Pride; (q) Mr Rosman; (r) Ms Senzio; (s) Mr Simpson; (t) Mr Vander Ven; and (u) Mr Vasilenko. 40. During the First Pay Rate Period, the Saturday Span Penalty required to be paid to the employees listed in paragraph 39 above was: (a) $9.48 per hour for all ordinary hours in respect of Level 1 Duties; and (b) $9. 75 per hour for all ordinary hours in respect of Level 2 Duties. 41. During the Second Pay Rate Period, the Saturday Span Penalty required to be paid to the employees listed in paragraph 39 above was: (a) $9.71 per hour for all ordinary hours in respect of Level 1 Duties; and (b) $9.99 per hour for all ordinary hours in respect of Level 2 Duties. 42. During the Employment Period, each of the employees listed in paragraph 39 above worked ordinary hours which attracted the Saturday Span Penalty, as set out in Table 5. 43. By reason of the matters in paragraphs 39 to 42 above, the amounts paid by the Respondent to the employees listed in paragraph 39 above were insufficient, pursuant to clause 22.3, causing each of them to be underpaid the amounts set out in Table 5. 44. By reason of the matters in paragraphs 39 to 43 above, the Respondent: (a) contravened a provision of a modern award, being clause 22.3 of the Modern Award; and (b) thereby contravened section 45 of the FW Act, which is a civil remedy provision under subsection 539(2) of the FW Act. Contraventions of clause 22.3 of the Modern Award - Failure to pay Sunday Span Penalty 45. At all relevant times, the Respondent was required to pay the following employees an additional penalty amount for all hours worked from 0000 to 2400 on a Sunday, pursuant to clause 22.3 Modern Award (Sunday Span Penalty): (a) Mr Anthony; (b) Ms Blankdendaal; (c) Mr Bootsma; (d) Mr Carian; (e) Ms Eddy; (f) Mr Eddy; (g) Mr Essery; (h) Mr Fraser; (i) Mr Johns; (j) Mr King; (k) Mr Martin; (1) Mr McCormick; (m) Mr McMahon; (n) Mr Pinchbeck; (o) Mr Pride; (p) Mr Rosman; (q) Ms Senzio; (r) Mr Simpson; (s) Mr Vander Ven; and (t) Mr Vasilenko. 46. During the First Pay Rate Period, the amount of Sunday Span Penalty required to be paid to the employees listed in paragraph 45 above was: (a) $18.95 per hour for all ordinary hours in respect of Level 1 Duties; and (b) $19.49 per hour for all ordinary hours in respect of Level 2 Duties. 47. During the Second Pay Rate Period, the amount of Sunday Span Penalty required to be paid to the employees listed in paragraph 45 above was: (a) $19.42 per hour for all ordinary hours in respect of Level 1 Duties; and (b) $19. 98 per hour for all ordinary hours in respect of Level 2 Duties. 48. During the Employment Period, each of the employees listed in paragraph 45 above worked ordinary hours which attracted the Sunday Span Penalty, as set out in Table 6. 49. By reason of the matters in paragraphs 45 to 48 above, the amounts paid by the Respondent to each of the employees listed in paragraph 45 above were, pursuant to clause 22.3, causing each of them to be underpaid the amounts set out in Table 6. 50. By reason of the matters in paragraphs 45 to 49 above, the Respondent: (a) contravened a provision of a modern award, being clause 22.3 of the Modern Award; and (b) thereby contravened section 45 of the FW Act, which is a civil remedy provision under subsection 539(2) of the FW Act. Contraventions of clause 22.3 of the Modern Award - Failure to pay Public Holiday Span Penalty 51. At all relevant times, the Respondent was required to pay the following employees an additional penalty amount for hours worked from 0000 to 2400 on a public holiday, pursuant to clauses 22.3 of the Modern Award (Public Holiday Span Penalty): (a) Mr Anthony; (b) Ms Blankendaal; (c) Mr Bootsma; (d) Mr Carian; (e) Ms Eddy; (f) Mr Eddy; (g) Mr Essery; (h) Mr Fraser; (i) Mr Glodek; (j) Mr Johns; (k) Mr King; (l) Mr Martin; (m) Mr McCormick; (n) Mr McMahon; (o) Mr Pride; (p) Mr Rosman; (q) Ms Senzio; and (r) Mr Vasilenko. 52. During the First Pay Rate Period, the amount of Public Holiday Span Penalty required to be paid to the employees listed in paragraph 51 above was: (a) $28.43 per hour for all ordinary hours in respect of Level 1 Duties; and (b) $29.24 per hour for all ordinary hours in respect of Level 2 Duties. 53. During the Second Pay Rate Period, the amount of Public Holiday Span Penalty required to be paid to the employees listed in paragraph 51 above was: (a) $29.13 per hour for all ordinary hours in respect of Level 1 Duties; and (b) $29.97 per hour for all ordinary hours in respect of Level 2 Duties. 54. During the Employment Period, each of the employees listed in paragraph 51 above worked ordinary hours which attracted the Public Holiday Span Penalty, as set out in Table 7. 55. By reason of the matters in paragraphs 51 to 54 above, the amounts paid by the Respondent to each of the employees listed in paragraph 51 above were insufficient, pursuant to clause 22.3, causing each of them to be underpaid the amounts set out in Table 7. 56. By reason of the matters in paragraphs 51 to 55 above, the Respondent: (a) contravened a provision of a modern award, being clause 22.3 of the Modern Award; and (b) thereby contravened section 45 of the FVV Act, which is a civil remedy provision under subsection 539(2) of the FVV Act. Contraventions of clause 23.3 of the Modern Award - Failure to pay minimum overtime rate (Monday - Friday, first two hours) 57. The Modern Award provides in clause 21.1 for maximum hours of 76 hours in a two week roster cycle and in clause 21.2 maximum shifts of 10 hours for casual and full time employees. Hours worked beyond the stipulated maximums (Overtime) are paid pursuant to the overtime provisions in clause 23 of the Modern Award. 58. At all relevant times, the Respondent was required to pay the following employees at a rate of pay set out in paragraphs 59 and 60 below for the first two hours of Overtime worked on a Monday to Friday, pursuant to clause 23.3 of the Modern Award: (a) Mr Anthony; (b) Ms Blankendaal; (c) Mr Bootsma; (d) Mr Carian; (e) Ms Eddy; (f) Mr Eddy; (g) Mr Fraser; (h) Mr Glodek; (i) Mr Johns; (j) Mr King; (k) Mr Martin; (l) Mr McCormick; (m) Mr McMahon: (n) Mr Pinchbeck; (o) Mr Pride; (p) Mr Rosman; (q) Ms Senzio; (r) Mr Simpson; and (s) Mr Vasilenko. 59. During the First Pay Rate Period, the overtime rate required to be paid to the employees listed in paragraph 58 above was: (a) $9.48 per hour for the first two hours of Overtime worked on a Monday to Friday in respect of Level 1 Duties; and (b) $9.75 per hour for the first two hours of Overtime worked on a Monday to Friday in respect of Level 2 Duties. 60. During the Second Pay Rate Period, the overtime rate required to be paid to the employees listed in paragraph 58 above was: (a) $9.71 per hour for the first two hours of Overtime worked on a Monday to Friday in respect of Level 1 Duties; and (b) $9.99 per hour for the first two hours of Overtime worked on a Monday to Friday in respect of Level 2 Duties. 61. During the Employment Period, each of the employees listed in paragraph 58 above worked Overtime on either Level 1 or Level 2 Duties which attracted the overtime rates as described in paragraphs 59 and 60 above, as set out in Table 8. 62. By reason of the matters in paragraphs 57 to 61, the amounts paid by the Respondent to each of the employees listed in paragraph 58 above were insufficient, pursuant to clause 23.3, causing each of them to be underpaid the amounts set out in Table 8. 63. By reason of the matters paragraphs 57 to 62 above, the Respondent: (a) contravened a provision of a modern award, being clause 23.3 of the Modern Award; and (b) thereby contravened section 45 of the FW Act, which is a civil remedy provision under subsection 539(2) of the FW Act. Contraventions of clause 23.3 of the Modern Award - Failure to pay minimum overtime rate (Monday - Friday, after the first two hours) 64. At all relevant times, the Respondent was required to pay the following employees at a rate of pay set out in paragraphs 65 and 66 below for Overtime they worked beyond two hours on a Monday to Friday, pursuant to clause 23.3 of the Modem Award: (a) Mr Bootsma: (b) Mr Carian; (c) Mr Eddy; (d) Mr Fraser; (e) Mr Glodek; (f) Mr King; (g) Mr Pinchbeck; (h) Mr Rosman; and (i) Mr Vasilenko. 65. During the First Pay Rate Period, the overtime rate required to be paid to the employees listed in paragraph 64 was: (a) $18.95 per hour for Overtime worked beyond the first two hours on a Monday to Friday in respect of Level 1 Duties; and (b) $19.49 per hour for Overtime worked beyond the first two hours on a Monday to Friday in respect of Level 2 Duties. 66. During the Second Pay Rate Period, the overtime rate required to be paid to the employees listed in paragraph 64 was: (a) $19.42 per hour for Overtime worked beyond the first two hours on a Monday to Friday in respect of Level 1 Duties; and (b) $19.98 per hour for Overtime worked beyond the first two hours on a Monday to Friday in respect of Level 2 Duties. 67. During the Employment Period, each of the employees listed in paragraph 64 above worked Overtime on either Level 1 or Level 2 Duties which attracted the overtime rates as described in paragraphs 65 and 66 above, as set out in Table 9. 68. By reason of the matters in paragraphs 64 to 67 above, the amounts paid by the Respondent to each of the employees listed in paragraph 64 above were insufficient, pursuant to clause 23.3, causing each of the them to be underpaid the amounts set out in Table 9. 69. By reason of the matters in paragraphs 64 to 68 above, the Respondent: (a) contravened a provision of a modem award, being clause 23.3 of the Modern Award; and (b) thereby contravened section 45 of the FW Act, which is a civil remedy provision under subsection 539(2) of the FW Act. Contraventions of clause 23.3 of the Modern Award - Failure to pay minimum overtime rate (Saturday, first two hours) 70. At all relevant times, the Respondent was required to pay the following employees at a rate of pay set out in paragraphs 71 and 72 below for the first two hours of Overtime worked on a Saturday, pursuant to clause 23.3 of the Modern Award: (a) Mr Anthony; (b) Ms Blankendaal; (c) Mr Bootsma; (d) Mr Carian: (e) Ms Eddy; (f) Mr Eddy; (g) Mr Fraser; (h) Mr Glodek; (i) Mr Johns; (j) Mr King; (k) Mr Martin; (l) Mr Pinchbeck; (m) Mr Pride; (n) Mr Rosman; (o) Ms Senzio; (p) Mr Simpson; and (q) Mr Vasilenko. 71. During the First Pay Rate Period, the overtime rate required to be paid to the employees listed in paragraph 70 above was: (a) $9.48 per hour for the first two hours of Overtime worked on a Saturday in respect of Level 1 Duties; and (b) $9.75 per hour for the first two hours of Overtime worked on a Saturday in respect of Level 2 Duties. 72. During the Second Pay Rate Period, the overtime rate required to be paid to the employees listed in paragraph 70 above was: (a) $9.71 per hour for the first two hours of Overtime worked on a Saturday in respect of Level 1 Duties; and (b) $9.99 per hour for the first two hours of Overtime worked on a Saturday in respect of Level 2 Duties. 73. During the Employment Period, each of the employees listed in paragraph 70 above worked Overtime on either Level 1 or Level 2 Duties which attracted the overtime rates as described in paragraphs 71 and 72 above, as set out in Table 10. 74. By reason of the matters in paragraphs 70 to 73 above, the amounts paid by the Respondent to each of the employees listed in paragraph 70 above were insufficient, pursuant to clause 23.3, causing each of them to be underpaid the amounts set out in Table 10. 75. By reason of the matters in paragraphs 70 to 74 above, the Respondent: (a) contravened a provision of a modern award, being clause 23.3 of the Modern Award; and (b) thereby contravened section 45 of the FW Act, which is a civil remedy provision under subsection 539(2) of the FW Act. Contraventions of clause 23.3 of the Modern Award - Failure to pay minimum overtime rate (Saturday, after the first two hours) 76. At all relevant times. the Respondent was required to pay the following employees at a rate of pay set out in 77 and 78 below for Overtime they worked beyond two hours on a Saturday, pursuant to clause 23.3 of the Modern Award: (a) Mr Bootsma; (b) Mr Eddy; (c) Mr Fraser; (d) Mr King; and (e) Mr Rosman. 77. During the First Pay Rate Period, the overtime rate required to be paid to the employees listed in paragraph 76 above was: (a) $18.95 per hour for Overtime worked beyond the first two hours on a Saturday in respect of Level 1 Duties; and (b) $19.49 per hour for Overtime worked beyond the first two hours on a Saturday in respect of Level 2 Duties. 78. During the Second Pay Rate Period, the overtime rate required to be paid to the employees listed in paragraph 76 above was: (a) $19.42 per hour for Overtime worked beyond the first two hours on a Saturday in respect of Level 1 Duties; and (b) $19.98 per hour for Overtime worked beyond the first two hours on a Saturday in respect of Level 2 Duties. 79. During the Employment Period, each of the employees listed in paragraph 76 above worked Overtime on either Level 1 or Level 2 Duties which attracted the overtime rates as described in paragraphs 77 and 78 above, as set out in Table 11. 80. By reason of the matters in paragraphs 76 to 79, the amounts paid by the Respondent to each of the employees listed in paragraph 76 above were insufficient, pursuant to clause 23.3, causing each of them to be underpaid the amounts set out in Table 11. 81. By reason of the matters in paragraphs 76 to 80 above, the Respondent: (a) contravened a provision of a modern award, being clause 23.3 of the Modern Award; and (b) thereby contravened section 45 of the FW Act, which is a civil remedy provision under subsection 539(2) of the FW Act. Contraventions of clause 23.3 of the Modern Award - Failure to pay minimum overtime rate (Sunday) 82. At all relevant times, the Respondent was required to pay the following employees at a rate of pay set out in paragraphs 83 and 84 below for Overtime they worked on a Sunday, pursuant to clause 23.3 of the Modern Award: (a) Mr Anthony; (b) Ms Blankendaal; (c) Mr Bootsma; (d) Mr Carian; (e) Ms Eddy; (f) Mr Eddy; (g) Mr Fraser; (h) Mr Johns; (i) Mr Pride; (j) Mr Rosman; (k) Ms Senzio: (l) Mr Simpson; and (m) Mr Vasilenko. 83. During the First Pay Rate Period, the overtime rate required to be paid to the employees listed in paragraph 82 above was: (a) $18.95 per hour for Overtime worked on a Sunday in respect of Level 1 Duties: and (b) $19.49 per hour for Overtime worked on a Sunday in respect of Level 2 Duties. 84. During the Second Pay Rate Period, the overtime rate required to be paid to the employees listed in paragraph 82 above was: (a) $19.42 per hour for Overtime worked on a Sunday in respect of Level 1 Duties; and (b) $19.98 per hour for Overtime worked on a Sunday in respect of Level 2 Duties. 85. During the Employment Period, each of the employees listed in paragraph 82 above worked Overtime on a Sunday carrying out either Level 1 or Level 2 Duties which attracted the overtime rates as described in paragraphs 83 and 84 above, as set out in Table 12. 86. By reason of the matters in paragraphs 82 to 85, the amounts paid by the Respondent to each of the employees listed in paragraph 82 above was insufficient, pursuant to clause 23.3, causing the employees to be underpaid the amounts set out in Table 12. 87. By reason of the matters in paragraphs 82 to 86 above, the Respondent: (a) contravened a provision of a modern award, being clause 23.3 of the Modern Award; and (b) thereby contravened section 45 of the FW Act, which is a civil remedy provision under subsection 539(2) of the FW Act. Contraventions of clause 23.3 of the Modern Award - Failure to pay minimum overtime rate (Public Holiday) 88. At all relevant times, the Respondent was required to pay the following employees at a rate of pay set out in paragraphs 89 and 90 below for Overtime they worked on a public holiday (as that term is defined in clause 3.1 of the Modern Award), pursuant to clause 23.3 of the Modern Award: (a) Mr Anthony; (b) Ms Blankendaal; (c) Mr Bootsma; (d) Mr Carian; (e) Ms Eddy; (f) Mr Eddy; (g) Mr Fraser; (h) Mr Martin; (i) Mr Pride; (j) Ms Senzio; and (k) Mr Vasilenko. 89. During the First Pay Rate Period, the overtime rate required to be paid to the employees listed in paragraph 88 above was: (a) $28.43 per hour for Overtime worked on a Public Holiday in respect of Level 1 Duties; and (b) $29.24 per hour for Overtime worked on a Public Holiday in respect of Level 2 Duties. 90. During the Second Pay Rate Period, the overtime rate required to be paid to the employees listed in paragraph 88 above was: (a) $29.13 per hour for Overtime worked on a Public Holiday in respect of Level 1 Duties; and (b) $29.97 per hour for Overtime worked on a Public Holiday in respect of Level 2 Duties. 91. During the Employment Period, each of the employees listed in paragraph 88 above worked Overtime on a Public Holiday carrying out either Level 1 or Level 2 Duties which attracted the overtime rates as described in paragraphs 89 and 90 above, as set out in Table 13. 92. By reason of the matters in paragraphs 88 to 91 above, the amounts paid by the Respondent to each of the employees listed in paragraph 88 above were insufficient, pursuant to clause 23.3, causing the employees to be underpaid the amounts set out in Table 13. 93. By reason of the matters in paragraphs 88 to 92 above, the Respondent: (a) contravened a provision of a modern award, being clause 23.3 of the Modern Award; and (b) thereby contravened section 45 of the FW Act, which is a civil remedy provision under subsection 539(2) of the FW Act. Contraventions of clause 15.1(a) of the Modern Award - Failure to pay Broken Shift Allowance 94. At all relevant times, the Respondent was required to pay the following employees an allowance when they were required by the Respondent to work a rostered shift in two periods of duty, pursuant to clause 15.1(a) of the Modern Award (Broken Shift Allowance): (a) Mr Anthony; (b) Mr Bootsma; (c) Ms Eddy; (d) Mr Essery; (e) Mr Glodek; (f) Mr Johns; (g) Mr King; (h) Mr Martin; (i) Mr McCormick; (j) Mr McMahon; (k) Mr Pride; (l) Mr Rosman; (m) Mr Simpson; and (n) Mr Vander Ven. 95. During the First Pay Rate Period, the Respondent was required to pay the employees listed in paragraph 94 above a Broken Shift Allowance of $12.20 when they were required to work a rostered shift in two periods of duty. 96. During the Second Pay Rate Period, the Respondent was required to pay the employees listed in paragraph 94 above a Broken Shift Allowance of $12.51 when they were required to work a rostered shift in two periods of duty. 97. During the Employment Period, the employees listed in paragraph 94 above worked rostered shifts which attracted the Broken Shift Allowance as described in paragraphs 95 and 96 above, as set out in Table 14. 98. By reason of the matters in paragraphs 94 to 97 above, the amounts paid by the Respondent to the employees listed in paragraph 94 were insufficient, pursuant to clauses 15.1(a), causing each of them to be underpaid the amounts set out in Table 14. 99. By reason of the matters in paragraphs 94 to 98 above, the Respondent: (a) contravened a provision of a modern award, being clause 15.1(a) of the Modern Award; and (b) thereby contravened section 45 of the FW Act, which is a civil remedy provision under subsection 539(2) of the FW Act. TOTAL UNDERPAYMENTS 100. By reason of the contraventions admitted by the Respondent in paragraphs 14 to 99 above, the Respondent caused Mr Fraser and the Casual Employees to be underpaid a total of $205,408.40. 101. Within 7 business days of this SOAFA being signed, the Respondent has agreed to rectify the full underpayment of $205,408.40 plus interest by Electronic Funds Transfer to Mr Fraser and the Casual Employees in the amounts set out in the table below: 102. In the event that the Respondent is unable to locate Mr Fraser or any of the Casual Employees for the purposes of rectifying the underpayment as set out in paragraph 101 above, the Respondent has agreed to pay those amounts owing to the Consolidated Revenue of the Commonwealth of Australia within 7 days of this SOAFA being signed.

Parties' submissions 5 The applicant submits the following principles should be taken into account in determining the appropriate penalties pursuant to s 546(1) of the FW Act: (1) The Court should identify the separate contraventions. Each contravention of each separate obligation found in the FW Act and the Modern Award is a separate contravention of a civil remedy provision for the purposes of s 539(2) of the FW Act. (2) The Court should apply s 557(1) of the FW Act, which relevantly provides that if a person commits multiple contraventions of an applicable provision they should be treated as a single contravention if they arise out of a single course of conduct. (3) The Court should ensure that the respondent is not punished more than once for the same conduct by considering whether it is necessary to "group" together contraventions of different provisions where the contraventions arose from the same transaction or unlawful conduct. (4) The Court should fix an appropriate penalty for each single or grouped contravention, taking into account all relevant circumstances. (5) The Court should apply the totality principle by considering whether the aggregate penalty is an appropriate response to the conduct which led to the contraventions. The Court should apply an instinctive synthesis in making this assessment. 6 The applicant notes that the respondent has admitted some 14 contraventions of s 45 of the FW Act, namely: (1) failing to comply with cl 14.1 of the Modern Award because the respondent did not pay the applicable minimum hourly rate to those employees listed in table 1 of the SOAF; (2) failing to comply with cl 10.5(b) of the Modern Award, because the respondent did not pay the applicable casual loading to those employees listed in table 2 of the SOAF; (3) failing to comply with cl 22.3 of the Modern Award, because the respondent did not pay the applicable night span penalty rate to those employees listed in table 3 of the SOAF ; (4) failing to comply with cl 22.3 of the Modern Award, because the respondent did not pay the applicable permanent night shift penalty rate to those employees listed in table 4 of the SOAF; (5) failing to comply with cl 22.3 of the Modern Award, because the respondent did not pay the applicable Saturday penalty rate to those employees listed in table 5 of the SOAF; (6) failing to comply with cl 22.3 of the Modern Award, because the respondent did not pay the applicable Sunday penalty rate to those employees listed in table 6 of the SOAF; (7) failing to comply with cl 22.3 of the Modern Award, because the respondent did not pay the applicable public holiday penalty rate to those employees listed in table 7 of the SOAF; (8) failing to comply with cl 23.3 of the Modern Award, because the respondent did not pay the minimum overtime rate payable for the first 2 hours of overtime worked on a Monday to Friday to those employees listed in table 8 of the SOAF; (9) failing to comply with cl 23.3 of the Modern Award, because the respondent did not pay the minimum overtime rate payable for overtime worked in excess of 2 hours on a Monday to Friday to those employees listed in table 9 of the SOAF; (10) failing to comply with cl 23.3 of the Modern Award, because the respondent did not pay the minimum overtime rate payable for the first 2 hours of overtime worked on a Saturday to those employees listed in table 10 of the SOAF; (11) failing to comply with cl 23.3 of the Modern Award, because the respondent did not pay the minimum overtime rate payable for overtime worked in excess of 2 hours on a Saturday to those employees listed in table 11 of the SOAF; (12) failing to comply with cl 23.3 of the Modern Award, because the respondent did not pay the minimum overtime rate payable for overtime worked on a Sunday to those employees listed in table 12 of the SOAF; (13) failing to comply with cl 23.3 of the Modern Award, because the respondent did not pay the minimum overtime rate payable for overtime worked on a public holiday to those employees listed in table 13 of the SOAF; and (14) failing to comply with cl 15.1 and cl 15.6 of the Modern Award, because the respondent did not pay the broken shift allowance to those employees listed in table 14 of the SOAF. 7 The applicant then notes that s 557 of the FW Act provides that for specific contraventions of the FW Act, two or more contraventions of the same civil remedy provision will be treated as a single contravention where that contravention was committed by the same person, and arose from the same course of conduct. 8 The applicant notes it is otherwise open to the Court to group separate contraventions where the contraventions contain common elements or can be said to overlap with each other. See Pearce v R (1998) 194 CLR 610; [1998] HCA 57 at [40], Johnson v R (2004) 205 ALR 346 at [27]-[34], Australian Ophthalmic Supplies Pty Ltd v McAlary-Smith [2008] FCAFC 8; [2004] HCA 15 (Merringtons) at [46], [72] (Graham J) and [93] (Buchanan J) and Fair Work Ombudsman v Tiger Telco Pty Ltd (in liq) [2012] FCA 479 at [24]-[25] (Bromberg J). 9 The applicant acknowledges that grouping ensures a respondent is not punished twice for relevant "criminality". See Fair Work Ombudsman v Grouped Property Services Pty Ltd (No 2) [2017] FCA 557 at [411]-[439]. 10 The applicant, accepting the "one contravention" principle under s 557 and the appropriateness of grouping, contends that in this proceeding the total number of contraventions may be treated as the 14 listed above at [6]. 11 However, the applicant submits that it is appropriate to further group the following overtime contraventions: (1) failing to pay 50% loading for the first two hours of overtime on a Monday to Friday pursuant to cl 23.3 of the Modern Award; (2) failing to pay 100% loading for subsequent overtime on a Monday to Friday pursuant to cl 23.3 of the Modern Award; (3) failing to pay 50% loading for the first two hours of overtime on a Saturday pursuant to cl 23.3 of the Modern Award; (4) failing to pay 100% loading for subsequent overtime on a Saturday pursuant to cl 23.3 of the Modern Award; (5) failing to pay 100% loading for overtime on a Sunday to Friday pursuant to cl 23.3 of the Modern Award; and (6) failing to pay 150% loading for overtime on a public holiday pursuant to cl 23.3 of the Modern Award. 12 As to the remaining contraventions, the applicant submits they should not be grouped. In particular, with regard to the penalty rate contraventions, the applicant submits it is appropriate to treat the Saturday, Sunday, night shift, permanent night shift and public holiday penalty rate contraventions separately as each penalty compensates the employees for a different reason and gives rise to a separate and distinct obligation on the part of the respondent. The applicant says the respondent itself appeared to treat such obligations as distinct as the higher rates were paid to employees for night span, Sunday work and public holidays. 13 On this basis, the applicant contends the Court should impose penalties in respect of nine contraventions. 14 Having regard to a well-established, non-exhaustive list of factors that are taken into account when imposing penalties under the FW Act, and discussed further below, and noting the need for specific and general deterrence, the applicant identifies the following proposed penalties in respect of the contraventions as it would group them: 15 While the respondent is broadly in agreement with the applicant as to the principles and approaches the Court should adopt in fixing penalties in this case, the respondent submits that the contraventions relating to minimum hourly rates should be grouped together; casual loading contraventions should be grouped together; and the penalty rates should be grouped together - as was done, for example, in Fair Work Ombudsman v Lifestyle SA Pty Ltd [2014] FCA 1151 at [65]-[69]. 16 If that were done, the relevant groupings on the respondent's approach would be as follows: (1) Night span contraventions: (a) failing to comply with cl 22.3 of the Modern Award, because the respondent did not pay the applicable night span penalty rate to those employees listed in table 3 of the SOAF; and (b) failing to comply with cl 22.3 of the Modern Award, because the respondent did not pay the applicable permanent night shift penalty rate to those employees listed in table 4 of the SOAF. (2) Penalty rate contraventions: (a) failing to comply with cl 22.3 of the Modern Award, because the respondent did not pay the applicable Saturday penalty rate to those employees listed in table 5 of the SOAF; (b) failing to comply with cl 22.3 of the Modern Award, because the respondent did not pay the applicable Sunday penalty rate to those employees listed in table 6 of the SOAF; and (c) failing to comply with cl 22.3 of the Modern Award, because the respondent did not pay the applicable public holiday penalty rate to those employees listed in table 7 of the SOAF. (3) The overtime contraventions (as outlined at [11]). 17 The respondent accepts that the remaining contraventions should stand on their own as there are no common entitlements. 18 The result of adopting the approach contended for by the respondent would be that the number of contraventions is reduced from 14 to a group of six. 19 The proposed penalties, as contended for by the respondent, would then be as follows: 20 Apart from the grouping question, the parties are, in some respects, at odds as to the seriousness and deliberateness of the conduct of the respondent when it comes to the assessment of penalty. I will return to these issues below. 21 More generally, as to the nature and extent of the contravening conduct, the applicant submits that: (1) The respondent's contraventions arose out of a prolonged period of non-compliance with the FW Act, with the admitted contraventions spanning more than a 12 month period and affecting at least 22 employees. (2) All except one of the employees (Colin Fraser) were not paid the casual loading to which they were entitled, resulting in an underpayment on account of a failure to pay casual loading in the amount of $40,940.66. (3) The employees also regularly performed work during unsociable hours including night span work, permanent night span work, Saturday, Sunday and public holiday work. (4) Although some employees received a higher rate of pay than their usual base rate of pay for work performed during the night span, on Sundays and on public holidays, the rate was nonetheless insufficient to meet the correct pay rates under the Modern Award. Further, employees were generally paid at their usual rate of pay for work performed on Saturdays, with no additional penalties 22 As to this factor, the respondent contends: (1) The employees of the respondent were not third world workers who could be classed as vulnerable workers in the sense that they were on working visas or lacked English speaking skills. Rather the employees employed by the respondent were competent, knowledgeable, English speaking people who, if they believed they were being taken advantage of, would have had the ability to speak out. (2) Further, the nature of the conduct occurred out of a single structural issue of paying a flat rate to all the employees with the respondent being naive that this was sufficient. (3) The respondent believed that paying over the award rate would cover the shortfalls in not paying penalty rates. The respondent thought it would pay a good rate for all the work the employees did rather than work just completed at "unsociable" hours. This was also for administrative convenience. (4) The same conduct, the lack of knowledge regarding the different pay rates is what lead to the underpayments. It was not multiple actions taken by the respondent to breach the legislation. 23 As to the nature and the extent of the loss suffered, the applicant makes the following submissions: (1) The underpayment contraventions affected each of the employees, resulting in individual underpayments of up to $20,563.27. (2) Ten of the 22 employees were underpaid in excess of $10,000 over the relevant 12 month period and 8 employees were underpaid in excess of $4,000 over the relevant period. 24 The respondent, in response, submits: (1) In total, 22 employees of the respondent were underpaid during the specified period. (2) The highest amount of underpayment per employee ranges from $15,000, but does not exceed $21,000 with some employees being underpaid less than $250. (3) The defendant did pay above the minimum rate set out by the award for a number of days. The company was under the impression that over paying would counteract the different rates of pay for other periods. 25 As to the size of the business/capacity to pay, the applicant submits: (1) The Court has held that the size and financial circumstances of a respondent do not exculpate breaches of workplace laws. Small businesses have the same obligation as larger employers to meet minimum employment standards. (2) However, the applicant acknowledges that the financial circumstances of a respondent may be a relevant consideration in determining an appropriate penalty and whether the size of that penalty is "meaningful". (3) The available evidence before the Court indicates that between December 2014 and January 2016 the respondent employed approximately 30 employees. The applicant acknowledges that the respondent is not a large business. (4) There is limited evidence before the Court of the financial position of the respondent. Although the Court can infer from the affidavit of Mr Gary Crowther that the respondent continues to trade. 26 In relation to this factor, the respondent submits: (1) The respondent acknowledges that the size of the business does not exculpate breaches of workplace laws. It is understood that small businesses have the same obligation as larger employers to meet minimum employment standards. (2) However, it must be brought to attention that a small business does not generally have the same profit margins as a larger business. Nor does a small business have the same compliance resources. Thus, the amount of penalties that the respondent could be facing are large enough that they would destroy a small employer, one that has gone to extraordinary efforts to ensure his employees were rightfully paid and that the company did not go into liquation, allowing the business to continue employing staff. (3) When it comes to general deterrence, it is noted that larger businesses face harsher penalties given the greater human resources such firms possess. Larger companies also have the resources to cope financially when receiving large penalties, however large penalties can and would likely cripple small businesses. (4) The net profit of the respondent for the previous financial year of 2014/2015 was $30,000. Whereas the financial year before, 2013/2014, the respondent had a net profit of $150,000. This was due to a loss of contracts which reduced the company's annual turnover by about $700,000. (5) In Ace Insurance Limited v Trifunovski (No 2) [2012] FCA 793, their Honours discussed how the company was large enough that a penalty of $66,000 would be unlikely to cause any issue of hardship within the company. As stated above, the financial status of the respondent is not comparable to Ace Insurance. (6) Mr Crowther, in going against advice, prevented the company from going into liquidation. A harsh penalty may send the respondent into liquidation which would be counterproductive to protecting staff who have now been fully paid. 27 As to deliberateness of the contraventions, the applicant says that: (1) The applicant accepts that the contravening conduct of the respondent does not appear to have been deliberate. Rather, the applicant submits that the respondent acted with a reckless disregard for workplace laws. (2) Mr Crowther knew that certain work required a higher rate of pay. The pay slips provided to the applicant indicates that the respondent did pay a higher rate of pay for night span, Sunday work and public holidays for some employees, indicating that the respondent knew of the requirement to pay higher rates for certain work. Despite this, there is no evidence that Mr Crowther took steps to ensure that the respondent was paying rates that were sufficient to meet the respondent's obligations under the Modern Award. (3) The respondent had also been alerted to the need to pay penalty rates from as far back as 2007 when the then Workplace Ombudsman wrote to him in relation to a complaint made by a former employee. Although this was at a time pre-dating the Modern Award, at the least, it should have alerted the respondent to pay closer attention to the need to comply with applicable workplace instruments. 28 The respondent submits in response: (1) The respondent did not work out how much money would result from underpaying, nor did the respondent take any deliberate action to underpay as was found in Fair Work Ombudsman v 7-Eleven where management deliberately changed software to underpay employees. (2) The respondent did not have a blatant disregard for the law but a mere lack of understanding as he was unaware of the Modern Award and what it entailed. There was no malicious or deliberate intent behind the underpayments and there was no financial benefit obtained by the respondent at any time during the period of underpaying. (3) It is incorrect to say that the respondent had a knowledge or understanding that certain work required a higher rate of pay because of an alert from the applicant as suggested by the applicant at [40]-[41] of its submissions. As mentioned above, the respondent was never warned about underpaying employees. Therefore, it is unreasonable to link the above matter with the current matter. Further, it should not be linked to the respondent's deliberateness as it is established there was no deliberate action nor was there any malicious intent behind any of the contraventions. 29 In relation to the involvement of senior management, the applicant submits that: (1) At all relevant times, Mr Crowther was the sole director and shareholder of the respondent, including being responsible for the day-to-day management of the business and being ultimately responsible in respect of the employee's terms and conditions of employment. 30 The respondents submits in respect of this factor that: (1) It is not a disputed matter that senior management was involved in the contraventions of the FW Act. (2) The respondent is the sole director of the company and therefore is responsible for overseeing tasks such as ensuring employees are paid correctly, even if it has been delegated to a bookkeeper. 31 As to contrition, corrective action and cooperation, the applicant makes the following observations and submissions: (1) Where a corporate respondent is involved, an expression of contrition is most clearly seen by the way that the corporation takes steps to correct its wrongdoing and change its behaviour. As Perram J said in ACE Insurance at [113]-[114]: 113. It is not clear to me how an artificial construct such as a corporation can experience the complex human emotion of contrition made up, as it is, of an amalgam of distinctly human emotions such as regret, shame and sympathy. I do not doubt that a corporation may exhibit signs of regret but it is too much to expect that such an artificial construct can be meaningfully contrite. 114. For civil penalty cases involving corporations it would be more coherent to ask only whether the corporation has changed its behaviour. Nothing more can be expected; a person who does not literally or physically exist may not wear sackcloth. (2) While certainly a relevant circumstance and warrants some mitigation on penalty, the weight to be afforded to the respondent's rectification is to be considered in light of recent comments by a Federal Circuit Court judge that: "Belatedly doing what the law required to be done at an earlier time amounts to no more than the late performance of a duty". See Fair Work Ombudsman v Australian Sales & Promotion Pty Ltd & Anor [2016] FCCA 2804 at [82]. This is particularly so as: In the absence of… any evidence of genuine contrition or corrective action, the only inference the Court can draw is that rectification of the underpayment appears more a matter of expediency, a 'cost of doing business', than an acceptance of wrongdoing. (3) Mr Crowther's evidence on behalf of the respondent is that he first began communication with the applicant in October 2015 and provided documentation for audit in February 2016. (4) Mr Crowther states that he subsequently "became aware of Sureguard's breach of the Award and the expected liability", so he acted to engage Employsure in September 2016 in order to ensure the respondent's compliance with employment law obligations. (5) On 29 November 2016, the respondent received the formal notice from the applicant as to the fact it owed $204,076.18 to the employees. Mr Crowther refers to this letter in his affidavit and states that "from my earlier discussions with FWO staff, I was expecting a figure around this amount". (6) Despite Mr Crowther expecting the quantum of the underpayment, the respondent was unable to comply with the 14 day deadline given in the applicant's 29 November 2016 letter. (7) Mr Crowther states that he considered the 14 day deadline provided "insufficient time given the company is a small employer and the timing was immediately before Christmas during a period I was unable to obtain advice easily". (8) On 24 May 2017, the parties attended mediation. By that date there had still not been any rectification of the underpayments by the respondent, despite the respondent having been on notice of the substantial underpayment since at least 22 August 2016. (9) Mr Crowther's evidence on behalf of the respondent states that the underpayments were rectified within seven days in keeping with the terms of the agreement reached at mediation. (10) In fact, the documents attached to Mr Crowther's affidavit show that the repayments were all made on 14 June 2017. The respondent therefore made the relevant payments 21 days after the mediation and 14 days late. (11) The applicant submits that the respondent, by rectifying the relevant underpayments on 14 June 2017, did nothing more than "late performance of a duty". Late in the sense that the employees were owed for work completed years prior; late in the sense that the applicant required payment in December 2016; and late in the sense that the respondent agreed to pay it on 1 June 2017 during mediation and only paid on 14 June 2017. (12) The applicant notes in Mornington Inn Pty Ltd v Jordan (2008) 168 FCR 383; [2008] FCAFC 70, the Full Federal Court (Gyles, Stone and Buchanan JJ) discussed the circumstances where admissions of contraventions give rise to a discount on penalty. Stone and Buchanan JJ observed, at [74], that it is not a sufficient basis for a discount that any admissions have saved the cost of a contested hearing, as that would discriminate against a person who exercised their right to contest the allegations. Rather: the benefit of such a discount should be reserved for cases where it can be fairly said that an admission of liability: (a) has indicated an acceptance of wrongdoing and a suitable and credible expression of regret; and/or (b) has indicated a willingness to facilitate to course of justice. (13) Notwithstanding the above, the applicant accepts that the respondent should have the benefit of some discount on account of rectifying the large quantum of underpayments and facilitating the course of justice. The applicant submits that a discount of 25% is appropriate in this regard. 32 As to the question of corrective action, the respondent rejects the proposition that a company cannot exhibit contrition other than "changing behaviour", as suggested by the applicant with reference to Ace Insurance. In Construction, Forestry, Mining and Energy Union v Pilbara Iron Company (Services) Pty Ltd (No 4) (2012) 225 IR 113; [2012] FCA 894, Katzmann J disagreed with Ace Insurance at [34]: A corporation may admit it's wrongdoing and spare the other parties the costs of prosecuting the case. In a jurisdiction, such as this, where costs can only be awarded in exceptional cases that is a meaningful expression of contrition. The corporation may also offer recompense. It may apologise. The decision-makers themselves could offer apologies. It may introduce precautions to guard against the risk of reoffending. 33 The respondent further submits: (1) The respondent did admit to breaching the relevant legislation. The respondent rejects [48] of the applicant's submissions on penalty. As the applicant has the date of the SOAF as being signed incorrect, the respondent in fact did pay back all the employees exactly what they were owed within the 14-day time limit. As the date of the signing of the SOAF was 7 June 2017 and the payment to the employees occurred on 14 June 2017, there was no delay as suggested by the applicant. The payments were made early. (2) As a direct result of the incorrect dates being obtained by the applicant, the respondent rejects that there was "late performance of a duty" as all underpayments were rectified within the specified and agreed time limit put in place by both parties. The respondent did wait until the applicant confirmed how much its employees were underpaid in order to rectify the employees based upon fact, not based upon estimations. This does not indicate lack of performance. (3) Further, the respondent respectfully rejects [50] of the applicant's submissions. Mr Crowther did expect a figure as to that given in the letter, and "arranged to sell my personal assets as Suregurad would not have been able to meet the financial obligations". The respondent did not purposefully not pay back the employees during the months of the investigation, rather it was awaiting funds from Mr Crowther in order to pay back employees and finalisation of the claim. (4) The company has changed its behaviour by increasing the wages of the remaining employees. The respondent has introduced precautions to guard against the risk of reoffending. This includes employing the services of Employsure and a bookkeeper to ensure that employment standards are met. As a direct result this will prevent any carelessness leading to misconduct by the respondent from occurring in the future. (5) The applicant goes on to support the notion the respondent could not comply with the 14-day payment as was discussed in Mr Crowther's affidavit. When reading the affidavit, it becomes obvious that Mr Crowther was referring to the time frame being insufficient as he could not obtain advice at such a busy time of year, namely Christmas time. Thus para [49] of the applicant's submissions should not affect the contrition displayed by the company as it has been misconstrued. (6) Further, to be able to make the repayments and prevent the company from becoming liquidated, Mr Crowther sold personal assets of high sentimental value to ensure the underpayments could be rectified. The action taken by Mr Crowther on behalf of the respondent to ensure that his employees were rightfully paid demonstrates his honourability and kind nature. These actions taken by the respondent indicate that the underpayments were not deliberate and that no financial benefit occurred as a result. Mr Crowther placed his employees before himself, something in which limited directors have done. (7) It has been argued by the applicant that the respondent did not make any corrective action during the period of investigation to repay the employees, however, it is clear from the communications that the company believed that they owed sustainably less so it was waiting for the final figure from the applicant to be resolved, and to ensure that employees were paid the right amount. This was preferable to making numerous amounts of little payments. This does not indicate lack of corrective action. 34 In relation to the question of specific deterrence, the applicant submits there is a need for the penalty to reflect the need for specific deterrence, contending that there is evidence that despite being alerted to the need to comply with workplace obligations in 2007, the respondent continued to fail to do so a decade later. It submits that any penalties should be set at a meaningful level to deter the respondent from engaging in contravening behaviour in the future. 35 The applicant also contends that the need for general deterrence, for penalties to serve as a warning to others not to commit similar contraventions, must be borne in mind. 36 The applicant says that: (1) The need for general deterrence in the security industry is particularly pertinent. In February 2016, the applicant's Strategic Research, Analysis and Reporting Team (SRAR Team) produced an industry profile of the security services industry based on data for the period July 2010 to January 2016 (Industry Report). Amongst other things, the Industry Report identifies: (a) The security industry sector is inherently labour intensive with 49% of revenue expended on wages. As a result, profit margins are low. Therefore, companies look for ways to reduce costs, such as subcontracting and using low-cost labour. (b) There is an over representation of the industry in the applicant's compliance data - both the number of disputes lodged and the amount recovered from disputes lodged. (c) Over the period of July 2010 to January 2016, the applicant received a total of 2,168 dispute form lodgements relating to businesses registered with "Investigation and Security Services". 37 Finally, the applicant seeks a training order, in addition to the declarations and penalties, such an order being designed to ensure the respondent is educated and well-equipped to ensure future compliance with the FW Act and the Modern Award. 38 The respondent emphasises the need for the Court to impose aggregate penalties that reflect the totality of the contravening conduct. There is no dispute between the parties concerning the relevance of the totality principle in the present case. 39 As to the training order proposed by the applicant, the respondent does not make any submissions.

Consideration 40 The first issue to be resolved is the grouping issue. 41 As noted above, there are some 14 admitted contraventions. The applicant accepts that the overtime contraventions might be grouped, thereby reducing the number of discrete contravention areas in respect of which penalties need to be imposed to nine. 42 The respondent, however, submits that further grouping is required of the night span contraventions and the penalty rate contraventions and that, if this is done, the 14 admitted contraventions will be reduced to a group of six. 43 I am satisfied that the grouping contended for by the respondent should be adopted. There is no exact science in this decision. It is a question of considering the nature of the contraventions and the nature of the "criminality" involved. While the respondent refers to Lifestyle suggesting the grouping it contends for, that decision is but an illustration of the nature of the grouping problem and an instance of how it was resolved in that case. 44 In my view, in this instance, the various contraventions of the night span penalty rate may be looked at as one set of contraventions involving the same "criminality", being the failure to pay a night span penalty rate. It is not necessary to break that down into different categories of employees, as the applicant suggests. In some circumstances the applicant's approach might be appropriate, but I am not satisfied that it is in this case. 45 For similar reasons, I consider that the penalty rate contraventions can also be grouped, along with the overtime contraventions as the applicant accepts. 46 In those circumstances, I would impose penalties on the basis that the 14 admitted contraventions is reduced to a group of six. 47 That then takes me to the question of the nature and extent of the contravening conduct. 48 Broadly speaking, I accept the submissions made on behalf of the applicant. The respondent's suggestion that its relevant employees were "not third world workers" and so cannot be classed as "vulnerable workers" is, in my view, only of passing relevance. Fair work conditions are not created on the basis that an employer can opt out of complying with them if it considers it has a pliant workforce. There are a myriad of reasons why employees may not object to or make complaints about their terms and conditions and the satisfaction of award rates. It does not necessarily mean they are not vulnerable and are not concerned about under-award payments. In this case, casual employees were particularly at risk. 49 While the circumstances in which the underpayments resulting from the contraventions came to the attention of the applicant have not been made clear to the Court - although it would appear it resulted from a general audit - the Court cannot take what might be described as a benign view of the contraventions. 50 The first factor just mentioned is related to the second factor, namely, the nature and extent of the loss suffered. The underpayment contraventions resulted in individual underpayments of up to $20,563.27. Ten of the 22 employees were underpaid in excess of $10,000 over a 12 month period. Eight were underpaid in excess of $4,000 over the relevant period. The total underpayments were in excess of $200,000. 51 On any view, these are significant underpayments. 52 The suggestion by the respondent that it was under the impression that by over paying in relation to the minimum rate it would "counteract" the different rates of pay for other periods, is not only, at best, a misunderstanding of the law, but a lame excuse. It rather suggests ignorance of what is actually required of an employer, something that cannot be condoned by the Court. 53 As to the size of the respondent and its capacity to pay, I have noted the submissions of the parties above. I accept that the respondent remains in business and is not, on the face of it, seeking to avoid payment by, for example, being wound up. 54 At the hearing, I gave the respondent the opportunity to put on more relevant evidence as to its financial capacity, given that it had not chosen to put on any evidence concerning its latest financial statement. An affidavit of an accountant on behalf of the respondent indicated that completed tax returns for the past 2014, 2015 and 2016 years confirmed the following income (or loss): 2014 - taxable income $93,485; 2015 - taxable income $73,401; and 2016 - taxable loss ($17,3048). 55 In my view, there is nothing in these figures to suggest that the respondent is in such a state that it will be unable to pay any relevant financial penalty imposed on it. No detail has been provided of how the 2016 taxable loss was calculated. As a general proposition in the circumstances of this case, I do not consider the particular financial circumstances of the respondent should dictate the level of the pecuniary penalties to be imposed. 56 As to the deliberateness of the contraventions, the respondent accepts that it should have known better but says it made a mistake of law. It asks the Court to accept there was not malicious or deliberate intent behind the underpayments and says there was no financial benefit obtained by it at any time during the period of underpaying. 57 While I accept there may have been no blatant design to circumvent the law, in a very practical sense it must be said there is little or no real excuse for the contraventions and they occur without any proper or indeed any regard for the award requirements. 58 In that regard, senior management - Mr Crowther, the sole director and shareholder of the respondent - was directly involved and responsibility for the contravention cannot be sheeted home to any minor functionary in the respondent. 59 As to contrition, corrective action and cooperation, while corrective action came slowly, I generally accept that the respondent did not adopt a "head in the sand" response, and did admit its contraventions at an appropriate time. 60 I accept that, in the circumstances of this case, the final figure of underpayment needed to be worked out before payments due were made. 61 More generally, however, I consider that the question of specific deterrence is relevant here. The respondent needs to understand that in business it must comply with all of the legal requirements imposed under the FW Act and cannot in any manner treat its workforce, whether old and seasoned employees or otherwise, other than strictly in accordance with the law. I do take into account, however, that the respondent has no prior contravention history. 62 Perhaps more importantly in this case, there is a question of general deterrence, so that other employers in a position not unlike that of the respondent here, do not think that they can make their own arrangements with their employees or otherwise take advantage of them by not strictly complying with their FW Act obligations. 63 So far as contravention 1 of the 14 separately identified contraventions is concerned, the applicant suggests that there should be a 25% discount allowed in the circumstances, resulting in a maximum penalty, after discount, of $40,500. It proposes that the recommended penalty range should be 20% to 30%, resulting in a pecuniary penalty in the range $8,100 to $12,150. The respondent suggests that the proposed discount should be 30%, resulting in a maximum penalty after discount of $37,800. In my view, the proposed discount on the maximum penalty of 30%, as suggested by the respondent, is appropriate having regard to all the circumstances I have noted. I also accept that a penalty range of 20% to 30%, as suggested by the applicant, is appropriate. That then produces a penalty range of $7,560 to $11,340 on the sum of $37,800. I would impose a penalty in the middle of that range, of $9,450. 64 In respect of contravention 2, the applicant contends for a maximum penalty, after discount, of $40,500, whereas the respondent again contends for a maximum penalty of $37,800. I adopt the latter figure for the same reason as in contravention 1. The applicant suggests a penalty range of 60% to 70%, namely between $24,300 and $28,350. I accept that the contravention involving the failure to pay casual loading to 21 employees should attract a higher penalty, but I consider the penalty range, taking into account all the circumstances I have mentioned and the fact that the respondent has no prior contravention history should be in the range of 40% to 50% of the discounted penalty of $37,800, which is $15,120 to $18,900. I would impose a penalty at the middle of that range in the sum of $17,010. 65 In respect of contraventions 3 and 4, which I have grouped, involving the failure to pay night shift penalty to 16 employees and a failure to pay permanent night shift penalty to 13 employees, the applicant suggests a maximum penalty after a 25% discount of $40,500, whereas the respondent suggests a maximum penalty after a 30% discount of $37,800. Again, I would accept the 30% discount suggested by the respondent for the same reasons as above. The applicant suggests a 40% to 50% penalty range. In my view, the grouped contraventions together are serious given the nature of the range of employees concerned. I consider, however, the penalty range should be in the range 30% to 40% of $37,800. I would impose a penalty in the middle of that range, being $13,230. 66 In respect of contravention 5, which I have grouped with contraventions 6 and 7, being respectively a failure to pay the Sunday span penalty to 20 employees, failure to pay the Saturday span penalty to 21 employees and failure to pay the public holiday span penalty to 18 employees, I would again proceed on the basis of a maximum penalty, after discount of 30%, as proposed by the respondent, being the sum of $37,800. In each case, the applicant suggests a penalty range of between 40% and 50%. In my view, a range of between 30% and 40% is appropriate. I would adopt the middle of that range at 35% and so impose a penalty of $13,230. 67 In respect of contraventions 8 to 13 inclusive, which the parties and the Court agree should be grouped, I would adopt the respondent's submission that there should be a 30% discount on the maximum penalty so that the maximum penalty after discount is $37,800. These contraventions involve various failures to pay overtime rates for a range of employees. The applicant suggests that the penalty range should be 60% to 70%. I consider that the grouped contraventions in respect of overtime rates are serious and should attract a higher penalty range than some of the others just mentioned. I consider, however, that 50% of the maximum penalty after discount is appropriate, namely, $18,900. 68 In respect of contravention 14, which involves the failure to pay the broken shift allowance to 14 employees, I would adopt the proposed discount on the maximum penalty suggested by the respondent so that the maximum penalty after discount would be $37,800. The applicant accepts that a lower penalty range of 20% to 30% would be appropriate in respect of this contravention. I agree and would impose a penalty in that mid-range, namely 25% or the sum, that is, $9,450. 69 Those penalties total $81,270. It remains to consider whether that total is an appropriate response to the conduct which has led to the various contraventions, and also whether the totality principle mentioned above is not offended. 70 When one has regard to the fact that there was a total underpayment to various employees in excess of $200,000, I consider the total penalties in this sum both to be appropriate and not to be unreasonable. 71 As I have suggested above, it not only serves the purpose of providing a specific deterrent to the respondent, so that it is unlikely that this course of contravening conduct will happen in the future, but as importantly it sends a message to employers in like circumstances that such contraventions will not be tolerated under the FW Act. 72 In these circumstances, taking into account all of the factors, I would impose the following pecuniary penalties in respect of each of the six groups of contraventions as follows: (1) Pursuant to s 546 (1) of the FW Act, the respondent pay pecuniary penalties for the contraventions of the civil remedy provisions set out in these declarations as follows (and as set out in more detail in the reasons for judgment): (a) in respect of contravention 1 - relating to the failure to pay minimum hourly rates: a pecuniary penalty in the sum of $9,450; (b) in respect of contravention 2 - relating to a failure to pay casual loading: a pecuniary penalty in the sum of $17,010; (c) in respect of contraventions 3 and 4 - relating to a failure to pay night shift penalties: a pecuniary penalty in the sum of $13,230; (d) in respect of contraventions 5, 6 and 7 - relating to a failure to pay span penalties: a pecuniary penalty in the sum of $13,230; (e) in respect of contraventions 8 to 13 (inclusive) - relating to a failure to pay overtime rates: a pecuniary penalty in the sum of $18,900; and (f) in respect of contravention 14 - relating to a failure to pay broken shift allowances: a pecuniary penalty in the sum of $9,450. I certify that the preceding seventy-two (72) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Barker.