Fair Work Act 2009 (Cth)

Application for the imposition of pecuniary penalties to be paid by former employer and former director for contraventions of civil penalty provisions of Fair Work Act 2009 (Cth) - Declarations of contraventions in previous decision following liability hearing - Consideration of evidence from respondents who did not appear for liability hearing - Primary purpose of penalties is deterrence - Multiple contraventions as course of conduct to be considered as single contravention pursuant to s 557 - Exclusion of penalty by operation of s 116D of the Fair Work Act 2009 (Cth) where Commissioner of Taxation has commenced proceedings - Where employer is body corporate and person involved pursuant to s 550 is sole director and shareholder - Proportionality of penalty between corporate and personal respondent - HELD - No penalty for breach of s 116B due to operation of s 116D - Corporate respondent and natural person respondent separate legal entities - Both liable separately for penalties for the same contraventions - Penalties on corporate respondent and natural person respondent to be proportionate - Solvency of respondent not a factor in determination of penalty where deterrence primary purpose - First respondent to pay penalties in total of $117,500 - Second respondent to pay penalties in total of $23,500 - All penalties to be paid to applicant within 14 days.

Crimes Act 1914 (Cth)

Fair Work Regulations 2009 (Cth)

Superannuation Guarantee (Administration) Act 1992 (Cth)

Ferenc v Rolo & Co Pty Ltd trading as Boutique Paws and Matthrew Honeyman [2025] SAET 77

Australian Building and Construction Commissioner v Pattinson [2022] HCA 13

Fair Work Ombudsman v Spotless Services Australia Ltd (No 2) [2022] FCA 383

Australian Competition and Consumer Commission v High Adventure Pty Ltd [2005] FCAFC 247

Australian Securities and Investments Commission v Holista Coltech Ltd [2024] FCA 244

Pipicella v Renewable Energy Australia [2023] FedCFamC2G 1167

Fair Work Ombudsman v Noorpreet Pty Ltd & Anor [2018] FCCA 1246

Milardovic v Vemco Services [2016] FCA 244

Young v Gey Van Pittius and Landman (No 2) [2024] SAET 89

Fair Work Ombudsman v Openica Logistics Pty Ltd & Anor [2016] FCCA 159

Fair Work Ombudsman v Double Hao International Pty Ltd (No 2) [2024] FedCFamC2G 943

Sayed v Construction, Forestry Mining and Energy Union (2016) FCR 336

1. Ms Ferenc has applied for the imposition of pecuniary penalties on her former employer, Rolo & Co Pty Ltd ('Rolo'), and its sole shareholder and director, Matthew Honeyman.[1]
2. The application for the imposition of penalties was included with her application for payment of amounts owed to her by Rolo, that were not paid to her when her employment ceased.
3. I have previously found that Ms Ferenc was underpaid as she claimed, and that Rolo and Mr Honeyman were both liable for contraventions civil remedy provisions of the Fair Work Act 2009 (Cth) ('the Act').
4. On 25 July 2025, I published orders that Rolo pay Ms Ferenc her outstanding entitlements with interest, along with my reasons for decision in Ferenc v Rolo & Co Pty Ltd trading as Boutique Paws and Matthrew Honeyman [2025] SAET 77. For ease of reference, I will refer to that as the liability decision.
5. In the liability decision, I made declarations of the contraventions that I had found by Rolo and Mr Honeyman. That decision was made after hearing from Ms Ferenc in the absence of Mr Honeyman or any other representative of Rolo. Mr Honeyman was the person who responded to the application on behalf of Rolo. However, he did not appear or notify the Court of any reason for not coming to Court. The efforts of the Court to involve Mr Honeyman and facilitate his attendance in these proceedings are described in the liability decision.
6. The present decision concerns whether there should be orders for penalties to be paid by Rolo and Mr Honeyman for those contraventions and, if so, in what amount. It relies on my findings of fact in the liability decision. I will refer to this as the penalty decision.
7. This penalty decision is to be read in conjunction with the liability decision, and assumes knowledge of that decision.

1. Following delivery of the liability decision, I listed the matter for directions on 31 July 2025.
2. Mr Honeyman did not attend this directions hearing, which was notified to him via the email address that he had previously provided to the SAET. Our staff were not able to contact him by telephone and he made no contact with the Court in response to our notice or the liability decision which had also been sent to him.
3. In his absence I listed the matter for further hearing on 18 August 2025 to determine the question of what, if any penalties should be ordered to be paid by Rolo and/or Mr Honeyman. Given his absence from the directions hearing, I made no orders for the filing of any further evidence. Mr Honeyman was notified of the penalty hearing by email notice to his most recent email address.
4. At the hearing, Ms Ferenc appeared again on her own behalf. Mr Honeyman appeared on his own behalf and on behalf of Rolo.
5. At the commencement of the hearing, I confirmed with Mr Honeyman that he received the liability decision. He had. He apologised for not having appeared for the first hearing and said that he did not realise how serious these proceedings were. Notwithstanding that, he acknowledged that the decision had been made in his absence and that the present hearing was on the question of the penalties.
6. I provided him with the opportunity to give evidence in relation to the issue of penalties. He sought to provide documents which he had available on his phone. I adjourned briefly to allow him to email them to the Court, and for my Associate to print them off and provide them to Ms Ferenc before his oral evidence.
7. Ms Ferenc confirmed that she had already submitted all her evidence prior to the liability hearing and did not wish to tender any further evidence at the penalty hearing. In this decision, I rely on the evidence tendered in the liability hearing, the facts as found in the liability decision, and the facts I have found based on Mr Honeyman's evidence at the penalty hearing.
8. Neither Ms Ferenc nor Mr Honeyman chose to make submissions following the conclusion of Mr Honeyman's evidence.

1. The declarations that I made in the liability decision are (noting that the first respondent is Rolo, and the second respondent is Mr Honeyman):
   1. The first respondent has engaged in serious contraventions pursuant to s 557A of the Fair Work Act 2009 (Cth) by contravention of the following civil remedy provisions:
      • Section 44 by failing to comply with the National Employment Standards through failure to pay superannuation on behalf of the applicant as required by s 116B of the Act (from 1 January 2024).
      • Section 45 of the Fair Work Act 2009 (Cth) by failing to comply with the requirements of a modern award, the General Retail Industry Award 2020 ('the Award'), being the requirement to make superannuation payments for the benefit of the applicant as required by cl 20.2 of the Award.
      • Section 323 of the Fair Work Act 2009 (Cth) by failing to pay the applicant's entitlements on termination in full.
      • Section 325 of the Fair Work Act 2009 (Cth) by unreasonably requiring the applicant to spend amounts of her own funds for the purchase of necessary supplies for the first respondent's business.
      • Section 536(1) of the Fair Work Act 2009 (Cth) by failing to provide payslips within one working day of payment of wages and s 536(2) in providing payslips that did not include information prescribed by Fair Work Regulation 2009 (Cth) reg 3.46.
   2. The first respondent contravened the following civil remedy provisions:
      • Section 44 of the Fair Work Act 2009 (Cth) by failing to comply with the National Employment Standards as follows:
        • failure to pay accrued annual leave on termination of employment as required by s 90 of the Act; and
        • failure to give the notice or payment in lieu of the notice as required by s 117 of the Act.
      • Section 45 of the Fair Work Act 2009 (Cth) by failing to comply with the requirements of a modern award, the General Retail Industry Award 2020, being the requirement to pay;
        • annual leave loading as required by cl 28.3 of the Award;
        • failure to make regular payment of wages as required by cl 18.3 of the Award; and
        • failure to make payment of entitlements due on termination with seven days as required by cl 18.4 of the Award.
   3. Pursuant to s 550, the second respondent was a person knowingly involved the above identified contraventions of ss 44, 45, 323, 325 and 536 of the Act. However, the second respondent's involvement was not a serious contravention.

1. Without objection by Ms Ferenc, Mr Honeyman tendered a number of documents that he wished the Court to consider in relation to penalties:
   • Exhibits R1-R4 and R8 which were copies of bank statements and a current phone bank account balance screenshot, for a number of personal accounts for Mr Honeyman and business accounts for Rolo. These showed no positive balance and a small overdraft.
   • Exhibit R5 which was a printout from the Commonwealth Courts Portal showing an application by the Commissioner of Taxation to the Federal Court of Australia for the winding up of Rolo. This application is listed to be heard on 17 September 2025.[2]
   • Exhibit R6 which is a notification dated 15 July 2025 from the Commonwealth Bank to Rolo that it had decided to close Rolo's account.
   • Exhibit R7 which is a record of outcome/order from the Elizabeth Magistrates Court dated 1 July 2025 recording Rolo as a Judgment Debtor to Rawson Verco Need Pty Ltd, with a non-payment order effective 31 October 2025. It included in its remarks that "Mr Honeyman is placing his property on the market to allow him to realise some of his debts." I note from its case number that these proceedings were commenced in 2024.[3]
2. Mr Honeyman gave oral evidence but was not cross-examined by Ms Ferenc. His evidence included responding to some questions from me.
3. In his oral evidence, Mr Honeyman attested that the documents he tendered were an accurate record of his current financial situation. That is, he currently has a negative bank balance and debts which he can only pay by selling his property, which included his dog breeding facility. He was not confident that the proceeds from the sale of his property would cover all of his debts. He said that his business was no longer operating and there was no income from that. He mentioned that he is getting by with some financial support from his father.
4. Mr Honeyman's evidence that he is in difficult financial circumstances and having to sell his property to try to meet his debts was not challenged by Ms Ferenc. There are also enforcement actions against the company presently on foot in two other courts. This fact combined with the unchallenged bank records are sufficient for me to accept his evidence in this regard.
5. In relation to the contraventions, he said his failure to pay Ms Ferenc her entitlements on termination was because he did not have the money to do so. He confirmed that he had not complied with my orders of 25 July 2025 that he pay Ms Ferenc's outstanding entitlements and interest. He said he would like to pay her, but he did not have the money and was not sure if there would be enough to pay her after his house had been sold.
6. In relation to the issues of irregular payment during the course of her employment, he said that he knew he had to pay but was not aware that it had to be regularly. Sometimes it depended on his cash flow. Sometimes if he sold a puppy, he would just transfer some money to Ms Ferenc until the pays did go through. He said he was aware that he had to provide payslips but did not know that there was a requirement to provide them within a day of the payment of wages.
7. In relation to the finding of unreasonable requirement to spend an amount, Mr Honeyman said that whenever Ms Ferenc spent her own money on items for the shop, he would pay her back later, so she was not out of pocket.
8. He said that in relation to her unpaid superannuation, he said that because they had got behind, he had been paying into a clearing house which allocated the payments to various employees. He said he did not control who these superannuation payments went to. He said that he was also an employee of the company, and his own employee superannuation was included in that debt. In response to a specific question from me he said there had been about fifteen employees, including Ms Ferenc.
9. In response to a further specific question from me, he answered that he had received a Director's liability notice from the ATO in relation to Ms Ferenc's unpaid superannuation. He said he had got a "Director's penalty for basically everything."[4]
10. Although the current proceedings relate to Ms Ferenc's employment in the pet store, Mr Honeyman said there had been four main arms to the business: boarding, quarantine, breeding and retail. As well as the shop at Parkside, there had been also a facility at Underdale.
11. Generally, Mr Honeyman said that he had been on good terms with Ms Ferenc over the course of her employment and that he always looked after his staff. He referred to the minimum award wage being too low for anyone to live on, which is why he paid above the Award hourly rate. When I asked him about his non-payment of the Award entitlement of annual leave loading, he said because he was paying above the Award hourly rate that he did not have to worry about anything else in the Award because it was covered. When I asked if he had taken advice about this, he said he had not. That is how he read the Award himself. He assumed that is how it works.
12. He acknowledged that for the purposes of Ms Ferenc's employment, he was the person who was responsible for making the decisions and the present situation was "on him".
13. While Mr Honeyman accepted that he was responsible for the contraventions that I had found, and although she was present in the Court, he did not take that obvious opportunity to offer any apology to her for Rolo's failure to pay her entitlements or to comply with other legal obligations in relation to her employment. He made a number of comments about always looking after his staff while also being trusting and too generous. This presentation was at odds with the persistent failure of Rolo over years to comply with its legal obligations as an employer. I was not confident that, even after the liability decision and in the course of this hearing, Mr Honeyman demonstrated remorse for the effect of his contraventions on Ms Ferenc or insight into the importance of ensuring that the legal obligations of being an employer are fully understood and complied with.
14. It is more than an inconvenience to an employee to be suddenly without employment and to be deprived of their entitlements due on termination, which would be expected to assist them financially in their transition to new employment.
15. That Ms Ferenc was and remains without the benefit of the $19,120.24, that she was entitled to be paid by 13 December 2024 on the termination of her employment, is a significant disadvantage to her.
16. That she has been throughout her employment deprived of the benefit of the contributions that Rolo was legally required to pay to her superannuation fund, is an ongoing substantial disadvantage. Of all the contraventions by Rolo and Mr Honeyman, it is the ongoing failure to pay Ms Ferenc's superannuation over a period of years that is the most serious, both in terms of the financial detriment to her and the ongoing nature of the breach. However, for reasons which I will explain further, I am constrained in the orders I can make in relation to this conduct.

1. Section 546(1) of the Act provides that:

The Federal Court, the Federal Circuit Court and Family Court of Australia (Division 2) or an eligible State or Territory court may, on application, order a person to pay a pecuniary penalty that the court considers is appropriate if the court is satisfied that the person has contravened a civil remedy provision.

1. By the use of the word 'may', the provision establishes that whether to order penalties, and if so, in which amount, is an exercise of discretion by the Court. This is subject to the maximum limits which s 546 (2) directs are those referred to in s 539 of the Act, and that the maximum penalty for a corporate body is five times that for a natural person. There is also a constraint in s 116D which I will explain later.
2. Section 539 of the Act identifies the maximum penalties that may be ordered in relation to each contravention of each civil remedy provision.
3. The maximum penalties, in relation to contraventions in this matter of ss 44, 45, 323, 325 and 536, are up to 60 penalty units for each contravention which is not a serious contravention by a natural person and 300 by a body corporate, and up to 600 penalty units for each serious contravention by a natural person and 3000 penalty units by a body corporate. For the contraventions in this matter which occurred between 1 July 2023 and 6 November 2024, the applicable amount per penalty unit is $313, while for contraventions committed on or after 7 November 2024 the applicable amount per penalty unit is $330.[5]
4. For a contravention occurring between 1 July 2023 and 6 November 2024 the maximum is $18,780 for a natural person and $93,900 for a body corporate, and per serious contravention is $187,800 for a natural person and $939,000 for a body corporate. For a contravention occurring on or after 7 November 2024 the maximum is $19,800 for a natural person and $99,000 for a body corporate, and per serious contravention is $198,000 for a natural person and $990,000 for a body corporate.

1. For the purposes of penalties, s 557(1) of the Act provides that where multiple contraventions are committed by the same person and arise out of the same course of conduct, they will be taken to constitute a single contravention:

557 Course of conduct

(1) For the purposes of this Part, 2 or more contravention of a civil remedy provision referred to in subsection (2) are, subject to subsection (3) taken to constitute a single contravention if:

(a) the contraventions are committed by the same person; and

(b) the contraventions arose out of a course of conduct by the person.

1. Subsection (2) relevantly includes all the contraventions that I have declared in this matter.
2. There were multiple contraventions of the following provisions.
3. Section 45 - breach of Award requirement to pay regularly. The irregular and late payment of wages occurred repeatedly over the course of Ms Ferenc's employment as a result of Rolo failing to ensure payments occurred on a regular payday. I find this was a course of conduct by the respondents and is to be treated as a single contravention.
4. Section 325 unreasonable requirement to spend an amount. This occurred repeatedly over the period of Ms Ferenc's employment, in each case explicitly or implicitly required by Mr Honeyman. I find this was a course of conduct by the respondents and is to be treated as a single contravention.
5. Section 536(1) failing to provide payslips within one working day of payment of wages and s 536(2) in providing payslips that did not include prescribed information. These payslips failures were routine over the period of Ms Ferenc's employment and were the result of Mr Honeyman failing to ensure the provision of accurate and timely payslips. I find these contraventions were a single course of conduct by the respondents and are to be treated as a single contravention, with date of effect being the final payslip due on 13 December 2024.
6. The ongoing failure over years to pay Ms Ferenc's employee superannuation was a breach of Section 116B of the Act from 1 January 2025, and a contravention of s 45 by failing to comply with the Award requirement over the whole period of her employment. I find that this was a course of conduct and to be treated as a single contravention of the s 45 up to 31 December 2023 and s 44 of the Act from 1 January 2024.
7. The remaining contraventions are each a single contravention and to be treated as separate contraventions for the purposes of penalty.

1. In relation to the contravention of s 44 by the breach of the requirement in s 116B to pay employee superannuation, the Act at s 116D(2) precludes an order for a penalty for that contravention if the Commissioner for Taxation has commenced proceedings against an employer to recover an amount of a superannuation charge which includes a shortfall for an individual employee.
2. Although I do not have documentary evidence that the Federal Court Proceedings include the shortfall payable to Ms Ferenc, the evidence that I do have points sufficiently in the direction that, in the absence of confirmation to the contrary, I consider that I am unable to make any penalty order in relation to this particular contravention.[6]
3. While the Act does not specifically preclude a penalty for the period up to 31 December 2023 when that conduct was a breach of the Award and Division 10A had not yet been enacted, the employer's liability under the Superannuation Guarantee (Administration) Act 1992 (Cth) upon which the Commissioner of Taxation can take enforcement proceedings is the same. Where the intention expressed in s 116D(2) is that no penalty be imposed where there are proceedings on the same subject matter brought by the Commissioner for Taxation, I consider it beyond my scope to impose a penalty for the same contravention prior to 31 December 2023. In the event that I am wrong about this constraint applying to the superannuation breach of the Award, and to reinforce the seriousness with which I view this contravention, I record that penalties that I would have imposed but for the constraints of s 116D are $50,000 for Rolo and $10,000 for Mr Honeyman.

1. The purpose of the civil penalty provisions is deterrence. This includes both specific deterrence, which is directed to the person who has contravened the Act, and general deterrence which is directed generally to persons (both corporate and natural) who employ others. The goal of these provisions is to discourage both the person who has engaged in the contravening conduct and others generally from engaging in similar conduct in the future. This was confirmed by the High Court of Australia in Australian Building and Construction Commissioner v Pattinson,[7] ('Pattinson').
2. The penalties should be sufficiently high to make similar conduct in the future an economically irrational choice. The penalty may be greater than any amounts owed through the contravention. Proportionality in the imposition of civil penalties is the balance between what is necessary for deterrence and what might be considered oppressive.
3. Considerations relevant to sentencing for criminal offences, such as punishment and retribution have no role to pay. Considerations such as contrition, restitution and rehabilitation may be relevant to the extent that they inform the need for specific deterrence. That is, if the person has shown contrition and rehabilitation, a court may consider whether the likelihood of them behaving in a similar way in future is lower and warrants a smaller penalty.
4. About the exercise of the discretion, a helpful summary was provided by Colvin J in Fair Work Ombudsman v Spotless Services Australia Ltd (No 2):

The Court has a broad discretion when assessing pecuniary civil penalties to be imposed under the Act. Assessment of the appropriate amount requires an instinctive synthesis of the considerations relevant to penalty to arrive at a single result: Singtel Optus Pty Ltd v Australian Competition and Consumer Commission [2012] FCAFC 20 at [54] (Keane CJ, Finn and Gilmour JJ). The required process of assessment is evaluative, not mathematical: Director of Consumer Affairs Victoria v Alpha Flight Services Pty Ltd [2015] FCAFC 118. Factors that may be relevant have been listed in the decided cases, but such lists should not be approached as a checklist. [8]

1. Some of those other factors include the nature and extent of the conduct; the circumstances of the conduct; the nature and extent of the loss; whether there was similar previous conduct; the size of the enterprise; whether the breaches were deliberate; whether senior management was involved; whether there had been contrition, corrective action and cooperation; the need to enforce compliance with minimum standards; and weighing the indicia.
2. These are factors which were considered prior to the decision of the High Court in Pattinson, and so may be relevant insofar as they inform the Court's consideration of the need for specific and general deterrence.

1. These considerations notably exclude the financial circumstances of the person against whom a penalty order is sought. There is judicial authority to the contrary to which I must have regard. In relation to the Act, these confirm that the purpose of penalties to reinforce adherence to the Act and industrial instruments is paramount, regardless of the size or solvency of the employer.[9]
2. Difficult though it is for Mr Honeyman that he and Rolo appear to be in parlous financial circumstances currently, the purpose of deterring future contravening conduct by employers generally and by Rolo and Mr Honeyman specifically, mean that the penalties I impose must reflect that priority.
3. As I said in Young v Gey van Pittus:

Those taking on the responsibility of employment, be they corporations, partnerships or individuals, are on notice that employee entitlements are a legal obligation, not an optional fund to be called upon to prop up a business that is not managing its cashflow. In this sense, general deterrence is a significant consideration and points to a significant penalty.[10]

1. In the matter of Fair Work Ombudsman v Openica,[11] Reithmuller J considered a number of cases where the Courts had been asked to suspend penalty on one respondent where both had been found liable for a contravention. These were all cases where a respondent was included pursuant to s 550. He had been asked to suspend penalty on the second respondent who was included as a natural person involved in the contravention by the first respondent which was a corporation, or to order that the second respondent be required to pay the penalty only if the first respondent defaulted on the payment. Like in this case, the second respondent was accepted to be the managing director and the decision maker in relation to the first respondent's contraventions of the Act.
2. Noting that the discretion to suspend had rarely been exercised and in those rare cases it was by consent and with admissions of liability, he distinguished the circumstances in those rare matters and said at [39]:

The practical reality is that the company, as a separate legal entity has independent obligations regardless of its ownership. Simply because profits ultimately come back to one person doesn't alter the fact the two 'legal persons' have breached the Act.

1. In the matter of the Fair Work Ombudsman v Double Hao International Pty Ltd (No 2),[12] ('Double Hao') Forbes J considered the issue of proportionality between the corporate and personal respondents where he said

In the case of a small business where the company and the proprietor are virtually one and the same, it seems to me even more difficult to distinguish the conduct of the first respondent, Double Hao, and the second respondent, Mr Liu. To all intents and purposes, Double Hao conducts itself under the control of Mr Liu. It seems to me that it would be incongruous for me to find that Double Hao should be penalised at 30 per cent and for Mr Lieu to be penalised more severely.[13]

1. Although Rolo has operated as the corporate entity by which Mr Honeyman has conducted his business, it is a discrete legal person from Mr Honeyman and had specific obligations as Ms Ferenc's employer. It is appropriate to reflect the liability of Rolo as the principal contravener and a body corporate, and the liability of Mr Honeyman as a natural person involved in the contraventions, with orders for penalties payable by each separately. I accept the logic of his Honour in Double Hao that it would be incongruous to penalise Mr Honeyman more severely than Rolo.
2. Although I take into account the seriousness of the consequences for Ms Ferenc of the contraventions, I note that the imposition of penalties is not and is not intended to be compensatory in nature. I note the consequences of the breaches in recognition of the purpose of the provisions of the Act which have been breached, which is for the protection and benefit of employees.

1. Excluding the contraventions of ss 44 and 45 that were due to the failure to pay Ms Ferenc's superannuation entitlements, I will group the remaining contraventions by their origin as either ongoing or upon termination of her employment.
2. In relation to all the contraventions, I take into account the lack of cooperation by Rolo and Mr Honeyman in the proceedings up until the penalty hearing, the failure of Rolo to comply with my orders of 25 July 2025 to pay Ms Ferenc her outstanding notice an annual leave entitlements and interest, the lack of any apology or statement of remorse to Ms Ferenc for the effect on her of the contraventions, the nature of the business and Mr Honeyman's failure to take advice on its obligations as an employer, that the business is no longer operating and that there is a current application in the Federal Court of Australia to wind up Rolo.

**Contraventions arising from the termination of Ms Ferenc's employment

1. The failure to give the required period of notice or payment in lieu of notice deprives an employee of time to adjust to the change in circumstances before losing their income from wages. This is a particular hardship for employees who rely on their wages for the basic necessities of life, such as rent, food and transport. Notice of payment in lieu of notice provides an important buffer to ease the transition from the employment just ceased.
2. For this contravention of s 44 being failure to make payment in lieu of notice for the three weeks and one day by which the actual notice was short of the four weeks required by s 117(3), in breach of s 117(2)(b) of the Act, I consider the appropriate penalty to be $25,000 payable by Rolo and $5,000 payable by Mr Honeyman.

1. Ms Ferenc had accrued her entitlement to paid annual leave through her service to Rolo over years. Depriving her of this entitlement at a time when she had been left without employment at short notice is an aggravating feature of this contravention.
2. For the contravention of s 44 being non-payment of accrued annual leave due upon termination of Ms Ferenc's employment in breach of s 90(2) of the Act, I consider the appropriate penalty to be $25,000 payable by Rolo and $5,000 payable by Mr Honeyman.
3. The entitlement to annual leave loading is an Award entitlement separate to the minimum hourly rate of pay, and cannot be incorporated into above award hourly rates without that intention being clearly expressed and agreed in an employment contract or a cashing out agreement in writing under the terms of cl 28.9 of the Award. This not having been done, Ms Ferenc was entitled to her annual leave loading pursuant to cl 28.3 of the Award.
4. For the contravention of s 45 being the failure to make payment of the annual leave loading of 17.5% due on Ms Ferenc's annual leave accrual upon termination in breach of cl 28.3 of the Award, I consider the appropriate penalty to be $5,000 payable by Rolo and $1,000 payable by Mr Honeyman.
5. The Award requirement to pay all entitlements due on termination within seven days is another protection for employees whose employment ceases, by ensuring that they are paid what they are owed in a timely manner in the transition from that employment.
6. For the contravention of s 45 being the failure to pay Ms Ferenc's entitlements within seven days of the termination of her employment as required by cl 18.4 of the Award I consider the appropriate penalty to be $12,500 payable by Rolo and $2,500 payable by Mr Honeyman.

**Contraventions over the course of Ms Ferenc's employment

1. The Award entitlement to annual leave loading assists employees to enjoy their recreation leave by providing an additional payment for the purpose of that leave. In the absence of a written contract or written cashing out agreement pursuant to the Award, Ms Ferenc should have been paid her leave loading on the leave that she took in two periods during her employment.
2. For contravention of s 45 being the failure to make payment of the annual leave loading of 17.5% due on Ms Ferenc's annual leave taken during her employment in breach of cl 28.3 of the Award I consider the appropriate penalty to be $5,000 payable by Rolo and $1,000 payable by Mr Honeyman.

1. The Award at cl 18.3 requires payment be made on a regular pay day, either weekly or fortnightly, only to be changed by four weeks' written notice. The reason for this is obvious. Waged employees usually rely on their wages for the basic necessities of life such as rent or mortgage payments, food, utilities and transport, for themselves and their families often including children. The type of irregular payment endured by Ms Ferenc, along with the indignity of repeatedly having to ask for her pay in order to meet rent payments and food bills, is a serious and unacceptable burden on employees.
2. Section 323 of the Act provides a similar statutory protection by requiring payment in full and at least monthly for all employees.
3. As these two contraventions, failing to pay on a regular day as required by the Award and failing to pay in full as required by the Act are variations on the same conduct, I consider it appropriate to combine the penalties for these breaches and for Rolo to pay $30,000 and Mr Honeyman to pay $6,000 for these contraventions.

1. It is basic management to provide the materials for employees to do their job without having to spend from their own money to keep the business afloat. The simple time-honoured method of a petty cash float or more recent methods such as a corporate credit or debit card with available funds are readily available to meet short term business needs. Having found that it was unreasonable that Ms Ferenc had to reach into her own pocket to buy food and cleaning supplies for the care of the puppies in the shop, the penalty reflects this imposition. For the contravention of s 325 by unreasonably requiring Ms Ferenc to spend amounts of her own funds for the purchase of necessary supplies for the Rolo's business, I consider an appropriate penalty to be $5,000 payable by Rolo and $1,000 payable by Mr Honeyman.

1. The provision of accurate payslips within a day of regular payment of wages is an important protection for employees to be able to have timely and accurate information about what they are being paid and the basis for that payment. It enables employees to check that their pay is correct, and to take timely action if it is not. In this matter where payslips were provided irregularly with inaccuracies and then not at all in the latter months of Ms Ferenc's employment, I consider this to be in the mid-range of seriousness.
2. For the contravention of s 536(1) of the Act by failing to provide payslips within one working day of payment of wages and s 536(2) in providing payslips that did not include information prescribed by Fair Work Regulation 2009 (Cth) reg 3.46 I consider the appropriate penalty to be $10,000 payable by Rolo and $2,000 payable by Mr Honeyman.

1. I have regard to the requirement to consider whether, in combination, the total amount of penalties remains appropriate or requires adjustment to be reasonable, taking into account the requirement for deterrence and the limit on an order which would be oppressive. The total of the above penalty amounts is $117,500 for Rolo, and $23,500 by Mr Honeyman. I consider these totals to be appropriate and not requiring adjustment.
2. In particular, noting the extent of the non-payments to Ms Ferenc, the overall penalty must be sufficiently high to make contravention of the Act in a similar manner an economically irrational choice for Rolo should it survive the application for winding up, for Mr Honeyman should he ever be involved in employing people again, and other employers in the future.
3. While the winding up action against Rolo may mean that the penalty order that I am making may not be paid, or may not be paid in full, the imposition of the penalty is nonetheless important to reaffirm the seriousness and consequences for employers of failing to properly inform themselves and comply with their legal obligations to their employees.
4. There is no reason to depart from the usual order that the penalties be paid to the party which has successfully applied for them.[14] It is Ms Ferenc who has had the burden of pursuing Rolo and Mr Honeyman through this Court, in circumstances where they have displayed a troubling lack of cooperation and compliance with Court orders and hearing notices, which caused unnecessary and avoidable inconvenience and delay.

1. The first respondent, Rolo & Co Pty Ltd, is to pay a penalty of $117,500 to the applicant, Ms Ferenc, within 14 days.
2. The second respondent, Matthew Honeyman, is to pay a penalty of $23,500 to the applicant, Ms Ferenc, within 14 days.

[1] By application dated 3 February 2025.

[5] Crimes Act 1914 (Cth) s 4AA.

[6] In particular, Mr Honeyman's confirmation that he has received a Director's liability notice from the Australian Taxation Office and that there is superannuation owing in relation to multiple employees.

[7] [2022] HCA 13.

[8] [2022] FCA 383 at [2].

[9] Australian Competition and Consumer Commission v High Adventure Pty Ltd [2005] FCAFC 247; Australian Securities and Investments Commission v Holista Coltech Ltd [2024] FCA 244; Pipicella v Renewable Energy Australia [2023] FedCFamC2G 1167; Fair Work Ombudsman v Noorpreet Pty Ltd & Anor [2018] FCCA 1246; Milardovic v Vemco Services [2016] FCA 244.

[10] Young v Gey Van Pittius and Landman (No 2) [2024] SAET 89 at [77].

[11] Fair Work Ombudsman v Openica Logistics Pty Ltd & Anor [2016] FCCA 159.

[12] [2024] FedCFamC2G 943.

[14] Sayed v Construction, Forestry Mining and Energy Union (2016) FCR 336; 259 IR 274; [2016] FCAFC 4 at [101].