Fair Work Act 2009 (Cth)

JUDGMENT OF: Auxiliary Deputy President Magistrate Carrel

Pecuniary Penalties - single contravention of the Fair Work Act 2009 (Cth) alleged by owner of a restaurant - applicant employed as a cook on a casual basis - failure to any pay wages at all for work performed over the course of two weeks - No appearance by the respondent - HELD: A declaration of a contravention of s 323 of the Fair Work Act 2009 (Cth) made - a penalty of $10,000.00 imposed.

Fair Work Act 2009 (Cth)

Crimes (Amount of Penalty Unit) Instrument 2023 (Cth)

Daniel Coutinho Monteiro vs Billabong Investments 2 Pty Ltd [2025] SAET 38

Ghimire v Karriview Management Pty Ltd (No 2) [2019] FCA 1627

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

Re Trade Practices Commission v CSR Limited [1990] FCA 521

Plancor Pty Ltd v Liquor Hospitality and Miscellaneous Union [2008] FCAFC 170

Fair Work Ombudsman v NSH North Pty Ltd t/a New Shanghai Charlestown [2017] FCA 1301

Thompson v Gringos Mexican Restaurant Pty Ltd & Barnes [2025] SAET 6

Hernandez v Rajkumar ATF SL Brothers Unit Trust [2022] SAET 109

Fair Work Ombudsman v Gaura Nitai Pty Ltd [2017] FCCA 1242

Trinh v The Clean Kitchen Pty Ltd & Ors [2025] SAET 76

1. Franco Suares was employed as a cook for the respondent at "My Maria" Italian restaurant for approximately two weeks in August 2024. He was not paid for the work undertaken. This matter concerns an application for a pecuniary penalty to be imposed following Mr Suares' earlier money claim application for unpaid wages. Default Orders were made in that matter on 31 January 2024.

1. On 27 September 2024, Mr Suares filed a money claim application. The respondent did not file a response in accordance with SAET Rules.[1] Consistent with SAET's practice, a conciliation conference was held before a Commissioner on 28 October 2024. The respondent appeared via its representative Mr Iouri Gvadjava, who is a director. At the request of the respondent, the conciliation conference was adjourned so that it could investigate Mr Suares' claim. Further conciliation conferences were held on 11 November 2024 and 21 November 2024. The respondent did not attend the latter conference and no response was filed. Consequently, the money claim application was referred for hearing.
2. On 20 December 2024, the parties attended a directions hearing before me on those proceedings. Mr Suares sought to amend his claim to include interest. Having granted permission for his claim to be amended, I made Orders that the respondent file its response to the amended application by 21 January 2025.
3. The issue that the respondent appeared to take with the claim was whether or not Mr Suares was employed to work at its restaurant. The respondent was advised that failure to file its response in accordance with the Rules could result in Orders being made in favour of Mr Suares. The respondent failed to file a response.
4. At a further directions hearing on 24 January 2025, having heard from both parties, the time for the respondent to file its response was extended to 31 January 2025. While a date was nominally fixed for a hearing, the respondent was once again advised that if it failed to file a response without reasonable cause, Orders would be made in favour of Mr Suares in default. Again, no response was filed.
5. The default Orders made on 31 January 2025 awarded Mr Suares at total of $2,064.46 for unpaid wages and interest ($1,992.00 plus $72.46 respectively).

1. On 30 January 2025, Mr Suares lodged his within Application asserting that the respondent has contravened s 323 of the Fair Work Act 2009 (Cth) (FW Act) by failing to pay his wages in full.
2. The respondent did not file a response to the application. However, Mr Gvadjava again appeared in his capacity of director of the respondent during the within proceedings.
3. Both parties appeared at a directions hearing on 20 May 2025. The respondent was given an extension of time to file its response to the application to 3 June 2025. Relevantly, the respondent advised that its email address for service of documents was an address relating to a café in Glenelg. This email address has since been used for service of notices and orders on the respondent, and with the respondent replying to correspondence from SAET from that email address.
4. The matter was set down for hearing on 3 July 2025 and Orders were made for filing of affidavits and submissions. The Orders warned both parties that the hearing may proceed in the absence of a party. Additionally, by notice dated 20 May 2025, the parties were advised that the hearing would commence in person at 11:00am before me on 3 July 2025.
5. The respondent failed to file its response as directed by 3 June 2025. On 19 June 2025, I caused correspondence to be sent to the respondent via the email address provided noting the default in compliance with my directions. The respondent was warned that the hearing scheduled for 3 July 2025 may proceed notwithstanding that default. By return email, Mr Gvadjava indicated that he was seeking legal advice, as he was dissatisfied with the Orders made in the money claim application. By email dated 2 July 2025, both parties were reminded of the hearing listed for the following day and that the hearing may go ahead if either party failed to attend without reasonable excuse.
6. On 3 July 2025, Mr Suares attended in person at the hearing. The respondent did not. No explanation was given for the respondent's non-attendance. In the circumstances, I was satisfied that the respondent had been afforded a reasonable opportunity to be heard in the proceedings and that it was appropriate to proceed in the respondent's absence.

The contravention of the Fair Work Act 2009 (Cth)

1. At the hearing, Mr Suares gave oral evidence regarding the circumstances of the unpaid wages and made submissions on the one contravention of the FW Act alleged. Not only did the respondent fail to attend the hearing, it also failed to produce any evidence relating to Mr Suares' employment.
2. Mr Suares said that he moved to Adelaide from Byron Bay, New South Wales, with his partner for visa purposes. On doing so, he responded an advertisement on a search engine called Jora Jobs for shifts as a cook at a restaurant named "My Maria". On 11 August 2024, he received a text message asserting to be from "Maria" asking if he was available for a trial shift as a cook. The message advised that My Maria was an Italian restaurant looking for full time staff. Mr Suares was asked to confirm his visa status. Mr Suares said that he went to the restaurant the following day for the trial. He came to know the person who had sent the text messages as a woman named "Toni". I take notice that in previous proceedings before SAET, the respondent identified its manager of My Maria restaurant on approved forms, as Toni Odgers.[2]
3. At the end of his trial shift on 12 August 2024, Mr Suares said Toni gave him paperwork to complete for employment as a cook on a casual basis. When Mr Suares asked for confirmation of his rate of pay, he was advised that "they would see" what the rate would be at the end of the first working week. Mr Suares understood this to be common practice in the hospitality industry, having worked in various restaurants for approximately two years in Byron Bay.
4. At the end of his first week of work, Mr Suares asked again for confirmation of his pay rate. He said that Toni advised him that he would be paid the minimum rate applicable for type of kitchen work he was performing.
5. In relation to the duties undertaken, Mr Suares explained that he would work with a chef named "Marco" in the pizza section, a person named "Angela" in the salad section and another person he thought was named "Cosani". Mr Suares would work long shifts until late when the kitchen closed and for the two weeks that he worked there, he worked almost every day. Mr Suares produced a printed undated roster template, with his name handwritten in place of anther staff member and the times and days that each staff member was rostered to work.[3] The roster indicated that in a one-week period, Mr Suares was rostered to work from 6pm to close on Monday, Wednesday, Thursday, Friday and Saturday and 12:00pm to close on Sunday. Mr Suares said that this roster was for his first week of work, commencing 12 August 2024.
6. Having completed a second week of work (ending 25 August 2024), Mr Suares said that he arrived at the restaurant on 26 August 2024 for a shift to find the restaurant closed. He sent a text message to Toni, but received no reply until the following day. On 27 August 2024, Toni replied that the restaurant was having plumbing issues, and she hoped to be open later in the day. In a further series of text messages, Toni advised Mr Suares that the restaurant would not be open again that evening but that she hoped that it would be open from 28 August 2024. She further advised Mr Suares that she would confirm a start time by text message, asked if he had received his payslip and stated that she would be processing his pay in the morning. By reply, Mr Suares confirmed that he had not received a payslip.
7. Mr Suares said that on 29 August 2024, he told Toni via text message that he needed to be paid as he had rent and other bills to pay. Toni assured him that payments were getting "sorted" and if he needed work, there were shifts available at another restaurant. While Mr Suares indicated an interest in working elsewhere, no alternative shifts were offered. On 30 August 2024, still having not received any pay for working between 12 August 2024 and 25 August 2024, Mr Suares sought confirmation of when he might be paid. Having received no response, on 31 August 2024 Mr Suares informed Toni via text message that he was going to call "Fair Work", to which she replied "Ok (sic)".[4]
8. On or about 2 September 2024, Mr Suares contacted Toni to confirm that he was seeking to be paid at the minimum rate for an unqualified cook (that he understood to be $31.50 per hour) and calculated that he had worked a total of 63.25 hours at My Maria restaurant during the period of his employment.
9. On 5 September 2024, Mr Suares received a text message from Toni, which said she was "getting him paid". She asked if he still needed work. Mr Suares declined the offer of work and asked her to confirm when she had processed payment of his outstanding wages as he had not received payment.
10. Mr Suares said that prior to the lodgement of his money claim application on 27 September 2024, he had not received any payment for the work he performed.
11. However, on 27 May 2025 following judgment in default in his favour, he received payment of $1,000.00 into his bank account from the respondent. Mr Suares has not received any correspondence from the respondent or entered into an arrangement to pay the sum ordered on 31 January 2025.
12. When asked how he came to identify the respondent as the entity that owned My Maria, Mr Suares said that he made a complaint to the Fair Work Ombudsman who assisted him to identify the respondent and clarify the applicable minimum pay rate.
13. Mr Suares said that the failure to pay his wages in full in a timely manner is a contravention of the FWA that caused him financial difficulty and emotional distress, given that he and his partner had only recently arrived in Adelaide and were relying on the income to meet their basic needs.
14. I accept Mr Suares' unchallenged evidence as being credible and reliable. His oral evidence was supported by contemporaneous text messages and a copy of a roster that he produced at the hearing. Mr Suares' evidence establishes that he was employed by the respondent to perform cooking duties, namely cooking pizzas and preparing salads. I accept his evidence that he was engaged to work at My Maria on a casual basis and was to be paid the in accordance with the minimum rates of pay.
15. The relevant award covering the work performed by Mr Suares is the Restaurant Industry Award 2020 (the Award). The Award provides for a classification structure for employees according to the duties that are performed, and if applicable, relevant training or qualifications. The minimum classification for an employee performing duties within the cook stream without completing an appropriate trade test, apprenticeship or who has the appropriate level of training is: cook, grade 1.[5] At this grade, Mr Suares' correct classification was Level 2. As a casual employee, Mr Suares was entitled to be paid a 25% loading in addition to the minimum rate of pay.[6] Mr Suares was entitled to be paid either weekly or fortnightly unless there had been an agreement between the parties that he be paid monthly. However, Mr Suares has not pursued a contravention pursuant to s 45 of the FW Act in relation to weekly or fortnightly pay.
16. Section 323 of the FW Act provides:

(1) An employer must pay an employee amounts payable to the employee in relation to the performance of work:

(a) in full (except as provided by section 324); and

(b) in money by one, or a combination, of the methods referred to in subsection (2); and

1. Failing to comply with s 323 of the FW Act is a breach of a civil remedy provision that enlivens s 557C of the FW Act, where an employer has failed to comply with its obligations to make and keep records. Having accepted Mr Suares' evidence that he was employed by the respondent on a casual basis, the respondent was required to keep records in accordance with the Fair Work Act Regulations 2009 with respect to the nature of Mr Suares' employment and his pay.
2. Having failed to appear and adduce any records pertaining to Mr Suares' employment during the course of proceedings, I conclude that this is a circumstance where s 557C of the FWA is enlivened. This provision shifts the legal and evidentiary burden to the respondent.[7] Where a respondent cannot disprove an allegation, it must be upheld.
3. If this were not the case, I would accept Mr Suares' evidence that he was not paid at all within the required timeframe in any event.
4. Accordingly, I declare that having failed to pay Mr Suares for work undertaken between 12 August and 25 August 2024 in September 2024, respondent has contravened s 323(1) of the FW Act (Cth).

1. Section 546(1) of the FW Act enables SAET, as an eligible State court, to order the respondent to pay a pecuniary penalty for a contravention of the FW Act (Cth).
2. The maximum penalties are laid out in a table within s 539 of the FW Act (Cth). Relevantly, it provides:

Part 2‑9 - Other terms and conditions of employment

(a) an employee;

(b) an employee organisation;

(c) an inspector

(a) the Federal Court;

(b) the Federal Circuit and Family Court of Australia (Division 2);

(c) an eligible State or Territory court

for a serious contravention - 600 penalty units; or

1. The applicable penalty unit value is $313.00.[8] Mr Suares has pursued his application on the basis on an ordinary contravention, rather than alleging a serious contravention.
2. Pursuant to s 546(2)(b) of the FW Act (Cth), a body corporate is liable to pay five times the maximum applicable penalty units. As such, the maximum penalty in this matter is $93,900.00.
3. The approach to penalties is set out in the High Court's judgment in Australian Building and Construction Commissioner v Pattinson[9] and the authorities considered therein. In finding that the Full Court of the Federal Court was in error in that it was distracted by a concern for the notion of proportionality, the High Court confirmed that the primary, if not sole, purpose of a civil penalty regime was that of deterrence.[10] The deterrence required is both specific and general. Further, the maximum penalty is not to be used as a yardstick to gauge the seriousness of a contravention.
4. A penalty must be fixed with a view to ensuring that the penalty is not regarded by the offender or others as an acceptable cost of doing business.
5. While not being a "legal checklist", the factors as outlined in Re Trade Practices Commission v CSR Limited[11] are relevant considerations, and the task remains for the Court to determine the appropriate penalty in a particular case. Factors to consider are:
   • the nature and extent of the conduct;
   • the circumstances in which that conduct took place;
   • the nature and extent of any loss or damage caused;
   • the size of the business enterprise involved;
   • whether or not the breaches were deliberate;
   • whether senior management was involved in the breaches;
   • whether the party committing the breach had exhibited contrition; and
   • whether the party committing the breach had taken corrective action or shown any disposition to cooperative with authorities responsible for enforcement of the FW Act (Cth).
6. Ultimately, when considering relevant factors, a reasonable balance needs to be struck between deterrence and oppressive severity.
7. The prevalence of contraventions of the FW Act (Cth) in the hospitality/restaurant industry and the need for deterrence has long been subject to judicial comment by Federal Courts[12] and this Tribunal.[13]
8. In Fair Work Ombudsman v Gaura Nitai Pty Ltd,[14] a matter concerning multiple breaches of an Award for a single employee working at a licensed café, Jarrett J said:[15]

The exploitation of workers from other countries who are inspired to live and work in Australia with the hope of achieving permanent residency needs to be discouraged, in the strongest of terms whenever it is apparent that it has occurred. This is one of those cases.

1. This sentiment was echoed in the recent decision of Lieschke DP in Trinh v The Clean Kitchen Pty Ltd & Ors.[16] His Honour observed that:

The vulnerability of temporary foreign visa holding employees to being cheated out of minimum entitlements is well known. However, the limited evidence does not prove that this was a motivating factor for Mr Llewellyn's conduct against Mr Trinh or anyone else.

Ms Trinh was more vulnerable than an Australian citizen due to her then temporary residency, and her language and knowledge disadvantages.[17]

1. I agree with His Honour's observation. Overseas temporary visa holders often face difficulty in the Australian job market.[18] Even for those visa holders whose first language is English, they may be unfamiliar with the layers of complexity in Australian employment laws. There can be difficulty in having qualifications or skills recognised and assessed. While in general, workers on temporary visas have the same workplace protections and entitlements as other employees, there may be restrictions on accessing Centrelink and Medicare entitlements. These hurdles may lead to financial insecurity compared with Australian citizens or permanent residents, which may cause a reluctance to question an employer in relation to wages and other entitlements.
2. Here, Mr Suares was in a similarly vulnerable position in that he came to South Australia for temporary visa purposes, as a job seeker. English is not his first language, and he demonstrated a lack of knowledge of his entitlements and workplace rights.
3. Through his limited experience of working in the hospitality industry in Australia, he did not question the opaqueness of employment terms offered by the respondent and appeared to know little about the entitlements afforded to him under National Employment Standards or other minimum wage laws. Essentially, Mr Suares trusted the respondent to comply with its legal obligations, as his employer.
4. There are additional aggravating features present. Mr Suares was relying on the wages he earned to meet his basic needs including paying his rent. The failure to pay his wages caused distress and financial difficulty.
5. From Mr Suares' repeated attempts to follow up payment of his unpaid wages and the excuses made by his employer, it is apparent that no corrective action was taken. Indeed, it was not until after Mr Suares had obtained Orders in his favour and commenced the within Application that the respondent made partial payment of the monies owed. This out of the blue payment was made at a time when the respondent continued to contest its liability to pay.
6. In my view, failing to pay Mr Suares any wages at all was deliberate, rather than an unintentional error. For example, it was not an underpayment due to a failure to attribute the correct rate of pay or a misunderstanding of the application of the Award or National Employment Standards.
7. The respondent's failure to attend the hearing and adduce evidence means that mitigating factors are scarce. No explanation has been proffered by the respondent for not paying Mr Suares' wages.
8. Little is known about the size of the respondent's business or what systems it may have had in place to ensure that it complied with its legal obligations as an employer. It has demonstrated no contrition.
9. Although I take into account that the period over which the contravention occurred is short, I can draw no conclusion that the duration of the contravention had anything to do with corrective action taken by the respondent. Additionally, while Mr Suares is pursuing pecuniary penalties on his own behalf, he is not the only employee of the respondent working at My Maria restaurant to bring a successful claim against the respondent for unpaid wages.[19]
10. While the respondent has made a recent partial payment towards the wages owed to Mr Suares, this has occurred at a late stage in the proceedings without any acknowledgement of the distress or inconvenience caused to Mr Suares.
11. Lastly, it is apparent from the evidence of Mr Suares (and consistent with representations made by the respondent during the pre-trial proceedings), that the respondent continues to operate in the restaurant/hospitality industry, albeit My Maria restaurant is closed.
12. Taking into account the circumstances as described above, there is the need for both specific and general deterrence in the imposition of a penalty.
13. Accordingly, I impose a penalty of $10,000.00, to be paid to Mr Suares.

[1] Rule 23 South Australian Employment Tribunal Rules 2024.

[2] Daniel Coutinho Monteiro vs Billabong Investments 2 Pty Ltd [2025] SAET 38.

[5] Clause 18, Table 3 - minimum rates. Restaurant Industry Award 2020.

[7] Ghimire v Karriview Management Pty Ltd (No 2) [2019] FCA 1627 at [14].

[8] Crimes (Amount of Penalty Unit) Instrument 2023 (Cth).

[9] [2022] HCA 13; (2022) 274 CLR 450.

[11] [1990] FCA 521.

[12] See Plancor Pty Ltd v Liquor Hospitality and Miscellaneous Union [2008] FCAFC 170, per Gray J at [37]; and Fair Work Ombudsman v NSH North Pty Ltd t/a New Shanghai Charlestown [2017] FCA 1301, per Bromwich J at [131] - [132].

[13] See Thompson v Gringos Mexican Restaurant Pty Ltd & Barnes [2025] SAET 6, per Dolphin PJ at [77]; and Hernandez v Rajkumar ATF SL Brothers Unit Trust [2022] SAET 109, per Lieschke DP at [21].

[14] [2017] FCCA 1242.

[16] [2025] SAET 76.

[18] For example, see Insecure by Design: Australia's migration system and migrant workers' job market experience. Research undertaken by the Migrant Workers Centre Inc, Victoria. March 2023.