Johnson v Village Bakery Balgowlah Heights Pty Ltd

1. On 11 June 2025, the Court entered default judgment against the respondents, pursuant to subrules 13.04(2)(b) and 13.05(2)(c) of the then Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (default judgment). Accordingly, the Court made the following Declarations and Orders (June Orders):

THE COURT DECLARES THAT:

1. The first respondent contravened sections 45 and 323(1) of the Fair Work Act 2009 (Cth) (FW Act) by failing to pay the applicant in accordance with the General Retail Industry Award 2020.

2. The first respondent contravened section 325(1) of the FW Act by unreasonably requiring the applicant to spend or pay money directly for the benefit of the first respondent.

3. Pursuant to section 550 of the FW Act, the second respondent was involved in the contraventions by the first respondent of sections 45, 323(1) and 325(1) of the FW Act.

4. Pursuant to section 545(1) of the FW Act, the second respondent is jointly and severally liable to pay the applicant the amounts of compensation ordered under order 5 of these orders.

THE COURT ORDERS THAT:

1. Pursuant to section 545(1) of the FW Act, the respondents pay as compensation to the applicant, on or by 2 July 2025, the amount of $71,492.65 comprising:

(a) outstanding wages in the sum of $48,937.85;

(b) the non-payment of superannuation in the sum of $5,174.20; and

(c) compensation for unreasonably requiring the applicant to spend or pay money in the sum of $18,080,60.

1. Pursuant to sections 134 and 140 of the Federal Circuit and Family Court of Australia Act 2021 (Cth), the second respondent is further ordered to pay to the applicant, on or by 2 July 2025, the amount of $18,171.40 by way of damages for detinue in respect of the applicant's belongings set out in Schedule 4 to the Statement of Claim.

2. The applicant is to file and serve written submissions in relation to any further declaratory relief orders, pecuniary penalty orders, interest or costs orders sought by 18 June 2025.

3. The respondents are to file and serve any written submissions in response by 25 June 2025.

4. The matter is listed on 2 July 2025 at 2.15 pm for further hearing as to any further declaratory relief orders, pecuniary penalty orders, interest or costs orders sought by the applicant.

5. The applicant serve on the respondents a sealed copy of these orders by emailing a copy to each of the following email addresses:

(a) byanavu@gmail.com

(b) avuattawell@gmail.com

(c) orders@leafandgrainstore.com

THE COURT NOTES THAT:

1. These declarations and orders are made pursuant to rules 13.04(2)(b) and 13.05(2)(c) of the Federal Circuit and Family Court of Australia Rules (Division 2) (General Federal Law) Rules 2021 (Cth).

1. Further to the contraventions identified above, the applicant seeks additional declaratory relief in relation to contraventions of ss 535(1) and 536(1). The ultimate issue for the Court is to determine the appropriate pecuniary penalty, together with any order for interest and costs to be imposed on the respondents. Before turning to address these matters, I set out below a list of materials before the Court:

(a) Originating application filed 9 October 2024;

(b) Statement of Claim filed 9 October 2024;

(c) Affidavit of Amanda McNally sworn 15 October 2024 (First McNally affidavit);

(d) Application in a Proceeding filed 27 November 2024;

(e) Affidavit of Service of Justin Richards sworn 19 November 2024 (First Richards affidavit);

(f) Affidavit of David French Poole sworn 27 November 2024 (Poole affidavit);

(g) Affidavit of Amanda McNally sworn 22 January 2025 (Second McNally affidavit);

(h) Affidavit of Paul Wilcox sworn 5 February 2025;

(i) Affidavit of Service of Justin Richards sworn 4 February 2025 (Second Richards affidavit);

(j) Affidavit of Amanda McNally sworn 5 February 2025 (Third McNally affidavit);

(k) Application in a Proceeding filed 6 February 2025;

(l) Affidavit of Aashray Shamil Velhal affirmed 6 February 2025 (First Velhal affidavit);

(m) Applicant's Submissions filed 10 February 2025;

(n) Applicant's Submissions filed 25 February 2025;

(o) Affidavit of Aashray Shamil Velhal affirmed 25 February 2025 (Second Velhal affidavit);

(p) Affidavit of the applicant affirmed 24 February 2025;

(q) Affidavit of Amanda McNally affirmed 24 February 2025 (Fourth McNally affidavit);

(r) Applicant's Submissions filed 18 June 2025;

(s) Affidavit of Aashray Shamil Velhal affirmed 2 July 2025 (Third Velhal affidavit);

(t) Affidavit of Amanda McNally sworn 10 July 2025 (Fifth McNally affidavit);

(u) Applicant's Submissions filed 11 July 2025.

1. The applicant alleges the first respondent failed to meet its record keeping obligations in s 535(1) of the Act.
2. A request to provide various employee records was contained within a letter to the first respondent from Ms Amanda McNally dated 31 July 2023, a copy of which is annexed to the Fifth McNally affidavit. That letter contained a request for employee records of the kind specified in Subdiv 1, Div 3, Pts 3-6, Ch 3 of the Fair Work Regulations 2009 (Cth) (Regulations), including a record that specifies the date on which the applicant's employment began as well as payslips, timesheets, overtime records and superannuation contribution records for the period June 2021 to April 2023. No response was received in relation to this request: see Fifth McNally affidavit at [4].
3. A further request to provide various employee records was contained within a letter to the second respondent from the applicant's lawyers dated 7 March 2024, a copy of which is annexed to the Fourth McNally affidavit. That letter contained a further request for employee records of the kind specified in the Regulations, including a record that specifies the rate of remuneration paid to the applicant, the gross and net amounts paid to the applicant, any deductions made from the gross amounts paid to the applicant, leave records, superannuation contribution records, termination of employment records and all other records kept in relation to the applicant's employment for the period June 2021 to April 2023. No response was received in relation to this request: see Fourth McNally affidavit at [24].
4. The applicant submits the import of this is that the failure to provide a response to these requests is a basis for a conclusion that the records were not made and kept by the first respondent.
5. At hearing before me, Counsel for the applicant, Mr Guy submitted there was no direct evidence before the Court indicating a failure on the part of the first respondent to make and keep such employee records; rather, requests had been made of the first respondent to produce the records but the applicant had not received any response.[5] Nevertheless, Mr Guy submitted the first respondent was required to make and keep a record in relation to the matter and had failed to comply with that requirement. He further submitted that the applicant's employer has the burden of disproving that allegation,[6] relying upon s 557C of the Act:

557C Presumption where records not provided

(1) If:

(a) in proceedings relating to a contravention by an employer of a civil remedy provision referred to in subsection (3), an applicant makes an allegation in relation to a matter; and

(b) the employer was required:

(i) by subsection 535(1) or (2) to make and keep a record; or

(ii) by regulations made for the purposes of subsection 535(3) to make available for inspection a record; or

(iii) by subsection 536(1) or (2) to give a pay slip;

in relation to the matter; and

(c) the employer failed to comply with the requirement;

the employer has the burden of disproving the allegation.

(2) Subsection (1) does not apply if the employer provides a reasonable excuse as to why there has not been compliance with subsection 557C(1)(b).

(3) The civil remedy provisions are the following:

(a) section 44 (which deals with contraventions of the National Employment Standards);

(b) section 45 (which deals with contraventions of modern awards);

(c) section 50 (which deals with contraventions of enterprise agreements);

(d) section 280 (which deals with contraventions of workplace determinations);

(e) section 293 (which deals with contraventions of national minimum wage orders);

(f) section 305 (which deals with contraventions of equal remuneration orders);

(g) subsection 323(1) (which deals with methods and frequency of payment);

(h) subsection 323(3) (which deals with methods of payment specified in modern awards or enterprise agreements);

(i) subsection 325(1) (which deals with unreasonable requirements to spend or pay amounts);

(j) any other civil remedy provisions prescribed by the regulations.

1. The applicant has alleged that the first respondent did not make and keep employee records of the kind prescribed by the Regulations. The evidentiary record reveals that a request was made of the first respondent to produce certain employee records and that it did not provide such records in satisfaction of that request. The undisputed evidence before the Court demonstrates a complete disregard by the first respondent of various obligations under the Act in relation to the applicant. The first respondent has also elected not to participate in these proceedings and has provided no evidence to rebut the allegation. In these circumstances, I am satisfied there is proper basis to draw the inference that the first respondent did not make and keep employee records of the kind prescribed by the Regulations in respect of the applicant during her employment from 16 June 2021 to 24 April 2023.
2. I will declare that the first respondent contravened s 535(1) of the Act in failing to make and keep employee records of kind prescribed by the Regulations in respect of the applicant during her employment from 16 June 2021 to 24 April 2023.

1. The applicant alleges the first respondent failed to give payslips to her pursuant to s 536(1) of the Act.[7] Section 536(1) relevantly provides:

536 Employer obligations in relation to pay slips

(1) An employer must give a pay slip to each of its employees within one working day of paying an amount to the employee in relation to the performance of work.

Note 1: This subsection is a civil remedy provision (see Part 4‑1).

Note 2: Section 80 of the Paid Parental Leave Act 2010 requires an employer to give information to an employee to whom the employer pays an instalment under that Act.

1. I am satisfied that this contravention has been established. The applicant swears in her affidavit of 24 February 2025 at [9] that she had not received any payslips during her employment. On 31 July 2024, a written request was sent to the respondents to provide copies of payslips that had been issued to the applicant during the term of her employment with the first respondent between June 2021 and April 2023, and that request was not satisfied: see Fifth McNally affidavit at [4]; Exhibit AM-1. The undisputed evidence before the Court demonstrates a complete disregard by the first respondent of various obligations under the Act in relation to the applicant. The first respondent has also elected not to participate in these proceedings and has provided no evidence to rebut the allegation. I am satisfied that the first respondent did not give pay slips to the applicant in relation to the performance of work during the term of her employment between 16 June 2021 and 24 April 2023.
2. I will declare that the first respondent contravened s 536(1) of the Act in failing to make and keep employee records of kind prescribed by the Regulations in respect of the applicant during her employment from 16 June 2021 to 24 April 2023.

1. The applicant seeks a declaration that the contraventions of ss 45, 323(1), 325(1), 535(1) and 536(1) of the Act constitute serious contraventions within the meaning of s 557A of the Act.[8] The contraventions of ss 45, 323(1) and 325(1) were the subject of declarations made in the June Orders, while the contraventions of ss 535(1) and 536(1) have been identified in the reasons set out above.
2. Before I consider whether any of those contraventions is serious, it is helpful to set out the relevant statutory provisions.

557A Serious contravention of civil remedy provisions

(1) A contravention of a civil remedy provision by a person is a serious contravention if:

(a) the person knowingly contravened the provision; and

(b) the person's conduct constituting the contravention was part of a systematic pattern of conduct relating to one or more other persons.

Note: For the liability of bodies corporate for serious contraventions, see section 557B.

Example: Generally, subsection 323(1) requires an employer to pay an employee the full amount payable to the employee in relation to the performance of work.

A contravention of subsection 323(1) is a serious contravention if the employer knowingly does not pay the employee in full (even if the employer does not know the exact amount of the underpayment) and that contravention is part of a systematic pattern of conduct by the employer. The systematic pattern of conduct of the employer may relate to more than one employee and may consist of different contraventions.

557B Liability of bodies corporate for serious contravention

(1) For the purposes of subsection 557A(1), a body corporate knowingly contravenes a civil remedy provision if the body corporate expressly, tacitly or impliedly authorised the contravention.

(2) This section does not limit section 793.

1. As stated within the provision itself, s 557B operates in conjunction with s 793, the latter of which provides a mechanism by which the conduct of an official acting on behalf of a body corporate is taken to have been engaged in by the body corporate. Further, the provision is a mechanism by which the knowledge of an officer of a body corporate can be imputed to the body corporate. The effect of s 793 is that, where an officer of a body corporate is shown to have particular knowledge, the body corporate itself is taken to have that same knowledge. Section 793 of the Act relevantly provides:

793 Liability of bodies corporate

Conduct of a body corporate

(1) Any conduct engaged in on behalf of a body corporate:

(a) by an officer, employee or agent (an official) of the body within the scope of his or her actual or apparent authority; or

(b) by any other person at the direction or with the consent or agreement (whether express or implied) of an official of the body, if the giving of the direction, consent or agreement is within the scope of the actual or apparent authority of the official;

is taken, for the purposes of this Act and the procedural rules, to have been engaged in also by the body.

State of mind of a body corporate

(2) If, for the purposes of this Act or the procedural rules, it is necessary to establish the state of mind of a body corporate in relation to particular conduct, it is enough to show:

(a) that the conduct was engaged in by a person referred to in paragraph (1)(a) or (b); and

(b) that the person had that state of mind.

Meaning of state of mind

(3) The state of mind of a person includes:

(a) the knowledge, intention, opinion, belief or purpose of the person; and

(b) the person's reasons for the intention, opinion, belief or purpose.

...

Disapplication of Part 2.5 of the Criminal Code

(4) Part 2.5 of Chapter 2 of the Criminal Code does not apply to an offence against this Act.

Note: Part 2.5 of the Criminal Code deals with corporate criminal responsibility.

(5) In this section, employee has its ordinary meaning.

1. As to the question of the second respondent's liability as an accessory to the serious contraventions engaged in by the first respondent, s 557A(5A) of the Act provides the relevant test for accessorial liability:

Involvement in a serious contravention

(5A) A person (the involved person) who is involved in a contravention of a civil remedy provision by another person (the principal) commits a serious contravention of the provision only if:

(a) the principal's contravention was a serious contravention; and

(b) the involved person knew that the principal's contravention was a serious contravention.

1. I now turn to consider each of those contraventions and determine whether any amount to serious contraventions.

1. Section 557A provides that a contravention is a serious contravention if the person knowingly contravened the provision and the conduct was part of a systematic pattern of conduct relating to one or more persons. The applicant contends that the respondents' conduct satisfies both limbs of that definition, having regard to the deliberate nature of the breaches and their occurrence over an extended period in circumstances where multiple statutory obligations were disregarded. I accept that submission.
2. Mr Guy submitted that the breaches of the Award were the most serious contraventions committed by the first respondent, being its failure to comply with its obligation to remunerate the applicant in accordance with that Award. Mr Guy submitted the first respondent consistently and deliberately failed to discharge this obligation over an extended period, including by failing to pay the applicant any wages at all over a period of almost two years, resulting in an underpayment of $48,937.85, as identified at [35] of my default judgment.[9] I am satisfied that conduct was knowing and part of a systematic pattern because of the period of time over which it continually occurred.
3. The applicant relies on the same submissions advanced above concerning whether the breach of s 45 amounts to a serious contravention.[10] I accept those submissions and am satisfied the s 323(1) contravention is serious within the meaning of s 557A.
4. Section 325(1) prohibits an employer from unreasonably requiring an employee to spend or pay money for the benefit of the employer or another person. The applicant contends that the breach of s 325(1) constitutes a serious contravention.[11] At the hearing, Mr Guy submitted that I should so find on the basis that the evidentiary record demonstrates repeated and numerous demands by the second respondent that the applicant spend or pay money for the benefit of the first respondent, second respondent, or another person, coupled with evidence that the applicant complied with those demands. It was submitted that this conduct is indicative of the contraventions having been committed knowingly. Mr Guy emphasised that these were unreasonable requirements, not mere requests, when understood in the wider context of the case, where the second respondent took advantage of the applicant's vulnerability due to her youth, intellectual disability, and her dependence on the second respondent for parental guidance and accommodation. By way of example, attention was drawn to demands that the applicant pay for the first respondent's business expenses, including rent and payments for meat and other bakery supplies, as well as requests to contribute financially towards the second respondent's overseas holiday expenses. These demands were plainly for the benefit of the employer or parties associated with the employer, and not for the applicant.[12] It was further contended that the demands were neither trivial nor reciprocal, and were made with the employer's knowledge. I am satisfied that conduct was knowing and part of a systematic pattern.
5. The repeated and numerous breaches of the record‑keeping obligation in s 535(1), coupled with the failure to provide payslips as required by s 536(1), support the conclusion that those contraventions were committed knowingly. The applicant received a cash payment of $1,233 - well below the Award entitlement - for 123 hours of work performed at the outset of her employment between 16 June 2021 and 8 August 2021.[13] Mr Guy contended that the first respondent's failure to maintain employment records and issue payslips, in circumstances where the applicant was underpaid in cash for the initial weeks and then not paid at all for the remaining 20.5 months of her employment, demonstrates a deliberate disregard for statutory obligations rather than mere inadvertence. I am satisfied that conduct was knowing and part of a systematic pattern.
6. Having considered the evidentiary record, I am satisfied that the evidence demonstrates that the second respondent, being the principal of the first respondent, was fully aware of the applicant's employment and the statutory obligations attaching to that relationship. The repeated failure to maintain employment records and issue payslips, despite making a few cash payments to the applicant at the outset of her employment, strongly supports an inference of deliberate disregard for those obligations. This is not a case of isolated or inadvertent non-compliance. The breaches occurred over an extended period, in circumstances where the second respondent exercised direct control over the financial operations of the first respondent, including its payroll and related record-keeping functions. Further, the second respondent's demands for the applicant to pay business expenses and personal costs for the benefit of the employer were made expressly and repeatedly, and were satisfied by the applicant. These facts establish that the respondents knew the essential circumstances of their conduct and intended that it occur. The ongoing, repeated, and deliberate nature of these contraventions demonstrates not only that the respondents were aware of the breaches, but also a pattern of consistent disregard for the statutory obligations owed to the applicant.
7. Having regard to both limbs of s 557A, I am satisfied that each contravention constitutes a serious contravention within the meaning of the Act. I will therefore make declarations that the contraventions of ss 45, 323(1), 325(1), 535(1) and 536(1) were serious contraventions.

Is the second respondent also liable for the serious contraventions of ss 45, 323(1), 325(1), 535(1) and 536(1) of the Act?

1. The first respondent is a body corporate. The second respondent is its sole director.
2. Having reviewed the evidentiary record, I am not satisfied that this was a case where the first respondent expressly, tacitly or impliedly authorised the contraventions as s 557B contemplates. Rather, liability arises under s 793. The first respondent 'knowingly contravened' the civil remedy provisions in ss 45, 323(1), 325(1), 535(1) and 536(1) within the meaning of s 557A(1). This is because, on the applicant's uncontested and accepted evidence, that the second respondent - as an officer and the controlling mind of the first respondent - had the relevant knowledge of all of the facts constituting the contraventions and intentionally orchestrated, authorised and performed all of the acts and omissions giving rise to them.
3. As for the second respondent's liability for the serious contraventions, by way of the June Orders, and for the purposes of s 550 of the Act, the second respondent has already been found to have been 'involved in' the contraventions of the civil remedy provisions in ss 45, 323(1), 325(1) of the Act. The applicant submits that the second respondent ought also to be found to be liable as an accessory for the additional contraventions of ss 535(1) and 536(1). I accept that submission. The second respondent was, at all material times, the sole director and shareholder of the first respondent and was the person who performed all of the acts and omissions constituting the additional contraventions ss 535(1) and 536(1) on behalf of the first respondent. The second respondent, as the controlling mind of the first respondent, had knowledge of the essential facts, was knowingly concerned in those contraventions, and was an intentional participant in those additional contraventions based on her actual knowledge.
4. For the second respondent to be found to have committed these serious contraventions, s 557A(5A) requires the satisfaction of one further element: that the second respondent knew the contraventions by the first respondent were serious contraventions. The applicant submits, and I agree, that this logic becomes somewhat circular where the purported accessory is the sole director of the contravener, because s 557A(1) itself defines serious contraventions as being those that are committed knowingly or intentionally, or alternatively recklessly. In other words, it must be shown that the second respondent knew that that first respondent intentionally or recklessly engaged in the contraventions. As the second respondent was the person that actually carried out the relevant acts on behalf of the first respondent, I find this additional element to have been satisfied.
5. Given the foregoing reasons, I will so declare that:

(a) pursuant to s 550 of the Act, the second respondent was involved in the contraventions by the first respondent of s 535(1) of the Act;

(b) pursuant to s 550 of the Act, the second respondent was involved in the contraventions by the first respondent of s 536(1) of the Act;

(c) the contraventions of ss 535(1) and 536(1) of the Act by the first respondent were serious contraventions within the meaning of s 557A(1) of the Act;

(d) the contraventions of ss 45, 323(1), 325(1) of the Act by the first respondent declared on 11 June 2025 in the June Orders were serious contraventions within the meaning of section 557A(1) of the Act;

(e) pursuant to s 557A(5A) of the Act, the second respondent was involved in, and is liable for, the serious contraventions of the Act committed by the first respondent.

Purpose, maximum and principles informing the assessment of pecuniary penalties**

1. The Court's power to impose pecuniary penalties for breaches of civil remedy provisions is conferred by s 546 of the Act. Each of the contraventions identified - namely ss 45, 323(1), 325(1), 535(1) and 536(1) - is a civil remedy provision within the meaning of s 539 of the Act. Section 546(1) provides that the Court may order a person to pay a pecuniary penalty that the Court considers appropriate, having regard to all relevant matters.
2. The purpose of a civil penalty is, as the High Court explained in Australian Building and Construction Commissioner v Pattinson [2022] HCA 13; (2022) 274 CLR 450; HCA 13 (Pattinson) at [9], 'primarily, if not solely, the promotion of the public interest in compliance with the provisions of the Act by the deterrence of further contraventions of the Act'. The Court emphasised that this purpose is protective, not punitive, and is directed to securing future compliance through deterrence.
3. Consistent with that approach, the imposition of a penalty under s 546 is protective in nature: Trade Practices Commission v CSR Ltd (1991) ATPR 41-076; [1990] FCA 521 (CSR). It is not concerned with retribution or rehabilitation. Rather, as observed in Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union [2017] FCAFC 113; (2017) 254 FCR 68; FCAFC 113 (ABCC) at [99], the penalty serves to educate against and deter conduct that breaches the Act, both specifically and generally.
4. The centrality of deterrence in fixing an appropriate penalty was explained by the High Court in Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (2018) 262 CLR 157; HCA 3 at [116]:

As has been observed, the principal object of an order that a person pay a pecuniary penalty under s 546 is deterrence: specific deterrence of the contravener and, by his or her example, general deterrence of other would-be contraveners. According to orthodox sentencing conceptions as they apply to the imposition of civil pecuniary penalties, specific deterrence inheres in the sting or burden which the penalty imposes on the contravener. Other things being equal, it is assumed that the greater the sting or burden of the penalty, the more likely it will be that the contravener will seek to avoid the risk of subjection to further penalties and thus the more likely it will be that the contravener is deterred from further contraventions; likewise, the more potent will be the example that the penalty sets for other would-be contraveners and therefore the greater the penalty's general deterrent effect. Conversely, the less the sting or burden that a penalty imposes on a contravener, the less likely it will be that the contravener is deterred from further contraventions and the less the general deterrent effect of the penalty. Ultimately, if a penalty is devoid of sting or burden, it may not have much, if any, specific or general deterrent effect, and so it will be unlikely, or at least less likely, to achieve the specific and general deterrent effects that are the raison d'être of its imposition.

1. In Pattinson, the High Court further clarified that the statutory maximum is not reserved for the 'worst category' of cases, nor is the exercise of the discretion constrained by notions of proportionality drawn from criminal sentencing. The question is whether the penalty is 'appropriate' to achieve deterrence in the circumstances of the case. The High Court elaborated on the considerations relevant to determining an appropriate penalty in Pattinson at [46]-[48] in the following terms:
   1. It is important to recall that an "appropriate" penalty is one that strikes a reasonable balance between oppressive severity and the need for deterrence in respect of the particular case. ...
   2. The penalty that is appropriate to protect the public interest by deterring future contraventions of the Act may also be moderated by taking into account other factors ... where those responsible for a contravention of the Act express genuine remorse for the contravention, it might be considered appropriate to impose only a moderate penalty because no more would be necessary to incentivise the contravenors to remain mindful of their remorse and their public expressions of that remorse to the court. Similarly, where the occasion in which a contravention occurred is unlikely to arise in the future because of changes in the membership of an industrial organisation, a modest penalty may be appropriate having regard to the reduced risk of future contraventions.
   3. It is not necessary to multiply examples further. It is sufficient to say that a court empowered by section 546 to impose an "appropriate" penalty must act fairly and reasonably for the purpose of protecting the public interest by deterring future contraventions of the Act.
2. In Fair Work Ombudsman v NSH North Pty Ltd t/as New Shanghai Charlestown [2017] FCA 1301; (2017) 275 IR 148; FCA 1301 (NSH North), Bromwich J at [36] stated the process of determining the appropriate penalty involves the following five steps:

(a) identify the separate contraventions involved, with each breach of each obligation being a separate contravention, and each breach of a term of the Award being a separate contravention;

(b) consider whether each separate contravention should be dealt with independently or with some degree of aggregation for those contraventions arising out of a course of conduct, noting that s 557 of the Act provides that two or more contraventions of a given civil remedy provision are to be taken to be a single contravention if committed by the same person and arising out of a course of conduct by that person;

(c) consider whether there should be further adjustment to ensure that, to the extent of any overlap between groups of separate aggregated contraventions, there is no double penalty imposed, and that the penalty is an appropriate response to what each respondent did (that is, 'common law course of conduct');

(d) consider the appropriate penalty in respect of each final individual group of contraventions, taken in isolation; and

(e) consider the overall penalties arrived at, and apply the totality principle, to ensure that the penalties for each respondent are appropriate and proportionate to the conduct which led to the contraventions when viewed as a whole, making such adjustments as are necessary (that is, the 'totality principle'): see Kelly v Fitzpatrick [2007] FCA 1080; (2007) 166 IR 14; FCA 1080 (Kelly) at [30] per Tracey J; Australian Ophthalmic Supplies Pty Ltd v McAlary-Smith [2008] FCAFC 8; (2008) 165 FCR 560; FCAFC 8 at [23] per Gray J, [71] per Graham J, and [102] per Buchanan J.

1. In CSR, French J (as his Honour then was) set out a list of factors which may inform the Court's assessment of the quantum of penalty. His Honour said at [42]:

The assessment of a penalty of appropriate deterrent value will have regard to a number of factors which have been canvassed in the cases. These include the following:

1. The nature and extent of the contravening conduct.

2. The amount of loss or damage caused.

3. The circumstances in which the conduct took place.

4. The size of the contravening company.

1. The degree of power it has, as evidenced by its market share and ease of entry into the market.

6. The deliberateness of the contravention and the period over which it extended.

1. Whether the contravention arose out of the conduct of senior management or at a lower level.
2. Whether the company has a corporate culture conducive to compliance with the Act, as evidenced by educational programs and disciplinary or other corrective measures in response to an acknowledged contravention.
3. Whether the company has shown a disposition to co-operate with the authorities responsible for the enforcement of the Act in relation to the contravention.

1. The list above is not to be treated as a rigid or exhaustive checklist. In some matters, one or more of the factors may have no application, while in others, additional considerations may arise as relevant to the task of identifying an appropriate penalty.
2. It is more difficult to determine an appropriate penalty where a respondent in breach does not appear or provide evidence. Ordinarily, a respondent may assist the Court by furnishing information as to its size, financial position, the reasons for the contraventions, and any steps taken to remedy the breaches and prevent recurrence. Such information enables the Court to impose a penalty that operates as a deterrent without being oppressive or crushing. In the present case, no such information was provided.
3. The maximum available penalty for the various contraventions of the civil remedy provisions that may be applied to the second respondent is found in column 4 of the table in s 539(2) of the Act. Pursuant to s 546(2), the maximum penalty for the first respondent, as a body corporate, is five times the maximum stated penalty. As provided in s 539(2), column 4, the maximum penalties for each serious contravention of ss 45, 323(1), 325(1), 535(1) and 536(1) are 3,000 penalty units for the first respondent and 600 penalty units for the second respondent.
4. Section 4AA of Crimes Act 1914 (Cth) defines a penalty unit, which is indexed periodically. For offences committed:

(a) on or after 7 November 2024, the value of a penalty unit is $330;

(b) between 1 July 2023 and 6 November 2024, the value of a penalty unit is $313;

(c) between 1 January 2023 and 30 June 2023, the value of a penalty unit is $275;

(d) between 1 July 2020 and 30 December 2022, the value of a penalty unit is $222.

1. The applicant submits that the penalty unit amount which currently exists should be applied and therefore the maximum penalty which can be imposed is $4,950,000 on the first respondent and $990,000 on the second respondent. I do not accept that submission for the purposes of penalty calculation as the contravening conduct did not occur on or after 7 November 2024. The contravening conduct occurred during the applicant's employment with the first respondent which spanned a period between 16 June 2021 and 24 April 2023. During that period, two different maximum penalty unit amounts applied as set out at in the preceding paragraph; the higher penalty unit amount being $275 and the lower penalty unit amount being $212. If I were to apply:

(a) the higher penalty unit amount of $275, the maximum penalty which can be imposed is $4,125,000 on the first respondent and $825,000 on the second respondent;

(b) the lower penalty unit amount of $212, the maximum penalty which can be imposed is $3,180,000 on the first respondent and $636,000 on the second respondent.

1. Although I will treat the greater amount identified in [50(a)] as the maximum, I will take into account that, for part of the period of non-compliance, a lower penalty was applicable. This approach is consistent with that adopted by Katzmann J in Fair Work Ombudsman v Grouped Property Services Pty Ltd (No 2) [2017] FCA 557 at [394]- [401] and by Rares J in Ahmed v Al-Hussain Pty Ltd t/as Cheesecake Shop (No 3) [2019] FCA 848.
2. The Court must approach its task objectively. That task is inherently specific to the factual circumstances of each particular matter. The Court will consider the factors described above and assess what weight should be given to them. The Court will then determine what penalty should be imposed and 'take one final look' at that penalty to determine whether, in totality, it is an appropriate response to the contravention in this case.

Nature, extent and circumstances of the contravening conduct

1. The absence of any evidence of prior contraventions by the respondents is a matter that stands to their credit. However, that consideration is outweighed by the gravity of the present conduct. The respondents' actions in this case reveal a sustained and deliberate disregard for their statutory obligations under the Act, conduct which was not merely negligent but exploitative in character.
2. For the period from 16 June 2021 to 8 August 2021, the applicant worked at the first respondent's business approximately 123 hours in total and received $1,233 in cash for that work. This amounts to $10 per hour approximately, being less than the minimum pay rate under the Award.[14] Thereafter, the applicant was not paid in respect of her employment with the first respondent between 9 August 2021 and 24 April 2023.[15]
3. It is clear that the respondents knew they had an obligation to ensure that the applicant was paid appropriately under the Award. To date, the applicant is owed $72,192.65 comprising:

(a) outstanding wages in the sum of $48,937.85;

(b) the non-payment of superannuation in the sum of $5,174.20; and

(c) compensation for unreasonably requiring the applicant to spend or pay money in the sum of $18,080,60.

1. The quantum of the underpayment in this matter would be indefensible in relation to an adult employee but is particularly egregious when regard is had to the applicant's age and limited capacity, and the very limited period during which she received any remuneration during the term of her employment with the first respondent.
2. The failure to make and keep employee records, coupled with the failure to provide pay slips to the applicant, reflects a blatant disregard for fundamental obligations imposed by the Act. These requirements are not mere formalities; they are essential safeguards designed to promote transparency and accountability in the employment relationship and to ensure employees receive their lawful entitlements. Again, the failures continued over the entirety of the applicant's employment.
3. Context matters and to characterise the conduct relevant to the contraventions in this matter as being blameworthy or deplorable is, frankly, an understatement given the relevant context here. The relevant conduct involves the respondents knowingly taking advantage of the applicant, who at the time of the contraventions was a teenager with an intellectual disability, for their own commercial gain. Such conduct represents a profound breach of trust; the second respondent invited the applicant to reside with her, then prevailed upon the applicant to pay for goods and services to conduct the first respondent's business and to pay expenses for the benefit of the second respondent and her family members. The respondents' financial gain was achieved at the applicant's expense: she lost substantial time and, more gravely, $18,080.60 of her own money as a direct consequence of this exploitation.[16] This is a significant sum for any Award-covered employee, and particularly for a teenager. These matters weigh heavily in my assessment of penalty.

Size and financial circumstances of the business

1. There is no evidence before the Court regarding the financial position of either respondent. In the absence of such evidence, I cannot conclude that the penalties sought at the higher end of the maximum penalty scale as sought by the applicant would be oppressive or crushing. The evidence does, however, indicate that the first respondent operated a small bakery business in metropolitan Sydney. I have taken that matter into account to ensure that the penalties imposed are appropriate and proportionate to the circumstances of this case.

1. As outlined by the Federal Court in Fair Work Ombudsman v Tac Pham Pty Ltd & Anor [2020] FCCA 3036 (Pham), the purpose of imposing civil penalties is protective in nature. As the Full Court in ABCC explained at [98]:

Whereas criminal penalties import notions of retribution and rehabilitation, the purpose of a civil penalty is primarily, if not wholly, protective in promoting the public interest in compliance: Trade Practices Commission v CSR Ltd [1990] FCA 521; (1991) ATPR 41-076 at 52,152 [42]; Commonwealth v Director, FWBII at [55] (per French CJ, Kiefel, Bell, Nettle and Gordon JJ). The principal object of a pecuniary penalty is to attempt to put a price on contravention that is sufficiently high to deter repetition by the contravenor and by others who might be tempted to contravene; both specific and general deterrence are important: Chemeq at [90]; Ponzio at [93]. A pecuniary penalty for a contravention of the law must be fixed with a view to ensuring that the penalty is not to be regarded by the offender or others as an acceptable cost of doing business: Australian Competition and Consumer Commission v TPG Internet Pty Ltd [2013] HCA 54; (2013) 250 CLR 640 at 659 [66]; Singtel Optus Pty Ltd v Australian Competition and Consumer Commission [2012] FCAFC 20; (2012) 287 ALR 249 at 265 [62]- [63}. In relation to general deterrence, it is important to send a message that contraventions of the sort under consideration are serious and not acceptable: Australian Securities and Investments Commission v Southcorp Ltd (No 2) [2003] FCA 1369; (2003) 130 FCR 406 at 418 [32].

1. In Plancor Pty Ltd v Liquor, Hospitality and Miscellaneous Union [2008] FCAFC 170; (2008) 171 FCR 357; FCAFC 170, the Full Court observed that specific deterrence focuses on whether the party subject to penalty might engage in similar contraventions in the future.
2. The applicant submits that specific deterrence warrants penalties approaching the maximum for each respondent, given their complete failure to engage with these proceedings.
3. No solicitor was appointed for the first respondent, and it continued trading despite being on notice of these proceedings through substituted service and a significant liability judgment.[17] A strong clear message is required to ensure the first respondent does not persist in breaching its obligations or seek to avoid accountability by ignoring the Court's processes.
4. The need for specific deterrence is the same in relation to the second respondent. The second respondent actively evaded service, misrepresented her whereabouts,[18] and refused to participate in the proceedings, thereby disregarding the Court's authority. Such conduct must attract substantial penalties to ensure that future compliance with workplace obligations is treated with the utmost seriousness and to reinforce that disregarding the Court's authority and jurisdiction is wholly unacceptable. The need for deterrence is heightened having regard to the applicant's extreme vulnerability and the second respondent's deliberate exploitation of that vulnerability for personal gain. The penalty must have sufficient sting to ensure the second respondent is deterred from engaging in similar misconduct and workplace exploitation in the future.

1. In Ponzio v B & P Caelli Constructions Pty Ltd and Ors [2007] FCAFC 65; (2007) 158 FCR 543; FCAFC 65 at [93], the importance of general deterrence was explained as follows:

In regard to general deterrence, it is assumed that an appropriate penalty will act as a deterrent to others who might be likely to offend: Yardley v Betts (1979) 22 SASR 108. The penalty therefore should be of a kind that it would be likely to act as a deterrent in preventing similar contraventions by like-minded persons or organisations. If the penalty does not demonstrate an appropriate assessment of the seriousness of the offending, the penalty will not operate to deter others from contravening the section. However, the penalty should not be such as to crush the person upon whom the penalty is imposed or used to make that person a scapegoat. In some cases, general deterrence will be the paramount factor in fixing the penalty: R v Thompson (1975) 11 SASR 217.

1. Local bakeries operating in metropolitan areas, such as the first respondent, form part of the hospitality sector and commonly employ young workers, like the applicant, in customer-facing roles. As this Court observed in Pham, contraventions of the Act in the hospitality industry are all too common. More recently, the Court described the hospitality industry as 'notorious for underpayment of employees, and non-compliance with other industrial obligations': Fair Work Ombudsman v Malevi Pty Ltd & Ors [2020] FCCA 2875 at [137] per Riley J. Similarly, in NSH North, Bromwich J observed at [132] that it was a matter of 'common sense reasoning' that the hospitality industry is notorious for non-compliance with standards imposed by industrial laws and is an industry in which enforcement of those standards has proved very difficult.
2. The applicant submits that the penalty should be sufficiently high to convey a strong message of general deterrence: employers who mistreat vulnerable workers or disregard Award obligations will incur substantial penalties. The applicant further contends that such penalties should underscore that conduct of the kind engaged in by the second respondent, and by extension the first respondent, is treated with utmost seriousness by this Court and others.[19] I find considerable force in these submissions, particularly in light of the applicant's acute vulnerability arising from youth and intellectual disability.

1. There is no evidence of the respondents having taken any steps to rectify the underpayment in accordance with the June Orders, having defended these proceedings with due diligence, or having demonstrated any contrition.

1. The final task for the Court is to examine 'one final time' whether the penalty arrived at 'appears to be wrong' and ensure that it is 'not oppressive': Mornington Inn Pty Ltd v Jordan [2008] FCAFC 70; (2008) 168 FCR 383; FCAFC 70 (Mornington Inn). In Mornington Inn, the Full Court at [42]-[43] provided the following guidance in the application of the totality principle:
   1. ... the application of the totality principle which is a final check to be applied to ensure that a final, total or aggregate, penalty is not unjust or out of proportion to the circumstances of the case.
   2. The totality principle was described by the High Court in Mill v R [1988] HCA 70; (1988) 166 CLR 59 ('Mill') at 62-63 as follows:

'The totality principle is a recognized principle of sentencing formulated to assist a court when sentencing an offender for a number of offences. It is described succinctly in Thomas, Principles of Sentencing, 2nd ed (1979), pp 56-57, as follows (omitting references):

"The effect of the totality principle is to require a sentencer who has passed a series of sentences, each properly calculated in relation to the offence for which it is imposed and each properly made consecutive in accordance with the principles governing consecutive sentences, to review the aggregate sentence and consider whether the aggregate is 'just and appropriate'. The principle has been stated many times in various forms: 'when a number of offences are being dealt with and specific punishments in respect of them are being totted up to make a total, it is always necessary for the court to take a last look at the total just to see whether it looks wrong[']; 'when ... cases of multiplicity of offences come before the court, the court must not content itself by doing the arithmetic and passing the sentence which the arithmetic produces. It must look at the totality of the criminal behaviour and ask itself what is the appropriate sentence for all the offences'."

See also Ruby, Sentencing, 3rd ed (1987), pp 38-41. Where the principle falls to be applied in relation to sentences of imprisonment imposed by a single sentencing court, an appropriate result may be achieved either by making sentences wholly or partially concurrent or by lowering the individual sentences below what would otherwise be appropriate in order to reflect the fact that a number of sentences are being imposed. Where practicable, the former is to be preferred.'

1. Totality requires me to examine the aggregate penalty to determine by a process of instinctive synthesis whether the aggregate penalty is an appropriate response to the conduct which led to the contraventions.
2. To that end, I have sought to determine the aggregate penalty so that it is an appropriate response to each respondent's contraventions, whilst not being 'crushing or oppressive', and commensurate with their seriousness: Fair Work Ombudsman v SHMAP Group Pty Ltd & Anor [2018] FCCA 3527 at [87]; Kelly at [30].

1. I now turn to determine the appropriate penalty by way of addressing the five steps identified by Bromwich J in NSH North.

Step 1: Identify the separate contraventions involved, with each breach of each obligation being a separate contravention, and each breach of a term of the Award being a separate contravention

1. The first respondent contravened s 45 during the entire course of the applicant's employment between 16 June 2021 and 24 April 2023. That is a period of 677 days which comprises 96 weeks or 48 fortnights. Taking into account the findings in my default judgment, my review of the evidentiary record and consideration of the applicant's submissions, I find the first respondent contravened various clauses of the Award which required it to:

(a) pay the applicant, a casual employee, for each hour worked a loading of 25% on top of the minimum hourly rate otherwise applicable under clause 17 - Minimum rates (clause 11.1): Given the discretion to pay fortnightly under clause 11.4 of the Award, I find the first respondent contravened this clause 11.1 of the Award on 48 occasions.

(b) pay the applicant, a casual employee, at the end of each engagement or week or fortnight (clause 11.4): Given the discretion to pay fortnightly under clause 11.4 of the Award, I find the first respondent contravened clause 11.4 of the Award on 48 occasions.

(c) pay the applicant at the appropriate minimum hourly rate (clause 17): Given the discretion to pay fortnightly under clause 11.4 of the Award, I find the first respondent contravened clause 17 of the Award on 48 occasions.

(d) pay the applicant wages either weekly or fortnightly on a regular pay day for the number of hours worked (clause 18.1-18.3) and pay the applicant no later than 7 days after her employment terminated all wages under the Award for any complete or incomplete period up to the end of the day of termination and all other amounts that are due to the applicant under the award and the National Employment Standards (clause 18.4): Given the discretion to pay fortnightly under clause 11.4 of the Award, and when reading clauses 18.1-18.4 together as they relate to payment of wages, I find the first respondent contravened clause 18 of the Award on 48 occasions.

(e) make superannuation contributions to a superannuation fund for the benefit of the applicant (clause 20): Given the requirement for employers to make superannuation contributions at least quarterly, I find the first respondent contravened clause 20 of the Award on 8 occasions.

(f) pay the applicant for work done on a public holiday or on a day that is substituted for a public holiday at the public holiday penalty rate (clause 33.3): As there were 19 public holidays in New South Wales between 16 June 2021 and 24 April 2023, I find the first respondent contravened clause 33.3 of the Award on 19 occasions.

1. Therefore, the first respondent contravened s 45 of the Act on 219 occasions.

1. The first respondent contravened s 323(1) during the entire course of the applicant's employment between 16 June 2021 and 24 April 2023. That is a period of 677 days which comprises 96 weeks or 48 fortnights. Put simply, the applicant was not paid her full wage entitlement throughout her employment with the first respondent. Given the discretion to pay fortnightly under clause 11.4 of the Award, I find the first respondent contravened s 323(1) on 48 occasions.

1. Taking into account the findings in my default judgment, and the instances itemised in Schedule 3 to the Statement of Claim, I find the first respondent contravened s 325(1) on 79 occasions.

1. I have found that the first respondent did not meet its obligation under s 535(1) to make, and keep for seven years, employee records of the kind prescribed by the Regulations. The employee records were neither made nor kept for seven years in respect of the applicant's pay (reg 3.33), overtime (reg 3.34), leave (reg 3.36), superannuation contributions (reg 3.37) and termination of employment (reg 3.40).
2. Given the failure to make and retain records in respect of five prescribed matters, I conclude that the first respondent contravened s 535(1) of the Act on five separate occasions.

1. I have found that the first respondent did not meet its obligation under s 536(1) to give a pay slip to the applicant in relation to the performance of work during the term of her employment between 16 June 2021 and 24 April 2023.
2. Given the discretion to pay fortnightly under clause 11.4 of the Award, I find the first respondent contravened s 536(1) of the Act on 48 occasions.

Step 2: Consider whether each separate contravention should be dealt with independently or with some degree of aggregation for those contraventions arising out of a course of conduct, noting that s 557 of the Act provides that two or more contraventions of a given civil remedy provision are to be taken to be a single contravention if committed by the same person and arising out of a course of conduct by that person

1. Section 557(1) specifies a legislative basis for determining when multiple contraventions are taken to constitute a single contravention. The provisions reads:

For the purposes of this Part, 2 or more contraventions 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. Section 557(2) specifies the civil remedy provisions contemplated by s 557(1). Relevant to this case, s 557(2) prescribes each of the civil remedy provisions which have been contravened in this case, namely ss 45, 323(1), 325(1), 535(1) and 536(1).
2. In Construction, Forestry, Mining and Energy Union v Cahill [2010] FCAFC 39; (2010) 269 ALR 1; FCAFC 39, the Full Court clarified that he single course of conduct principle and the role it plays, or the place it occupies, in the exercise of the sentencing discretion at [39]:

As the passages in Williams [2009] FCAFC 171; 262 ALR 417 explain, a "course of conduct" or the "one transaction principle" is not a concept peculiar to the industrial context. It is a concept which arises in the criminal context generally and one which may be relevant to the proper exercise of the sentencing discretion. The principle recognises that where there is an interrelationship between the legal and factual elements of two or more offences for which an offender has been charged, care must be taken to ensure that the offender is not punished twice for what is essentially the same criminality. That requires careful identification of what is "the same criminality" and that is necessarily a factually specific enquiry. Bare identity of motive for commission of separate offences will seldom suffice to establish the same criminality in separate and distinct offending acts or omissions.

1. Accordingly, I now turn to consider whether the multiple contraventions of each of these civil remedy provisions, where committed by the same person, arose out of a course of conduct by that person and can therefore be aggregated to some extent.

Is there a course of conduct in relation to the multiple contraventions of s 45 of the Act?

1. I have found that the first respondent contravened s 45 on 219 occasions by breaching six distinct Award obligations. In my view, the multiple breaches of each obligation were part of a single course of conduct and should therefore be treated as one contravention. On that basis, there are six separate groups of contraventions of s 45, being contraventions of cls 11.1, 11.4, 17, 18, 20 and 33.3 of the Award.

Is there a course of conduct in relation to the multiple contraventions of s 323(1) of the Act?

1. I have found that the first respondent contravened s 323(1) on 48 occasions by failing to pay the applicant for work performed in the manner and at the intervals required. In my view, those multiple breaches constitute a single course of conduct and should therefore be treated as one contravention.

Is there a course of conduct in relation to the multiple contraventions of s 325(1) of the Act?

1. I have found that the first respondent contravened s 325(1) on 79 occasions. In my view, those contraventions arose from two distinct courses of conduct.
2. The first course of conduct involved the second respondent requiring the applicant to pay money either to the second respondent or to a supplier or contractor of the first respondent, for the purpose of conferring a benefit on the first respondent and enabling it to continue trading. The multiple breaches of this obligation in that manner should be treated as a single contravention.
3. The second course of conduct involved the second respondent requiring the applicant to pay for goods and services of a personal nature that were enjoyed by the second respondent or a relative of the second respondent. The multiple breaches of this obligation in that manner should likewise be treated as a single contravention.
4. On that basis, I aggregate the 79 individual breaches into two contraventions of s 325(1) of the Act.

Is there a course of conduct in relation to the multiple contraventions of s 535(1) of the Act?

1. I have found that the first respondent contravened s 535(1) on five occasions, giving rise to five breaches. However, in my view, those breaches occurred as part of a single course of conduct - namely, the failure to make and retain employee records detailing each of the five prescribed matters. Accordingly, for the purposes of penalty, these contraventions should be treated as one.

Is there a course of conduct in relation to the multiple contraventions of s 536(1) of the Act?

1. I have found that the first respondent contravened s 536(1) on 48 occasions. In my view, the multiple failures to give a pay slip to the applicant is underpinned by a single course of conduct and should therefore be treated as one contravention.

Step 3: Consider whether there should be further adjustment to ensure that, to the extent of any overlap between groups of separate aggregated contraventions, there is no double penalty imposed, and that the penalty is an appropriate response to what each respondent did (that is, 'common law course of conduct')

1. Where separate aggregated groups of contraventions may overlap in their factual basis or arise from substantially the same conduct, the Court should consider a further adjustment to avoid imposing a double penalty for what is, in substance, the same wrongdoing. This approach reflects the common law course of conduct principle, which aims to ensure that penalties are proportionate and not oppressive, while still achieving deterrence. If overlapping groups are penalised separately without adjustment, the result may be punitive beyond what is necessary. That said, there may be cases where there remains no scope for the common law course of conduct principle to be applied in addition to s 557(1): Fair Work Ombudsman v Lohr [2018] FCA 5; (2018) 158 ALD 457; FCA 5 at [33]-[34]; Fair Work Ombudsman v Construction, Forestry, Maritime, Mining and Energy Union (Hutchison Ports Appeal) [2019] FCAFC 69 at [82].
2. I am prepared to aggregate the contraventions relating to ss 45 and 323(1), as they arise from substantially the same conduct and the s 323(1) contravention is akin to the contravention of the payment obligations under the Award. On that basis, I treat them as a group of six contraventions of these civil remedy provisions by the first respondent.
3. The application of s 557 to the facts of this case leaves no remaining work for the common law course of conduct principle to do in relation to the contraventions of ss 325(1), 535(1) and 536(1).
4. I will not further adjust the two groups of s 325(1) contraventions as the conduct underpinning each of these two groups of contraventions is distinct from the other and from the courses of conduct underpinning the other contraventions that have been found in this case.
5. Furthermore, the wrongdoing underlying the contravention of s 535(1) is likewise distinct from the conduct giving rise to the other contraventions, and it would be inappropriate to apply any further adjustment.
6. Similarly, the wrongdoing underpinning the contravention of s 536(1) is separate from the conduct underlying the other contraventions, and no further adjustment should be made.

Step 4: Consider the appropriate penalty in respect of each final individual group of contraventions, taken in isolation

1. In relation to the first respondent, I have found six contraventions of ss 45 and 323(1), two contraventions of s 325(1), one contravention of s 535(1) and one contravention of s 536(1). I find the second respondent, as the controlling mind of the first respondent who was directly involved in each of these serious contraventions, to be similarly liable for the first respondent contraventions.
2. In relation to the group of six contraventions of ss 45 and 323(1), these warrant the imposition of a significant penalty, given the paramount importance of employers complying with their Award obligations, particularly as they apply to junior employees. In my view, the appropriate penalty for this group of contraventions would be:

(a) $130,000 for the first respondent; and

(b) $40,000 for the second respondent.

1. In relation to the two distinct groups of s 325(1) contraventions, these warrant the imposition of a penalty at a level which has the effect of deterring exploitative conduct. The contraventions of s 325(1) are of particular concern in this case and merit further exposition. They were orchestrated by the second respondent through repeated requests that induced the applicant to make payments for goods and services that would benefit the first respondent or the second respondent personally. Given the applicant's vulnerability, these requests - often conveyed by text message and accompanied by words of approval when complied with - were manipulative. That offending was deliberate and calculated, and occurred in circumstances amounting to an abuse of power, having regard to the applicant's youth and intellectual disability. The egregious nature of this manipulative course of conduct weighs heavily in my determination of the penalty to be imposed, particularly as it applies to the second respondent. It is necessary to send a clear message to her, and to employers generally, that contraventions of s 325(1) of this kind must not occur and will attract significant sanction. In my view, the appropriate penalty for these two groups of contraventions would be:

(a) $40,000 for the first respondent; and

(b) $30,000 for the second respondent.

1. In relation to the s 535(1) contravention, I find this contravention to be less serious than the contraventions of s 45, 323(1) and 325(1) in this case. This offending is characterised by a cavalier disregard of record-keeping obligations. In my view, the appropriate penalty for this contravention would be:

(a) $15,000 for the first respondent; and

(b) $5,000 for the second respondent.

1. In relation to the s 536(1) contravention, I find this contravention to be less serious than the contraventions of s 45, 323(1) and 325(1) in this case. In my view, the appropriate penalty for this contravention would be:

(a) $15,000 for the first respondent; and

(b) $5,000 for the second respondent.

Step 5: Consider the overall penalties arrived at, and apply the totality principle, to ensure that the penalties for each respondent are appropriate and proportionate to the conduct which led to the contraventions when viewed as a whole, making such adjustments as are necessary.

1. The overall penalty for the first respondent is $200,000 and for the second respondent $80,000.
2. Having regard to all of the matters set out above, and applying the totality principle, I am satisfied that it is appropriate to impose an aggregate penalty of $160,000 on the first respondent and $75,000 on the second respondent.
3. Although the applicant sought substantially higher penalties, I am satisfied that the penalties imposed are sufficient to deter repetition by the respondents and by others who might otherwise be tempted to contravene the Act.
4. For sake of clarity, I acknowledge my earlier findings in the default judgment in relation to the tort of detinue in this matter and note that the above penalty calculations were made independently of those findings as the conduct which gave rise to that tort is not connected, or otherwise related, to the specific contraventions of the Act in this case.

1. In the June Orders, the Court ordered that the respondents contravened ss 45 and 323(1) by failing to pay the Applicant in accordance with the Award_,_ and s 325(1) by unreasonably requiring the applicant to spend or pay money directly for the benefit of the first respondent.
2. With the Court making an order that the first and second respondents are to pay compensation totalling $72,192.65 under s 545(1) of the Act, the applicant seeks an order that the respondents pay interest on this amount as required under s 547 of the Act.
3. Section 547(2) of the Act outlines that the Court must include an amount of interest in the sum ordered, unless good cause is shown to the contrary. There has been no evidence filed by the respondents supporting a contrary position.
4. The relevant time period for calculating interest is from the date the applicant ended their employment, which is 24 April 2023, to the date of judgment, which is 22 December 2025. That is a period of 973 days.
5. As outlined in the Federal Court of Australia's Practice Note, Interest on judgments (GPN-INT), the relevant pre-judgment interest rate is the relevant cash rate plus 4%. The current Reserve Bank of Australia cash rate is 4.35%. Therefore, the applicable interest rate to be applied in this calculation is 8.35%.
6. Accordingly, the relevant interest owing as of 22 December 2025 is $16.069.39. I will make an order to that effect that the respondents pay that interest to the applicant.

1. In the June Orders, the Court ordered, pursuant to ss 134 and 140 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (FCFCOA Act), that the second respondent is to pay the applicant $18,171.40 by way of damages for detinue in respect of the applicant's belongings.
2. Under s 211 of the FCFCOA Act, a party to proceedings in this Court for the recovery of money in respect of a particular cause of action may apply for an additional order in respect of interest. The Court will order interest, unless good cause is shown to the contrary. No evidence has been filed by the respondents to support a contrary position.
3. I will therefore order that the respondents pay interest to the applicant in relation to the common law claim sum. Taking into account that the applicant's belongings were primarily personal effects - many of which would not ordinarily appreciate in value - I consider it appropriate to apply interest at 4% on the amount of $18,171.40 for the period between 24 April 2023 (when the second respondent refused to return the applicant's belongings) and the date of judgment, 22 December 2025. That is a period of 973 days. This rate is slightly above the current Consumer Price Index (CPI) inflation rate of 3.8%. At the hearing, Mr Guy submitted that the CPI rate may be an appropriate measure given the nature of the items in question. Accordingly, the total amount of interest up to judgment is $1,937.62.

1. The applicant seeks her costs in this matter. The Court has power to award costs in circumstances where the Court is satisfied that the respondents' unreasonable act or omission caused the applicant to incur the cost: see s 570(2)(b) of the Act.
2. The unreasonable acts include the second respondent intentionally evading service, which has unreasonably caused the applicant to bear the costs of multiple service attempts by a Licensed Process Server and costs of the application dated 27 November 2024 and the application dated 5 February 2025 for substituted service. Second, there is the fact of the respondents subsequently failing to engage with this proceeding in any manner whatsoever.
3. Between 17 October 2024 and 7 November 2024, Justin Richards, Licensed Process Server, attempted to serve documents on the second respondent.[20] The first Richards affidavit outlines the various methods that were used in an attempt to effect service of documents on the second respondent. Due to Mr Richards being unable to serve the documents on the second respondent, the applicant was placed in the position of having to make an additional application for substituted service.
4. On 3 December 2024, I ordered that the second respondent was deemed to have been served with sealed copies of the relevant documents.
5. Between 29 January 2025 and 4 February 2025, Mr Richards attempted to serve additional documents on the second respondent. The second Richards affidavit outlines the various methods that were used for substituted service of those documents on the second respondent. Due to Mr Richards being unable to serve the documents on the second respondent, the applicant was placed in the position of having to make a further application for substituted service.
6. On 11 February 2025, I ordered that the first and second respondents were deemed to have been served with the relevant documents.
7. The applicant is represented by her solicitors on a pro bono basis pursuant to a conditional costs agreement, which permits the applicant to be charged, and thereby recover, her costs in the event of a successful outcome, such as that represented by the June Orders. I note that the applicant's counsel is acting on a purely pro bono basis, and no part of the costs sought include counsel's fees.
8. The applicant submits the Court should exercise its discretion and make a fixed costs order totalling $12,435.29 made up of the following components: solicitor's fees: $11,005.40 (being the fees up to 13 June 2025); and disbursements, including process server costs: $1,429.89.
9. The applicant further submits that the amount of costs sought are reasonable and appropriate in the circumstances, having regard to the nature of the proceedings, the reasonableness of the costs incurred in light of the substantial amount of work performed (which included detailed pleadings, several interlocutory applications, several court hearings and supporting affidavits), and given the desirability of avoiding the further expense and delay of a taxation process. The applicant also noted that the amount sought accords with the scale of costs applicable under Schedule 2 to the previously applicable Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) and reflects work reasonably undertaken in the conduct of the matter.
10. I accept these submissions insofar as they relate to the process server costs incurred by the applicant, which form part of the total disbursements of $1,429.89. As to the solicitor's fees, I am not persuaded to award the full amount claimed, as I am not satisfied that all of the work was necessitated by the respondents' unreasonable act or omission. In particular, the additional affidavit material required to effect service was prepared alongside other affidavits necessary to provide evidentiary support for the applicant's various claims.
11. In making a costs order, the Court has the power to make an order for costs in a lump sum pursuant to rule 32.02(c) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth). Taking into account the above matters, I find it appropriate to make an order of this type in the lump sum of $2,500. That sum covers all disbursements, which included the process server costs, and represents slightly over 20% of the total amount sought by the applicant.

1. Accordingly, I make the Orders and Declarations set out at the commencement of these reasons.

I certify that the preceding one hundred and twenty-eight (128) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Papadopoulos.

[1] First McNally affidavit at [6]-[7], Exhibit AM-1

[2] Statement of Claim filed 9 October 2024, at [3].

[3] Statement of Claim filed 9 October 2024, at [4].

[4] Fourth McNally affidavit, at [12]-[16].

[5] Court hearing transcript of 2 July 2025, p 21 at [27].

[6] Court hearing transcript of 2 July 2025, p 21 at [44]-[46].

[7] Applicant's submissions filed 18 June 2025, at [10(b)].

[8] Applicant's submissions filed 18 June 2025, at [9(a)(ii)].

[9] Court hearing transcript of 2 July 2025, p 36 at [11]-[15].

[10] Court hearing transcript of 2 July 2025, p 39 at [27] to p 40 at [20].

[11] Court hearing transcript of 2 July 2025, p 41 at [23]-[26].

[12] Court hearing transcript of 2 July 2025, p 42 at [5] to p 43 at [11].

[13] Default judgment, at [34]-[35].

[14] Fourth McNally affidavit, at [9].

[15] Fourth McNally affidavit, at [10].

[16] Default judgment, at [41]-[47].

[17] Court hearing transcript of 2 July 2025, p 38 at [38] to p 39 at [7].

[18] First Richards affidavit; Second Richards affidavit; Fourth McNally affidavit; Poole affidavit.

[19] Court hearing transcript of 2 July 2025, p 37 at [12]-[24].

[20] First Richards Affidavit, at [4].