Kaur v P & G Accounting Solution Pty Ltd

(a) s 45 of the FW Act by failing to pay the Applicant the minimum rate of pay in contravention of the Banking, Finance and Insurance Award 2020 (the Award); > > (b) s 45 of the FW Act by failing to pay the Applicant's wages on a weekly, fortnightly or monthly cycle as required by cl 16.1 of the Award; > > (c) s 45 of the FW Act by failing to make sufficient superannuation contributions to satisfy the obligations under the Superannuation Guarantee as required by clause 19.2 of the Award; > > (d) s 45 of the FW Act by failing to pay accrued annual leave on termination in accordance with s 90 of the Act; > > (e) s 117 of the FW Act by failing to provide written notice of termination and a notice period of payment in lieu thereof; > > (f) s 125 of the FW Act by failing to provide the Applicant with a copy of the Fair Work Information statement; > > (g) s 323(1) of the FW Act by failing to pay the Applicant's wages at least monthly; > > (h) s 325(1)(b) of the FW Act by requiring payments from the Applicant; > > (i) s 344(e) of the FW Act by subjecting the Applicant to undue influence or undue pressure, by reason of her migration status, to agree to a deduction from the amounts to which she was lawfully entitled in relation to the performance of work; > > (j) s 345(1) of the FW Act, by requiring payments from the Applicant, the Respondent knowingly misrepresented the applicant's workplace rights; and > > (k) s 536 of the FW Act by failing to provide the Applicant with payslips in the form prescribed by the FW Regulations or which included the information prescribed by the Regulations, within one day of making payment to her in relation to the performance of work or at all.

1. The Second Respondent was involved, within the meaning of s 550(2) of the FW Act, in the First Respondent's contraventions as set out in 2(a) to (k) above.
2. This judgment concerns Ms Kaur's application for the imposition of pecuniary penalties against the respondents, for payment of compensation and for her costs of the proceedings on an indemnity basis. The following reasons assume a familiarity with my factual findings and reasoning in the liability judgment.
3. The applicant (Ms Kaur) was only partially successful in her application. I dismissed her claim for unpaid wages and other entitlements during what she referred to as the "first period of employment". I found that she was not employed before 4 February 2019 and that any work she performed for the first respondent (KPG) prior to that date was in the nature of unpaid work experience. I also dismissed her allegation of being subjected to a demand from the second respondent (Mr Rajput) to pay $50,000.
4. However, the applicant was successful on her principal claim. What became known as the "kickback arrangement" was explored in detail in the liability judgment. In short, that was an arrangement whereby the applicant and/or her brother paid money to Mr Rajput which was then transferred back to her as salary - in other words Ms Kaur was in effect required to pay her own wages. Despite the respondents' denial, I found that the kickback arrangement did operate in the manner described by the applicant and her brother.
5. It will be recalled that the trial unearthed a complex and opaque web of interactions between the parties and persons associated with them. The credit of all principal witnesses was shaken at least to some extent. After hearing all the evidence, I was left with the distinct impression that the court had not been favoured with a full account of what really transpired between them.
6. I heard the parties on the issues of penalties, compensation and costs on 16 May 2025. Mr Aleksov of counsel appeared for the applicant, and Ms Hassan of counsel appeared for the respondents. Prior to the hearing both counsel provided the Court with detailed and helpful written submissions. These were developed orally at the hearing.
7. For the reasons which follow, I have concluded each of the respondents should pay penalties for their contraventions of the FW Act. I have also found that the respondents should be jointly and severally liable for the payment of compensation to Ms Kaur. Having regard to all the circumstances of this difficult case, I have decided not to exercise my discretion under s 570 of the FW Act to order the respondents to pay the applicant's costs of the proceeding.

1. The court has power under s 546 of the FW Act to order the payment of pecuniary penalties which the court considers to be "appropriate" in respect of a contravention of a civil remedy provision.
2. The parties agree on the principled approach to be taken with respect to determining penalties, save and except for the construction of s 557A of the Act regarding "serious contraventions". That distinct issue is discussed later in the judgment.
3. The principles relevant to the assessment of penalty are well-established. In Fair Work Ombudsman v Cobra Security Services Pty Ltd [2024] FedCFamC2G 336 at [48]-[52] I summarised those principles as follows:

[48] Suffice to say, the purpose of a civil penalty under FW Act enforcement regime is primarily, if not wholly, the promotion of the public interest in compliance with the provisions of the FW Act by way of deterrence (general and specific) of further contraventions[1].

[49] A civil penalty must reflect deterrence, not punishment, retribution or rehabilitation. An appropriate penalty should be proportionate in the sense that it recognises the objective seriousness of the contravention, it should deliver a sufficient sting so as not to be regarded as an acceptable cost of doing business and it should strike "a reasonable balance between oppressive severity and the need for deterrence in a particular case"[2].

[50] Central to the Court's task is an objective assessment of the gravity and seriousness of the offending which it is called upon to penalise, having regard to all relevant factual circumstances. The considerations deemed relevant to this task are also well known and frequently cited[3]. They include:

• the nature and extent of the conduct which led to the breach;
• the circumstances in which the conduct took place;
• the nature and extent of any loss or damage sustained as a result of the breach;
• whether there has been similar previous conduct by the respondent;
• whether the breach was properly distinct or arose out of one course of conduct;
• the size of the business enterprise involved;
• whether or not the breach was deliberate;
• the involvement of senior management in the breach;
• whether the party committing the breach has shown contrition;
• whether the party committing the breach has taken corrective action;
• whether the party committing the breach has cooperated with enforcement authorities;
• the need to ensure compliance with minimum standard by provision of an effective means for investigation and enforcement of employee entitlements; and
• the need for specific and general deterrence.

[51] In Australian Building and Construction Commissioner v Pattinson [2022] HCA 13, [15]-[16] (Pattinson), the High Court reiterated that this list should not be treated as a checklist. While this extensive list forms the basis for many decisions of this Court, it is not to be interpreted as a "rigid catalogue of matters for attention"[4].

[52] The Court may take into consideration matters relevant to both the character of the contravening conduct and of the contravenor[5]. Each case is fact-dependent and some considerations will be more relevant or carry greater weight in some cases than in others. The task of assessing what amount to impose involves the selection of a figure taking into account all factors relevant to the particular case[6].

1. When balancing the relevant factors, the court should pay careful attention to the maximum theoretical penalty. The High Court in Pattinson, quoting Markarian v The Queen (2005) 228 CLR 357 said, at [52]:

"[C]areful attention to maximum penalties will almost always be required, first because the legislature has legislated for them; secondly, because they invite comparison between the worst possible case and the case before the court at the time; and thirdly, because in that regard they do provide, taken and balanced with all of the other relevant factors, a yardstick." (emphasis in original)

1. However, the concept or notion of proportionality between offences and penalty, which is relevant in criminal law considerations of retribution, is not relevant in arriving at an appropriate civil penalty. The High Court cautioned that the maximum penalty is not to be used "as some kind of graduated scale"[7]. In Pattinson at [53] the High Court went on:

Care must be taken to ensure that the maximum penalty is not applied mechanically, instead of it being treated as one of a number of relevant factors, albeit an important one. Put another way, a contravention that is objectively in the mid-range of objective seriousness may not, for that reason alone, transpose into a penalty range somewhere in the middle between zero and the maximum penalty. Similarly, just because a contravention is towards either end of the spectrum of contraventions of its kind does not mean that the penalty must be towards the bottom or top of the range respectively. However, ordinarily there must be some reasonable relationship between the theoretical maximum and the final penalty imposed.

1. Determining penalties is not a matter of precedent. There is no tariff. The maximum penalty is not reserved only for the worst possible conduct. The maximum might, for example, be appropriate where it is apparent that no lesser penalty would be an effective deterrent against further contraventions of the kind.
2. In the end, the court must fix a penalty having regard to the individual circumstances of the case and should not be determined by a line by line comparison with any other case. The facts in one case cannot be compared to the facts in another in order to derive an appropriate penalty[8]. Consideration of like penalty decisions may be of value in demonstrating that there is a generally considered range for a particular type of case, but this does not detract from considering the individual circumstances of the case at hand.
3. At the time of the contraventions in 2019, a penalty unit was $210. The maximum penalty for each contravention in the declarations is 300 penalty units for a corporation and 60 penalty units for a natural person - in this case $63,000 for the first respondent and $12,600 for the second respondent. Contraventions found to be "serious contraventions" (s 557A) attract a maximum penalty which is ten times those amounts - $630,000 for a corporation and $126,000 for an individual.
4. In his written outline of submissions at [53] - [69] counsel for the applicant set out what he considered would be appropriate penalties in relation to each contravention. Counsel also urged the court to find that the contraventions were serious contraventions and that they should be penalised on the higher scale. The applicant seeks penalties, adjusted for totality, of $500,000 against KPG and $100,000 against Mr Rajput.

1. In the liability judgment the court found multiple contraventions, each of which is potentially subject to the imposition of a penalty. In considering the quantum of penalties, it is necessary to determine whether one or more of the contraventions should be grouped as arising out of a single course of conduct or whether there is some other reason not to impose multiple penalties.
2. Sections 556 and 557 operate to prevent a party from being penalised more than once for the same conduct.

If a person is ordered to pay a pecuniary penalty under a civil remedy provision in relation to particular conduct, the person is not liable to be ordered to pay a pecuniary penalty under some other provision of a law of the Commonwealth in relation to that conduct. (note omitted)

(1) 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. The course of conduct provision and the common law principle of "grouping" recognises that a contravenor should not punished more than once for what is essentially the same wrongdoing. In assessing what penalty or penalties are appropriate for the contraventions, a court may (but will not necessarily) conclude that a single penalty ought to be imposed for multiple contraventions arising out of a course of conduct[9].
2. In Fair Work Ombudsman v NSH North Pty Ltd trading as New Shanghai Charlestown [2017] FCA 1301 Bromwich J at [36] identified the following steps in determining an appropriate pecuniary penalty:

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

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 FW 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.

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.

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

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 viewed as a whole, making such adjustments as are necessary.

1. Counsel for the respondents submitted that the Declarations made by the court in the liability judgment had essentially completed the first step in the Bromwich J process, by making clear that each contravention should be treated as a single contravention of the relevant provision notwithstanding repetition over various pay cycles.
2. The respondents then urge the Court to consider the extent to which two or more of the declared contraventions overlap to ensure that they are not punished twice for the same conduct. The respondents submit that the court must focus on the "particular conduct" of the contravener when determining whether there is overlap between contraventions and scope to group them. That is the Court should consider what the respondents "actually did", rather than whether the constituent elements of each contravention are the same[10].
3. As to what they "actually did", the respondents say that the essential elements of the "kickback arrangement" found to have occurred in this case, consisted of the following conduct:

(1) failing to pay the applicant until she complained; and

(2) requiring the applicant pay her own wages in cash before any wages or superannuation were made.

1. The respondents accept that this conduct resulted in multiple contraventions as found in the liability judgment, but they assert the contraventions are different legal consequences of the same conduct. The respondents stress that it would be contrary to principle for them to be punished more than once for essentially the same offending.
2. Specifically, the respondents submit that the following contraventions arise from the conduct which constituted the kickback arrangement (i.e. the demand for cash and the failure to pay wages and superannuation until the cash payments were received) and thus should be grouped and amenable to a single penalty:
   • s 45 failure to pay the applicant wages that the minimum rate (Declaration 2(a)):
   • s 45 failure to pay wages on a weekly, fortnightly or monthly cycle as required by cl 16.1 of the Award (Declaration 2(b));
   • s 45 failure to pay superannuation (Declaration 2(c));
   • s 323(1) failure to pay wages monthly (Declaration 2(g));
   • s 325(1) unlawfully requiring payments from the applicant (Declaration 2(h));
   • s 344(e) subjecting the applicant to undue influence or pressure to agree to a deduction from the amounts to which he was lawfully entitled (Declaration 2(i)); and
   • s 345(1) knowingly misrepresenting the applicant's workplace rights (Declaration 2(j)).
3. The respondents submit that these contraventions should be treated as a single course of conduct under the common law principles which prevent double punishment, even if s 556 is found not to apply. It is said that there is a clear interrelationship between the contraventions because they arise out of the same act and because the legal elements of the contraventions depend on the same facts. The respondents accept that ultimately it is the court's task to evaluate the conduct and its course and assess what penalty is, or penalties are, appropriate for the contraventions[11].
4. The applicant's submission is rather more straightforward. The applicant says that each of the statutory provisions contravened by the respondents established a separate obligation and each is identified as a civil penalty provision. The applicant submits that the contraventions should not be found to be part of a single course of conduct, submitting that each of the declarations identify singular and distinct breaches of the law. The applicant submits that the court should be true to the legislature's intent by consider each of the contraventions separately and by ordering an appropriate penalty in response to each. Whilst opposing grouping on the basis of a course of conduct, the applicant does accept that there may be scope for some deduction on account of the totality principle.

1. I agree that it would be contrary to principle to punish the respondents twice for the same conduct.
2. However, having considered the parties' respective written and oral submissions, I do not accept that the kickback arrangement was a single course of unlawful conduct. Rather, I find that it was comprised of the following separate acts:

(a) a requirement that the applicant pay money to the second respondent; and

(b) by reason of (a) the practical failure to pay wages and superannuation contributions to or on behalf of the applicant.

1. The contraventions which are the subject of Declarations 2(h), (i) and (j) should be grouped as the statutory consequences of the respondents' requirement that the applicant pay money before being "paid" her wages. The requirement to make a payment to Mr Rajput was directly contrary to s 325(1)(b) of the Act, it involved undue pressure to agree to a deduction from what she was entitled to be paid (s 344(e)) and it involved a misrepresentation of her workplace rights (s 345(1)). These contraventions will be treated as a single contravention for which one penalty shall be fixed.
2. The contraventions which are the subject of Declarations 2(a), (b), (c), and (g) are properly grouped as arising from the respondents' failure to pay the applicant the wages and entitlements to which she was entitled for the work she performed. The applicant was not paid the minimum rate under the Award on a regular cycle, superannuation contributions were not made as required by the Award and wages were not paid at least monthly. These contraventions should also be aggregated as a single contravention for which one penalty shall be fixed.
3. In my view, the following contraventions should each be treated as a separate contravention for the purposes of assessing penalties:
   • s 45 the respondents' failure to pay the applicant accrued annual leave on termination as required by s 90 of the FW Act (Declaration 2(d));
   • s 117 failure to provide written notice of termination and payment in lieu of the notice period (Declaration 2(e));
   • s 125 failure to provide the applicant with a copy of the Fair Work Information statement (Declaration 2(f)); and
   • s 536 failure to provide the applicant with payslips in the form prescribed by the FW Regulations within one day of making payment to her (Declaration 2(k)).
4. As discussed in the liability judgment, I found and made a declaration to the effect that the second respondent, Mr Rajput, was involved in each of the contraventions for the purposes of s 550 of the FW Act. Mr Rajput is entitled to the protection from double punishment as afforded to the corporate contravener. Accordingly, I intend to apply the same grouping methodology in determining appropriate penalties for his accessorial liability.

1. Ms Kaur alleges that contraventions of ss 45 (Declarations 2(a) and 2(b)) and 323 (Declaration 2(g)), constituted "serious contraventions" for the purposes of s 557A of the FW Act on the basis that they were part of a systematic pattern of conduct related to the applicant and other people. The applicant submits that if the contraventions are found to be "serious contraventions" a declaration to that effect should be made and they should be subject to the significantly higher penalty regime which attaches to serious contraventions.
2. By reason of the grouping I have undertaken above, I have determined that each of those contraventions (i.e. (Declarations 2(a), (b) and (g)) are the legal consequences of a single act or omission, namely the practical failure to pay wages to and make superannuation contributions on behalf of the applicant. If the applicant demonstrates that those contraventions are serious contraventions, they should be the subject of one serious contravention penalty.
3. The parties disagree on the proper construction of s 557A of the FW Act. That section as in force at the time provided:

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.

1. As to what amounts to a systematic pattern of conduct relating to one or more other persons, the court may have regard to the factors in s 557A(2) being:

(a) the number of contraventions (the relevant contraventions) of this Act committed by the person; and

(b) the period over which the relevant contraventions occurred; and

(c) the number of other persons affected by the relevant contraventions; and

(ca) the person's response, or failure to respond, to any complaints made about the relevant contraventions; and

(d) except if the provision contravened is section 535 - whether the person also contravened subsection 535(1), (2) or (4) by failing to make or keep, in accordance with that section, an employee record relating to the conduct constituting the relevant contraventions; and

(e) except if the provision contravened is section 536 - whether the person also contravened subsection 536(1), (2) or (3) by failing to give, in accordance with that section, a pay slip relating to the conduct constituting the relevant contraventions.

1. The applicant submits that the requirements of s 557A(1)(a) is easily established. It is submitted that the state of mind of the first respondent is established through the state of mind of Mr Rajput. The applicant also alleges that the second respondent, Mr Rajput, knew that the contraventions by the first respondent were serious contraventions and that his knowledge is to be inferred from the blatant unlawfulness of the conduct and his involvement in it.
2. However, s 557A is engaged only where the contravenor (in this case KPG and by his involvement Mr Rajput) engaged in a systematic pattern of conduct relating to one or more other persons[12]. To this element the applicant makes two submissions.
3. First, the applicant submits that it would not be contrary to the purpose of the Act to find that a systematic pattern of conduct existed where only one person is the subject of the contraventions (i.e. the applicant). It is submitted serious contraventions can be made out where only one person is the subject of contraventions and cites Judge Riley's decision in Sutton v Edyvane's Transports Pty Ltd (No.2) [2022] FedCFamC2G 1062 in support of that proposition.
4. Secondly, the applicant submits that there is no reason why s 557A should be construed as requiring the contraventions in respect of other persons to be limited to contraventions that have been declared as such by a court. This submission is the basis for the applicant's contention that evidence about Mr Rajput's conduct in respect of Ms Simmy Bhatia, Ms Ziniya Singh and Ms Navdeep Kaur (the tendency evidence) should be taken into account as evidence of prior contravening conduct by the respondents.
5. At trial the applicant called each of the tendency witnesses to give evidence regarding their own alleged "kickback" arrangements while they worked for KPG. Details of their evidence is set out in the liability judgment. The applicant contended that the experience of these other former employees was probative and leant weight to the plausibility of her own evidence.
6. The accounts of each tendency witness differed, but the applicant submits that they bear a sufficient similarity to have exposed an unlawful business model which formed part of the respondent's operations. The applicant submitted that the experiences of the applicant and each of the three tendency witnesses were sufficiently common as to evidence a "pattern" of conduct. The applicant submitted that for conduct to constitute a pattern it is not necessary for there to be identical repetition or uniformity in the contraventions. Rather, it is sufficient for there to be repetition of the salient features (i.e. service for no wages) - the common feature of the experiences of the applicant and those who gave tendency evidence. Counsel for the applicant submits that the kickback arrangements in their various forms evidenced a "system" or "business model" or "modus operandi" and thus constituted a serious contravention pursuant to s 557A of the Fair Work Act.
7. In his final address, counsel for the applicant described the systematic pattern or modus as "taking advantage of visa holders when the opportunity arose". The applicant's case is that the alleged kickback arrangement was part of a deliberate scheme which was designed to appear compliant with visa conditions and Australian workplace, taxation and superannuation laws. In this respect, the applicant argued that KPG and Mr Rajput engaged in the very type of conduct which was expressly criminalised by the Migration Amendment (Charging for a Migration Outcome) Act 2015 (Cth) which introduced amendments to Subdiv D of Div 12 of Pt 2 of the Migration Act 1958 (Cth) (especially, s 245AR[13] which establishes an offence punishable by imprisonment for up to 2 years and a penalty of up to 360 penalty units).
8. Counsel for the respondents concedes that the conduct constituting the contraventions was reprehensible and should attract a penalty, but she submitted that the conduct did not form part of a "systematic pattern". Counsel submits that the respondents' conduct should more properly be characterised as ad hoc and opportunistic.
9. In her final address at the trial, counsel for the respondents pointed to material differences in the accounts given by the tendency witnesses. Further, the respondents objected to the use of the tendency evidence for "serious contravention" purposes on the basis that it goes beyond the applicant's pleaded case and the purpose for which the tendency evidence was allowed at trial. The witness accounts were not uniform and I agree that the evidence can only serve a limited purpose.
10. As to the question of whether the respondent's conduct vis-à-vis the applicant constitutes a systematic pattern of conduct, the respondents submit that the applicant has failed to make out key elements of the claim. First, the conduct was for a very limited period, being 4 February 2019 until the termination of the applicant's employment on 21 May 2019. Secondly, the number of persons affected by the relevant contraventions is limited to one (i.e. the applicant). Thirdly, the respondents submit that the phrase "systematic pattern of conduct" contemplates a methodical series of coordinated acts over time, but it does not encompass ad hoc conduct which is not part of some wider system or method of doing business. In support of that submission, the respondents relied upon the Explanatory Memorandum to the legislation which introduced s 557A[14].

1. Mr Rajput's wrongdoing in respect of the applicant was objectively serious and is deserving of a significant and meaningful penalty. It should not be allowed to happen again. However, I am not persuaded that the respondents' conduct was a "serious contravention" which engaged s 557A and the higher penalty regime.
2. I agree with the respondents' submission that to attract the "serious contravention" provisions of the Act, the conduct of the contravenor must be methodical or comprise a coordinated series of acts. That requires something more than the repetition which is inherent in a wage payment cycle.
3. In so far as the applicant sought to rely upon the evidence of the tendency witnesses, I accept that it should not be permitted on this issue.
4. At trial the tendency evidence was one of many factors which led to my satisfaction that the respondents had engaged in the kickback arrangement. I found that the tendency evidence weighed in favour of a generalised finding that Mr Rajput was prepared to engage in unlawful arrangements with visa holders. However, having regard to the applicant's pleaded case and the circumstances in which the court allowed the tendency evidence to be led, that evidence cannot be said to have been admitted for all purposes.
5. Counsel for the respondents correctly pointed out that the applicant's pleaded case in relation to "serious contraventions" relied only upon the various contraventions alleged by the applicant. The Further Amended Statement of Claim (FASOC) makes no mention of conduct directed at any person other than the applicant. Indeed, [110A](a)-(d) of the FASOC expressly contains the allegation of "serious contravention" to the respondents' conduct during the applicant's employment and to the repeated failure to pay wages to her. Until final submissions, the applicant's argument was that the "system" which underpinned the serious contraventions was constituted by the respondents' conduct against the applicant alone.
6. In any event, even if the tendency evidence has a role to play, it is far from efficacious in proving that the respondents conducted a scheme or business model of which the applicant's arrangement formed part. While I accept that Mr Rajput may have assisted other visa holders to pursue migration outcomes in the past, I am not persuaded that he has done so other than on an ad hoc and bespoke basis. There is no evidence that Mr Rajput conducts his accounting business as a sweat shop for migrant labour, that he has organised his affairs to promote an unlawful model of business or that there is a system at play.
7. I accept the respondents' submission that "cashback" arrangements are not per se a serious contravention. Such arrangements have featured in other cases which prompted legislative change, however those arrangements are different because of design, scale and the number of persons involved. The kickback arrangement in the present case is reprehensible and the contravention is objectively serious, but that is not enough to engage s 557A.
8. The sort of mischief to which s 557A is directed is the widespread underpayment or coercion of workers, such as the exploitation of workers by some 7-Eleven franchisees as highlighted in the Explanatory Memorandum which accompanied the introduction of the serious contravention provisions. Section 557A is not directed at instances of opportunistic or ad hoc behaviour, such as here where I found that the respondent employed the applicant as a favour to other senior members of the Punjabi community. The applicant's employment with the respondent would not have occurred but for those connections. There is no evidence that the respondent advertised or took any steps to lure vulnerable students into an exploitative relationship - in the present case the applicant's brother Jatinder presented the applicant to Mr Rajput. Even though the contraventions involved the repeated failure to pay wages when due, that repetition of itself does not evidence a "system".
9. For the reasons in the foregoing paragraphs I am not satisfied that the respondents' conduct engaged s 557A. Accordingly, the serious contravention penalty regime has no role to play in my determination of pecuniary penalties in this case.

1. The kickback arrangement was an egregious and illegal practice. The practical effect of the arrangement was that the applicant performed work for which the respondents did not pay. The conduct was a serious affront to Australian workplace laws.
2. The conduct by the respondents was brazen. The contraventions of the Fair Work Act were not the result of accidents or misunderstanding. The kickback arrangement was designed to conceal illegality[15].
3. Counsel for the applicant submitted that the "kickback" scheme should be condemned as a "brutal, deliberate, dishonest exploitation", designed to take advantage of a vulnerable applicant's desire to achieve permanent residency in Australia. I think that description is overreach, but I do accept that the conduct was knowingly unlawful and intended to fool Australian migration and workplace regulators.
4. A factor I take into account in considering the circumstances of the contravention is my finding that the applicant and her brother had some degree of involvement and complicity in the arrangement. The applicant is an Indian national and temporary resident of Australia. She lived with her brother who was an Australian citizen and the evidence established beyond doubt that the applicant wanted to remain in Australia, be joined by her husband and for both of them to become permanent residents. That the applicant had an overwhelming desire to remain in Australia and that her brother was prepared to do almost anything to make that happen was no hidden secret. I found that securing the applicant's ongoing residence in Australia became something of a joint endeavour between Ms Kaur and her brother Jatinder. But for securing the training visa for which the first respondent was the sponsor, the applicant would not have been able to remain in the country[16]. I very much doubt Mr Rajput would have employed the applicant but for the fact that he was called upon to do a favour.
5. I do not accept that the applicant was completely blind to the kickback arrangement, but that does not cure its illegality.

Loss and damage sustained as a result of the contraventions

1. In his written submission on penalties and compensation, counsel for the applicant submitted:

The conduct was heavy-handed and exploitative. Short of forcible slavery, it is hard to imagine more serious contraventions of basic workplace laws.

1. The respondents entered into a written contract of employment with the applicant to give the appearance of conformity, but thereafter the respondents fundamentally failed to discharge any of the responsibilities of employment. The applicant was not paid for the work she did. The quality of her work is not to the point. The applicant had a contractual and statutory right to be paid for being ready, willing and available to work. As an employee she was entitled to other benefits including superannuation contributions, to be given notice of termination and to be paid out any accrued leave and other entitlements. I agree that it is difficult to imagine a more brazen affront to Australian workplace laws than an employer being prepared to accept service without paying for it.
2. The respondents may say that the applicant did not work for nothing as she was prepared to accept the sponsored visa and prolonged residency in Australia as consideration for her work. There is some truth in that. As I have repeatedly observed[17], there was some quid pro quo in the kickback arrangement and this is not a case of enforced slavery. But no amount of knowledge or complicity can justify breaching the sanctity of the work/wages bargain which sits at the heart of Australian employment law.
3. I accept that the applicant lost wages for the period of her employment and that she would have suffered some degree of hurt and humiliation from the experience.

1. The applicant submits that in this case, the contraventions involving the applicant as well as three others in the respondents' employ, were all deliberate and the product of design by the respondents. As discussed above in relation to serious contravention, the applicant says the court ought consider the intent of legislature, which was to prevent exploitation, particularly of vulnerable workers. Ms Kaur was vulnerable, by reason of her employment and visa arrangement[18].
2. Counsel for the respondents contend that although the respondents did not seek out vulnerable employees to exploit, the applicant was nevertheless exploited in the context of her seeking out the respondents.
3. I find without any hesitation that the conduct of the respondents was deliberate. The deliberateness of the respondents' conduct can be traced back several months before the applicant formally commenced employment. Between August 2018 and November 2018 Mr Rajput liaised with a migration agent regarding his application for approval as a sponsor. In September 2018 Mr Rajput agreed to sponsor the applicant's training visa application. In November 2018 Mr Rajput signed two letters on the company letterhead confirming KPG's commitment to sponsoring the applicant. One document declared that Mr Rajput would monitor and oversee the applicant's training. The second document confirmed, among other things, that the applicant would be provided full-time 38 hours of training at KPG's Dandenong hub and that she would be paid at a rate of $21.45 per hour. I found that these letters were prepared by or at the request of the migration agent to support the applicant's visa application. By reason of my findings, I consider it proper to infer that Mr Rajput did the preparatory work for the training visa knowing all the while that he would not pay wages once the applicant commenced work. The kickback arrangement was no accident or oversight.

1. The applicant submits that Mr Rajput told deliberate and knowing untruths in an attempt to conceal his wrongdoing. It is submitted that specific deterrence should thus carry significant weight, particularly given the tendency evidence that Mr Rajput is prepared to enter arrangements with individuals which have a migration objective.
2. Mr Rajput denied the kickback arrangement, denied receiving money from the applicant or her brother and denied contravening the Award or other workplace laws. Mr Rajput consistently maintained that the allegations against him in the litigation formed part of a malicious and evil attack on his reputation and a naked grab for money by the applicant and her brother.
3. The court cannot ignore that the kickback arrangement was designed to give the impression of conformity. It was intended to fool the migration, workplace and taxation authorities. The respondents denied their conduct until I found against them. They have not accepted their wrongdoing.
4. The respondents' counsel conceded at the penalty hearing that there is no evidence of contrition by the respondents, and accept that I must determine the penalty on that basis.

1. The applicant emphasized that KPG now has 12 offices and that it should not be regarded as a small business.
2. The respondents' written submissions argue that when assessing the size of the business, the court should not proceed on the basis that the first respondent "runs a business with 12 offices" as each of these are run by a separate company which is responsible for its own income and expenses. Counsel submitted that, in the scale of things, the first respondent, as a separate entity, is a small business.
3. The second respondent, however, was the sole director and shareholder of KPG and all its various subsidiaries. Although the corporate structure has each office operating as a separate economic unit, there was evidence that Mr Rajput attended other offices and the head office staff at Dandenong serviced the human resources and other needs of the group. I infer that Mr Rajput benefits from the business conducted through all 12 offices.

1. The respondents admitted that the applicant was subject to the Banking, Finance and Insurance Award 2020 during the entire period of her employment at KPG. The respondents submitted, and based on the evidence I accept, that the applicant was entitled to be paid the minimum rates applicable to a Level 1 Employee within the meaning of the Award.
2. As discussed above, the respondents were clearly aware of the illegality of their conduct. They did not comply with the award despite their knowledge of it. The very nature of what they did was designed to avoid detection and mislead authorities.

1. There is no evidence of prior contraventions of the FW Act by either of the respondents. The respondents should both be treated as first time offenders and the final penalty should recognise that fact.

1. The applicant says that the respondents fought a case they were always going to lose and subjected the applicant to the stress and trauma of having to press the matter and incur costs.
2. The applicant submits for reasons already expressed that general deterrence should be weighted heavily. The conduct is an affront to employment laws generally. It is conduct which cannot be justified in any setting and it deserves a strong message from the court to that effect.
3. The respondents submit that while the tendency evidence would indicate a need for specific deterrence in this case, it should be considered together with the respondent never having been subject to investigation or civil penalties. It is argued that the respondents have not shown a disregard for the law previously, and therefore there is no need for a substantial increase in specific deterrence.

1. The respondents submit that the penalties sought by the applicant are severely oppressive, in the context of the first respondent's profits being around $246,000 in 2021.

1. In terms of his involvement in the affairs of KPG, including its contraventions, the liability judgment speaks for itself. I had no hesitation in finding that Mr Rajput was relevantly involved in each of KPG's contraventions within the meaning of s 550 of the FW Act.
2. Mr Rajput was and remains the managing director of the first respondent. He is the sole director and shareholder of KPG and its various subsidiaries. It is not contested that he had authority on behalf of the first respondent to direct the performance of the applicant's work, the times and days on which she worked and he controlled the timing and quantum of payments made to the applicant. In the liability judgment I found that Mr Rajput was accessorially liable for the conduct of KPG and by reason of s 550 he is taken to have contravened the Act[19].
3. The applicant has at all times maintained that Mr Rajput was the architect of the sham working arrangement and that she was required to comply with his demands for money as the price of retaining his sponsorship of her training visa. The applicant points to Mr Rajput's express or implicit threats to withdraw his visa sponsorship or terminate the applicant's employment as a means of pressing for payments. Mr Rajput's evidence that he had "no idea" about any cash payments was false.
4. Although the arrangement was undoubtedly unlawful, the evidence does not justify a finding that Mr Rajput ruthlessly ensnared the applicant in a predatory scheme for which she was a completely innocent victim. Rather, the arrangement was one of convenience which was intended to produce a mutual benefit - a training visa and a pathway to possible residency for the applicant and cost-free labour for the respondents. It was a most inappropriate and deceptive arrangement, but the real target of deception was the immigration and workplace authorities, who plainly would have intervened and held the parties to account if the arrangement had been revealed.
5. Parties cannot contract out of their statutory obligations and no amount of consent can lawfully relieve an employer of its obligation to pay an employee for the work he or she performed. Even if there was complicity or cooperation, it was never lawful.

1. The principles and considerations articulated above guide and inform my decision as to the appropriate penalty.
2. The contraventions which comprise the kickback arrangement are in my view deserving of a very significant penalty to achieve the purposes of general and specific deterrence. I agree that the conduct of the respondents is the very type of conduct which moved parliament to effect changes to the migration legislation. It is conduct in respect of which the government stated:

The Government considers that 'payment for visas' activity is unacceptable because it undermines the integrity of Australia's visa programmes. It is not acceptable for sponsors, employers or other third parties to make a personal gain from their position in a 'payment for visas' arrangement and it is not acceptable for a visa holder to become an Australian permanent resident by engaging in 'payment for visas' behaviour. Applicants who have paid for their visa are more vulnerable to exploitation and extortion by their sponsor, behaviour which endangers workers and undermines Australian workplace law[20].

1. Kickback-style arrangements have been the subject of penalties in the past. Helpfully, counsel for the respondents annexed to her written submissions an Appendix B which captured the full universe of cases where an employer has been penalised for requiring an employee or employees to pay or contribute to their salary costs. At the time of submissions, there were only five such cases[21]. Although the facts of each case are unique, total penalties ranged from a low of about $27,000 to a high of $1.9 million for corporations, and a low of $5,355 to a high of about $105,000 for individuals.
2. Every case must of course be considered through the prism of its own facts and circumstances. That I have done in the present case. Insofar as general deterrence is concerned, the penalties imposed should be at the high end to ensure reinforcement of the message that arrangements of this kind are prima facie exploitative and completely unacceptable in any setting. At the level of specific deterrence, Mr Rajput should be left in no doubt that his conduct is serious and can never be repeated. He must lead his company in a manner which ensures future compliance. Although I accept both respondents are first-time offenders and are entitled to some level of discount on that account, I was troubled by the tendency evidence which suggested a propensity on Mr Rajput's part for bending the rules.
3. The respondents should count themselves lucky that penalties have been determined on the basic scale. Had the applicant been successful in proving just one other similar case, I most likely would have found that the contraventions were "serious contraventions" for the purposes of s 557A, opening the door to a penalty regime 10 times greater than the one I have applied.
4. In applying the totality principle, I am mindful of the size of the respondents' business and evidence that that the first respondent made a profit of $246,845 in FY21. I infer with the recent expansion of the business to 12 offices, the profit is likely to have increased for the group, including the first respondent, and that the second respondent Mr Rajput would have benefited. That said, applying instinctive synthesis, I have decided to make a small adjustment to ensure the penalties are proportionate and not crushing or oppressive.
5. In all the circumstances I have decided to impose penalties calculated in accordance with the following table:

1. Pursuant to s 546(3), the penalties set out above should be paid to the applicant within 28 days of the date of these final orders being pronounced.

1. The applicant also seeks orders for compensation pursuant to s 545 of the FW Act. Section 545(1) and (2) of the FW Act relevantly provide:

(1) The Federal Court or the Federal Circuit and Family Court of Australia (Division 2) may make any order the court considers appropriate if the court is satisfied that a person has contravened, or proposes to contravene, a civil remedy provision.

(2) Without limiting subsection (1), orders the Federal Court or Federal Circuit and Family Court of Australia (Division 2) may make include the following:

...

(b) an order awarding compensation for loss that a person has suffered because of the contravention;

1. The Court has power to make any order it considers fit by way of compensation. The applicant seeks an order for compensation comprising the following components:

(a) to rectify actual lost wages ($12,063.48 plus interest) and superannuation ($1,146 plus interest);

(b) to rectify projected loss of wages based on the counter-factual scenario that her employment would have continued to the end of her Subclass 407 visa ($73,359 plus interest) and superannuation ($6,969 plus interest); and

(c) general damages for distress suffered from her experience working for the first respondent, including the effect of lost migration opportunity, indignity of being forced to pay one's own cost of employment, and psychiatric injury from which she now suffers ($150,000).

1. The respondents concede that the applicant should have been paid for the work she performed ($12,063.48) and superannuation ($1,146.03) together with an amount in respect of an accrued annual leave entitlement ($928) and a payment in lieu of notice ($815.10). The respondents otherwise oppose any order for compensation based on a counterfactual that the applicant would not have continued in employment beyond the termination date.

1. The principled approach to assessing compensation pursuant to s 545(2)(b) of the FW Act was recently set out by Lee J in Transport Workers' Union of Australia v Qantas Airways Limited (Compensation Claim) [2024] FCA 1216 (TWU v Qantas (Compensation)) at [62]-[87]. Three observations are made by his Honour at the outset:

(a) first, s 545(1) is a broad section which vests the Court with a relatively unconfined discretion to fasten upon a remedy it considers appropriate depending on the particular facts and circumstances of a case where there has been a contravention, or a proposed contravention, of a civil remedy provision;

(b) secondly, the scope of what may be considered "appropriate" for the purpose of s 545(1) must not be limited artificially, and is only constrained by limitations strictly necessary pursuant to the language and purpose of the section. Section 545(1) provides no indication of any specific considerations to be taken into account by the Court in exercising its discretion; and

(c) thirdly, the types of orders that will be "appropriate" include preventative, remedial or compensatory orders, but do not include penal orders - the sole repository of which is s 546 of the FW Act.

1. His Honour then set out relevant principles. They are summarised as follows (selected citations included):

(a) for compensation to be awarded under s 545, the Court must be satisfied that there exists the appropriate causal connexion between the contravention and the loss claimed[31]. A pre-condition for the award of compensation is that the loss suffered by the applicant has been suffered because of the relevant contravention[32];

(b) determining whether there is a causal connection involves "not an examination of what did happen, but an assessment of what would or might have occurred, but which could no longer occur (because of the contraventions)"[33]. This usually requires consideration of the counterfactual;

(c) the onus rests with the claimant to prove their loss, though it is unnecessary to prove sole cause to establish the necessary causal connection. It is enough to demonstrate that the contravention of a relevant provision of the Act was a cause of the loss and damage sustained[34];

(d) the focus of an order for compensation is "in a loose sense, the restoration of those affected by a contravention to the position they would have occupied but for its occurrence";

(e) the application of the "but for" test plays an important role but it is inadequate as a comprehensive positive test[35]. Similarly, the application of "commonsense" alone is of little utility; and

(f) the breadth of discretion of the Court requires a contextualised assessment of the particular circumstances of the case, not in a vacuum, and applying a judicial form of reasoning having regard to the discernible purpose of the statute.

1. The applicant claims lost wages of $73,359 plus interest of 14,419.50 and unpaid superannuation of $6969 plus interest of $2,274. These claims assume a counterfactual whereby the applicant would have continued to work until the end of the visa period on a full-time basis at the rate of $21.45 per hour, but making allowance for 47 days where the applicant would have been unfit for work due to her pregnancy.
2. The applicant submits that the proper approach is to build a counterfactual which removes the respondent's contraventions. The applicant says that if the respondents' contravening conduct had not occurred, the employment relationship would not have soured and it would have continued. The applicant submits that although there may have been issues regarding her performance and presentation, there was no finding that these issues would have justified dismissal.
3. In addition to her claim for economic loss, the applicant also claims compensation by way of general damages. It is said that compensable damage arises from the significant distress and indignity of the applicant having to pay her own wages and from what she describes as the "lost migration opportunity". As to that lost opportunity, the applicant submits that if her employment had continued until the end of the visa period she would have gained additional experience and would have had at least a realistic prospect of pursuing a skilled migration pathway with another employer.

1. The counterfactual requires me to make some prediction about the future course of the applicant's employment, had the contraventions not occurred. That assessment requires the court to take into account the nature of the relationship between the parties and any other factors which might have caused the employment to run less than its full course. The applicant's performance as an employee is one such matter, the applicant's pregnancy is another.
2. The claim for compensation for "loss of opportunity" also requires the court to engage in a predictive exercise. The court must undertake a realistic assessment of the applicant's claim that, had the kickback arrangement not occurred and her employment not been terminated, she would have continued in employment with the first respondent, obtained a second visa from another employer and improved her prospect of remaining in Australia as a permanent resident.
3. The applicant worked for KPG on a subclass 407 visa. That class of visa allows an overseas resident to visit Australia for a period of up to 2 years, during which the visa holder must complete workplace-based training (to improve skills in an area of tertiary study or field of expertise) or a professional development training program. A person seeking such a visa must be nominated or "sponsored" by an Australian employer or organisation with whom they will undertake the training. The employer must also be approved to supervise that training.
4. The visa granted to the applicant was for a period of two years from the date of its grant on 25 January 2019. The visa does not guarantee employment for two years and is subject to the usual right of an employer to terminate the employee on lawful grounds. The applicant concedes that she had no right to a further visa. Indeed, there is a prima facie expectation that after the period of training the visa holder would return to the country of origin or separately apply and qualify for another visa, normally from offshore.
5. The applicant gave evidence that on 17 February 2019, just two weeks into her employment, she discovered that she was pregnant. Although there was a contest about when Mr Rajput was told about this, the fact of the pregnancy was not contested and the applicant subsequently had a child. Under Australian employment law, the applicant would not have completed the minimum period of employment prior to the birth of her child to entitle her to paid parental leave.
6. The applicant gave birth to a child on 22 November 2019 and supplied a medical certificate that she was unfit to work between 22 November 2019 and 31 January 2020[36]. The applicant submits that this period should be subtracted out as unpaid leave. I have very real doubts about whether the applicant would have returned at all.
7. The respondents maintain that the applicant was an unreliable and poor performer, that she refused to perform certain tasks, failed to dress or conduct herself in a professional manner and that her attendance at work and working hours were sporadic. The respondents' case is that the termination of her employment in June 2019 was the consequence of the applicant failing to respond to written and oral warnings from her supervisors, including warnings which foreshadowed the possibility of dismissal.
8. During the course of cross examination, the applicant conceded that comments had been made to her by the office manager about her appearance and presentation. There was also evidence that the applicant responded to a warning letter from the employer in a lengthy email which attached records of the work she claimed to have performed. The applicant's letter was contrite and acknowledged that her performance was sub-optimal and that more was expected of her.
9. I rejected the applicant's claim that she had not previously been counselled about her work performance or personal presentation before she received the warning letter on 9 April 2019. I preferred the evidence of the respondents' witnesses Ms Sanjana Chopra and Ms Palakpreet Kaur that there had been a prior discussion.
10. There was also unchallenged evidence that after receiving and responding to the warning letter in early April 2019, the applicant was absent from work for about three weeks without explanation.
11. After that lengthy absence (most of April 2019) the applicant returned to work on 6 May 2019. That day Mr Rajput emailed the migration agent to say he was not happy with the applicant's performance, that he was no longer able to support the visa sponsorship and that he wanted the sponsorship withdrawn. Mr Rajput gave evidence, corroborated by other administrative managers, that a decision had been taken by them to terminate the applicant's employment. A draft termination letter was prepared for Mr Rajput's consideration by the middle of May.
12. It is not contested that 13 May 2019 was the last day the applicant performed any work or attended any office of KPG. Earlier that day an argument had taken place between the applicant and the Craigieburn office manager Mr Barot, an event the applicant described as a traumatic experience. As a result of that blowup, the applicant sent a text message to Mr Rajput complaining about Mr Barot's behaviour, but she never returned to work. The applicant denied resigning or having abandoned her employment that day. Rather she claimed to have commenced leave without pay.
13. On 21 May 2019 the migration agent sent Mr Rajput a sponsorship nomination withdrawal form. The applicant was copied into that email, alerting her to Mr Rajput's intentions. The Immigration Department was notified that the applicant had been dismissed in May 2019.
14. The date of the termination of the applicant's employment was a significant issue in the liability trial. Much evidence and submissions were devoted to the issue and they are all addressed in the liability judgment. It is not necessary to revisit the detail, suffice to say that at the time both parties (and in that I include the applicant's brother and Mr Rajput's group of associates) were prepared to play loose with the truth in order to craft a convenient narrative which met their respective agendas. What transpired from late May 2019 was for both parties (and other interested persons) an exercise in face-saving and negotiation aimed at navigating an acceptable pathway through a legal and practical conundrum.
15. The parties agreed to a narrative which gave the false impression to the outside world (including authorities) that the applicant remained in employment until April 2020. But it was a pretence and a legal fiction. The essential requirements of the contract of employment were not present after May 2019.
16. After assessing all the evidence I found that the employment of the applicant ceased on 21 May 2019. The applicant was entitled to be paid for her work up to and including that date. That date should also serve as the date on which the applicant's entitlement to accrued annual leave became due.
17. Given the respondents' admission that the Award applied to the applicant's employment and taking into account the general description of work given by the applicant, her very limited experience as a trainee accountant, the fact that she was a new employee for the respondent and inferring that she would have required a high level of supervision, I found that the applicant is entitled to the greater of the Award Level 1 rate or $21.45 per hour as set out in the documentation provided to the Migration Department in November 2018.
18. I am satisfied that the applicant was entitled to be paid at that rate for 38 hours per week for the period of her employment. Her claim for additional overtime hours was not proven to the requisite civil standard.
19. The applicant was also entitled to notice of termination. There was no clear evidence that she was given notice and I find she was not.
20. Any claim for future economic loss is limited. I found that once the kickback arrangement was challenged by the applicant, the emerging performance issues were seized upon as a convenient premise for termination. It can be inferred that but for her challenge to the kickback, the applicant's employment would have continued for some indeterminate period beyond 21 May 2019.
21. As to how long the applicant would have remained in the respondents' employment (i.e. the counterfactual), I note the following. I found that the applicant was not a strong performer and that initial counselling about her attendance and presentation was warranted. The performance management was not the sham alleged by the applicant. Her employment was undoubtedly in peril and on a downward trajectory. The respondents submit that even if the contravening conduct is taken out, the objective fact is that the applicant was a poorly performing employee who was on the cusp of being dismissed.
22. Even without the kickback arrangement and other contraventions, my best prediction, on the available evidence, is that the applicant would not have remained in employment for more than another one or two months. In that period of time, the applicant would have been performance managed and provided a further opportunity to improve, but I am satisfied that she would not have achieved the standards required to perform the accounting role for which she had been employed. I doubt the applicant would have ever been employed on merit.
23. The respondents also note that the applicant has failed to produce any evidence of mitigation of her loss or evidence of the steps taken to earn alternative income. There is hearsay evidence in the report of consultant psychologist Dr Schutz that the applicant has been working part-time in a 7-Eleven store, but there was no direct evidence of this before the court.
24. Based on my assessment that the applicant would have continued in employment for another two months, she would have earned a further $1,630.20 in wages, plus superannuation at 9.5% of $155 and further accrued annual leave of $543[37].

1. The respondents concede that the applicant is entitled to some payment in respect of the hurt, humiliation and upset to which she was subjected as a result of the contravening conduct. However, the respondents submit that compensation for that harm should be limited to the range which is normally awarded for the loss of a job.
2. The applicant claims to have suffered psychological injury as a result of the respondents conduct. In support of that claim the applicant sought to rely on a report prepared by Dr Gregor Schutz, a consultant psychiatrist. Dr Schutz' report[38] was prepared for this phase of the proceedings and prior to his assessment of the applicant he had been provided with background medical documents from her GP, psychiatrist and a clinical psychologist and a copy of the liability judgment dated 23 January 2025.
3. The respondents objected to Dr Schultz' report being received into evidence. Counsel for the respondents submitted that there was no independent proof of some of the underlying facts on which the expert expressed his opinion. Furthermore, counsel submitted, correctly, that the report contained hearsay from the applicant about how she felt about various matters, and that the applicant herself had not put on any evidence of her claimed psychiatric injury or her responses to the respondent's conduct. Counsel for the respondents submitted that it would be unfair for the applicant to be able to rely upon Dr Schutz' report but avoid any cross examination by not putting on direct evidence.
4. I ruled that the report could be tendered, but made it clear that my assessment of its weight would take into account the submissions made by Ms Hassan. In that respect I note that much of Dr Schutz report is simply a record of what he was told by the applicant. Some of the applicant's claims were at odds with my findings in the liability judgment and reflected a return to her preferred narrative. The applicant could have given direct evidence about her psychological state and had she done so her claims could have been tested by cross-examination. That opportunity was denied to the respondents.
5. Dr Schutz' examination of the applicant found evidence of a moderate to chronic adjustment disorder which he believes arose from 2019. He opined that the predominant cause of the applicant's condition is "her perception of the issues in regard to her employment with KPG". Dr Schutz also noted that it had been a substantial concern to applicant that she may face an inability to remain in Australia. He noted this as a separate, but interlocking stressor with the claimed events at KPG.
6. As to the applicant's prognosis, Dr Schutz said that was mixed and speculative. He expressed the view that her symptoms are somewhat chronic and entrenched and are likely to continue in at least a moderate fashion for the foreseeable future. That said, any psychological harm does not impact upon the applicant's capacity for work. At the time of writing, the applicant had been working part-time without difficulty at 7-Eleven. Dr Schutz also notes that the applicant is motivated to work full-time in childcare.
7. The applicant submits that Dr Schutz' report confirms that the applicant suffered significant distress from her experience at KPG, including the indignity of being forced to pay her own cost of employment and what she perceived to be a lost migration opportunity. The applicant contends that Dr Schutz' report confirms a causal link between her time at KPG and her current psychological state, and that the respondents' unlawful conduct was a material contributing factor. The applicant submits that the court should make an award of compensation for distress at the higher end of the scale having regard to the heavy handedness of the respondents' conduct.

1. Taking into account all of the factors discussed above, I find as follows.
2. The applicant is undoubtedly entitled to compensation for the work she performed (including superannuation) together with her accrued but unpaid annual leave and a payment in lieu of notice. The respondents concede these payments and an order will be made that the applicant be paid.
3. As to future economic loss, the counterfactual is the applicant's employment would have been terminated within 2 months of the date on which she was terminated. In that respect the applicant should be paid another two months' wages, plus superannuation contributions plus any further annual leave she would have accrued in that period.
4. I accept that the applicant will have suffered some emotional distress and harm as a result of the respondents' contraventions. The respondents concede that the applicant should receive something on account of the indignity she would have suffered. However, the applicant did not put on any direct evidence of her psychological state and the respondents were denied the opportunity to test her claims. The respondents were also denied the opportunity to explore the applicant's more recent working history and her earnings.
5. I am inclined to the view that the applicant's current psychological state can only partly be attributed to the respondents' contraventions. An equal or greater cause of her distress is the concern she has about her uncertain migration status and the risk that she may not secure a visa to remain in Australia. She carried similar stress and concerns before she was introduced to Mr Rajput.
6. I do not accept that the applicant has lost any migration opportunity by reason of the contraventions. The evidence was that she was desperate for a working visa when her brother approached Mr Rajput and he accommodated that need, albeit in an unlawful manner. Had the respondents not sponsored the applicant there is no evidence that someone else would have.
7. I assess the applicant's non-economic loss at $15,000.

1. The applicant seeks an order under s 570(2)(b) of the Act that the respondents jointly and severally pay the applicant's costs of the proceeding, on an indemnity basis, on the basis that Mr Rajput, for himself and for the first respondent, engaged in unreasonable acts. The unreasonable acts relied upon include the respondents' denial of the applicants claims from beginning to end, including the filing of affidavit material containing material they must have known was false.

1. Ordinarily in proceedings brought under the FW Act, costs will be borne by the party incurring them[39]. Section 570(2) of the FW Act states:

2. The party may be ordered to pay the costs only if:

(a) the court is satisfied that the party instituted the proceedings vexatiously or without reasonable cause; or

(b) or the court is satisfied that the party's unreasonable act or omission caused the other party to incur the costs; or

(c) the court is satisfied of both of the following:

(i) the party unreasonably refused to participate in a matter before the FWC;

(ii) the matter arose from the same facts as the proceedings.

1. In Ryan v Primesafe [2015] FCA 8, Mortimer J (as her Honour then was) said at [64]:

[...] The policy behind s 570 is to ensure that the spectre of costs being awarded if a claim is unsuccessful does not loom so large in the mind of potential applicants (in particular, in my opinion) that those with genuine grievances and an arguable evidentiary and legal basis for them are put off commencing or continuing proceedings. It is an access to justice provision. Insofar as it operates to the benefit of respondents, it is designed to ensure respondents feel free to pursue arguable legal and factual responses to the claims made against them.

1. The applicant for costs bears the onus of satisfying the Court that one or more of the criteria in s 570(2) are met. Determining whether a party acted unreasonably must be determined objectively according to the facts on a case by case basis[40].
2. An order for costs is a departure from the usual rule. In an otherwise no-costs jurisdiction, the discretion to order costs must be exercised with caution[41]. A clear case for its exercise must be demonstrated. Even where the threshold of unreasonable conduct is met, the Court retains a discretion.

1. Where costs are awarded, the ordinary rule is that costs will be assessed on a party/party basis. To warrant a departure from the rule, there should be some "special or unusual feature in the case"[42]. Circumstances where indemnity costs may be awarded are where[43]:

(a) the proceedings were commenced or continued for some ulterior motive or in wilful disregard of known facts or clearly established law;

(b) allegations were made which ought never to have been made; or

(c) there was undue prolongation of a case by groundless contentions.

1. The applicant submits that Mr Rajput knew from the beginning of this litigation that the applicant had not been paid wages and that the kickback arrangement was unlawful. The applicant submits that the respondents' denial of the central allegations cannot be justified and that the defence was maintained without any prospect of success.
2. The respondents unsurprisingly oppose any order for costs, citing the policy behind s 570 and the presumption that in contested employment matters parties will normally bear their own costs. The respondents submit that the mere fact that aspects of their evidence was rejected does not lead to the conclusion that unreasonable conduct or omission caused the other party to incur costs.
3. The respondents also submit that if the applicant's argument for costs is accepted, so too should the respondents be entitled to their costs, on an indemnity basis, of the applicants failure to prove employment during the first period, and her claims that there was an agreement that she would be reimbursed for travel costs and that the second respondent had directly demanded $50,000 from her. The respondents also point out that much of the trial costs were devoted to disproving the applicant's evidence about matters which were found against her, including her assertion that there were no performance issues, her denial of being regularly absent from work and her claim about there being four notebooks.
4. In determining whether one or other party engaged in an unreasonable act or omission which caused the other party to incur costs, I return to a theme I have repeated in both this and the liability judgment. Neither party was completely candid in their evidence and both parties advanced narratives which were found to be, at least in part, untrue. Both parties had incentives to make things look something other than they really were. Both parties caused the other to incur costs.
5. The respondent's conduct was reprehensible. But my findings did not all go one way. There were significant aspects of the applicant's case which fell short and were found against her. On the first period of work issue and the demand for $50,000 (among others) the respondents succeeded. The respondents were found liable on the kickback, but it was not per se unreasonable for them to contest the allegation and to put the applicant to her proof.
6. In so far as the applicant suffered any loss as a consequence of the kickback arrangement and other contraventions, she is entitled to compensation. The applicant is also entitled to the benefit of the penalties I have awarded against the respondents. She has been granted the relief the Act was designed to confer.
7. Costs serves a different purpose. Costs do not follow the event in FW Act proceedings. Given the parties shared what I consider was an equal measure of success and failure on their respective cases, I do not consider this is an occasion to award costs. Even if there was some unreasonable conduct by the respondents which caused the applicant to incur costs and thereby enlivened my discretion under s 570, there was ample conduct on the part of the applicant which balanced the table.

1. For the reasons set out above, I will make orders that the first and second respondents each pay pecuniary penalties to the applicant in accordance with the schedule at paragraph [96] of these reasons. I will also make an order that the respondents pay compensation to the applicant in respect of past and future economic loss and an amount of $15,000 in respect of non-economic loss.
2. I decline to exercise my discretion pursuant to s 570(2) to make an order for costs.

I certify that the preceding one hundred and fifty-eight (158) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Forbes.

[1] Australian Building and Construction Commissioner v Pattinson [2022] HCA 13 at [15]- [16] (Pattinson).

[3] Trade Practices Commission v CSR Ltd (1991) ATPR 41-076 at [42] (CSR); see also Pattinson at [18]; Kelly v Fitzpatrick [2007] FCA 1080 at [14] (Kelly v Fitzpatrick).

[4] Australian Ophthalmic Supplies Pty Ltd v McAlary-Smith [2008] FCAFC 8 at [91].

[6] Pattinson at [68]; see also Wong v The Queen [2001] HCA 64 at [75] (Gaudron, Gummow and Hayne JJ); Markarian v The Queen [2005] HCA 25 at [37] (Gleeson CJ, Gummow, Hayne and Callinan JJ); Flight Centre Ltd v Australian Competition and Consumer Commission (No 2) [2018] FCAFC 53 at [55] (Allsop CJ, Davies and Wigney JJ)

[8] Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (No.2)(2010)199 IR 373 at [11] per Barker J

[9] Fair Work Ombudsman v Construction, Forestry and Maritime Employees Union (The Beams Lift Case) (No 2) [2024] FCA 779 at [100] (Snaden J)

[10] Fair Work Ombudsman v Foot & Thai Massage Pty Ltd (in liquidation) (No 8) [2024] FCA 483, [191].

[11] ABCC v CFMMEU (College Crescent) [2020] FCA 757, [86]

[13] Pursuant to s 245AR of the Migration Act 1958 (Cth) it is an offence for a person to ask for or receive a benefit from another person in return for the occurrence of a sponsorship-related event.

[14] Explanatory Memorandum to the Fair Work Amendment (Protecting Vulnerable Workers) Bill 2017, Schedule 1.

[15] See Liability Judgment at [403]-[407], [438]-[439].

[16] It may have been open to the applicant to apply for a different form of visa, but there was no evidence before the court which explored alternatives.

[17] Liability Judgment at [344], [405].

[18] Liability Judgment at [405]-[406].

[19] Liability Judgment at [428]-[439].

[20] Migration Amendment (Charging for a Migration Outcome) Bill 2015, Explanatory memorandum.

[21] Ahmed v Al-Hussein Pty Ltd t/as The Cheesecake Shop (No 2) [2019] FCA 670, (No 3) [2019] FCA 848; Basi v Namitha Nakul Pty Ltd (No 2) [2023] FCA 671; Fair Work Ombudsman v Foot & Thai Massage Pty Ltd (in liquidation) (No 8) [2024] FCA 483; Fair Work Ombudsman v Easy Vaping Company Pty Ltd [2024] FedCFamC2G 66; Fair Work Ombudsman v DTF World Square Pty Ltd (in liq) (No 4) [2023] FCA 341.

[31] Australian Licenced Aircraft Engineers Association v International Aviation Service Assistance Pty Ltd (2011) 193 FCR 526; [2011] FCA 333 (at 592 [423] per Barker J).

[32] Fair Work Ombudsman v Construction, Forestry, Maritime, Mining and Energy Union (the Hutchison Ports Appeal) [2019] FCAFC 69 (at [135] per Ross J).

[33] Maritime Union of Australia v Fair Work Ombudsman [2015] FCAFC 120 (at [28] per Allsop, Mansfield and Siopis JJ).

[34] Patrick Stevedores Holdings Pty Ltd v Construction, Forestry, Maritime, Mining and Energy Union (No 4) [2021] FCA 1481 at [27].

[35] Medlin v State Government Insurance Commission [1995] HCA 5; (1995) 182 CLR 1 (at 6 per Deane, Dawson, Toohey and Gaudron JJ).

[36] Liability Judgment, [210]-[212].

[37] Calculations based on an 8 hour week at $21.45 per hour and 9.5% superannuation.

[39] Murdock v Virgin Australia Airlines Pty Ltd (No 3) [2024] FCA 227 (Murdock v Virgin Australia) at [3] (Burley J); Commonwealth of Australia v Construction, Forestry, Mining and Energy Union [2003] FCAFC 115; Augusta Ventures Ltd v Mt Arthur Coal Pty Ltd [2020] FCAFC 194.

[40] Australian and International Pilots Association v Qantas Airways Ltd (No 3) [2007] FCA 879.

[41] Murdock v Virgin Australia at [3] (Burley J); Saxena v PPF Asset Management Ltd [2011] FCA 395 at [6] (Bromberg J).

[42] Umoona Tjutagku Health Service Aboriginal Corporation v Walsh [2019] FCAFC 32 at [48].

[43] Colgate-Palmolive Company v Cussons Pty Ltd [1993] FCA 536; (1993) 46 FCR 225, 233 at [5]; Trustee for The MTGI Trust v Johnston (No 2) [2016] FCAFC 190 at [17].