Labour Hire Licensing Authority v Gobally Talent Group Pty Ltd [2025] VMC 9

1. The Labour Hire Licensing Authority (the Authority) is responsible for administering the Labour Hire Licensing Act 2018 (the Act). The objects of the Act include to protect workers from being exploited by providers of labour hire services and to improve the transparency and integrity of the labour hire industry (s 4). The purposes of the Act include the establishment of a licensing system to regulate the provision of labour hire services and the imposition of civil penalties upon unlicensed providers (s 1).
2. To obtain a licence under the Act, a labour hire provider must declare its compliance with laws including workplace, superannuation, occupational health and safety, migration and tax laws (s 23). A labour hire provider must also declare each relevant person to be a fit and proper person (s 17(4)(a)). The Authority maintains a public register of licensed labour hire providers (s 48). The Act prohibits the provision of labour hire services without a licence (s 13) and also prohibits the advertising of labour hire services without a licence (s 14).
3. This is the first proceeding brought by the Authority for contravention of s 14 of the Act. The Authority alleges that on six occasions in 2024, the First Defendant (Gobally) advertised that it provided, or was willing to provide, labour hire services despite not holding a licence, in contravention of s 14 of the Act. The Authority alleges that the Second Defendant (Ho) was directly or indirectly knowingly concerned in, or party, to, those contraventions contrary to s 95(1)(c) of the Act, such that, pursuant to s 95(2), s 14 applies to Ho as if Ho had contravened the provision.
4. Pursuant to ss 93(1) and 93(6) of the Act, the Authority may apply to this Court for orders in relation to a person who has contravened a civil penalty provision, where the maximum penalty is 500 penalty units or less for a natural person or 2500 penalty units or less for a body corporate. Pursuant to s 94(2) of the Act, the maximum penalties for contravention of s 14 are 200 penalty units for a natural person and 800 penalty units for a body corporate, meaning the Court has jurisdiction to deal with this matter.
5. The parties have reached agreement as to proposed penalties to be imposed in respect of the matter. Gobally and Ho admitted the contraventions in a Statement of Agreed Facts and Admissions dated 16 December 2024 (SOAF), accompanied by a Joint memorandum on liability and penalties (First Joint Submissions). The parties initially proposed by consent the following orders:

6. In the period between February 2024 and September 2024, the First Defendant contravened section 14 of the Labour Hire Licensing Act 2018 (Vic) (Act) six times by causing advertisements to be published on Facebook and its website representing that it provides or is willing to provide labour hire services, when the First Defendant did not hold a valid licence to provide labour hire services.
7. In the period between February 2024 and September 2024, the Second Defendant contravened section 95 of the Act, by being directly or indirectly knowingly concerned in, or a party to, the First Defendant's contraventions of the Act.

8. The First Defendant pay pecuniary penalties totalling $100,000 for its contraventions of section 14 of the Act.
9. The Second Defendant pay pecuniary penalties totalling $25,000 for his contraventions of section 95(1)(c) of the Act.
10. There be no order as to costs.
11. Pursuant to directions for the filing of further material, on 25 February 2025 the Authority filed an affidavit of Michael Vickers (Vickers Affidavit) and the parties filed a Supplementary Joint Memorandum on Penalties (Second Joint Submissions).
12. On 16 April 2025 the parties alerted the Court to the 11 April 2025 Supreme Court decision in Labour Hire Licensing Authority v Cameron Workforce Pty Ltd and Ors (Cameron).[1] Cameron is the first decision dealing with agreed penalties under the Act. In Cameron, agreed penalties of $1.37 million for Cameron Workforce were reduced by the Court to $200,000. Agreed penalties of $65,000 for involved individuals were reduced to $15,000 and $40,000 respectively.
13. Subsequently, pursuant to furthe74,000r directions, the parties filed: Affidavit of Steven Dargavel, Labour Hire Licensing Commissioner dated 21 May 2025 (Commissioner Affidavit); First Defendant's Affidavit of Ho dated 22 May 2025 (First Ho Affidavit); Second Defendant's Affidavit of Ho dated 22 May 2025 (Second Ho Affidavit); First Defendant's Affidavit of Ho dated 23 May 2025 (Third Ho Affidavit); Second Defendant's Affidavit of Ho dated 23 May 2025 (Fourth Ho Affidavit); and Further Supplementary Joint Memorandum on penalties dated 26 May 2025 (Third Joint Submissions).
14. The Third Joint Submissions proposed the same declarations and costs order as initially proposed, but the following revised penalty orders (Revised Penalties):

THE COURT ORDERS BY CONSENT: > > 3. The First Defendant pay pecuniary penalties totalling $74,000 for its contraventions of section 14 of the Act. > > 4. The Second Defendant pay pecuniary penalties totalling $17,000 for his contraventions of section 95(1)(c) of the Act.

15. The parties sought to have the matter determined without an oral hearing, and I consider the evidence and submissions to be sufficient for the Court to make the required assessment of the proposed penalties without an oral hearing.

1. On 15, 27 and 28 February and 8 March 2024, advertisements were posted on behalf of Gobally on the public Facebook page 'Visa Turis dan WHV Australia' (Visa Turis Advertisements). Each of the Visa Turis Advertisements state that there was a 'Gobally Talent Group Job' for 'Mildura farm Grapes Picking' located in 'Mildura Vic 3500.' They variously state 'Start the Work immediately' or 'We are open job vacancies' or 'can work immediately.'[2] They included a link to an application form which described Gobally as follows (omitting content not in English):

Globally [sic] Talent Group (GTG) is a legitimate subsidiary newly established by Taiwan's New Southbound company in Australia. The company's purpose is to provide legal employment opportunities in Australia ... > > Main Business: Various meat processing plants and farms > > Company Benefits No agency fees or deposits

• Assistance in applying for working holiday visas
• 11% superannuation
• WorkCover insurance provided
• Accommodation arrangements (if assistance is needed)
• Q-Fever vaccine administration arrangement (if assistance is needed)
• Additional overtime pay at a rate of 1.5 to 2 times the regular rate (varies by plant)
• 20 days annual leave and 10 days sick leave (Full-time only).

Full-Time position > > Wages: $23.23 - $41.2 (depends on position) > > Licence number: LHL-07489-Y7C6J[3]

1. As of 28 May 2024, the Visa Turis Facebook page had 31,100 members. There are a number of posts in another language which the parties jointly contend, and I accept, is Bahasa Indonesian, as is the title of the page which the parties contend translates to 'Australian tourist visa and working holiday visa'. Collectively, the four Visa Turis Advertisements had 84 'likes', 34 'comments' and four 'shares'.[4]
2. On 9 March 2024, a public advertisement on the Facebook Page 'Sheng AU' was posted on behalf of Gobally (Sheng Advertisement). The Facebook Page features the word 'Recruitment' prominently in its image and includes a 'Gobally Talent Group' logo. It states '[H]i guys, we're looking for people who would like to work in farm that we can offer jobs for whole years. The location is in Mildura.' The parties agree there is similar information in Taiwanese. The profile has nine 'friends' and the post has three 'likes'. [5]
3. On 28 May 2024, Gobally's website stated as follows:

Globally Talent Group (GTG) is a company dedicated to providing effective manpower problem-solving solutions. Our primary objective is to address the challenges associated with manpower shortages and seamless transitions. Acting as a reliable bridge, GTG facilitates open communication and resolves any uncertainties or misunderstandings between employees and employers. ... > > ... GTG recognises the widespread availability of talent across the globe. Our mission is to assist both of companies and candidates in identifying and harnessing their full potential by guiding them towards suitable positions that align with their skills and aspirations. Furthermore, we have established strategic partnerships with reputable entities based in Taiwan, Vietnam, and Indonesia, enabling us to share invaluable expertise, job opportunities and a pool of talented individuals. > > Our head office base in Taiwan Which name Taiwan New South School Centre ... and cooperates with Indonesia and Vietnam. We have successfully solved the labor problems of many companies in Taiwan. > > Now, our company will focus on Australia to send talents in Australian and solve the problem of manpower shortage.[6]

4. The 'Employers' tab of the website referred to 'hiring labor on a temporary or project basis', 'hiring labor on a temporary or contract basis' and 'hiring temporary labor through staffing agencies or contractors.' Under 'Featured Openings', next to an 'apply' button, the website stated (Website Advertisement):

Skilled Meat Workers

(slaughterers/boners/slicers)

• Stawell, Horsham & Grampians Vic
• Other (Farming, Animals & Conservation)
• Full time
• $50,000 - $59,999 per year[7]

1. Each of the Visa Turis Advertisements, Sheng Advertisement and Website Advertisement (the Advertisements) remained online until at least 31 October 2024.[8]
2. Based on the language and location of the Visa Turis Advertisements and the Sheng Advertisement, along with the description of Gobally's activities, I conclude that the Advertisements were primarily directed towards Indonesian or Taiwanese working holiday visa holders.
3. Gobally instructed and directed each of the Advertisements to be posted, with Ho's knowledge and involvement. Both Gobally and Ho knew that absent a licence, the licence requirements did not allow Gobally to advertise or hold itself out as providing labour hire services in Victoria. Both Gobally and Ho knew each of the Advertisements advertised that Gobally provided or was willing to provide labour hire services.[9]

1. Gobally was registered in June 2022. Ho is the sole director, secretary and shareholder of Gobally. At the time of the contraventions, Gobally was a relatively small, Queensland-based operation, without significant market power, in the business of providing labour hire services.[10]
2. Gobally has never held a labour hire licence under the Act but had applied for a licence in Victoria which was not approved by the Authority. Despite advertising its willingness to provide labour hire services in Victoria, it never commenced operations or derived income in Victoria.[11]
3. Gobally previously held a valid labour hire licence in Queensland and was advertising farm labour positions in Queensland as of February 2025. Its Queensland licence expired in June or July 2024 and was not renewed. Gobally has ceased operating as a labour hire service provider, having not been actively operating since August 2024. Its current financial position is limited, and it does not intend to operate in the labour hire services industry in the future, in light of the events leading to this proceeding and the non-renewal of its Queensland licence.[12]
4. Since February 2025, Ho has been employed on a casual basis as a mover, his only current source of income. Prior to this, he had not been able to find employment due to an injury. He currently receives no income from Gobally. His assets are valued at around $83,000. He does not intend to operate in the labour hire services industry in the future.[13]
5. Gobally and Ho accepted and agreed with the Authority to pay penalties of $100,000 and $25,000 respectively. At the time, Ho considered the individual penalty fair and reasonable. With his current financial circumstances, a reduced penalty would ease his financial burden. Gobally and Ho respectively agree to the Revised Penalties and Ho considers the penalty in respect of him to be a fair and reasonable resolution. Gobally expresses its regret for the error of advertising its services in Victoria without a licence and has ensured this will not be repeated by not commencing operations in Victoria, agreeing to the significant penalty, and deciding not to operate in the industry in future.[14]

1. The Act was enacted in response to the Victorian Government inquiry into the Labour Hire Industry and Insecure Work (Inquiry). The Inquiry and subsequent studies established unlawful exploitation of labour hire workers by labour hire providers and by host businesses.[15]
2. The Authority's first years of operation focused on bringing the labour hire industry into the scheme, and associated education. In 2022, the Authority began enforcing the Act through civil penalty proceedings in the Supreme Court. These proceedings were expensive to investigate and litigate. Based on the Authority's field operations, interactions with stakeholders, intelligence from other agencies and complaints, the Authority understands the prevalence of unlicensed labour hire remains too high. The Authority cannot prosecute every instance of prohibited conduct under the Act and is reliant on the general deterrent effect of its enforcement action.[16]
3. The Authority intends enforcement of s 14 of the Act to serve an important prevention role in its enforcement strategy. Because advertising offences are easy to detect and prove, the Authority can respond to and deter unlicensed advertisers before labour hire services are provided. An effective sanction will deter prohibited conduct by removing unlicensed operators and reducing non-compliant arrangements.[17]
4. The horticulture industry has been identified by multiple inquiries as having a very high risk of non-compliance and has required significant attention from agencies including the Fair Work Ombudsman, Australian Taxation Office, Australian Federal Police, Border Force and WorkSafe Victoria. Despite awareness of the Act in the industry being high, the Authority has refused or cancelled more licenses in the industry than any other industry. Temporary migrant workers in the industry are particularly vulnerable.[18]
5. The Authority budgeted around $38,000 for Counsel's fees to conclude this matter by way of a contested hearing. It had incurred fees of $13,200 up to the First Joint Submissions and anticipates total fees to be between these sums. The Authority's investigation and enforcement costs in this matter to date have been modest, as the matter resolved by consent, meaning the parties have saved significant resources.[19]

1. In Commonwealth v Director, Fair Work Building Industry Inspectorate (Agreed Penalties Case)[20] the High Court stated:

[57] ... [I]n civil proceedings there is generally very considerable scope for the parties to agree on the facts and upon consequences. There is also very considerable scope for them to agree upon the appropriate remedy and for the court to be persuaded that it is an appropriate remedy. Accordingly, settlements of civil proceedings are commonplace and orders by consent for the payment of damages and other relief are unremarkable. ... More generally, it is entirely consistent with the nature of civil proceedings for a court to make orders by consent and to approve a compromise of proceedings on terms proposed by the parties, provided the court is persuaded that what is proposed is appropriate. > > [58] Possibly, there are exceptions to the general rule. There is, however, no reason in principle or practice why civil penalty proceedings should be treated as an exception. Subject to the court being sufficiently persuaded of the accuracy of the parties' agreement as to facts and consequences, and that the penalty which the parties propose is an appropriate remedy in the circumstances thus revealed, it is consistent with principle and ... highly desirable in practice for the court to accept the parties' proposal and therefore impose the proposed penalty. ...[21]

2. The Court in Cameron summarised the approach to agreed penalties as follows:

There is an important public policy involved in promoting predictability of outcome in civil penalty proceedings. This policy consideration supports the Court receiving and, if appropriate, accepting an agreed pecuniary penalty to be imposed in a civil penalty proceeding. However, the Court is not bound by the quantum of penalty suggested by the parties. Rather, the Court must satisfy itself that the penalty submitted by the parties is appropriate. In this regard, the Court asks itself whether the proposed penalty is an appropriate remedy rather than the appropriate remedy.[22]

Where a poorly resourced defendant is a party to a joint penalty submission, the Court 'should scrutinise the submission and supporting statement of facts with particular care to ensure, so far as possible, that the statement of facts [i]s accurate and the contravener's will ha[s] not been overborne'.[23]

4. The parties contended that where an agreed penalty is 'an' appropriate penalty having regard to all relevant matters, it is 'highly desirable'[24] that the agreement be accepted by the Court and the Court should exercise restraint in scrutinising proposed settlements.[25] Further, the Court may adopt an agreed penalty if considered appropriate, even if it 'might otherwise have been disposed to select some other figure.'[26] The parties relied on the following statement from Minister for Environment v ACN 089 171 415 Pty Ltd (Ozone Protection Act Case):[27]

It is a serious step for the Court to depart from the parties' agreed position, notwithstanding it is open to the Court to do so. A departure is capable of undermining trust and confidence in negotiated outcomes, and is capable of affecting parties' inclination to reach such outcomes in the future. Certainty and predictability in the administration of a regulatory regime is to be encouraged, insofar as it is compatible with the Court's judicial function of determining for itself what penalty is appropriate. Departure from a negotiated outcome is also capable of undermining the position of the regulator, or the person or entity with responsibility for the administration of the regulatory regime.[28]

5. I accept these propositions and consider two other observations from the Ozone Protection Act Case to be relevant. Firstly, a proposed agreed penalty is likely to be the product of compromise and pragmatism between the parties, which weighs in favour of the Court accepting a proposed penalty.[29] Secondly, the Ozone Protection Act Case concerned the first penalty proceeding under that legislation, and the Court considered due regard ought be paid to the submissions of the Minister (responsible for administering the legislation) and her indications as to the appropriate penalty.[30]
6. However, whilst there is no apparent overbearing of will in respect of Gobally and Ho, who are legally represented in this proceeding, have admitted relevant conduct and have verified their agreement to the proposed penalties, I conclude they are nonetheless poorly resourced in comparison with the Authority. Accordingly, the Court must carefully scrutinise the evidence and 'undertake a genuine assessment of all the factors going towards the appropriateness of a particular penalty and to come to its own conclusions.'[31] The importance of this task is underlined by the decision in Cameron.

14 Licence required to advertise provision of labour hire services > > A person must not advertise or in any way hold out that the person provides, or is willing to provide, labour hire services unless the person is the holder of a licence that is in force.

2. The term 'provide labour hire services' is defined in ss 7 and 8 of the Act. The definition relied on by the parties is the general definition at s 7, as follows:

7 Meaning of _provides labour hire services - _general definition > > (1) A person (a provider) provides labour hire services if -

(a) in the course of conducting a business, the provider supplies one or more individuals to another person (a host) to perform work in and as part of a business or undertaking of the host; and

(b) the individuals are workers for the provider, within the meaning of section 9(1).

(2) For the purposes of subsection (1), a provider may provide labour hire services to a host regardless of the following -

(a) whether a contract has been entered into between the provider and the host;

(b) whether the individuals supplied by the provider are supplied -

(i) directly; or

(ii) indirectly through one or more intermediaries;

(c) whether the work performed is under the control of the provider or the host.

1. 'Worker' is in turn defined in s 9 of the Act, which provides:

9 Meaning of worker > > (1) An individual is a worker, for a provider, if -

(a) an arrangement is in force between the individual and the provider under which the provider supplies, or may supply, the individual to one or more other persons to perform work; and

(b) the provider is obliged to pay the individual (in whole or part) for the performance of the work by the individual, whether directly or indirectly through one or more intermediaries.

(2) An individual is a worker, for a provider, if an arrangement is in force between the individual and the provider under which the provider -

(a) recruits the individual for, or places the individual with, one or more other persons to perform work, being persons who are obliged to pay the individual (in whole or part) for the performance of the work by the individual, whether directly or indirectly through one or more intermediaries; or

(b) recruits the individual as an independent contractor for one or more other persons to perform work, and manages the contract performance by the independent contractor.

(3) For the purposes of this section, an individual may be a worker for a provider regardless of the following -

(a) whether the individual is an employee of the provider;

(b) whether a contract has been entered into between the individual and the provider;

(c) whether the individual is an apprentice, or is under a training contract, within the meaning of the Education and Training Reform Act 2006.

95 Persons involved in contravening civil penalty provision > > (1) A person must not -

(a) aid, abet, counsel or procure a contravention of a civil penalty provision; or

(b) induce (by threats, promises or otherwise) a contravention of a civil penalty provision; or

(c) be in any way directly or indirectly knowingly concerned in, or party to, a contravention of a civil penalty provision; or

(d) conspire to contravene a civil penalty provision.

(2) This Act applies to a person who contravenes subsection (1) in relation to a civil penalty provision as if the person had contravened the provision.

1. Gobally and Ho admit that by each of the Visa Turis Advertisements and the Sheng Advertisement, Gobally represented that it provides, or is willing to provide, labour hire services in the course of conducting its business, by supplying workers within the meaning of s 9 of the Act to a farming business in Mildura to start picking grapes for that business. They admitted that by the Website Advertisement, from at least 28 May 2024 until at least 4 September 2024, Gobally represented on its website that it provides, or is willing to provide, labour hire services, in the course of conducting its business, by supplying workers within the meaning of s 9 of the Act to meat worker businesses in Stawell, Horsham and the Grampians to assist with slaughtering, boning and slicing.[32]
2. Gobally admits contravening s 14 of the Act in respect of each of the Advertisements.[33] Ho admits contravening s 95(1)(c) of the Act in respect of each of the Advertisements, as he was knowingly concerned in Gobally's contraventions.[34] Because of the operation of s 95(2) of the Act, s 14 applies to Ho as if he had contravened s 14.
3. I am satisfied that the admitted facts establish the six contraventions of s 14 as admitted by Gobally and the contravention of s 95(1)(c), and s 14 accordingly, by Ho.

Principles for determining appropriate pecuniary penalties**

1. Section 93(5) prescribes matters which the Court must have regard to in determining the amount of a pecuniary penalty, as follows:

(5) For the purposes of determining the amount of a pecuniary penalty under this section the court must have regard to -

(a) the nature and extent of the contravention; and

(b) the nature and extent of any loss or damage suffered as a result of the contravention; and

(c) the circumstances in which the contravention took place.

1. Additionally, consistent with the decisions in Cameron, Labour Hire Licensing Authority v UNG Services Pty Ltd & Anor (Ung Services)[35] and Labour Hire Licensing Authority v A L Star Express Pty Ltd,[36] principles which apply to the imposition of pecuniary penalties derived from other statutory schemes, and as outlined in Australian Building and Construction Commissioner v Pattinson (Pattinson),[37] are applicable.
2. The purpose of civil penalties is primarily, if not solely, the promotion of the public interest in compliance with the Act by both specific and general deterrence of further contraventions.[38] A civil penalty must be fixed with a view to ensuring that it is not regarded by the contravenor or others as an acceptable cost of doing business.[39] For the purpose of general deterrence, it is important to send a message that the relevant contraventions are serious and not acceptable.[40] An appropriate civil penalty will not exceed what is reasonably necessary to achieve the deterrence of future contraventions of a like kind by the contravenor and others,[41] and will strike a reasonable balance between oppressive severity and the need for deterrence.[42] Both the circumstances of the contravenor as well as the conduct involved in the contravention may be considered, as both may bear on the need for deterrence.[43]
3. The maximum penalty is one factor in determining an appropriate penalty, in that there must be some reasonable relationship between the theoretical maximum and the penalty imposed.[44] However, the maximum penalty is not to be applied 'mechanically'.[45]
4. Other factors which may be relevant to determining an appropriate penalty, in addition to those specified in s 93(5), include: the size of the contravening company and its market power; the deliberateness of the contravention and the period over which it extended; whether the contravention arose out of the conduct of senior management or a lower level; whether the contravenor has a corporate culture conducive to compliance or had taken corrective action; and whether the contravenor has cooperated with authorities responsible for enforcement of the Act in relation to the contravention.[46] They may also include: whether there has been any similar previous conduct by the contravenor; whether the contravenor had exhibited contrition; and the need to ensure compliance with minimum standards by provision of an effective means for investigation and enforcement.[47] These factors are non-exhaustive and should not be applied as a checklist.[48] Deterrence remains the primary consideration,[49] with these other factors to be 'seen through the prism of what is necessary to achieve deterrence.'[50]
5. Further, principles of totality, parity and course of conduct from criminal sentencing may assist in the assessment of what is considered reasonably necessary to achieve deterrence.[51] Ultimately, as with criminal sentencing, determination of a civil penalty is an evaluative exercise, taking account the relevant factors through a process of 'instinctive synthesis.'[52]
6. I turn to consider the proposed Revised Penalties in light of those principles.

1. There were six advertisements in total. The advertisements appeared in three online locations. They describe labour hire services in four locations, being farm work/grape picking in Mildura and abattoir work in Stawell, Horsham and the Grampians.
2. Given the size of the membership of the Visa Turis Facebook page in particular, I conclude that a large audience was exposed to the Visa Turis Advertisements. Further, there was a considerable degree of direct engagement with the Visa Turis Advertisements by way of likes, comments and shares. Further again, each of the Advertisements remained public for a lengthy period of time.
3. Accordingly, whilst the advertising conduct itself was not extensive, the extent of exposure of the Visa Turis Advertisements was significant.

The nature and extent of any loss or damage suffered

1. This is a mandatory consideration. However, the Authority contended that given the nature of s 14, some contraventions may not cause loss or damage, and this should not lead the Court to reduce the proposed penalty or impose a nominal penalty.
2. In Cameron, at paragraph 50, the Court stated:

The phrase 'loss or 'damage' in s 93(5)(b) of the Act is not limited to pecuniary loss or damage. The words 'loss or damage' have a broad ambit. Loss or damage under s 93(5)(b) also includes non-pecuniary forms of damage. The words 'nature' and 'extent' in s 93(5)(b) indicate that loss and damage is not confined to pecuniary loss or damage.

3. The Authority initially contended that it did not know if any person suffered any loss or damage given the early resolution of the matter, but the Court could infer from the degree of engagement with the Advertisements that some job applicants lost time in applying for work. In the Third Joint Submissions_,_ the parties contended that in light of the objects of the Act, the phrase 'loss or damage' extends to the loss of protection to the public due to exposure to the Advertisements, and to damage to the transparency and integrity of the labour hire industry itself.[53] They contended that the Advertisements, being the precursor to unregulated labour hire arrangements, expose workers to potential exploitation.[54] They contended that the Authority's investigation, enforcement and external legal costs also constitute indirect loss or damage.[55]
4. I am not satisfied that any direct loss or damage was suffered by any worker, as I accept that no labour hire services were ultimately provided. Nor do I consider it open to infer that prospective workers responded to the advertisements and thus suffered indirect loss and damage. Any evidence of this could have and ought to have been before the Court, irrespective of the stage at which the matter resolved. Absent this evidence, I consider that the exposure of workers to the harms of the unregulated industry is too remote, even on a broad reading of s 93(5), to constitute relevant loss or damage.
5. Other than the question of costs to the Authority, I conclude that no loss or damage was suffered as a result of the Advertisements. Irrespective of whether s 93(5) is broad enough to encompass costs to the Authority, I consider those costs to be relevant, and I have considered this separately below.
6. However, I accept the contention that contraventions of s 14, as opposed to s 13, are by their nature less likely to result in direct or indirect loss and damage. It is possible that advertising contraventions may themselves cause loss or damage, for example time costs associated with a recruitment process, or the cost of a worker relocating in anticipation of work. Nonetheless, I accept that the actual provision of labour hire services without a licence is more likely to give rise to identifiable loss or damage. Accordingly, whilst this is a mandatory consideration, I consider it is less important in the evaluative process in this matter than other relevant considerations, bearing in mind that deterrence is the primary objective.

The circumstances in which the contraventions took place

1. I consider the target audience for the advertisements, and the industries in respect of which the labour hire services were advertised, are relevant circumstances.
2. The Act has a protective purpose.[56] Its objects include to protect workers from being exploited by providers of labour hire services.[57] This is confirmed by the Explanatory Memorandum which states:

The key object of this Bill is to protect vulnerable labour hire workers from exploitation by the providers of labour hire services and hosts...[58]

1. In Ung Services, the Court accepted that the Act was enacted following the Inquiry and in response to the exploitation of workers.[59] In Ung Services, as with this matter, the Authority had referred the Court to the following summary of findings of the Inquiry:

The evidence provided to the Inquiry shows that there is a problem with the presence of 'rogue' labour hire operators in Victoria. While it is difficult to be precise about the extent of this problem, rogue operators are particularly evident in the horticultural industry (including the picking and packing of fresh fruit and vegetables), and the meat and cleaning industries. In many instances, the activities of rogue operators have led to exploitation of vulnerable workers including underpayment of award wages, non-payment of superannuation, provision of sub-standard accommodation and non-observance of statutory health and safety requirements. > > This problem stems in large part from the ease of access, or absence of barriers to entry, for persons/organisations wishing to provide labour hire services in this state. In addition, the problem stems from the lack of visibility of these rogue operators, who operate in the informal economy and outside the reach of existing regulators. > > The problem requires a regulatory solution which addresses each of these underlying causes: as the submissions of those advocating increased regulation demonstrate, there is a wide range of options available. In my view, a sector specific licensing scheme for labour hire operators is the best of those options.[60]

2. The labour hire services referred to in the Advertisements were all related to industries specifically identified in the Inquiry as industries in which 'rogue' operators were particularly prevalent. Further, five of the Advertisements are for the horticulture industry. Despite a high level of awareness of the Act in that industry, the Authority has refused or cancelled more licenses in that industry than any other.
3. Further again, the Advertisements were targeted at migrant workers. The parties contend that migrant workers are known to be especially susceptible to exploitation. This is a matter which has been recognised, including as a 'notorious fact,'[61] in civil penalty proceedings under the Fair Work Act 2009 (Cth)[62] and I accept it to be true.

Number of contraventions, maximum penalties and course of conduct considerations

1. The proposed penalties compared to the maximum penalties for a single contravention and six contraventions of s 14 respectively are as follows:[63]

1. The parties contended in the First Joint Submissions that it was appropriate to treat the contraventions as a course of conduct, because whilst each contravention involves separate conduct and they are not inextricably interrelated, they are closely linked. Subsequently, in the Second Joint Submissions, the parties emphasised that each of the contraventions involve separate conduct and are not inextricably linked, contending that the course of conduct principle does not apply, however the parties had nonetheless agreed to apply it. Further, the parties contended that the Court must have regard to the relationship between the maximum penalty for the six contraventions and the proposed penalties, a relationship which, in respect of the initially proposed penalties, was described as 'modest and reasonable'. In the Third Joint Submissions, the parties maintained that the course of conduct principle does not apply. They described the relationship between the maximum penalty for six contraventions and the Revised Penalties as reasonable, and neither disproportionate nor oppressive, and contended the Revised Penalties are reasonable even compared to the theoretical maximum for a single contravention, given the need for general deterrence.
2. I consider the reasonableness of the relationship between the theoretical maximum penalty and the penalty the Court imposes is informed by the extent to which the conduct comprising the six contraventions is characterised as a course of conduct.
3. The course of conduct principle was described in Australian Competition and Consumer Commission v Employsure Pty Ltd (Employsure) [64] as follows:

...[O]rdinarily, separate contraventions arising from separate acts should attract separate penalties. However, where separate acts give rise to separate contraventions that are inextricably interrelated, they may be regarded as a "course of conduct" for penalty purposes: Australian Competition and Consumer Commission v Yazaki Corporation [2018] FCAFC 73; (2018) 262 FCR 243 (Yazaki) at [234]. This avoids double punishment for those parts of the legally distinct contraventions that involve overlap in wrongdoing: see, for example, Construction, Forestry, Mining and Energy Union v Cahill [2010] FCAFC 39; (2010) 269 ALR 1 (Cahill) at [39] and [41]. Whether the contraventions should be treated as a single course of conduct is fact specific having regard to all of the circumstances of the case.

4. The Court in Cameron considered the course of conduct principle in respect of four contraventions of s 13 of the Act. The contraventions arose from the provision of labour hire services to four different hosts. A different number of workers were provided to each host, for different lengths of time, over different time periods, within a three month period. The parties' proposed penalty was based on four separate penalties. However, the Court determined the contraventions were a single course of conduct, because: they were 'the product of an unlicensed business operation designed to make a profit'; the status of Cameron Workforce 'as an unlicensed provider of labour hire services' was '[a] key element of [the] contravening conduct'; there was 'a significant factual overlap in the four contraventions'; and they 'occurred within a three month period...'.[65]
5. In the current matter, the parties contended that even where the advertisements had the same purpose or are in similar terms, an advertisement posted on different days or platforms in which different people saw and engaged with it constitutes a separate contravention. In support of this contention, the parties relied on Construction, Forestry, Mining and Energy Union v Cahill (Cahill).[66] In that matter, the majority upheld the primary judge's determination that three contraventions relating to a threat to take action to coerce the employment of the same employees on a construction site should not be treated as a course of conduct because they involved distinct elements of time, place and threatened activity.[67] The parties further relied on Employsure, in which Employsure misrepresented, by way of six google advertisements, that it was affiliated with three government agencies. The primary judge treated the six advertisements as a single course of conduct as they were all published on the same medium and conveyed the same representation through the same statements or omissions, albeit with reference to three different agencies.[68] The Full Court disagreed and considered there were 'at least three different courses of conduct',[69] stating at [83]:

[a]lthough the advertisements the subject of the contraventions were directed to the same result, and had the same vice, they nonetheless reflected separate acts, directed at three different agencies. They covered differing time spans. The mere coincidence that the six Google Ads appeared on the same medium does not reflect that Employsure engaged in a single course of conduct. Nor does the fact that, viewed generically, the Google Ads all conveyed an affiliation with a government agency. It may have been part of an ongoing marketing or advertising campaign or strategy, but that does not, without more, suggest it was one course of conduct, not least because Employsure chose to misrepresent an association with the differing government agencies using different advertisements and over differing periods.

6. For the purposes of s 14 of the Act, the relevant contravening conduct is advertising. Of the three authorities considered above, the matter of Employsure is of particular assistance. Common with this matter, in Employsure multiple advertisements constituted the contravening conduct. In identifying 'at least three' courses of conduct, the Court distinguished between them based on the different government agencies identified in each advertisement. The Court also acknowledged that differences in timing could be material, and that a common medium or campaign was not sufficient to suggest a course of conduct.
7. Applying a similar approach to that taken in Employsure, I conclude that the Sheng Advertisement contravention and the Website Advertisement contravention are sufficiently factually distinct that no double punishment arises from their treatment as separate contraventions from each other and the Visa Turis Advertisements. They are temporally distinct from each other and the 'advertising' or 'holding out' occurred on different platforms. Further, the jobs they advertised and the location of the work differed from each other. Further, whilst the Sheng Advertisement had some commonality with the Visa Turis Advertisements, in that it advertised farm work in Mildura on the platform Facebook, the advertisement was placed on a different date to the Visa Turis Advertisements, it was placed through a different Facebook page and the description of the work ( 'work in farm... for whole years') was different to the description of the work in the Visa Turis Advertisements ('grape picking' to 'start work immediately').
8. In respect of the four contraventions relating to the Visa Turis Advertisements, notwithstanding that there were four separate acts of posting the advertisement, I consider there was a substantial overlap in respect of the 'advertising' by Gobally, and the 'labour hire services' it represented it was willing to provide. Whilst each advertisement was posted on a different date, they concurrently remained online for a common period of several months; they were all posted to the same Facebook Page, accessible to the same general audience (accepting, as the parties contended, that different people may have seen each of the Visa Turis Advertisements on the days they were posted); and they advertised the same labour hire services. Accordingly, I consider that both the factual and legal elements of each of these contraventions substantially overlap, such that there is a risk of double punishment if they are treated separately. Accordingly, I consider the Visa Turis Advertisements to constitute a course of conduct and an appropriate penalty must reflect this.
9. In ABCC v CFMEU the Court described the approach to be taken in respect of contraventions comprising a course of conduct as follows:

...[T]he course of conduct principle [does not] ... permit, let alone require, the Court to impose a single penalty in respect of multiple contraventions of a pecuniary penalty provision.... If the contraventions arose out of a course of conduct, the penalties imposed in relation to the contraventions should generally reflect that fact, otherwise there is a risk that the respondent will be doubly punished in respect of the relevant acts or omissions that make up the multiple contraventions. That is not to say that the Court can impose a single penalty in respect of each course of conduct. Likewise, there is no doubt that in an appropriate case involving multiple contraventions, the Court should, after fixing separate penalties for the contraventions, consider whether the aggregate penalty is excessive. If the aggregate is found to be excessive, the penalties should be adjusted so as to avoid that outcome. ... In an appropriate case, however, the Court may impose a single penalty for multiple contraventions where that course is agreed or accepted as being appropriate by the parties.[70]

10. Whilst it follows from ABCC v CFMEU that the theoretical maximum penalty is not affected by applying the course of conduct principle, a comparison of the Revised Penalties with the cumulative theoretical maximum for six contraventions is somewhat artificial. I consider the description of the proposed penalties as 'modest' by reason of that comparison to be a mischaracterisation. The proposed penalties are significantly more substantial, on this measure, than the parties contend.
11. However, it also follows from ABCC v CFMEU that it is permissible for the Court to impose a single penalty in respect of multiple contraventions in circumstances where the parties have agreed to or accepted that this is appropriate, such as in this case.[71]

Are the proposed penalties reasonably necessary to achieve deterrence?

1. The contraventions were deliberate. Gobally and Ho knew that Gobally was unlicensed, and that Gobally was prohibited from advertising for labour hire services whilst unlicensed. The labour hire services were advertised despite this. To my mind this is a significant factor which increases the importance of ensuring penalties achieve both specific and general deterrence.

1. Gobally and Ho's admissions and co-operation have the utilitarian benefit of saving costs, time and resources, which warrants a reduction in penalty.[72] As a newly operating company, neither Gobally or Ho has previously been found to have contravened the Act. Gobally, when operating, was small and without significant market power. Now, neither Gobally nor Ho are operating in the labour hire industry. Despite the Advertisements, Gobally did not commence operations or derive income in Victoria. Gobally's financial position is limited, and, including because of this proceeding, Gobally does not intend to operate in the labour hire industry in the future. Ho has limited income and assets and also does not intend to operate in the labour hire industry in the future. Ho considers the revised proposed penalty in respect of him to be fair and reasonable, and Gobally has expressed its regret and ensured the conduct will not be repeated including because of its agreement to the significant penalty. Neither Gobally nor Ho have stated that they do not have the financial capacity to pay the agreed penalties.
2. The Third Joint Submissions correctly acknowledge that these matters mean that the objective of specific deterrence would not have warranted the quantum of penalties previously agreed, stating the Revised Penalties were agreed:

...as a result of the new information provided by Gobally and Ho about each of their current activities and financial circumstances and to ensure that the agreed penalties continue to achieve the object of specific and general deterrence and strike a reasonable balance between deterrence and oppressive severity.

3. Nonetheless, this proceeding was a causative factor in Gobally ceasing operations. As such, the prospect of the Court imposing the initial proposed penalties has, in effect, already achieved the object of specific deterrence, as it has brought about Gobally and Ho's exit from the industry, and the financial consequences of that. In these circumstances, it is difficult to retrospectively conclude that penalties lower than the Revised Penalties would have achieved the same outcome, particularly given Gobally and Ho's acceptance of the Revised Penalties and Ho's statement that those applying to him are fair and reasonable.

1. As the Court did in the Ozone Protection Act Case[73] I have had regard to the Commissioner's views. I am persuaded by the Commissioner's evidence and the parties' contentions that the object of general deterrence ought be a significant consideration in this matter, in light of the function of s 14 within the scheme of the Act. Section 14 is concerned with conduct preceding the actual provision of labour hire services. I agree, as contended, that the conduct proscribed by s 14 is a 'natural first step' to provision of those services unlicensed. Accordingly, regulating the advertising conduct of unlicensed labour hire providers is a critical part of the scheme under the Act for improving the transparency and integrity of the labour hire industry, and protection of workers from exploitation.[74] I accept, given the 'gateway' nature of advertising contraventions, enforcement of s 14 is an important prevention strategy for the Authority to employ, which elevates considerations of general deterrence.
2. Other factors specific to this matter increase the importance of general deterrence. In particular, penalties must be sufficiently high to reflect the susceptibility to exploitation of the target audience of the Visa Turis Advertisements, being migrant workers. In addition, there is a particular need for general deterrence in light of the industries in which the labour hire services were advertised, in particular the horticulture industry, for reasons I have already canvassed.

1. A final factor I have had regard to in considering the proposed penalties is that the Authority does not seek its costs of the proceeding. The evidence from the Authority as to the costs incurred was imprecise, and in any event does not reflect costs on the Magistrates' Court Scale. However, based on this evidence, it is apparent that a modest yet material part of the Revised Penalties can be attributed to costs.
2. An associated consideration is that that by reaching an early resolution of the matter, both parties have avoided further costs. I infer from this that a degree of pragmatism by the parties has contributed to the proposed outcome.

1. I have weighed each of the above matters.
2. The extent of the conduct was limited, four of the six contraventions comprised a course of conduct, there was no demonstrated loss or damage and the financial and practical circumstances of Gobally and Ho mean the objective of specific deterrence is limited.
3. However, I have concluded that that the Revised Penalties are nonetheless 'an' appropriate remedy, albeit that they are at the high end of what I consider reasonably necessary to achieve the deterrence objective. I have reached this view in light of: the deliberateness of the conduct; the size of the audience exposed to the advertisements; the targeting of the Advertisement to migrant workers; the industries of the advertised labour hire services; the role of s 14 in the broader scheme of the Act; the Commissioner's evidence as to the importance of s 14 in achieving general deterrence from non-compliance with the Act; the inclusion of costs in the sums agreed; the views of Gobally and Ho, noting that the agreement is likely to be the product of compromise and pragmatism; and the role the proposed penalties played in achieving specific deterrence. In reaching this view, I have also had regard to the totality principle.

1. I am satisfied that it is appropriate to make declarations of contravention.
2. As contended for by the parties, the Court is empowered to make declarations by s 93(2)(b) of the Act and s 31 of the Supreme Court Act 1986. The declarations determine what was a live controversy prior to its resolution. The Authority, as the relevant regulator, has a genuine interest in obtaining the declaratory relief. There is both utility and public interest in making the declarations, associated with informing and educating the public as to the provisions of s 14 of the Act, particularly in light of this matter being the first proceeding in respect of contravention of s 14. Further, the declarations will serve to record the Court's disapproval of deliberate contraventions.

1. I consider that the form of orders proposed by the parties requires amendment in one respect. Proposed order 4 is that the Second Defendant pay pecuniary penalties totaling $17,000 for his contraventions of s 95(1)(c) of the Act. Section 95(1)(c) prohibits a person from being knowingly concerned in, or a party to, a contravention of a civil remedy provision. However, s 95(1)(c) is not itself a civil penalty provision.[75] Rather, s 95(2) provides that the Act applies to a person who contravenes s 95(1) in relation to a civil penalty provision as if the person had contravened the provision. Accordingly, it is contravention of s 14 of the Act which gives rise to the power to impose a penalty. I consider that the appropriate form of that order is as follows:

The second Defendant pay pecuniary penalties totalling $17,000 for his contraventions of s 14 of the Act, by way of his contraventions of s 95(1)(c) of the Act, pursuant to s 95(2) of the Act.

[1] [2025] VSC 185.

[2] SOAF, [9]-[12]; Vickers Affidavit, [5],[6], pp 5-13 and video exhibit.

[5] SOAF, [13]; Vickers Affidavit, p 13.

[6] Vickers Affidavit, [5], video exhibit.

[10] Ibid, [5], [8]; Vickers Affidavit, [8], pp 14-16.

[11] SOAF, [7]; First Ho Affidavit, [4]-[5].

[12] SOAF, [6]; Vickers Affidavit, [9], p 17; First Ho Affidavit, [6], [8]-[9]; Second Ho Affidavit, [6].

[13] Second Ho Affidavit, [7]-[10].

[14] First Ho Affidavit, [7], [10]; Second Ho Affidavit, [11]-[12]; Third Ho Affidavit, [3]-[4]; Fourth Ho Affidavit, [3]-[5].

[15] Commissioner Affidavit, [3], [10].

[20] (2015) 258 CLR 482; [2015] HCA 46.

[21] Ibid, [57]-[58], French CJ, Kiefel, Bell, Nettle, Gordon JJ.

[22] Cameron, [33] (citations omitted).

[23] Ibid, [34], citing Agreed Penalties Case, [31]; Minister for Industry, Tourism and Resources v Mobil Oil Australia Pty Ltd [2004] FCAFC 72; [2004] ATPR 41-993, 48,628-48,629, [63].

[24] Australian Competition and Consumer Commission v Australia and New Zealand Banking Group Ltd (2016) 118 ACSR 124; [2016] FCA 1516, [160].

[25] Agreed Penalties Case, [58]-[59]; Australian Competition and Consumer Commission v Target Australia Pty Ltd (2001) ATPR 41-840; [2001] FCA 1326, [46].

[27] [2020] FCA 1557.

[29] Ibid, [28], citing Australian Competition and Consumer Commission v Australia and New Zealand Banking Group Limited [2016] FCA 1516; 118 ACSR 124, [104].

[31] Ibid, [28], referring to Australian Competition and Consumer Commission v Bupa Aged Care Australia Pty Ltd [2020] FCA 602 at [15]- [19] and the cases cited therein; Australian Competition and Consumer Commission v Sony Interactive Entertainment Network Europe Limited [2020] FCA 787; 381 ALR 531 (Sony), [53]- [57] (per Steward J); Australian Competition and Consumer Commission v Medibank Private Limited [2020] FCA 1030; 146 ACSR 181 at [10]- [15] (per Anderson J).

[35] [2022] VSC 740 [67]-[68].

[36] [2023] VSC 711 [61]-[64].

[37] (2022) 274 CLR 450; [2022] HCA 13.

[38] Ibid, [9]; see also Cameron, [57].

[39] Pattinson, [17]; Australian Competition and Consumer Commission v TPG internet Pty Ltd 20130 [2013] HCA 54; 250 CLR 640, 659 [66]; Singtel Optus Pty Ltd v Australian Competition and Consumer Commission [2012] FCAFC 20; (2012) 287 ALR 249, 265 [62].

[40] Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (2017) 254 FCR 68; (2017) 271 IR 321; [2017] FCAFC 113 (ABCC v CFMEU), [98].

[44] Ibid, [53]; Australian Competition and Consumer Commission v Reckitt Benckiser (Australia) Pty Ltd (2016) 340 ALR 25; [2016] FCAFC 181, 63 [155]-[156].

[46] Ibid_,_ [18]; Re Trade Practices Commission v CSR Limited [1990] FCA 521; (1991) ATPR 41-076; [42].

[47] Kelly v Fitzpatrick (2007) 166 IR 14; [2007] FCA 1080, [14].

[50] Fair Work Ombudsman v Sushi Bay Pty Ltd (in liq) (No 3) [2024] FCA 869 (Sushi Bay), [15].

[52] Sushi Bay, [18], citing Reckitt Benckiser, [44] and Flight Centre Ltd v Australian Competition and consumer Commission (No 2) (2018) 260 FCR 68; [2018] FCAFC 53, [55].

[53] Third Joint Submissions, [8]-[9].

[57] Act s 4.

[58] Explanatory Memorandum, Labour Hire Licensing Bill 2017, p 1.

[60] Ibid, [80]; Victorian Inquiry into the Labour Hire Industry and Insecure Work, Final Report, 31 August 2016, 25.

[61] Fair Work Ombudsman v DTF World Square Pty Ltd (in liq) (No 4) [2024] FCA 341, [37].

[62] Ibid; Fair Work Ombudsman v Foot & Thai Massage Pty Ltd (in liquidation) (No 8) [2024] FCA 483, [221]-[222] (under appeal); Danaratna v Arunatilaka [2024] FCA 1431, [36].

[63] Act, s 94, The parties calculated these based on the value of a penalty unit during the period 1 June 2023 to 30 June 2024, being $192.31.

[64] [2023] FCAFC 5, [51].

[66] [2010] FCAFC 39.

[67] Ibid_,_ [36]-[42] (Middleton and Gordon JJ).

[68] Employsure, [9], [14]-[16], referring to Australian Competition and Consumer Commission v Employsure Pty Ltd (No 2) [2021] FCAFC 157 (Employsure No 2).

[72] Registered Organisations Commissioner v Australian Workers Union [2019] FCA 1852, [196]; Sony, [97].

[73] Ozone Protection Act Case, [29].