...

(2) Subregulation (1) does not apply if:

• (a) the employee's absence extends for more than 3 months, unless the employee is on paid sick leave for the duration of the absence; or
• (b) the total absences of the employee, within a 12 month period, whether based on a single or separate illnesses or injuries, extend for more than 3 months, unless the employee is on paid sick leave for the duration of the absences.

10. The applicant began working as a production manager for Empire Printing in November 2006. I accept on the basis of the applicant's evidence that at work on 27 June 2007 he suffered an injury to his right shoulder and neck diagnosed as a facet joint and muscle injury to his cervical and upper thoracic spine. According to Work Cover NSW medical certificates he was unfit to work for a period after the injury. He was subsequently absent from work and in receipt of workers compensation from 23 July 2007.

1. Mr Torpia alleges that on or about 5 December 2007 he attended a conference with Mr Zarfati and others at the offices of Empire Printing, during which Mr Zarfati noted there were no light duties available for Mr Torpia and that his duties had been allocated to a number of people.
2. Mr Torpia's evidence is that he was in receipt of workers compensation for the period when absent from work. He returned to work on light duties and reduced hours in January or February 2008 (his affidavit refers both to returning to work on 21 January 2008 and also to eventually returning to work on or about 19 February 2008).
3. On 23 May 2008, Mr Zarfati told Mr Torpia that he did not have a position available any more and presented him with a letter under his signature, stating:
   • We regret to inform you that as a consequence of the restructure and changes which have taken place there is not now a position within the company which would enable us to continue your employment with the company.

The letter also advised Mr Torpia that his entitlements would be forwarded to him within the next few days.

1. I am satisfied that Mr Torpia was absent from work from 23 July 2007 to at least 20 January 2008 because of illness or injury. Section 659 of the Act relates to a "temporary" absence from work. While Mr Torpia provided a medical certificate, his absence from work was for a period of more than three months (see Chapter 2, regulation 12.8(2) of the Workplace Relations Regulations). However on his unchallenged evidence he was on workers compensation for the period when absent from work.
2. In Lee v Hills Before & After School Care Pty Ltd [2007] FMCA 4 Raphael FM held that for the purposes of Chapter 2, regulation 12.8 of the Workplace Relations Regulations an employee's absence from work on paid workers compensation was an absence from work on "paid sick leave". I agree. As I am satisfied on the evidence before me that the applicant was in receipt of workers compensation payments while absent from work, he was in receipt of paid sick leave for the duration of the absences. Hence his absence was a "temporary absence from work because of illness or injury" within s.659(2)(a) of the Act.
3. The proceedings in relation to the alleged contravention of s.659 of the Act were brought by the applicant under s.663. As required under s.663(5), he received a certificate under s.650(2) stating that conciliation was unsuccessful in relation to the alleged contravention and elected under s.651 to bring proceedings in this Court for an order under s.665 in respect of the alleged contravention.
4. Section 664 of the Act states that "[i]n any proceedings under section 663 relating to a termination of employment in contravention of section 659 for a reason (a proscribed reason) set out in a paragraph of subsection (2) of that section" (as these proceedings are):
   • (a) it is not necessary for the employee to prove that the termination was for a proscribed reason; but
   • (b) it is a defence in the proceedings if the employer proves that the termination was for a reason or reasons that do not include a proscribed reason (other than a proscribed reason to which subsection 659(3) or (4) applies).
5. The effect of this section is that the respondent must exclude temporary absence from work as a reason for termination. The onus essentially falls upon the employer (see Jessup C, "The Onus of Proof in Proceedings under Part XA of the Workplace Relations Act" 1996 (2002) 15 Australian Journal of Labour Law 198 and Latham I, "Enforcement of the Workplace Relations Act: The Use of Civil Penalties" (2004) 10(5) Employment Law Bulletin).
6. Normally sworn evidence denying any such reason would be necessary. In most cases an explanation of the real reason for dismissal, consistent with temporary absence not being a reason would, in a practical sense, be necessary (see General Motors-Holden's Pty Ltd v Bowling (1976) 12 ALR 605 at 612 per Gibbs J and Seymour v Saint-Gobain Abrasives Pty Ltd [2006] FCA 1452 at [29] per Buchanan J in relation to a similar statutory presumption in s.809 of the Act).
7. While in his response the second respondent denied that there was a termination of Mr Torpia's employment because of any absence from work, no evidence in this respect has been filed, notwithstanding that the hearing was adjourned on two occasions and Mr Zarfati was given further opportunities to file affidavit evidence. I am not satisfied that the letter of dismissal dated 23 May 2008 constitutes proof by the employer that the termination by Empire Printing was for a reason or reasons that did not include a proscribed reason under s.659 of the Act.
8. In these circumstances I am satisfied that Empire Printing, Mr Torpia's former employer, terminated Mr Torpia's employment on 23 May 2008 for reasons including temporary absence from work because of illness or injury within the meaning of the regulations in contravention of s.659 of the Act.
9. Section 665(1) of the Act is as follows:
   • Orders available to courts
   • (1) If the Court is satisfied that an employer has contravened section 659 in relation to the termination of employment of an employee, the Court may make one or more of the following orders:
     • (a) an order imposing on the employer a penalty of not more than $10,000;
     • (b) an order requiring the employer to reinstate the employee;
     • (c) subject to subsections (2), (3), (4) and (5), an order requiring the employer to pay to the employee compensation of such amount as the Court thinks appropriate;
     • (d) any other order that the Court thinks necessary to remedy the effect of such a termination;
     • (e) any other consequential orders.
10. Subsections (2), (3), (4) and (5) regulate the amount of compensation payable and the manner of payment.
11. Originally the applicant sought reinstatement or compensation and a civil penalty against the first respondent (and orders against Mr Zarfati as a person involved in the contravention). In light of the liquidation of Empire Printing he now seeks an order that Mr Zarfati pay him a penalty for breach of s.659 of the Act and compensation.
12. Insofar as the applicant seeks a penalty for breach of s.659 of the Act, s.665(1)(a) provides only for an order imposing a penalty "on the employer". It has not been established that either s.659 or s.665 is a civil remedy provision (see s.4 and s.727). Hence the accessorial liability provisions of s.728 do not apply to impose liability for a penalty under s.665 on a respondent other than Mr Torpia's employer. I am not satisfied that the penalty sought can be imposed on Mr Zarfati under s.665. That leaves, however, the issue of compensatory orders.
13. In written submissions the applicant sought orders against Mr Zarfati remedying the breach. It was submitted that the appropriate remedy was payment of compensation equivalent to three months pay, which was said to take into account the relatively short tenure and relatively senior position of the applicant.
14. Mr Torpia was employed by Empire Printing. I am not satisfied that an order can be made against Mr Zarfati under s.665(1)(a) - (c) of the Act as he was not Mr Torpia's "employer". Counsel for the applicant contended however that the concept "any other order that the Court thinks necessary to remedy the effect of such a termination" in s.665(1)(d) was broad enough to encompass the making of orders against a person who was not the employer, but who was responsible for the conduct in breach. It was pointed out that this phrase was clearly broader than the phrase "any other consequential orders" in s.665(1)(e) and submitted that it could be inferred that the legislature intended s.665(1)(d) to have a different and broader meaning than s.665(1)(e) which is not applicable as no "consequential" orders are sought.
15. The applicant relied initially on Australian Municipal Administrative Clerical Services Union v Greater Dandenong City Council (No. 2) [2001] FCA 1076 (AMACSU), a decision of Madgwick J in relation to former s.298U of the pre-reform Workplace Relations Act, which provided for remedies where an employer was found to be in breach of certain provisions of the Act, including provisions proscribing dismissal by an employer for a prohibited reason. Section 298U contained provisions similar to those contained in s.665(1), including in para (e) "injunctions (including interim injunctions), and any other orders, that the Court thinks necessary to stop the conduct or remedy its effects".
16. Madgwick J stated (at [11]):
    • In my opinion, in subs (e), the phrase "and any other orders, that the Court thinks necessary to ... remedy its effects [that is, effects of conduct in contravention of Part XA of the Act]" is not limited to orders in the nature of injunctions. By the use of the term "and any other orders", after the spelling-out of a number of specific kinds of possible orders, in my opinion the legislature made a fresh start as to the kinds of principal relief which the Court might order: any reasonable curial order was authorised. It must be borne in mind that conduct contravening Part XA may be of many different kinds and may occur in many different circumstances. The statutory phrase is aimed at giving the Court maximum power and flexibility do (sic) what it thinks appropriate in the circumstances. Further, the phrase in section 298U(f); "any other consequential orders" in my opinion, refers to orders consequential upon any order of a kind falling within (relevantly to present purposes) subs (b), (c) or (e).
17. His Honour was of the view that, in a proper case, the court was free to depart from strict common law principles of compensation which might otherwise have been thought to be inherent in the use of the concept of "compensation" in s.298U.
18. While Madgwick J suggested that the concept "any other orders" was aimed at giving the court maximum power and flexibility to do what it thought appropriate in the circumstances, the question of whether orders could be made against a person other than the employer was not in issue in AMACSU. Madgwick J was addressing the issue of whether there was a limit on the kinds of principal relief which the court might order, rather than whether orders could be made against parties other than those parties in contravention. The applicant asserted however that on this basis orders could be made against a person other than his employer under s.665(1)(d) of the Act as it stood at the relevant time.
19. Counsel for the applicant also submitted that this Court had accepted that orders could be made under s.665(1)(d) of the Act against individual respondents personally for breach of s.659 by a corporate employer in Barhoum v All Districts Coating Pty Ltd (2008) 169 IR 331 at [106] - [107]. However in that case there was uncertainty about the identity of the actual employer. Orders under s.665(1)(d) were made against two corporate respondents and an individual respondent. There was no discussion of the basis on which an order could be made against an individual under s.665(1)(d), except that Nicholls FM accepted the individual respondent in that case operated the business in question.
20. However, as I raised with counsel for the applicant, the respondents in Barhoum filed an unsuccessful application for an extension of time in which to file and serve a notice of appeal in the Federal Court (All Districts Coating Pty Ltd v Barhoum [2008] FCA 1757). In the course of his judgment Moore J noted that while orders had been made against two corporate respondents and an individual respondent, the Federal Magistrate had made no express finding as to the identity of the employer of Mr Barhoum. Relevantly his Honour noted at [19] that:
    • Counsel for the respondent conceded, correctly, that it is at least arguable that in proceedings brought against an employer under s 663, the power to make orders conferred by s 665 is limited to making orders against the employer, even though the power to make any other order that the Court thinks necessary, provided for in s 665(1)(d), is not expressly limited to an order against the employer.
21. Moore J stated that on the basis of that concession it was logically correct to say that only one respondent in the initial proceedings could have been the employer and two of the respondents could not be ordered to make the payments required by the orders of the Federal Magistrate. However, given that the evidence about the identity of the employer was inconclusive and in the absence of findings as to which of the respondents was the employer, Moore J proceeded on the basis that it could be any one of them, but suggested that if the party who was the employer satisfied the judgment it would do so for the benefit of the other two parties against whom the orders had been made.
22. The availability of orders under s.665(1)(d) of the Act in relation to a person other than the employer was not determined in Barhoum. Subsequently counsel for the applicant drew the attention of the Court to the decision of the High Court in Patrick Stevedores Operations No 2 Proprietary Limited and Others v Maritime Union of Australia and Others (No 3) [1998] HCA 30; (1998) 195 CLR 1 ("Patrick Stevedores"). That case concerned the operation of s.298U in relation to a breach of former s.298K(1), which provided that an employer must not, for a prohibited reason, or for reasons that included a prohibited reason, do or threaten to do, any one of a number of specified things. As discussed above, under s.298U the Court could make orders including "any other orders, that the court thought necessary to stop the conduct or remedy its effects".
23. Relevantly, the majority of the High Court in Patrick Stevedores (Brennan CJ, McHugh, Gummow, Kirby and Hayne JJ) found (at [26]) that while the only person who could engage in conduct contravening s.298K(1) was an "employer":
    • ... applications under s 298U(e), unlike applications made under pars (a)-(d) of s 298Uin respect of conduct contravening s 298K(1), can be made against persons other than an employer. Given that an application is "in respect of" contravening conduct and that the Court is empowered to make any order it thinks necessary to remedy the effects of the conduct, the order may be made against persons other than the person who has engaged in the contravening conduct.
24. Gaudron J agreed, suggesting (at [112]) that it was well settled that provisions granting power to or conferring jurisdiction on a court should not be construed as subject to limitations not required by their terms. Her Honour expressed the view that established principles of statutory construction required that s.298U(e) be read as authorising orders against persons who were parties, but whose conduct was not alleged to be in contravention of Part XA of the Workplace Relations Act.
25. While the provisions in question in this case are not identical to those considered in Patrick Stevedores, the reasoning of the High Court is highly persuasive in relation to the scope and application of s.665(1)(d) of the Act. On this basis I am satisfied that the similarly broad power in s.665(1)(d) should be taken to allow orders to be made against persons other than an employer who are parties to proceedings in which the court is satisfied that an employer has contravened s.659 in relation to the termination of employment of an employee, if such orders are "necessary to remedy the effect of such a termination" notwithstanding that the conduct of such persons is not alleged to be in contravention of Part 12 of the Act. I note also that the Court has power under s.15 of the Federal Magistrates Act 1999 (Cth) to make orders of such kinds as it considers appropriate.
26. Hence, consistent with the approach taken by the High Court in Patrick Stevedores, I accept the contentions of the applicant that orders may be made under s.665(1)(d) of the Act against Mr Zarfati as a party to the proceedings, notwithstanding that he was not the "employer" of Mr Torpia. There is no evidence that there were any other directors of Empire Printing. Mr Zarfati was, on the unchallenged evidence of Mr Torpia, responsible for the conduct in contravention of s.659. Empire Printing is in liquidation. Hence an order should be made against Mr Zarfati to "remedy the effect" of the termination. I have borne in mind the views of Madgwick J in AMACSU in relation to the scope of compensation under such a provision. It is also relevant to have regard to the fact that under s.665(2) an amount of compensation ordered under paras (1)(c) or (1)(d) "may not include a component by way of compensation for shock, distress or humiliation, or other analogous hurt, caused to the employee by the manner of terminating the employee's employment".
27. Mr Torpia has not worked since the termination of his employment with Empire Printing. As sought by the applicant, I consider that it is appropriate to order that the second respondent pay the applicant an amount of compensation reflecting approximately three months' pay at the rate applicable at the time of the termination. This would take into account the relatively short tenure and also the relatively senior position of the applicant. It would not exceed the total amount of compensation that would be recoverable against an employer under s.665(1)(c) of the Act having regard to the limits in s.665(2), (3) and (4). The applicant was entitled to weekly pay of $2,076.94 per week. On this basis Mr Zarfati should pay Mr Torpia compensation under s.665(1)(d) to remedy the effect of the termination in contravention of s.659 in the sum of $27,000.

Failure to give notice of termination or to pay compensation in lieu thereof

1. Mr Torpia also seeks orders against Mr Zarfati on the basis that Empire Printing failed to pay him compensation in lieu of the appropriate period of notice required under s.661 of the Act. Section 661 relevantly provides:
   • (1) Subject to subsection (8), an employer must not terminate an employee's employment unless:

(a) the employee has been given the required period of notice (see subsections (2) and (3)); or

(b) the employee has been paid the required amount of compensation instead of notice (see subsections (4) and (5)); or

(c) ...

(2) The required period of notice is to be worked out as follows:

• (a) first work out the period of notice using the table at the end of this subsection; and
• (b) then increase the period of notice by 1 week if the employee:
  • (i) is over 45 years old; and
  • (ii) has completed at least 2 years of continuous service with the employer.

42. The applicant was employed for more than one year but not more than three years and was born in 1954. Based on the table in s.661 and the length of the applicant's employment and age it was submitted that the amount that should have been paid to him in lieu of notice was three weeks' pay at $2,076.94 per week, that is $6,230.82.

1. Section 663(2) of the Act provides that an employee may apply to the court for an order under s.665 in respect of an alleged contravention of s.661 "by his or her employer". Section 665(7) provides that, subject to subsection (8) (which is not applicable in this case), if a court to which an application is made under s.663(2) or (3) is satisfied that "an employer" has contravened s.661 in relation to the termination of the employment of an employee, that court may make an order "requiring the employer to pay to the employee an amount of damages equal to the amount which, if it had been paid by the employer to the employee when the employment was terminated, would have resulted in the employer not contravening that section."
2. While I am satisfied that Empire Printing failed to give Mr Torpia the period of notice or the required amount of compensation in lieu thereof as specified in s.661 of the Act, the difficulty for the applicant is that s.665(7) refers only to orders requiring "the employer" to pay an amount of damages. Mr Zarfati was not Mr Torpia's employer. There is no provision equivalent to s.665(1)(d) in relation to contraventions of s.661. I am not persuaded that an order under s.665(7) can be made against a person other than the employer. There is no suggestion that s.661 or s.665 is a civil remedy provision to which the accessorial liability provision in s.728 could apply (cf ss.719 and 727). I am not satisfied that an order can be made against Mr Zarfati in relation to a contravention of s.661 by Empire Printing. There is no therefore no need to address the possible application of any exclusions in s.638 or any overlap between orders under s.665(7) and other provisions of the Act.

1. The applicant also seeks orders against Mr Zarfati on the basis of his dismissal by Empire Printing without payment of redundancy pay or notice in accordance with the Printing Industries (State) Award.
2. The applicant claimed that he was dismissed without a redundancy payment provided for as a term of a Notional Agreement Preserving a State Award (a NAPSA) under the Act. In the second respondent's response to the application it was admitted that the first respondent, Empire Printing, was a respondent to the Printing Industries (State) Award (the Award).
3. The Award relevantly provided for notice and redundancy payments to those made redundant for reasons of structural change. Clause 6 of the Award provided for the making of redundancy payments to employees with at least one year's continuous service. It imposed notification obligations on the employer and, in relation to termination of employment, provided for specified periods of notice to be given to employees, with provision for additional notice to be given to those over 45 years of age, and for payment in lieu of notice if the appropriate notice period was not given.
4. The applicant seeks compensation for breach of these redundancy and notice provisions of the Award as now contained in a NAPSA and also the imposition on the second respondent of civil penalties for breach of these provisions.
5. Schedule 8 to the Act, which took effect from 27 March 2006, makes transitional arrangements for employers and employees previously covered by State Awards, such as the Printing Industries (State) Award. Relevantly, where prior to that date the terms and conditions of employment of an employee were determined in whole or in part under a State Award, a NAPSA is taken to have come into operation as of 27 March 2006 in respect of that business (see Schedule 8 to the Act, clauses 1(1) and 3(1)). Such a notional agreement or NAPSA is given effect by and regulated under the Act. Entitlements under the State Award become terms of the applicable NAPSA which can be enforced under the Act as if it were a collective agreement (Schedule 8, clause 43(1)).
6. The applicant sought to rely on s.719 of the Act which provides that an eligible court (which, by virtue of s.717, includes this Court) may impose a penalty on a person who is bound by and breaches an "applicable provision" (which under s.717 includes a term of a collective agreement). It was submitted that by virtue of s.717, a term of a collective agreement and hence of a NAPSA enforced as if it were a collective agreement was an applicable provision. I accept that on this basis s.719 is applicable in relation to a breach of a provision of a NAPSA (see Cotis v Pow Juice Pty Ltd [2007] FMCA 140; Martin v W & K Crust Pty Ltd [2007] FMCA 992 at [95]; and Klousia v TKM Investments Pty Ltd & Anor [2009] FMCA 208). It was submitted that Mr Zarfati was liable for a penalty under s.719 by virtue of the operation of s.728 of the Act and that an order could also be made against him under s.719(6).
7. Section 719(4) of the Act provides for a penalty to be imposed on an individual or on a body corporate. Under s.719(6), where "in a proceeding against an employer" under s.719 it appears to the court that an employee of the employer has not been paid an amount that the employer was required to pay under an applicable provision, the court "may order the employer to pay to the employee the amount of the underpayment."
8. The first issue is whether the provisions of the Award (now contained in a NAPSA) applied to Mr Torpia. Under clause 49, the Award applied to all classifications mentioned therein within the industries and callings outlined in Appendix A of the Award. Appendix A relevantly lists in section 1(a):
   • Compositors, readers, linotype and other slug-casting or type-casting machine operators and attendants, stereotypers, electrotypers, and all other employees (excepting males in bookbinding, letterpress machining, and lithographic departments employed in the work of such departments) engaged in or in connecting (sic) with the printing and/or stereotyping and/or electrotyping and/or publishing industry.
9. Mr Torpia worked for the first respondent as a production manager. As was submitted, on the basis of his evidence in relation to his job description and the nature of the duties he carried out, including tasks of a print room manager or foreman and other physical activities he performed, he was an employee to whom the Award applied, having regard to the description of the industries and callings in clause 49 and Appendix A of the Award.
10. As counsel for the applicant submitted, the phrase "in connection with" (see The Queen v Isaac and Others; Ex parte Transport Workers' Union (1985) 159 CLR 323 at [26] per Wilson J) has been given a wide interpretation in an industrial context (see R v Isaac at [25] - [26], Federated Miscellaneous Workers Union of Australia v Colonial Sugar Refining Co Ltd and Others (1971) 18 FLR 386 at 394; Metropolitan Fire and Emergency Services Board v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union - PR971381 [2006] AIRC 281 at [18]; CFMEU and AAA Services & Equipment Hires and others - re Contractors - PR952859 [2004] AIRC 1080; and Federated Tobacco Workers Union of Australia v Amalgamated Metal Workers Union (1988) 29 IR 263).
11. On the basis of his affidavit evidence I accept that the work of a production manager (like Mr Torpia) is of immediate significance, relates to the work of the people employed in the printing and/or stereotyping and/or electrotyping and/or publishing industry and takes place either as part of or before or after, the actual work which identifies the industry in question (as considered in FMWU v CSR and R v Isaac). On either basis it is apparent that the applicant was engaged in or in connection with such an industry.
12. I accept on the basis of Mr Torpia's unchallenged affidavit evidence that his former employer Empire Printing was in an industry which came within the description "printing and/or stereotyping and/or electrotyping and/or publishing industry" and that he was an employee "engaged in or in connecting (sic) with the printing and/or stereotyping and/or electrotyping and/or publishing industry," as set out in section 1 of Appendix A to the Award.
13. There is no exemption in the Award for positions which might be described as management positions. Moreover the applicant's letter of appointment dated 15 November 2006 (which is an annexure to his affidavit of 9 April 2009) confirmed his appointment to "our award position of Production Manager". The letter went on to explain that the applicant's package included four weeks annual leave "subject to loadings as governed by the relevant award" and stated that all other conditions of employment were governed by "relevant awards/agreements and/or company policies published from time to time".
14. Mr Torpia was bound by the Award (as a NAPSA) as a person who came into the employment of the employer Empire Printing after the reform commencement (see clause 32(2) of Schedule 8 to the Act). His employment was subject to the NAPSA by virtue of clause 33(2) of Schedule 8 to the Act. As an employee bound by the NAPSA enforced as if it were a collective agreement he was entitled under s.718 to apply for a penalty or other remedy under Division 2 of Part 14 of the Act in relation to a breach of an applicable provision.
15. Hence it is necessary to determine whether Empire Printing breached a provision of the Award as incorporated in a NAPSA.
16. Mr Zarfati asserted in the notice of termination dated 23 May 2008 that notice was being given to Mr Torpia because of the introduction of a restructure and changes that had taken place. Where there are changes in production, program, organisation or structure (the reason asserted by the second respondent) the notice required under the Award (as incorporated in a NAPSA) for a person over 45 with more than one year and less than three years' service (such as the applicant) is three weeks (clause 6(d)). In addition, under clause 6(e), where the employment of an employee is to be terminated pursuant to clause 6(d), the employer must pay severance pay, which in the case of the applicant would amount to five weeks' pay based on his length of service and age.
17. Mr Torpia's evidence is to the effect that after he made inquiries in April - May 2008 about the failure by Empire Printing to pay his compulsory superannuation contributions he was told by Mr Zarfati on 23 May 2008 that he did not have a position available any more, given the letter of dismissal and told that his entitlements would be forwarded to him within the next few days. He claimed that he did not receive his entitlements.
18. On the basis that Empire Printing stated that it sought to make him redundant, Mr Torpia seeks penalties and compensation for the failure to give him notice and a redundancy payment in accordance with the Award as incorporated in a NAPSA. I am satisfied on the material before the Court that clause 6 of the Award, as incorporated in a NAPSA, was applicable and that Empire Printing did not meet the separate notice and severance pay obligations in that clause. Hence it was in breach of "applicable provisions". On the material before the Court I accept that this conclusion is not inconsistent with the termination being for more than one reason, "including" Mr Torpia's temporary absence from work because of illness or injury within s659(2)(a) of the Act.
19. As counsel for the applicant contended liability may be imposed on Mr Zarfati under s.719 by virtue of s.728 of the Act, which provides that a person who is involved in a contravention of a civil remedy provision is treated as having contravened that provision. Under s.728(2) a person is involved in a contravention of a civil remedy provision if, and only if, the person:
    • (a) has aided, abetted, counselled or procured the contravention; or
    • (b) has induced the contravention, whether by threats or promises or otherwise; or
    • (c) has been in any way, by act or omission, directly or indirectly, knowingly concerned in or party to the contravention; or
    • (d) has conspired with others to effect the contravention.
20. By virtue of s.4 of the Act, "civil remedy provision" is defined in s.727 of the Act which sets out rules that apply for the purposes of s.719 and other provisions declared to be civil remedy provisions. Because s.719 is a civil remedy provision, a penalty under that section can be imposed on an individual involved in a contravention in the sense considered in s.728. Under s.719(4)(a) the maximum penalty for a breach that may be imposed on an individual is 60 penalty units.
21. Consistent with the approach taken to the similarly worded s.75B of the Trade Practices Act 1974 (Cth), action may be taken against accessories without action being taken against the principal (see Australian Competition and Consumer Commission v Black on White Pty Ltd and Others [2001] FCA 187; (2001) 110 FCR 1 at [51]) and on this basis an "accessory" under s.728 may be liable to a penalty notwithstanding the absence of imposition of a penalty on the principal. Hence the liquidation of the first respondent is not a bar to proceedings for a penalty or penalties against the second respondent, Mr Zarfati.
22. On the unchallenged affidavit evidence of Mr Torpia, I am satisfied that the first respondent acted through the second respondent. There has been no contrary evidence filed by Mr Zarfati, who was the only director, the Chief Executive Officer and the owner of Empire Printing. Mr Zarfati had the conversation of 23 May 2009 with Mr Torpia and gave him the notice of termination. He is taken to have admitted (in the absence of any response to the notice to admit facts filed on 19 November 2008) that Empire Printing did not pay Mr Torpia any redundancy or notice payments on termination, that he knew at the time of termination that there had been no such payment, that Empire Printing did not intend to make any such payment and that he participated in the decision not to make such payments on termination.
23. I am satisfied on the evidence before the Court that Empire Printing failed to give Mr Torpia the notice and severance pay required under the Award as incorporated in a NAPSA in contravention of s.719(1) and that Mr Zarfati was a knowing and intentional participant in the contraventions by Empire Printing (see Yorke and Another v Lucas [1985] HCA 65; (1985) 158 CLR 661 at 667 - 670), who had knowledge of the essential facts constituting the contraventions (Yorke v Lucas, Australian Competition and Consumer Commission v Giraffe World Australia Pty Ltd and Others (No 2) [1999] FCA 1161; (1999) 95 FCR 302 at [184] - [187] per Lindgren J; Rural Press Ltd and Others v Australian Competition and Consumer Commission and Others [2002] FCAFC 213; (2002) 118 FCR 236 at [160]; Australian Competition & Consumer Commission v IMB Group Pty Ltd [2003] FCAFC 17 and Dowling v Kirk & 16 Ors [2007] FMCA 2106). Hence he was involved in the contraventions by Empire Printing within s.728(2)(c) and is to be treated as having contravened such provisions. Thus he is liable to a penalty under s.719 in respect of each breach (see generally Buckingham v KSN Engineering Pty Ltd [2008] FMCA 546; (2008) 177 IR 427 at [42] - [44]).
24. The principles applicable to determination of such penalties are considered below. However an order is also sought against Mr Zarfati under s.719(6) of the Act which provides that:
    • Where, in a proceeding against an employer under this section, it appears to the eligible court that an employee of the employer has not been paid an amount that the employer was required to pay under an applicable provision (except a term of an ITEA), the court may order the employer to pay to the employee the amount of the underpayment.
25. Section 719(6) of the Act is limited to orders requiring the "_employe_r" to pay to the employee the amount of the underpayment, akin to s.665(1)(a) - (c) which specifically refer to, and are limited to, orders against the employer. The fact that s.728 provides for accessorial liability for a "contravention of a civil liability provision" does not mean that a liability to pay the amount of an underpayment can be imposed on an accessory under s.719(6), which refers not to the person who breaches or contravenes a provision, but to the employer. I am not satisfied that an order to pay the amount of the underpayment can be made under s.719(6) against a person other than "the employer". Section 719 does not contain a provision such as s.665(1)(d) under which compensatory orders may be made against a person other than the employer.
26. Hence there is no need to consider whether there is any interaction between compensatory orders made under s665(1)(d) and any orders under s.719(6) of the Act.
27. Before considering the amount of the penalties to be imposed on Mr Zarfati under s.719 for breaches of the NAPSA it is appropriate to consider the other basis on which the applicant contended that liability (and a penalty) should be imposed on Mr Zarfati under the Act.

1. In written submissions counsel for the applicant submitted that there had been a breach by Empire Printing of a provision of the Printing Industry (Superannuation) Award, which provided for payments of 3 per cent of salary as superannuation payments for each pay period. On that basis a penalty was sought against Mr Zarfati under s.719 of the Act. An order was also sought under s.719(7) which provides:
   • Where, in a proceeding against an employer under this section, it appears to the eligible court that the employer has not paid an amount to a superannuation fund that the employer was required, under an applicable provision (except a term of an ITEA), to pay on behalf of a person, the court may order the employer to make a payment to or in respect of that person for the purpose of restoring the person, as far as practicable, to the position that the person would have been in had the employer not failed to pay the amount to the superannuation fund.
2. It was submitted that Mr Zarfati could be subject to a penalty and could be required to make payments to address the alleged failure by Empire Printing to pay Mr Torpia's superannuation contributions in accordance with the Printing Industry (Superannuation) Award which in clause 3 imposed an express obligation on employers to make contributions to either of specified superannuation funds in respect of each of their employees at a specified rate.
3. However during the hearing counsel for the applicant conceded that it was clear from clause 49 of the Printing Industries (State) Award that that the Printing Industry (Superannuation) Award has been rescinded by the Printing Industries (State) Award.
4. The only provision made in relation to superannuation in the Printing Industries (State) Award is clause 46 which provides:
   • The subject of superannuation is dealt with extensively by federal legislation including the Superannuation Guarantee (Administration) Act 1992 (Cth_), the Superannuation_ Industry (Supervision) Act 1993 (Cth), the Superannuation (Resolution of Complaints) Act 1993 (Cth), and s.124 of the Industrial Relations Act 1996. This legislation, as varied from time to time, governs the superannuation rights and obligations of the parties.

Hence it is necessary to determine whether this provision (as incorporated in a NAPSA) imposes an obligation on the employer to make the superannuation payments provided for in the legislation referred to therein.

1. Counsel for the applicant referred to Textile, Clothing & Footwear Union of Australia v Bellhop [1999] FCA 1095. In that case the clause in the Award in issue included a number of specific obligations which, while akin to those in the rescinded Printing Industry (Superannuation) Award, are not present in the Printing Industries (State) Award. In particular the Award in Bellhop provided that:
   • A respondent employer shall contribute to the Fund in respect of each employee such contributions as required to comply with the Superannuation Guarantee (Administration) Act 1992 and Superannuation Guarantee Charge Act 1992 as amended from time to time. Failure to comply with this sub paragraph shall constitute a distinct and separate breach of this sub-paragraph.
2. That provision imposed an express obligation. Clause 46 of the Printing Industries (State) Award does not. It is more akin to the provision considered in BHP Iron Ore Pty Ltd v Australian Workers' Union and Others [2000] FCA 430; (2000) 102 FCR 97 at [23] which the Full Court of the Federal Court found did not provide contractual obligations. That provision was as follows:
   • In general, the terms and conditions of employment are as prescribed in the Iron Ore Production and Processing (BHP Iron Ore Ltd) Award No A29 of 1984 and the BHP Iron Ore Enterprise Bargaining Agreement 1993 (EBA) and the Stage I & II Award Restructuring Agreements.
3. More generally, determination of this issue requires the interpretation of the Award. As Madgwick J stated in Kucks v CSR Limited (1996) 66 IR 182 at 184:
   • It is trite that narrow or pedantic approaches to the interpretation of an award are misplaced. The search is for the meaning intended by the framer(s) of the document, bearing in mind that such framer(s) were likely of a practical bent of mind: they may well have been more concerned with expressing an intention in ways likely to have been understood in the context of the relevant industry and industrial relations environment than with legal niceties or jargon. Thus, for example, it is justifiable to read the award to give effect to its evident purposes, having regard to such context, despite mere inconsistencies or infelicities of expression which might tend to some other reading. And meanings which avoid inconvenience or injustice may reasonably be strained for. For reasons such as these, expressions which have been held in the case of other instruments to have been used to mean particular things may sensibly and properly be held to mean something else in the document at hand.
   • But the task remains one of interpreting a document produced by another or others. A court is not free to give effect to some anteriorly derived notion of what would be fair or just, regardless of what has been written into the award. Deciding what an existing award means is a process quite different from deciding, as an arbitral body does, what might fairly be put into an award. So, for example, ordinary or well-understood words are in general to be accorded their ordinary or usual meaning.
4. An industrial instrument such as an award is to be read so as to give each provision its plain and ordinary meaning. It should be read as a whole and in context (Federated Municipal and Shire Council Employees Union of Australia v Shire of Albany (1990) 32 IR 470 per French J, as he then was).
5. There is no evidence as to the intention of the parties making the agreement, but I note the departure in the Award from the terms of the rescinded Printing Industry (Superannuation) Award which did impose such an obligation on employers. The latter Award does not make provision for or impose an obligation to make superannuation payments. Rather, it simply states that superannuation is dealt with extensively by federal legislation, including certain specified Acts and s.124 of the New South Wales Industrial Relations Act. As the Award states, that legislation governs the superannuation rights and obligations of the parties. As Madgwick J stated in Kucks, the court is not free to give effect to notions of what would be fair or just "regardless of what has been written into an award." I am not satisfied that clause 46 is such as to impose an obligation on the employer to make superannuation payments such that a failure to do so would constitute a breach of the Award (now a NAPSA).
6. Hence I am not satisfied that any failure by the employer, Empire Printing, to make superannuation payments for Mr Torpia in accordance with the applicable superannuation legislation is a breach of a provision of an Award incorporated as a term of a NAPSA in relation to which a penalty may be imposed on Mr Zarfati under the Act.
7. Accordingly it is not necessary to address the submissions of the applicant in relation to the extent of the failure by the first respondent to make superannuation contributions and the loss occasioned to the applicant by the fact that non-payment of superannuation contributions led to non-payment of income protection or to consider whether payments should be made to the applicant's superannuation fund.
8. I note, in any event, that the power in s.719(7) of the Act to order payments to restore a person to the position the person would have been in had the employer not failed to pay the amount to the superannuation fund is confined to orders against "the employer". Consistent with the approach I have taken in relation to s.719(6) and s.665(1) (other than s.665(1)(d)), such a provision would not permit orders to be made against a person other than the employer.

1. As set out above, Mr Zarfati is liable to penalties as a person involved in the breaches by Empire Printing of the notice and severance payment obligations under clauses 6(d) and 6(e) of the Award as contained in a NAPSA. The maximum penalty for a breach under s.719 for a person (not being a body corporate) is 60 penalty units. A penalty unit is defined in s.4 as having the meaning in s.4AA of the Crimes Act 1914 (Cth). The maximum penalty for each breach would be $6,600.
2. The Court has a broad discretion in relation to penalty. It is not to regard itself as fettered by any checklist of mandatory criteria (see Australian Ophthalmic Supplies Pty Limited v McAlary-Smith [2008] FCAFC 8; (2008) 165 FCR 560 and see generally Mornington Inn Pty Ltd v Jordan [2008] FCAFC 70; (2008) 168 FCR 383). It is necessary to consider whether I am satisfied in all the circumstances that it is appropriate to impose a penalty (see Alfred v Walter Construction Group Limited [2005] FCA 497 at [7]).
3. Nonetheless, as submitted by the applicant, a useful starting point in relation to penalties under the Act is the judgment of Branson J in Construction, Forestry, Mining and Energy Union v Coal & Allied Operations Pty Ltd (No 2) at 232 in which her Honour pointed out that the Act gave no explicit guidance as to the circumstances in which a penalty would be appropriate or as to the circumstances in which a penalty of or near the maximum or of a lesser amount may be called for, except that the court should consider what is appropriate in all the circumstances of the case.
4. Her Honour provided a list of considerations that the court may appropriately have regard to in determining whether particular conduct called for the imposition of a penalty and the amount of the penalty. I have considered all of the circumstances of this case on the evidence before the Court, including the matters referred to in Construction, Forestry, Mining and Energy Union v Coal & Allied Operations Pty Ltd (No 2) [1999] FCA 1714; (1999) 94 IR 231 (and see e.g. Kelly v Fitzpatrick (2007) 166 IR 14), in particular the circumstances in which the relevant conduct took place (including whether it was undertaken in deliberate defiance or disregard of the Act); whether the second respondent had previously engaged in conduct in contravention of the Act; whether more than one contravention was involved and whether such contraventions were properly seen as distinct or arising out of the one course of conduct; the consequences of the conduct; the need in the particular circumstances for the protection of persons; deterrence, both general and specific; the objects of the Act; the size and financial resources of the contravener; his co-operation with any regulatory authorities; contrition; and the size of the prescribed penalty. It is also necessary to have regard to the totality principle (see Australian Opthalmic Supplies at 567 - 568 per Gray J and 577 per Graham J.)

Circumstances, nature and consequences of the conduct and objects of the Act

1. Based on the unchallenged affidavit evidence of Mr Torpia I accept that Empire Printing (which was controlled by Mr Zarfati) failed to give Mr Torpia the requisite pay in lieu of notice or any severance payment as required by clauses 6(d) and 6(e) of the Award as incorporated in a NAPSA. There is no evidence to the contrary from the second respondent.
2. The extent of these breaches was that the applicant failed to receive three weeks pay (being $6,230.82) in lieu of notice under clause 6(d) and a severance payment of $10,384.70 under clause 6(e). There is no evidence in relation to the position of any other employee. The two breaches of the NAPSA are serious in that they involve a failure to make payments to which the applicant was entitled. There is no evidence as to Mr Zarfati's awareness of the Act or of his obligations under the Award (NAPSA), but nor is there evidence of any aggravating circumstances. There is nothing in the material before the Court to suggest that the breaches were inadvertent, innocent, or technical. The breaches involved amounts of some significance to the applicant. They involved senior management, given Mr Zarfati's position in Empire Printing and his role in relation to the termination of Mr Torpia's employment. The breaches were contrary to the objects of the Act to protect the entitlements of employees.

1. There is no evidence that Mr Zarfati has previously been found to have engaged in conduct in contravention of the Workplace Relations Act of this or any other kind. There is evidence that on 31 July 2008 ASIC disqualified Mr Zarfati from managing a corporation under s.206F(1) of the Corporations Act 2001 (Cth) for a period of three years, after an investigation into his role in four failed companies (Empire Printing Pty Ltd, ACN 095 910 357 Pty Ltd, Empire Creative Services Pty Ltd, and MAC PRO Productions Pty Ltd). It was found that Mr Zarfati had engaged in "phoenix" activity by transferring the business of Empire Printing Pty Ltd to three other companies for the purpose of defeating claims of creditors and that he had failed to assist the liquidator of that company (although that decision was partly stayed by the AAT in Zarfati and Australian Securities and Investments Commission [2008] AATA 989 on 6 November 2008). However this evidence does not establish that Mr Zarfati had previously engaged in conduct in contravention of the Workplace Relations Act.

1. The breaches arose from a single course of conduct in relation to redundancy entitlements but were in respect of separate obligations under the NAPSA.

1. There is no evidence relied on by the applicant in relation to the financial resources of Mr Zarfati (except in relation to his ongoing involvement in the printing industry and his disqualification from managing a corporation).
2. In the absence of evidence in relation to penalty from Mr Zarfati it cannot be said that an appropriate penalty would have a deleterious effect on him or that it would be futile to impose a penalty of any significance.

1. There is no issue of co-operation with regulatory authorities in this case. There is also no evidence of any contrition on the part of Mr Zarfati such as to warrant a discount in penalty.

1. In 2005 the penalties for breaches of the Act were increased significantly (Workplace Relations Amendment (Work Choices) Act 2005). Any light-handed approach that may have been taken in the past would, on this basis, no longer be applicable (Finance Sector Union of Australia v Commonwealth Bank of Australia [2001] FCA 335; (2001) 106 IR 172 at [72] and see Commonwealth Bank of Australia and Another v Finance Sector Union of Australia [2007] FCAFC 18; (2007) 157 FCR 329).

1. It is necessary to have regard to the importance of both specific and general deterrence. In Community and Public Sector Union v Telstra Corp Ltd [2001] FCA 1364; (2001) 108 IR 228 at 230 Finkelstein J referred to the fact that penalties may be imposed to punish, deter, rehabilitate or some combination of these factors (and also see Ponzio v B & P Caelli Constructions Pty Ltd and Others [2007] FCAFC 65; (2007) 158 FCR 543 at [93] - [94]). Merkel J in Seven Network (Operations) Pty Ltd v Communications, Electrical, Electronic, Energy Information, Postal, Plumbing & Allied Services Union (No 2) [2001] FCA 672; (2001) 110 IR 372 at 374 pointed to matters such as the cost of the contravention, deterrence, the flagrancy and deliberateness of the breach, the offender's past record of behaviour and any contrition displayed by the offender.
2. General deterrence is of particular significance in a case such as this, having regard to the fact that the breaches were in relation to payments to which Mr Torpia was entitled under a NAPSA. The applicant submitted that the changing rules of industrial regulation could be "set at nought" if the Court did not act strongly (see Finance Sector Union of Australia v Commonwealth Bank of Australia [2005] FCA 1847; (2005) 147 IR 462 at [60]). Penalties for non-payment of such entitlements should demonstrate generally that such conduct is not approved and should be discouraged.
3. With respect to specific deterrence, while Empire Printing is in liquidation, given Mr Zarfati's involvement in the industry and lack of contrition the penalty should appropriately reflect the need for specific deterrence.

1. There is no suggestion that the second respondent is impecunious. Nor is there any suggestion that he has acknowledged his breach by an apology or of other circumstances which make it appropriate to mitigate the penalty.
2. On the other hand, there is no evidence of any prior contravention or that the business was a particularly large business. The amounts concerned, while of significance to the applicant, are not particularly large and involved only one employee. While separate breaches, the contraventions arose in relation to a single course of conduct. I am of the view that a discount in the range of 50 per cent for each of the two penalties would be appropriate. I have borne in mind the fact that it is necessary to consider each penalty separately (see Hanssen Pty Ltd v Jones [2009] FCA 192; (2009) 179 IR 57 at [74] per Siopsis J), but am of the view that the penalties each related to a breach of an entitlement under a provision in a NAPSA and involved relatively similar amounts so that there is no reason to draw any particular distinction between them in relation to quantum.
3. Having regard to the need for general and specific deterrence and the lack of contrition, I am of the view that it is not appropriate that the penalty be set at a minimum, but that a penalty in the order of 50 per cent of the maximum applicable for each breach is appropriate. The maximum penalty for each breach is the sum of $6,600. Fifty per cent of this is $3,300 for each breach, or $6,600 in total.

1. I have also had regard to the totality principle by way of review in relation to the sum of $6,600, by the process that has been described as an instinctive synthesis as to the totality of the penalties to be applied (see Australian Ophthalmic Supplies Pty Limited v McAlary-Smith). In all the circumstances, I am of the view that the appropriate penalty to be imposed on the second respondent in relation to his involvement in the failure by the employer to make the requisite notice and redundancy payments of $16,615.52 to the applicant would be $6,000. Hence the overall penalty should be reduced by application of the totality principle to $6,000 (or $3,000 for each breach).

1. The applicant seeks orders that the penalty be paid to him (see s.841(b) of the Act). Penalties may be paid to persons other than the Crown (Construction, Forestry, Mining and Energy Union v Austral Bricks (Qld) Pty Ltd [2009] FMCA 143; (2009) 178 IR 470). Such a power may be intended to encourage individuals (in that case, a union) to sue for breach. There have been a number of cases in which orders have been made for payments of penalties to a union (cf McIlwain v Ramsey Food Packaging Pty Ltd (No 4) [2006] FCA 1302; (2006) 158 IR 181 and Schanka and Others v Employment National (Administration) Pty Ltd (No 2) [2001] FCA 1623; (2001) 114 FCR 379).
2. In this case the applicant is a person affected by the actions of the second respondent. In Canturi and Another v Sita Coaches Pty Ltd and Another [2002] FCA 349; (2002) 116 FCR 276, a penalty was ordered to be paid to an individual applicant without any consideration of the issue (although, as counsel for the applicant pointed out, there was a suggestion in that case that the proceedings had been maintained by the employment advocate).
3. The conduct in question in this case targeted a particular person who was authorised to commence and did commence proceedings for the imposition of a penalty. I am of the view that in the particular circumstances of this case (and noting that an order for compensation of the applicant under s.719(6) of the Act cannot be made against the second respondent) it is appropriate that the penalty should be paid to the applicant (see Seven Network (Operations) Pty Ltd v Communications, Electrical, Electronic, Energy Information, Postal, Plumbing & Allied Services Union (No 2) (2001)). Accordingly the penalty should be paid to the applicant.
4. As counsel for the applicant indicated in written submissions that he wished to be heard on costs, I will hear submissions on costs.

I certify that the preceding one hundred and six (106) paragraphs are a true copy of the reasons for judgment of Barnes FM