2024 WAIRC 00040
INDUSTRIAL MAGISTRATES COURT OF WESTERN AUSTRALIA


CITATION : 2024 WAIRC 00040

CORAM : INDUSTRIAL MAGISTRATE T. KUCERA

HEARD : MONDAY, 18 DECEMBER 2023

DELIVERED : MONDAY, 29 JANUARY 2024

FILE NO. : M 97 OF 2023

BETWEEN : SHOP DISTRIBUTIVE & ALLIED EMPLOYEES ASSOCIATION
CLAIMANT

AND

BALJIT KAUR PTY LTD
RESPONDENT

CatchWords : Assessment of pecuniary penalty to be imposed pursuant to s 546(3) Fair Work Act 2009 - Determination of appropriate penalty - Where default judgment was entered against the respondent for a substantial underpayment - Where the respondent has not participated in proceedings - Pecuniary penalty for award contraventions - Single course of conduct - Consideration of the principles in determining penalty in Callan v Smith [2021] WAIRC 00216 - Application of s 557 Fair Work Act 2009 - Penalty to be paid to claimant - Order for interest to be paid - s 547 Fair Work Act 2009
Legislation : Fair Work Act 2009 (Cth)
Corporations Act 2001 (Cth)
Industrial Magistrate’s Court (General Jurisdiction) Regulations 2005 (WA)
Instrument : Vehicle Repair Services and Retail Award 2020
Case(s) referred
to in reasons: : Trade Practices Commission v CSR Limited [1990] FCA 762; (1991) 13 ATPR 41-076
Callan v Smith [2021] WAIRC 00216; 101 WAIG 1155
Australian Building and Construction Commissioner v Pattinson [2022] HCA 13; 274 CLR 450
Australian Ophthalmic Supplies Pty Ltd v McAlary-Smith [2008] FCAFC 8; 165 FCR 560
Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (No 2) [2018] FCA 1563
Commissioner of Taxation v Arnold (No 2) [2015] FCA 34; 100 ATR 529
Milardovic v Vemco Services Pty Ltd (Administrators Appointed) (No 2) [2016] FCA 244; 242 FCR 492
Sayed v Construction, Forestry, Mining and Energy Union [2016] FCAFC 4; 239 FCR 336
Plancor Pty Ltd v Liquor Hospitality and Miscellaneous Union [2008] FCAFC 170; 171 FCR 357
Gibbs v The Mayor, Councillors and Citizens of City of Altona [1992] FCA 553; 37 FCR 216
United Voice WA v Director General Department of Education 2012 WAIRC 00778; 92 WAIG 1655
Result : Penalty issued and ancillary orders made
Representation:

Claimant : Mr K. Sneddon (of counsel), as instructed by the Shop Distributive & Allied Employees Association
Respondent : No appearance

REASONS FOR DECISION
1 For reasons that follow, I have decided to impose a substantial fine for the failure by an employer to pay one of its staff members, the minimum rates of pay that apply under the terms of an award.
2 The company, Baljit Kaur Pty Ltd (respondent) which operates the Vibe Service Station in Bridgetown, underpaid one of its console operators, Estelle Rowcliffe Carlson (Ms Rowcliffe Carlson) over a oneyear period, the total sum of $25,907.44.
3 When averaged over the period, this equates to an underpayment of approximately $200 per fortnight. In the context of a working family’s household budget and pressures from increases in the cost of living, this is a large sum of money.
4 What places the respondent’s conduct into the contemptuous category of behavior, is the respondent’s complete failure to respond to the proceedings that were commenced by the Shop Distributive and Allied Employees Association (claimant).
5 The respondent was given no less than three opportunities to appear in Court to explain why it had underpaid Ms Rowcliffe Carlson.
6 In the lead up to the most recent Court dates, the Court’s Registry staff went to extensive lengths to ensure the respondent was made aware that it was being given an opportunity to appear in Court and be heard on whether it should be fined for failing to pay correct rates of pay to its employee and if so, the level of the fine, and who it should be paid to.
7 Despite being given an opportunity to file a response and present a plea in mitigation, the respondent failed to file any papers or appear in court. Moreover, the respondent ignored attempts the Court and the claimant made to alert the respondent to the proceedings, orders the Court issued, and notices to appear.
8 In my reasons, I have set out the steps the Court and the claimant took to make the respondent aware of the proceedings, the orders the Court issued in this matter, and the dates to appear in Court. I also provide reasons for the ancillary orders that I have made in addition to the penalty to be imposed.
Proceedings issued against the respondent
9 On 9 August 2023, the claimant filed an Originating Claim which set out the particulars of the allegations against the respondent (claim). As an attachment, the claimant provided a detailed spreadsheet showing the amount claimed in underpayments per fortnight, from 25 January 2021 until the fortnight ending 23 February 2023.
10 For the entire period the subject of the claim, the respondent paid Ms Rowcliffe Carlson $22 an hour for work she performed in ordinary hours and $33 an hour on public holidays, rates which the claimant alleged were less than the hourly rates that appear under cl 27.3 of the Vehicle Repair, Services and Retail Award 2020 (award).
11 By way of example, the claimant alleged that during the fortnightly pay period commencing on 25 January 2021, the award required Ms Rowcliffe Carlson to be paid, $28.38 an hour for work during ordinary hours as a casual roadhouse attendant.
12 As a further example, the claimant alleged the award rate the respondent should have paid Ms Rowcliffe Carlson on the 2021 Labour Day public holiday, was $37.03 per hour.
13 The claimant alleged that even after the hourly rates of pay under the award increased, the respondent continued to pay Ms Rowcliffe Carlson $22 an hour for work she performed in ordinary hours and $33 an hour on public holidays.
Conduct of the proceedings and orders issued by the Court
14 On 10 August 2023, Kevin Sneddon (Mr Sneddon) the solicitor for the claimant, posted the claim by registered mail to the respondent’s registered office. Following this, Mr Sneddon affirmed and filed a Form 5.1 – Affidavit of Service with the Court.
15 A Current Company Extract Mr Sneddon obtained from the Australian Securities and Investment’s Commission (ASIC) notes the following:
i. the respondent’s registered address is recorded as South-Central Accounting and Tax Pty Ltd, Unit 8 35 Biscayne Way Jandakot WA 6164 (registered address);
ii. the respondent’s principal place of business is 375 Bussell Highway Busselton WA 6280, at which the Vibe Busselton – Broadwater Service Station is located (business address); and
iii. the respondent’s Secretary and Director is Gurpal Singh (Mr Singh), whose recorded address is 24C Brandon Way Lynwood WA 6147 (Lynwood address).
16 Despite the claimant having complied with the service requirements that apply under the Industrial Magistrates Court (General Jurisdiction) Regulations 2005 (IMC Regs), the respondent did not file a response to the claim. The IMC Regs required a response to be filed within 21 days of the claim being served.
17 On 26 September 2023, the claimant’s solicitor filed a Form 6 – Application for a default judgment, together with a supporting Form 7 – Affidavit (application).
18 By its application the claimant sought the following;
i. An order the respondent pay the sum of $25,907.44 to Ms Rowcliffe Carlson (judgment sum);
ii. The respondent pay interest on the judgment sum;
iii. The respondent pay a civil penalty in respect of the contraventions; and
iv. An order that any civil penalty imposed be paid to the claimant.
19 The return date on the application provided by the Court was Tuesday, 24 October 2023.
20 On 28 September 2023, the claimant’s solicitor filed a Form 5.1 – Affidavit of Service on a Company which confirmed he served the application by mailing it to the respondent at its registered address in accordance with s 109X of the Corporations Act 2001 (Cth).
First Court Date
21 The application was heard on 24 October 2023. The respondent did not appear at the hearing, so I opted to deal with the application ex-parte under reg 8(2) of the IMC Regs. I then made the following orders.
It is hereby ordered that:
1. Pursuant to regulation 8(2) of the Industrial Magistrate's Court (General Jurisdiction) Regulations 2005 that default judgment is entered against the respondent.
2. Pursuant to the preceding Order 1, the Respondent shall pay Estelle Rowcliffe Carlson the sum of $25,907.44.
3. The claimant’s Application in this matter is otherwise adjourned for further submissions on the balance of relief sought in the claimant's Form 1.1 – Originating Claim to Monday 20 November 2023.
22 During the hearing, Mr Sneddon indicated he would file an outline of submissions on penalty ahead of the next court date. I also suggested the claimant take steps to personally serve a copy of the Court’s orders upon Mr Singh.
23 On 15 November 2023, Mr Sneddon filed his Submissions on Penalty. In addition, he also filed a further Form 7 – Affidavit in which he deposed to the steps he had taken to engage AAC Process Servers to personally serve Mr Singh.
24 In his affidavit, Mr Sneddon stated that AAC Process Servers had reported they had twice attempted to serve Mr Singh at the Lynwood address.
25 AAC Process servers subsequently advised after speaking to the people who now reside at the Lynwood address that Mr Singh no longer resides there or owns the property. The current residents confirmed that they have owned the property for approximately three years.
Second Court Date
26 On 20 November 2023 the Court reconvened for the hearing for the balance of the relief sought by the application. Mr Sneddon appeared together with Sarah Haynes (Ms Haynes), an industrial officer who works for the claimant. No one appeared for the respondent.
27 By this stage, the 14 days the respondent had under reg 41 of the IMC Regs to make an application to set aside the default judgment made in the previous hearing had passed.
28 During the hearing I made the following further orders:
It is hereby ordered that:
1. The claimant is to file a Form 29 – Multipurpose Form containing as much contact information for Gurpal Singh, who is the respondent's named director and company secretary, including his mobile phone number, his email addresses, home/residential and business addresses and the email addresses for each business, by Friday, 24 November 2023.
2. The claimant is to file Form 7 – Affidavit attaching copies of emails and other correspondence showing the steps both it and the employee took to raise the alleged underpayments with the respondent and any response it received from the respondent by Friday, 24 November 2023.
3. The claim is adjourned for further hearing to 18 December 2023.
4. There be liberty to apply.
29 I issued these orders to secure as much up to date contact information for the respondent as possible. This was so Registry staff would be able to take their own steps to contact the respondent to alert him to the application.
30 More specifically, I wanted Registry staff to make Mr Singh aware of the Court’s orders against the respondent. This was to ensure the respondent would be made aware that it was being given an opportunity to be heard on the balance of the relief sought by the application, including the imposition of a civil penalty.
Correspondence to the respondent
31 On 21 November 2023, the Clerk of the Industrial Magistrates Court (Clerk of the IMC) sent a letter to the respondent at its registered address, enclosing a copy of the Orders I issued during the hearing on 20 November 2023.
32 In her letter to the respondent, the Clerk of the IMC also advised the next hearing would be held on Monday 18 December 2023 at 9:15am.
33 On 23 November 2023 Mr Sneddon filed a Form 29 which provided current contact information for Mr Singh, including an email address and a mobile phone number. On 24 November 2023 the claimant filed an affidavit from Ms Haynes in which she deposed to the steps the claimant took from 17 November 2022, to raise the alleged underpayments with Mr Singh (Haynes’ Affidavit).
34 In addition to the correspondence the claimant has sent to the respondent regarding the alleged underpayments, Ms Haynes' Affidavit provides details of a recent conversation Ms Haynes had with Ms Rowcliffe Carlson, in which Ms Rowcliffe Carlson confirmed the personal contact details she provided for Mr Singh are the ones she uses to communicate with him.
Letter from the Clerk of the IMC
35 On 28 November 2023 the Clerk of the IMC sent a letter, addressed to Mr Singh at the respondent’s business address attaching copies of the Orders the Court made on 24 October and 20 November 2023. A copy of this letter is attached as an appendix to these reasons.
36 On the same date, the Clerk of the IMC also sent a letter in the same terms attaching copies of the Orders the Court made on 24 October and 20 November 2023 to the Vibe Service Station in Bridgetown where Ms Rowcliffe Carlson works.
37 An inspection of the Court file will show that Registry staff have attempted to contact Mr Singh by telephone, sent an email attaching the letter referred to in the preceding paragraph [35] and sent him text messages to alert him to the Court’s orders and the further hearing date of 18 December 2023.
38 The respondent did not respond to any of the communications I have referred to or contact the Court’s Registry staff.
39 On 15 December 2023, the letter the Clerk of the IMC sent to the respondent’s registered address on 21 November 2023 was returned to the Registry marked ‘return to sender’.
Third Court date
40 On 18 December 2023 the Court reconvened to hear the application. Mr Sneddon appeared together with Ms Haynes. No one appeared for the respondent.
41 During the hearing I indicated that I would reserve my reasons for decision on penalty. I also made the following further orders:
It is hereby ordered that:
1. The claimant is to file and serve a statement on the effects of the contraventions upon the claimant’s affected member, together with a Form 29 – Multipurpose Form, by close of business 22 December 2023.
2. The claimant is to file and serve a short outline of submissions on the quantum of interest payable, together with a Form 29 – Multipurpose Form, by close of business 22 December 2023.
42 On 20 December 2023 Ms Haynes filed a statement on the Effect of Contravention on the Affected Worker (Haynes’ Statement) and Mr Sneddon filed Submissions on Interest Payable.
43 Having received these materials in support of the claim, I now turn to the penalty to be imposed and the balance of the relief sought by the application.
Law on determining penalty.
44 The primary purpose of pecuniary penalties under a statute such as the IR Act, is to secure compliance with the provisions of the statutory regime: see Trade Practices Commission v CSR Limited [1990] FCA 762; (1991) 13 ATPR 41-076. French J in Trade Practices Commission v CSR Limited [1990] FCA 762; (1991) 13 ATPR 41-076, which was cited with approval in Callan v Smith [2021] WAIRC 00216; 101 WAIG 1155 at [30].

45 As the High Court in Australian Building and Construction Commissioner v Pattinson [2022] HCA 13; 274 CLR 450 (Pattinson) said at [66]:
… the financial disincentive involved in the imposition of a pecuniary penalty will encourage compliance with the law by ensuring that contraventions are viewed by the contravener and others as an economically irrational choice.
46 Noting the purpose of pecuniary penalties is to secure compliance with the provisions of a statutory regime, the question the Court is next required to turn its mind to, is setting a pecuniary penalty to a level that will have the effect of deterring a contravener from engaging in the same or similar conduct.
47 The factors which inform an assessment of a civil penalty with an appropriate deterrent value were described by the High Court in Pattinson at [18]. The considerations described were consistent with and much the same as those set out in Callan v Smith [2021] WAIRC 00216; 101 WAIG 1155 (Callan v Smith).
48 In Callan v Smith, a full bench of the Western Australian Industrial Relations Commission observed that when determining penalty, the Court is required to have regard to a non-exhaustive range of considerations for the purposes of deciding, if particular conduct, calls for the imposition of a penalty, and if it does, the amount of a penalty. Callan v Smith at [90].

49 The following considerations were set out in Callan v Smith at [90], which include but are not limited to:
(a) the nature and extent of the conduct which led to the breaches;
(b) the circumstances in which that conduct took place;
(c) the nature and extent of any loss or damage sustained as a result of the breaches;
(d) whether there had been similar previous conduct by the respondent;
(e) whether the breaches are properly distinct or arose out of the one course of conduct;
(f) the size of the business enterprise involved;
(g) whether or not the breaches were deliberate;
(h) whether senior management was involved in the breaches;
(i) whether the party committing the breach had exhibited contrition;
(j) whether the party committing the breach had taken corrective action;
(k) whether the party committing the breach had cooperated with the enforcement authorities;
(l) the need to ensure compliance with minimum standards by provision of an effective means for investigation and enforcement of employee entitlements; and
(m) the need for specific and general deterrence.
50 Citing the decision in Australian Ophthalmic Supplies Pty Ltd v McAlary-Smith [2008] FCAFC 8; 165 FCR 560, the Full Bench in Callan v Smith at [91] observed the task of the Court is to fix a penalty which pays appropriate regard to the circumstances in which the contraventions have occurred and the need to sustain public confidence in the statutory regime which imposes the obligations.
51 A further consideration is the maximum penalty identified in the statute for the contravention. As Flick J stated in Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (No 2) [2018] FCA 1563 (The BKH Contractors Case) at [19]:
In undertaking the task of assessing and quantifying the penalties to be imposed, the maximum penalty prescribed by the Commonwealth legislature for a specific contravention serves as a “yardstick” against which the assessment of penalties is generally to proceed.
52 The High Court in Pattinson noted the list of considerations when determining penalty is not a rigid catalogue of matters for attention. Relevantly at [19] the majority concluded:
It is important, however, not to regard the list of possible relevant considerations as a “rigid catalogue of matters for attention” as if it were a legal checklist. The court’s task remains to determine what is an “appropriate” penalty in the circumstances of the particular case. (footnotes omitted)
53 For the present case, Callan v Smith is instructive as it involved a matter where, although the employer respondent had not previously been involved in contravening behaviour, it had (as here) engaged in multiple contraventions (282) over a long period of time.
54 The level of the underpayment and the nature of the contraventions in Callan v Smith (matters that I will address in this case), were also serious and intentional.
55 To address the matters to be considered when determining penalty, I have relied upon Ms Haynes’ Affidavit, and Statement.
Submissions on penalty
56 At paragraph [15] of his Submissions on Penalty, Mr Sneddon submitted the maximum penalty under the Fair Work Act 2009 (Cth) (FW Act) should be imposed for the following reasons extracted below:
15.1 The Respondent has steadfastly refused to engage with either their employee, the Claimant or the Court. The Respondent has shown disdain to all other parties involved in this matter and shown no recognition that they understand their industrial obligations.
15.2 The Claimant has attempted to involve the Respondent via registered post, email and process servers, each time using addresses provided to the Australian Securities and Investment Commission or an email address known to be used by a Director of the Respondent. A presumption should be made that the disdain shown by the Respondent is deliberate.
15.3 The Respondent has not rectified the breach and to date has not paid the Court ordered amount.
15.4 Whether the actual contraventions were deliberate or not, the outcome is the same for the worker. The underpayments occurred between June of 2022 and June of 2023 and the worker was denied her minimum legal entitlement during this entire period.
15.5 Although accepted as a single contravention of the FW [A]ct, the breaches were considerable and sustained and affected a worker on bare Award wages.
15.6 The Respondent has given no indication that this behavior will not be repeated, indeed their approach suggests that they consider their industrial obligations as nothing more than an inconvenience to be bent to suit their own circumstances. In these circumstances there is a strong and important role for specific deterrence in penalty assessment and imposition.
15.7 If deterrence is the sole purpose of the penalty regime, and we say it is, then any penalties imposed on the Respondent must have that effect, they must have an impact. As was noted by Humphreys J, “there must be sufficient sting in the tail to ensure that both the respondent and those who might otherwise be involved in like contraventions consider the financial benefits that might accrue from contraventions as compared to the risk of pecuniary penalties” (Australian Manufacturing Workers’ Union v United Lift Services Pty Ltd (No 2) [2023] FedCFamC2G 614). If there is no 'sting' then any penalty imposed fails in its role to deter, particularly with a party that has shown no contrition and no recognition of their obligations.
15.8 A failure to sanction contraventions adequately, de facto punishes all those who do the right thing. Unfair advantages gained by failing to properly adhere to minimum working conditions cannot be rewarded, and court ordered penalties must act as a sufficient disincentive more broadly; anything less does not serve the public interest. Both specific and general deterrence is required.
57 In addition to his submissions on penalty, Mr Sneddon submitted that it was appropriate the Court order that any penalty be paid to the claimant under s 546(3) of the FW Act. To this end he relied upon the decision of Mortimer J in Milardovic v Vemco Servies Pty Ltd (Administrators Appointed) (No 2) [2016] FCA 244, 242 FCR 492 (Milardovic), citing Sayed v Construction, Forestry, Mining and Energy Union [2016] FCAFC 4; 239 FCR 336 (Sayed) and Plancor Pty Ltd v Liquor Hospitality and Miscellaneous Union [2008] FCAFC 170; 171 FCR 357 (Plancor).
58 In the absence of any appearance or submissions from the respondent it is very hard not to accept the claimant’s submissions on penalty.
59 It is not as though the respondent was not given an opportunity to be heard on this question. As I indicated during the hearing on 18 December 2023, the Court has gone to quite extensive lengths to give the respondent an opportunity to be heard in this matter, over and above what would ordinarily be required under the IMC Regs.
60 Although I consider the steps the Court has taken in this case were warranted to ensure the matter was dealt with justly, this approach should not be viewed as the norm to be adopted in cases of this type.
Nature and extent of the respondent's conduct
61 I accept that the award applies in the present case. I also find that the hourly rates of pay Ms Rowcliffe Carlson received during the relevant period were less than the minimum rates of pay that applied under the award. The breaches of the award for which the claimant is seeking a penalty to be imposed are not minor or technical. They involve a substantial total underpayment over an extended period.
62 There was nothing put to me to suggest the respondent has previously underpaid its employees. On this basis, I am prepared to conclude this is the first time the respondent has engaged in contravening conduct.
63 This is also not a matter where the respondent self-reported the matter or through its own efforts, discovered that it was underpaying Ms Rowcliffe Carlson. This matter came about because of inquiries Ms Rowcliffe Carlson raised with her union, the claimant in this case.
64 Haynes’ Affidavit shows the steps the claimant took to bring Ms Rowcliffe Carlson’s underpayment of wages claim to the respondent’s attention.
65 Initially the claimant tried to raise this matter with the respondent by a phone call. The respondent did not answer the phone or respond to voice messages. The claimant then emailed the respondent on 17 November 2022.
66 On 3 February 2023 the claimant sent the respondent a further letter to make the respondent aware that it was not paying correct rates of pay to Ms Rowcliffe Carlson.
67 Despite the claimant raising these matters in the ways described, the respondent failed to communicate with the claimant at all, about the alleged underpayments.
68 Ms Rowcliffe Carlson reported to the claimant on or around 9 March 2023 that Mr Singh had received the correspondence from the claimant and that he was ‘looking into it’. She reported that Mr Singh had offered to pay her correct rates of pay as a part-time employee in line with the award.
69 Despite resolving the immediate issue, the respondent did nothing then and has done nothing since to rectify any underpayments, a point to which I will return when addressing whether the conduct was deliberate.
70 The lack of action on the part the respondent to rectify the underpayments is what prompted the claimant to issue proceedings in pursuit of the claim.
The circumstances in which the conduct took place and the nature and extent of any loss
71 Haynes’ Statement provides evidence of the tough financial circumstances faced by Ms Rowcliffe Carlson and her family, which could have been mitigated if the respondent had paid her correctly, as required under the award.
72 Ms Rowcliffe Carlson is 50 years old. She lives with her husband on a 43-acre rural property near Busselton. Her husband services and repairs windmills. Ms Rowcliffe Carlson does the books for her husband’s business. Their combined disposable income after paying tax and business costs was approximately $77,000.
73 Ms Rowcliffe Carlson has six children, five of whom are now adults, with one daughter who is 15 years old, and currently lives with her at home. Ms Rowcliffe Carlson’s daughter has been attending Manjimup High School. Ms Rowcliffe Carlson estimates she spends approximately 2.5 hours a day driving, which includes getting herself to work in Bridgetown and her daughter to and from school.
74 In 2024, Ms Rowcliffe Carlson’s 15-year-old daughter is transferring to Albany Senior High School. While Ms Rowcliffe Carlson might not have to drive her daughter to school in Manjimup anymore she will instead be required to meet the cost of boarding fees.
75 Due to the current lack of affordable rental accommodation, one of Ms Rowcliffe Carlson’s adult children has moved into her home with her husband, two children and three dogs. As a result, Ms Rowcliffe Carlson has six other people living with her, all under the same roof.
76 The home Ms Rowcliffe Carlson’s family lives in has two bathrooms and two toilets, however one toilet is not functioning. Ms Rowcliffe Carlson is intending to prioritse some maintenance around the home, including fixing her second toilet if she can recover the money the respondent has been ordered to pay. These are hardly excessive or unreasonable expectations.
77 Ms Rowcliffe Carlson is also hoping to allocate some of this money to fixing fences and the like. There is a mortgage on the property and the interest rates that apply to the loan have gone up in line with recent interest rate rises.
78 As I have indicated, the amount of the underpayment is significant. If Ms Rowcliffe Carlson had been paid correctly, the amount by which she was underpaid would have assisted Ms Rowcliffe Carlson and her family in dealing with the financial challenges I have set out.
Whether the breaches are properly distinct or arose out of the one course of conduct
79 This matter was brought to the Court on the basis that it involved a single course of conduct, albeit one that stretched over a period of more than a year.
80 During the hearing on 20 November 2023, Mr Sneddon submitted, and I accept, that this is a case to which s 557 of the FW Act (Course of Conduct) applies. As a result, the maximum penalty the Court can impose is the sum of $82,500.
81 I note however that the course of conduct under consideration involves no less than 55 contraventions, committed over a 12-month period.
The size of the business involved
82 Despite the respondent's failure to respond to or appear in the proceedings, based on the information the claimant has provided, it is reasonable to conclude the Vibe Bridgetown Service Station is one outlet, in a chain of Vibe service stations.
83 At the hearing on 20 November 2023, Mr Sneddon submitted the respondent operates five Vibe service stations, each of which are in the South-West of Western Australia. This point was later confirmed in Haynes’ Affidavit.
84 Although the capacity of a respondent to pay a fine is a matter the Court may have regard to, when determining a penalty, there are two reasons in the present case as to why I do not intend to pay much regard to it as a factor to be considered.
85 Firstly, as the Federal Court held in Commissioner of Taxation v Arnold (No 2) [2015] FCA 34 at [200]  [203], the financial position of the person against whom an order is made may be relevant, but in most cases, it will not carry great weight in the assessment of a penalty. Also see Callan v Smith at [109].

86 Secondly, the respondent did not appear in Court and make any submissions as to why the size of its business or its capacity to pay, should be considered when determining a penalty in this case.
87 If the respondent has the financial means to operate five Vibe service stations, then it is open to the Court to find it has the financial capacity to pay its employees properly and to meet the costs of any fines when it does not.
Whether or not the breaches were deliberate
88 No one appeared in Court for the respondent to argue whether the contraventions were inadvertent or otherwise. The contraventions were not a ‘one off’. As I have noted, the contraventions occurred fortnightly over a period of some 12 months.
89 It is difficult to accept this case is a result of the respondent’s inadvertence. There is a pattern of conduct here which suggests the respondent takes the view that there are requirements to properly run a business which it does not have to follow.
90 The respondent’s failure to keep details of its registered address and the contact address for its director and secretary up to date with ASIC is evidence of this. In these circumstances, it is not surprising the respondent has also failed to pay correct rates of pay as required under the award.
91 It is also difficult to view the contraventions as inadvertent or even careless in the face of evidence the respondent ignored the efforts the claimant took to raise the alleged contraventions with the respondent, as described in Haynes’ Affidavit.
92 Compounding this view is the respondent’s failure to respond to the communications from the Registry staff advising the respondent of the orders the Court had issued, and providing notice of the hearing.
93 Rather, I take the view from the way the respondent has conducted itself, from the amount and length of time it underpaid Ms Rowcliffe Carlson, by the respondent’s failure to acknowledge the proceedings and by not turning up to Court, that the respondent’s conduct was intentional.
Whether senior management engaged in the contraventions
94 Whilst no one appeared in Court for the respondent, from the company search the claimant’s counsel submitted it is clear Mr Singh is the respondent's sole director. It also appears that Mr Singh is the key decision maker for the respondent.
95 It is apparent from Haynes’ Affidavit, that Mr Singh or ‘Binny’ as he is also known, is the person who ‘calls the shots’ within Ms Rowcliffe Carlson’s workplace. He is the person who she communicates with regarding working hours, pay and the like. It is reasonable to find that Mr Singh is the person with the authority to deal with this matter, which would include rectifying any underpayment.
96 It is my view, and I find, that even if Vibe Bridgetown as a single service station could be viewed objectively as a ‘small business’, its senior manager was involved in the contravening conduct, including the decision to ignore communications from the claimant and the Court.
97 I therefore find that senior management was involved in and made decisions which resulted not only in the contravening conduct, but the respondent’s approach to the claim.
Whether the party committing the breach has exhibited contrition
98 By its failure to respond to the proceedings, to appear in Court, and by not admitting the contraventions it cannot be said the respondent has exhibited contrition. Compounding this view, is the fact the respondent has not taken any steps to rectify the underpayment, a point to which I will return.
99 To demonstrate remorse or contrition, the respondent would have had to have expressed regret for the underpayment.
100 The respondent would have also had to confirm the contravening conduct will not happen again and to have provided some indication as to the steps it would be taking to ensure the contravening behaviour would be prevented from recurring. This has not happened either.
Whether the party committing the breach has taken corrective action
101 There are two aspects that need to be weighed with this consideration. The first is whether the respondent has rectified the underpayment. The second is whether the contravening conduct is continuing.
102 On the date I reserved my decision, Mr Sneddon advised the respondent had not taken steps to rectify the underpayment and so the payment pursuant to the default judgment of $25,907.44 to Ms Rowcliffe Carlson remained outstanding.
103 On the issue of whether the conduct is continuing, Mr Sneddon, during his appearance in Court on 20 November 2023, advised the respondent is now paying Ms Rowcliffe Carlson the correct award rates of pay. This was also confirmed in Haynes’ Affidavit.
104 While I view advice from the claimant that Ms Rowcliffe Carlson is now being paid correctly in the respondent’s favour, the respondent’s failure to rectify the underpayment and to appear in Court and provide anything by way of explanation, does not cancel out the respondent’s recently reported compliance with the award.
105 Until the underpayment is rectified in full, particularly where the respondent did not put anything before the Court as to when Ms Rowcliffe Carlson will be paid, I take the view the respondent has only partially taken corrective action.
106 I find the respondent’s lack of action in this regard concerning. Firstly, there was nothing before the Court to suggest the respondent will not engage in similar conduct into the future. Second, it is also of relevance to the question of deterrence to which I will return.
107 I am concerned while the underpayment remains outstanding, particularly where the respondent has not bothered to turn up to Court, this conduct could be repeated.
Whether the party committing the breach had cooperated with the enforcement authorities
108 Although the claimant in this matter is not a publicly funded 'enforcement authority', as an industrial organisation registered under the FW Act with responsibility to represent the industrial interests of its members, it has a legitimate industrial interest in ensuring the minimum rates that are payable under an award are being paid.
109 Unions have a legitimate role to play in raising underpayment of wages claims and ensuring employers pay correct rates of pay under awards and industrial agreements. For this reason, the respondent’s complete failure to respond to the attempts the claimant’s officials made to raise the underpayments claim with the respondent by telephone, email, etc, counts against the respondent in this regard.
110 The respondent's failure to appear in Court, despite the efforts Registry staff took to notify the respondent to appear in Court, and to alert the respondent to the content of the orders the Court has issued, also counts against the respondent on this consideration.
111 In summary, it can hardly be said the respondent has cooperated in a way that shines a positive light on the respondent.
The need to ensure compliance with minimum standards by provision of an effective means for investigation and enforcement of employee entitlements
112 This consideration weighs heavily in favour of a substantial fine being imposed. This matter has not only necessitated the commencement of proceedings but no less than three Court dates, none of which the respondent has bothered to attend.
113 It frankly should not have been so hard for the claimant to recover wages for a member who has been underpaid by their employer.
The need for specific and general deterrence
114 As I indicated in the preceding paragraph [107], I hold concerns the respondent has engaged in conduct that could be repeated. The respondent has done nothing to convince me otherwise.
115 For this reason and having regard to the seriousness of its contravening conduct, it is my view that a penalty must be set that will deter this respondent from repeating or engaging in similar contravening conduct.
116 Turning then to the issue of general deterrence and the authorities I have referred to, a fine must be set sufficiently high that it will not only deter this respondent from engaging in further contravening conduct, but others involved in or contemplating taking a similar path, from doing the same.
117 The fine cannot be set so low that it will be viewed by the respondent or others as an acceptable cost of doing business.
Fine to be imposed
118 For the reasons advanced in the preceding paragraphs, it is my view the quantum of the fine the respondent will be ordered to pay is the sum of $55,000 which is the equivalent of 2/3 of the maximum penalty.
119 The discount on the maximum penalty is being made on two grounds. First, the respondent is now reportedly paying Ms Rowcliffe Carlson the correct hourly rate of pay under the award for the part-time role she is employed in.
120 Second, the respondent has not previously engaged in contravening behavior of this type.
121 On the evidence before me, there is nothing else by way of mitigation that can be viewed in the respondent’s favor. If the respondent had bothered to turn up to Court and taken an active part in the proceedings, I may have been persuaded a lower fine was justified. As this did not happen, the respondent is the architect of its own penalty.
122 The respondent’s conduct in this matter was not only disrespectful to the Court but it is even more contemptuous towards Ms Rowcliffe Carlson who it underpaid.
123 A penalty at the higher end is, in my view, justified having regard to the circumstances of this case.
Payment of the penalty to the claimant
124 In its original application, the claimant sought an order that any penalty be paid to the claimant under s 546(3) of the FW Act which relevantly provides:
The court may order that the pecuniary penalty, or a part of the penalty, be paid to:
(a) the Commonwealth; or
(b) a particular organization; or
(c) a particular person.
125 In relation to this, I have determined that a portion of the penalty should be paid to Ms Rowcliffe Carlson, with the balance to be paid to the claimant.
In Milardovic, Her Honour Mortimer J (as she then was) at [40]  [44] made the following observations regarding her discretion to order the payment of a penalty to the complainant. She noted:
40 Were I free to do so, I would, in the exercise of the Court's discretion under s 546(3), order that the penalty be payable to the Commonwealth rather than to Mr Milardovic. However that course is not open to me following the Full Court's decision in Sayed v Construction, Forestry, Mining and Energy Union (2016) 239 FCR 336. The Full Court's decision requires the Court to make an order that Vemco pay the penalty the Court has imposed on it to Mr Milardovic.
41 That the Full Court's decision in Sayed requires me to make such an order arises from several aspects of the Full Court's reasons. First, at [72] their Honours identified “a certain symmetry between the person or entity authorised to prosecute an enforcement proceeding and the person or entity to whom the penalty, if imposed, might be paid”.
42 [A]t [101] the Full Court [in Sayed] held:
[T]he power conveyed by s 546(3) is ordinarily to be exercised by awarding any penalty to the successful applicant. We accept that there may be cases … where the penalty, or a part of the penalty, should be paid to another person in the circumstances described by Gray J in Plancor at [44].
43 The reference to Gray J in Plancor is a reference to the following passage of his Honour’s reasons … at [44]:
[T]he initiating party is normally the proper recipient of the penalty as part of a system of recognising particular interests in certain classes of persons… in upholding the integrity of awards and agreements the subject of penal proceedings. Where a public official vindicates the law by suing for and obtaining a penalty, it is appropriate that the penalty be paid to the Consolidated Revenue Fund. Otherwise, the general rule remains appropriate, that the penalty is to be paid to the party initiating the proceeding, with the Gibbs (Gibbs v The Mayor, Councillors and Citizens of City of Altona [1992] FCA 553; 37 FCR 216) … exception that the penalty may be ordered to be paid to the organisation on whose behalf the initiating party has acted.
44 Subject then to the “Gibbs exception” … the Full Court’s decision in Sayed is authority for the proposition that where a proceeding is brought by an applicant on his or her own behalf, the discretion in s 546(3) is to be exercised to make any penalty the Court orders payable to that applicant. Aside from the identity of the person who brings the proceedings, and taking into account the “Gibbs exception”, the Full Court’s judgment does not appear to provide for any other basis upon which a penalty should be made payable to another person or entity set out in s 546(3).
126 Similarly, Magistrate Cicchini in United Voice WA v Director General, Department of Education 2012 WAIRC 00778; 92 WAIG 1655 determined that it was appropriate to order a penalty to be paid to a union that had expended the time and resources to enforce an industrial agreement on behalf its members commenting at [15]:
I accept that the claimant has been vigilant in ensuring compliance with the [a]greement. It is important that parties who police compliance with industrial agreements be rewarded for their efforts. There can be no doubt that in this instance the claimant has expended considerable resources and time in bringing the claim. The payment of penalties to it will, in part, ameliorate its costs and the harm done. I propose to order that the penalties imposed be paid by the respondent to the claimant.
127 I respectfully adopt the reasoning of their Honors in the authorities referred to and apply it in this case.
128 As a result of the respondent’s failure to respond to communications from the claimant, the claimant has had to commit significant resources to recovering the underpayment. These resources could have been used more constructively if the respondent had responded differently in this matter.
129 For the purposes of ameliorating the effects the underpayments have had on Ms Rowcliffe Carlson and her family during these tough economic times, I will also make an order under s 546(3) of the FW Act, that in addition to the payment of the judgment sum plus interest, Ms Rowcliffe Carlson is to be paid a portion of the fine to be imposed.
Order to pay interest
130 Section 547(2) of the FW Act relevantly provides that upon application, a court must make an order to pay interest unless good cause is shown to the contrary.
131 Noting the length of time Ms Rowcliffe Carlson was underpaid and after discovering the underpayment, she had to patiently await the outcome of these proceedings, in which her employer has made no opposing submissions.
132 For this further reason, I do not have a difficulty making an order that interest be paid on pursuant to of the FW Act.
133 Referring to the relevant Federal Court Practice Note on calculating interest on judgment, which includes information on the rate of interest to be applied at the time of judgment, Mr Sneddon submitted a sum equivalent to 8.1% of the judgment sum should be paid.
134 Applying this rate to the judgment sum, I find that the amount of interest the respondent should be ordered to pay is an amount of $2099.00.
Declaration and orders to be made
1. The Court declares the respondent has contravened the award by underpaying its employee Ms Rowcliffe Carlson the sum of $25,907.44.
2. The Court orders the respondent to pay a fine fixed in the sum of $55,000.
3. The Court orders the fine referred to in the preceding order (2) is to be paid pursuant to s 546(3) of the Fair Work Act 2009 (Cth) as follows:
i. $20,000 is to be paid to Ms Rowcliffe Carlson; and
ii. $35,000 is to be paid to the claimant.
4. The Court orders the respondent pay Ms Rowcliffe Carlson the further sum of $2099.00 being an order for interest pursuant to s 547 of the Fair Work Act 2009 (Cth) on the judgment sum of $25,907.44 which the Court ordered the respondent to pay on 24 November 2023.


T. KUCERA
INDUSTRIAL MAGISTRATE


APPENDIX

Our Ref: M 97 of 2023
Enquiries: Clerk to the Industrial Magistrates Court
Date: 28 November 2023
Dear Mr Singh,
CLAIM NO. M 97 OF 2023
SHOP DISTRIBUTIVE & ALLIED EMPLOYEES ASSOCIATION -v- BALJIT KAUR PTY LTD
I refer to the abovementioned application, which the Shop Distributive & Allied Employees Association (claimant) filed in the Western Australian Industrial Magistrates Court (Court) on 9 August 2023 (underpayments claim).
The underpayments claim has been issued against Baljit Kaur Pty Ltd (respondent). The Court has been advised the respondent operates the “Vibe Bridgetown” service station, which is located at 169 Hampton Street, Bridgetown (Vibe Bridgetown).
The records held by the Australian Securities and Investments Commission (ASIC) show that you are the respondent’s Director / Company Secretary, which in the usual course, are senior operational decision-making roles in businesses registered as companies.
In addition to this, the claimant has advised that you hold yourself out as the owner of four “Vibe” service stations, one of which includes Vibe Bridgetown.
Noting the seniority of your position with the respondent, the Court urges you to read the contents of this letter carefully.
Particulars of the underpayments claim and orders sought against the respondent
In the underpayments claim, the claimant alleges the respondent has, in breach of the Vehicle Repair Services and Retail Award 2020 (award), in the period 25 January 2021 to 19 February 2023, underpaid its employee Estelle Rowcliffe Carlson (Rowcliffe Carlson) the sum of $25,907.44 (unpaid wages).
In addition to an order requiring the respondent pay the unpaid wages to Ms Rowcliffe Carlson, the claimant seeks the following further orders against the respondent:
· An order requiring the respondent to pay interest on the unpaid wages under section 547 of the Fair Work Act 2009 (FW Act);
· An order requiring the respondent pay a pecuniary penalty (which means a fine) to the claimant under sections 539(2) and 545 of the FW Act.
The claimant advises that although it appears Ms Rowcliffe Carlson is now receiving the correct rates of pay as provided for under the award, the respondent has not taken any steps to pay her the unpaid wages.
Respondent’s non-appearance and default judgement
On 17 August 2023, the claimant served the underpayments claim by posting it to the respondent’s registered office; South Central Accounting & Tax Pty Ltd – Unit 8, 35 Biscayne Way, Jandakot.
Despite the claimant serving the underpayments claim in the manner required under the Industrial Magistrates Court (General Jurisdiction) Regulations 2005 (regulations) and pursuant to section 109X of the Corporations Act 2001, the respondent failed to file a response in accordance with the regulations.
Following the respondent’s failure to file a response, the claimant on 26 September 2023, made an application to the Court to issue orders in the underpayments claim (application for orders). This application for orders was listed for hearing on Tuesday 24 October 2023 (first hearing).
During the first hearing, the claimant applied for the issuance of a default judgment in the sum of $25,907.44 which the Court granted (default judgement). A copy of this and the other orders the Court made at the first hearing are attached for your information (Court’s initial orders).
Except for the default judgement, under the Court’s initial orders, the application for orders was adjourned to a further hearing on Monday 20 November 2023 (second hearing).
Second initial hearing
As directed, the Court held a second initial hearing in relation to the underpayments claim on Monday 20 November 2023. Regrettably, no one appeared for the respondent.
For the second hearing, the claimant provided evidence of the steps it had taken to personally serve the Courts’s initial orders. To this end, the claimant provided an affidavit in which it’s counsel explained how he had engaged the services of a process server, who had unsuccessfully attempted to serve the Court’s initial orders at the home address that ASIC has on record, as your place of residence.
From the information the process server provided on its attempts to serve the Court’s initial orders, it is clear you do not live at this address.
In addition to the provision of this evidence, the claimant who had had filed submissions in support of its application, was ready to proceed with its argument for the imposition of a pecuniary penalty.
Although the Court was within its rights to deal with and make final orders in relation to the underpayments claim at both the first and second hearings, it has determined the more appropriate course is to provide the respondent with a further opportunity to appear in Court and be heard on the claimant’s application for orders.
In relation to this, a copy of the orders the Industrial Magistrate issued during the second hearing are also attached for your information. You will see a third hearing in the underpayments claim is to be held on Monday 18 December 2023. The hearing will commence at 9.15 am.
Further hearing on 18 December 2023
At the further hearing to be held on Monday 18 December 2023, the Court will, in addition to the unpaid wages you have already been ordered to pay, decide whether you should also be ordered to pay a fine.
For the avoidance of any doubt, you are being given an opportunity to appear in Court on this date and be heard on whether a penalty should be imposed for the respondent’s contraventions of the award and if fine is to be ordered, how much.
Please be aware that if you or a representative for the respondent fails to appear in Court on this date, the Industrial Magistrate may make final orders in the respondent’s absence, which could include an order requiring the respondent to pay to the claimant the maximum pecuniary penalty.
The underpayment of an employee’s wages in breach of an award and the FW Act is a serious matter. The maximum pecuniary penalty the Court may impose in the circumstances of this case is a fine of $82 500.00.
Please do not hesitate to contact the Court should you have any queries in relation to any matter raised by this letter on (08) 9420 4467 or by email, to registry@wairc.wa.gov.au.
Yours sincerely



CLERK OF THE INDUSTRIAL MAGISTRATES COURT
Enc.