2025 WAIRC 00808
INDUSTRIAL MAGISTRATES COURT OF WESTERN AUSTRALIA


CITATION
:
2025 WAIRC 00808



CORAM
:
INDUSTRIAL MAGISTRATE B. COLEMAN



HEARD
:
FRIDAY, 5 SEPTEMBER 2025



DELIVERED
:
FRIDAY, 5 SEPTEMBER 2025



FILE NO.
:
M 26 OF 2025



BETWEEN
:
PAUL DAVID CALLAGHAN, DEPARTMENT OF ENERGY, MINES, INDUSTRY REGULATION AND SAFETY


CLAIMANT





AND





AHMED EL SAYED IMAM


FIRST RESPONDENT


AND





YAN WOON DESIREE HUI


SECOND RESPONDENT

CatchWords : INDUSTRIAL LAW – Assessment of appropriate civil penalties for the enforcement of an entitlement provision - multiple contraventions of an Award - complete lack of remorse, contrition of corrective action - lack of cooperation with enforcement authorities - blatant disregard for the compliance regime and authority of the Court – penalties determined
Legislation : Industrial Relations Act 1979 (WA)
Instrument : Restaurant, Tea Room and Catering Workers Award
Case(s) referred
to in reasons : Fair Work Ombudsman v Grouped Property Services Proprietary Limited (No 2) [2017] FCA 557
Australian Building and Construction Commissioner v Pattinson [2022] HCA 13; 274 CLR 450
Callan v Smith [2021] WAIRC 216; 101 WAIG 1155
Kelly v Fitzpatrick [2007] FCA 1080; 166 IR 14
Australian Ophthalmic Supplies Pty Ltd v McAlary-Smith [2008] FCAFC 8; 165 FCR 560
Fair Work Ombudsman v NSH North Pty Ltd trading as New Shanghai Charlestown [2017] FCA 1301; (2017) 275 IR 148
Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584
Australian Competition and Consumer Commission v Australia and New Zealand Banking Group Limited [2016] FCA 1516
SKL v The State of Western Australia [2024] WASCA 32 [24]
Markarian v The Queen [2005] HCA 25, (2005) 228 CLR 357
Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union [2017] FCAFC 113
Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (The BKH Contractors Case) (No 2) [2018] FCA 1563
Jillian Dixion, Department of Mines, Industry Regulations and Safety v Karakuyu & Anor [2025] WAIRC 00451; 105 WAIG 2074
Commissioner of Taxation v Arnold (No 2) [2015] FCA 34
Result : Penalty issued
Representation:
Claimant : Ms I. Inkster (of counsel)
Respondent : No appearance



REASONS FOR DECISION
(Given extemporaneously at the conclusion of the hearing, extracted from the transcript of proceedings and edited by her Honour for clarity of expression, to insert headings and to include complete citations).
Background
1 The claimant, Mr Paul David Callaghan, an industrial inspector with the Department of Energy, Mines, Industry Regulation and Safety (the Department), commenced proceedings against the respondents, Ahmed El Sayed Imam and Yan Woon Disiree Hui, on 28 February 2025, seeking enforcement of entitlement provisions pursuant to the Restaurant, Tea Room and Catering Workers Award (the award).
2 The respondents were served the claim and failed to lodge a response within the required time frame.
3 The claimant filed an application for default judgment on 23 May 2025, and the Industrial Magistrates Court of Western Australia (Court) made orders on 28 May 2025 that the respondents were to file a response by no later than 16 June 2025.
4 The respondents failed to comply with the Court’s orders, though through their lawyer, they filed the response out of time on 18 June 2025.
5 On 19 June 2025, the Court entered default judgment against the respondents in favour of the employee, Ms Agostino, in the amount of $2,739.33 for unpaid wages, $931.47 for unpaid superannuation and also ordered that the respondents pay pre-judgment interest of $1,240.03.
6 By failing to respond to the claim, the respondents are taken to have admitted the allegations contained in the claimant’s originating claim. By his claim, the industrial inspector has also sought payment of civil penalties relating to the contraventions alleged against the respondents.
7 The power of the Court to order such penalties is set out in s 83(4) of the Industrial Relations Act 1979 (WA) (Act).
8 On 19 June 2025, Industrial Magistrate Scaddan made programming orders related to the penalty hearing, requiring the parties to file witness statements and written submissions.
The Penalty Hearing
9 The claimant lodged and served witness statements and submissions in compliance with the Court orders, and on 24 July 2025, the registry confirmed with the parties my direction that the claimant’s witnesses were only required to attend the hearing if the respondents intended to challenge the evidence. The registry instructed the respondents to inform the Court whether they intended to do so by 4 August 2025.
10 The Court received no correspondence from the respondents related to the penalty hearing, nor were any witness statements or written submissions filed. The respondents did not place the claimant on notice that any of the claimant’s evidence would be challenged, and on 29 August 2025, the Court received formal notification that the respondent’s lawyer had ceased to act.
11 Subsequently, the Court registry attempted to correspond with the respondents via the email address provided by their former legal representative, however, the registry received an automated response – it appears that the respondents had created a custom rule to block all emails sent by the Court registry. The email response appears at Annexure 1 of these reasons.
12 The respondents failed to attend the penalty hearing. Consequently, the respondents clearly demonstrated that they did not intend to participate in the penalty hearing, nor did they seek to be heard on the appropriate penalty.
13 I have therefore relied upon the originating claim and the affidavits filed by the claimant to determine the appropriate penalties in this matter.
Principles relevant to determine the appropriate penalty
14 As at November 2019, being the final month of the contraventions, s 83(4)(a)(ii) of the Act provided that the Court may impose a maximum penalty on an employer of $2,000 for each breach if the Court is satisfied that the employer has contravened a civil penalty. The Act was amended in July 2025: the maximum penalty for an individual employer has increased to $18,000 per breach: s 83(4A)(b)(ii) Industrial Relations Act 1979 (WA).

15 The procedure of the Industrial Magistrates Court relevant to penalties is contained in the Industrial Magistrate’s Court (General Jurisdiction) Regulations 2005 (WA).
16 Notably, regulation 35(4) states that the Court is not bound by the rules of evidence and may inform itself on any matter and in any manner as it thinks fit.
17 The Act allows the Court to order a penalty paid directly to a person directly affected by the conduct to which the contravention relates, or to the applicant, or the treasurer. Section 83F(2) Industrial Relations Act 1979 (WA).

18 The purpose served by penalties was described by Katzmann J in Fair Work Ombudsman v Grouped Property Services Proprietary Limited (No 2) [2017] FCA 557. At [388] Katzmann J said:
In contrast to the criminal law, however, where, in sentencing, retribution and rehabilitation are also relevant, the primary, if not only, purpose of a civil penalty is to promote the public interest in compliance with the law. This is achieved by imposing penalties that are sufficiently high to deter the wrongdoer from engaging in similar conduct in the future (specific deterrence) and to deter others who might be tempted to contravene (general deterrence). The penalty for each contravention or course of conduct is to be no more and no less than is necessary for that purpose. (citations omitted)
19 This approach was endorsed by the High Court in Australian Building and Construction Commissioner v Pattinson [2022] HCA 13; 274 CLR 450 (Pattinson). The High Court in Pattinson reiterated that the objective when imposing a penalty is to attempt to put a price on a contravention that is sufficiently high to deter repetition by the contravener and by others who might be tempted to contravene a statute. Australian Building and Construction Commissioner v Pattinson [2022] HCA 13; 274 CLR 450 (Pattinson), [15].

20 Therefore, I must decide the appropriate penalty such that it does not exceed what is reasonably necessary to achieve deterrence by the respondents, and other employers, within their industry.
21 The appellate Courts have adopted a non-exhaustive range of considerations to which regard may be had in determining whether particular conduct calls for the imposition of a penalty and, if it does, the amount of that penalty. Callan v Smith [2021] WAIRC 216; 101 WAIG 1155 at [90] citing the Federal decisions of Kelly v Fitzpatrick [2007] FCA 1080 and Mason v Harrington Corporation Pty Ltd [2007] FMCA 7.

22 The considerations are summarised as follows:
a. the nature and extent of the conduct which led to the breaches;
b. the circumstances in which the 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 any similar previous conduct by the respondents;
e. whether the breaches were 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.
23 The list is not a rigid catalogue of matters for attention. The Court is required 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.
24 Section 83(4) of the Act prescribes the maximum penalty that is to be applied to any ‘single’ contravention of a civil penalty provision.
25 Multiple contraventions may occur because the contravening conduct of an employer either:
a. resulted in multiple contraventions of a single penalty provision, or resulted in the contravention of multiple civil penalty provisions; or
b. was repeated; or
c. related to multiple employees.
26 Where multiple contraventions occur, I need to consider the legal principles in relation to the contravener’s course of conduct, and the one transaction rule, and consider whether it is appropriate to make an adjustment by way of a reduction for each contravention. Callan v Smith [2021] WAIRC 216; 101 WAIG 1155 at [111].

27 The totality of the penalty must be reassessed considering the totality of the offending behaviour. If the resulting penalty is disproportionately harsh, it may be necessary to reduce the penalty for individual contraventions. The principles relating to consideration of multiple contraventions of civil penalty provisions is discussed in Kelly v Fitzpatrick [2007] FCA 1080; 166 IR 14; Australian Ophthalmic Supplies Pty Ltd v McAlary-Smith [2008] FCAFC 8; 165 FCR 560; Fair Work Ombudsman v NSH North Pty Ltd trading as New Shanghai Charlestown [2017] FCA 1301; (2017) 275 IR 148.

28 The task of fixing the penalty is a process of what is often referred to by the Courts as ‘instinctive synthesis’, having regard to the circumstances of the particular case and the need to maintain public confidence in the statutory regime. Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584, [75] (Gaudron, Gummow & Hayne JJ);  Markarian v The Queen (2005) 228 CLR 357 (Markarian) at 378 [51] (per McHugh J) and [37], per Gleeson CJ, Gummow, Hayne and Callinan JJ); Australian Competition and Consumer Commission v Australia and New Zealand Banking Group Limited [2016] FCA 1516 per Wigney J at [84]; SKL v The State of Western Australia [2024] WASCA 32 [24] (Mazza & Hall JJA).

29 Determining penalties is not a matter of precedent. There is no tariff. Regard must be had to the individual circumstances of the case and should not be determined by any comparison with another case.
30 The maximum penalty serves as a benchmark or a yardstick, Markarian [372]; Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union [2017] FCAFC 113 at [82]; Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (The BKH Contractors Case) (No 2) [2018] FCA 1563 at [19].
and it is also necessary to identify any separate contraventions to arrive ultimately at the appropriate penalty. Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union [2017] FCAFC 113, [108] – [149].

31 I consider the relevant considerations in this claim to be as follows:
The nature and extent of the conduct and the circumstances in which it occurred
32 The respondent operated the business trading as Sinamon in Mount Lawley as a partnership and employed Ms Agostino for approximately seven and a half months, from 15 March 2019 to 3 November 2019. During that time, the respondent contravened on 62 occasions.
33 Sinamon was a dine-in and takeaway café and bakery, selling cinnamon scrolls, coffees and other drinks for consumption on the premises and elsewhere. Ms Agostino was employed as a casual employee, and she took customer orders and payments. She served food and coffee. She undertook barista duties and also general cleaning duties, and at the time of her casual employment with Sinamon, she worked multiple jobs to support herself while living out of home and studying nursing full-time. She was required (as part of her studies) to participate in a significant amount of unpaid hours per week in her nursing placements.
34 The respondents paid Ms Agostino a flat rate of pay of $18 per hour, irrespective of when she worked, including on weekends and public holidays. At all times, the respondents paid Ms Agostino less than the minimum hourly base rate and never paid any loadings as required.
35 They also failed to pay her superannuation as required, failed to provide her with payslips, and failed to maintain a record of her hours worked and wages paid.
36 When she queried her rate of pay, as she had a right to do, the respondents accused her of blackmail and suggested that if she was unhappy with the pay, she ought to find another job. They ultimately terminated her employment.
37 The respondents did not provide appropriate employment records to the Department when served notice to do so and subsequently failed to comply with Court orders pursuant to s 83E(9) of the Act, resulting in their convictions pursuant to the criminal provisions of the Act.
38 The respondents have operated their business and continue to operate their business, albeit currently as a proprietary limited company, in complete contempt for the regulatory regime.
39 Given these factors, the penalty for each of the 62 contraventions lies in the mid to high range.
The nature and extent of any loss or damage sustained
40 The total underpayment of $3,670.80 may not in itself be considered significant. However, Ms Agostino was a young university student, clearly vulnerable to exploitation.
41 She was working several part-time jobs to support herself while studying. The underpayment and the failure to pay superannuation was subjectively significant to her at the time.
42 It is clear from her affidavit that the underpayment of her wages and then her subsequent termination (after she queried her rate of pay) caused her both financial and emotional distress.
43 This consideration indicates a penalty for each contravention in the mid to high range.
Similar previous conduct
44 Neither respondent has previously been found to have engaged in contraventions of this type, though at the time that Ms Agostino was employed, the business was newly established. The respondents were also both working within the business on a day-to-day basis, and there was only one cafe operating.
45 I do not consider that the lack of any other contraventions can be viewed as evidence that future contraventions are unlikely, since the respondents have blatantly failed to comply with the regulatory regime in other ways.
The size of the business
46 At the time that Ms Agostino was employed, the Sinamon business was relatively new and only operated from the Mount Lawley location. Since that time, the business has grown.
47 Currently, the respondents operate from four locations and also online. The company, Sinamon Proprietary Limited, was registered on 30 March 2021, and the respondents are the co-directors.
48 The business announced on social media that its total coffee sales exceeded 1 million dollars in 2024, though the Court has no tangible information or evidence before it to conclude whether this is correct.
49 The full bench in Callan v Smith [2021] WAIRC 216; 101 WAIG 1155 found that the size of the business should not weigh in favour of diminishing a penalty that should otherwise be assessed. Callan v Smith [103].

50 Consequently, even though the size of the business was relatively small at the time of the contraventions, it does not weigh in on this factor. Certainly, it could be concluded that at the time of the contraventions, the respondents were operating a fledgling café business and may not have been cognisant of their obligations as employers, but this, however, does not warrant any reduction in penalty.
Course of Conduct
51 Turning to whether the breaches are distinct or arose from the course of conduct, the 62 breaches can properly be grouped into three groups being:
a. the underpayment contraventions;
b. the superannuation contraventions; and
c. the records contraventions.
52 Applying the principles in relation to course of conduct, the contraventions arose essentially out of the same course of conduct, in that the respondents failed to adequately pay Ms Agostino her wages (and on four occasions her required superannuation payment), failed to keep the required employment records and failed to provide her with a payslip.
53 Consequently, this should result in an adjustment when aggregating the individually assessed penalties.
Deliberateness of the Contraventions
54 This is not a neutral factor. The respondents underpaid Ms Agostino for her entire employment period and operated their business with disregard for the regulatory regime.
55 At best, the respondents turned a blind eye to their obligations as employers, though their subsequent behaviour and interactions with the industrial inspector alludes to the fact that they highly likely deliberately did so.
56 I will give each of them the benefit of the doubt and will infer that at the time of these particular contraventions, the respondents had only recently commenced operating a café business and were perhaps unaware of their employer obligations with respect to the award and the regime. It could not be said to be so now.
57 This, however, should not result in any reduction of the penalty since ignorance of the law affords no excuse.
Involvement of senior management
58 The respondents are co-directors in the Sinamon company, and, at the time of Ms Agostino’s employment, were co-partners working in the cafe business at a sole location. They each played a role in the employment and payment of the employee and could not be said to have been unaware of the contraventions.
Corrective action, contrition, and cooperation
59 The respondents did not admit the contraventions and did not rectify the underpayment of Ms Agostino. They wholly denied the claim and made attempts to denigrate the character of the employee in their response (filed out of time).
60 The documentation filed by the respondents demonstrates their fundamental misunderstanding of the regulatory regime and their continued disregard of their obligations as employers.
61 They should not be afforded any discount for corrective action, contrition, or cooperation since there has been none.
Cooperation with enforcement authorities
62 Both respondents have actively resisted and flagrantly disregarded the authority of this Court and the provisions of the Act in other matters that have been before the Court.
63 In the matter of M 178 of 2021, default judgment was entered against the respondents for several failures to produce records, and, in relation to Mr Imam, for resisting or obstructing industrial officers. $14,858 in civil penalties was ordered to be paid. It is notable that the failure to produce records included a requirement to produce records for the employment period relating to Ms Agostino.
64 Subsequently, in CP 1 of 2023 and CP 2 of 2023, the respondents entered pleas of guilty to charges in this Court’s criminal jurisdiction for failing to comply with the Court’s orders to produce records in the matter of M 178 of 2021.
65 I was the sentencing Magistrate. I concluded that the respondents had deliberately chosen to ignore the Court order, that Mr Imam had behaved abhorrently towards the Department’s representatives throughout their investigative process, then subsequently, towards the prosecuting authority and to a judicial officer of this Court.
66 I found that Mr Imam possessed an unwavering determination to refuse to comply with the Court’s orders. I also found that Ms Hui had failed to take responsibility for her actions.
67 The respondents continue to operate their business, which has now been expanded to further stores. They therefore continue to employ vulnerable workers.
68 Since the sentencing hearing, the social media accounts of the Sinamon business have been utilised to overtly threaten both a judicial officer and an industrial officer, to denigrate the Department and its employees, and to demonstrate contempt for the regulatory regime and the authority of this Court.
69 The respondents have continued these offensive social media posts unabated, most recently reposting on 1 September 2025 a photograph of the industrial inspector that is listed as the claimant, referring to him by name and highlighting a ninja type character that appears to be playing with a knife.
70 The ‘pointed’ online posts, along with the continued lack of compliance with Court imposed orders demonstrates that the respondents are unlikely to cooperate with enforcement authorities into the future and further informs the Court of the need for specific deterrence.
Specific and general deterrence
71 The respondents operated and continue to operate (currently as a proprietary limited company), a business in the hospitality sector, which has been identified as particularly susceptible to wage theft. Often the industry attracts young, low paid and vulnerable workers. Tony Beech, Inquiry into Wage Theft in Western Australia (2019) 89-90; Jillian Dixion, Department of Mines, Industry Regulations and Safety v Karakuyu & Anor [2025] WAIRC 00451; 105 WAIG 2074, [87]-[99] (Kucera IM).

72 The Act requires employers to comply with the relevant award, to keep accurate records and to make those available to employees by way of time sheets or other daily records to ensure that employees are paid their correct entitlements.
73 The failure to provide payslips or records makes it difficult, and sometimes impossible, for an employee to determine whether an employer has complied with their obligations.
74 In addition, the failure to pay superannuation, no matter how small the amount, can (and often does) adversely impact the retirement incomes of employees, particularly those who work in lower paying jobs such as within the hospitality industry.
75 This in turn, of course, affects the wider society, placing increased financial pressure upon the social security system that must fund those who cannot fund their own retirement.
76 The documents filed with the Court establish that the Department first contacted the respondents in November 2019 about Ms Agostino’s wage complaint. From that period onwards, the respondents have been continuously uncooperative with the claimant, resulting ultimately in the filing of the claim in February 2025.
77 At all times, the respondents have demonstrated blatant disregard for the compliance regime, the regulatory processes and their obligations in relation to the legislation and the award. Specific deterrence is a paramount factor.
78 General deterrence is also an important factor. A civil penalty promotes the public interest in compliance with the law. Pattinson [9].
A penalty should include a significant component for general deterrence and general deterrence must be considered in assessing the penalty to deter other employers from similar conduct.
79 These considerations lie in the high range.
Financial position of the respondent
80 The financial position of a person against whom an order is made may be relevant, and of course it is in this case, because the respondents are jointly and severally liable for the penalty, having operated a partnership at the time of the contraventions.
81 I have no information before me to determine the financial positions of the respondents, given that they have not provided me with any materials. However, as pointed out in the Commissioner of Taxation v Arnold (No 2) [2015] FCA 34 at [200]-[204], in most cases, this factor will not carry great weight in the assessment of penalty, most particularly because the parties have the option to negotiate a payment arrangement with the claimant.
Assessment of Penalty
82 Weighing the above matters, and focusing primarily on specific and general deterrence, along with the other relevant considerations, I consider the appropriate penalty for each contravention to be as follows:
a. for each of the 29 underpayment contraventions, the amount of $1,000;
b. for each of the four superannuation contraventions, the amount of $500, and
c. for each of the 29 records contraventions, the amount of $1,000.
83 I am satisfied that the separate contraventions related to underpayment and the failure to keep records can be considered as a single course of conduct. I must determine if an adjustment be made so that if there is an overlap between the contraventions, a double penalty is not imposed.
84 Having reviewed the facts of the claim, it is appropriate to make an adjustment which calls for a reduction of 50% on each of the underpayment and records contraventions, being an amount of $500 for each contravention. I make no adjustment for the four superannuation contraventions.
85 Applying the totality principle and considering the conduct as a whole, I am satisfied that the appropriate aggregate penalty is $31,000.
86 The respondents will be required to pay:
a. a total of $14,500 for the underpayment contraventions;
b. a total of $14,500 for the records contraventions;
c. a total of $2,000 for the superannuation contraventions; and
d. $343.20 for disbursements.
87 It is appropriate that the penalties be paid to the claimant.

B. COLEMAN
INDUSTRIAL MAGISTRATE





ANNEXURE 1