2025 WAIRC 00933
INDUSTRIAL MAGISTRATES COURT OF WESTERN AUSTRALIA


CITATION
:
2025 WAIRC 00933



CORAM
:
INDUSTRIAL MAGISTRATE B. COLEMAN



HEARD
:
FRIDAY, 19 SEPTEMBER 2025



DELIVERED
:
FRIDAY, 21 NOVEMBER 2025



FILE NO.
:
M 8 OF 2025



BETWEEN
:
JILLIAN DIXON, DEPARTMENT OF ENERGY, MINES, INDUSTRY REGULATION AND SAFETY


CLAIMANT





AND





RICHARD SAY LY
FIRST RESPONDENT

SIU MEN LY
SECOND RESPONDENT

INTHARAT CHUEN-AROM
THIRD RESPONDENT

MOING DEING WOUNG
FOURTH RESPONDENT

JENNESSA OENG


FIFTH RESPONDENT




CatchWords : INDUSTRIAL LAW – Assessment of appropriate civil penalties for the enforcement of an entitlement provision – multiple contraventions of an Award – multiple contraventions of a civil penalty provision – declaration sought that the respondents engaged in ‘wage theft’ – whether declaration is appropriate in the particular circumstances – penalties determined
Legislation : Industrial Relations Act 1979 (WA)
Minimum Conditions of Employment Act 1993 (WA)
Instrument : Restaurant, Tearoom and Catering Workers’ Award (WA)
Cases referred
to in reasons: : Australian Building and Construction Commissioner v Pattinson [2022] HCA 13; (2022 ) 274 CLR 450
Commissioner of Taxation v Arnold (No 2) [2015] FCA 34; (2015) 324 ALR 59
Callan v Smith [2021] WAIRC 00216; (2021) 101 WAIG 1155
Kelly v Fitzpatrick [2007] FCA 1080; (2007) 166 IR 14
Mason v Harrington Corporation Pty Ltd [2007] FMCA 7
Fair Work Ombudsman v DTF World Square Pty Ltd (in liq) (No 4) [2024] FCA 341
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; (2017) 254 FCR 68
Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (The BKH Contractors Case) (No 2) [2018] FCA 1563
Australian Ophthalmic Supplies Pty Ltd v McAlary-Smith [2008] FCAFC 8; (2008) 165 FCR 560
Fair Work Ombudsman v NSH North Pty Ltd trading t/as New Shanghai Charlestown [2017] FCA 1301; (2017) 275 IR 148
Australian Competition and Consumer Commission v Employsure Pty Ltd [2023] FCAFC 5; (2023) 407 ALR 302
Construction Forestry Mining and Energy Union v Cahill [2010] FCAFC 39; (2010) 194 IR 461
Jillian Dixion, Department of Mines, Industry Regulations and Safety v Karakuyu [2025] WAIRC 00451; (2025) 105 WAIG 2074
Result : Penalty issued; no formal declarations made
Representation:
Claimant : Ms H. Kerr (of counsel) and with her, Ms S. Parekeh (of counsel) as instructed by the State Solicitor’s Office
Respondents : Mr A. Mason (of counsel)



REASONS FOR DECISION
Background
1 The claimant, Ms Jillian Dixon (Ms Dixon), an industrial inspector with the Department of Energy, Mines, Industry Regulation and Safety (the Department), commenced proceedings against the five respondents on 21 January 2025, seeking enforcement of entitlement provisions pursuant to the Restaurant, Tearoom and Catering Workers’ Award (the Award).
2 The respondents wholly admitted the claim and the Industrial Magistrates Court of Western Australia (Court) made orders on 30 April 2025 that the respondents pay $100,603.13 in outstanding Award entitlements. On 16 May 2025 the Court further ordered the payment of pre-judgment interest in the amount of $19,952.07.
3 By her claim, the industrial inspector has also sought payment of civil penalties relating to the contraventions admitted by the respondents.
4 The power of the Court to order such penalties is set out in s 83(4) of the Industrial Relations Act 1979 (WA) (Act).
The Contraventions
5 By an unincorporated partnership, the five respondents owned and operated the food business trading as ‘Ocean Keys Hi Thai’ in Clarkson (the business), located in the Ocean Keys Shopping Centre food court.
6 The business commenced trading in May 2016 and ceased trading on 31 January 2022.
7 The day-to-day running of the business was carried on by the manager, Mr Chy Veng Chao (Mr Chao). The fourth respondent, Ms Moing Deing Woung (Ms Woung), assisted in managing the business. The first respondent, Mr Richard Ly (Mr Ly), undertook the bookkeeping and business administration needs for the business. The second, third and fifth respondents were not involved in running the business.
8 Ms Kwanchanok Holland (Ms Holland) was employed from 29 November 2018 to 30 December 2021 and Ms Trang Nguyen (Ms Nguyen) from 10 April 2019 until about 11 January 2022 (together, the employees). Both were casual employees, as defined in clause 11(1) of the Award. Each performed the duties of a Food and Beverage Attendant Grade 2, as defined in clause 6(4) of the Award.
9 The respondents paid the employees weekly in accordance with clause 20 of the Award. The employees were initially paid in cash, but from May 2020 they began receiving electronic funds transfers (EFT) under the Australian government JobKeeper Payment scheme, and thereafter generally received a combination of cash and EFT payments.
10 Ms Holland worked on any day of the week and though her hours of work varied, she usually worked 35 to 40 hours a week. Her length of shifts varied from 4 hours up to 10.5 hours. Ms Nguyen worked on any day of the week and while her hours also varied, she usually worked at least four days a week, averaging 29 hours per week, with each shift often being six to seven hours.
11 The employees were not usually provided with a meal break during their employment. If they took a break, it was usually about 15 minutes and they were required to remain at the business and serve customers as required.
12 The respondents paid the employees a flat rate of pay for all hours worked, including on weekends and public holidays.
13 The respondents paid Ms Holland the following hourly rates of gross pay during the period of her employment:
a. $13 on and from 22 January 2019;
b. $14 on and from 4 February 2019;
c. $15 on and from 10 March 2019;
d. $16 on and from 29 December 2019;
e. $18 on and from 4 January 2021.
14 The respondents paid Ms Nguyen the following hourly rates of gross pay during her employment:
a. $13 on and from 10 April 2019;
b. $15 on and from 13 October 2019;
c. $16 on and from 29 December 2019;
d. $18 on and from 2 May 2021.
15 When Ms Nguyen commenced employment, the respondents deducted $200 from her first pay, contrary to section 17C(1) of the Minimum Conditions of Employment Act 1993 (WA).
16 The respondents contravened the following clauses of the Award in relation to the employees’ employment:
a. The respondents contravened clauses 11(3) and (4) of the Award by not paying the employees the correct hourly rate of pay (and any applicable loading) for a casual employee.
b. The respondents contravened clause 13(1)(b) of the Award by not paying the Employees an additional 50% of their ordinary hourly rate where they were not provided with a meal break.
17 The respondents contravened clauses 11(3) and (4) of the Award with respect to Ms Holland on 138 occasions, resulting in an underpayment of $47,991.09. The respondents contravened clause 13(1)(b) of the Award on 137 occasions, resulting in an underpayment of $13,701.58.
18 In December 2021, the respondents back paid Ms Holland $500.64 following a proactive audit conducted on the business by industrial inspectors.
19 In total, the respondents contravened the Award on 275 occasions, resulting in an underpayment of $61,692.67 gross to Ms Holland. After backpay, as of 19 June 2025, the respondents owed Ms Holland $61,192.03 gross.
20 The respondents contravened clauses 11(3) and (4) of the Award with respect to Ms Nguyen on 110 occasions, resulting in an underpayment of $35,014.13. The respondents contravened clause 13(1)(b) of the Award on 100 occasions, resulting in an underpayment of $4,618.12.
21 In December 2021, the respondents back paid Ms Nguyen $221.16 following a proactive audit conducted on the Business by industrial inspectors.
22 In total, the respondents contravened the Award on 210 occasions, resulting in an underpayment of $39,632.26 gross to Ms Nguyen. After backpay, as of 19 June 2025, the respondents owed Ms Nguyen $39,411.10 gross.
23 The respondents were required to maintain records in relation to the employees’ employment in accordance with section 49D(2) of the Act The section has since been amended by the Industrial Relations Legislation Amendment Act 2021 (WA) on 20 June 2022.
and clause 32 of the Award.
24 The respondents failed to maintain the required records during the employees’ employment on 832 occasions for Ms Holland and 646 occasions for Ms Nguyen, including failing to record:
a. the date on which the employees commenced employment;
b. the employees’ designation under the Award;
c. the time at which the employees started and finished work each day;
d. the periods for which the employees were paid;
e. details of work breaks including meal breaks;
f. the gross and net amounts paid to the employees for each pay period; and
g. all deductions and the reasons for such deductions.
The Penalty Hearing
25 The respondents accept that a penalty is appropriate in the circumstances and they do not resile from the fact that the penalty is likely to be substantial.
26 The claimant urges the Court to make specific declarations with respect to the respondents and their conduct.
27 The parties attended a hearing on 19 September 2025 to determine the penalty for the admitted contraventions.
28 Each of the parties filed written submissions, supplemented by oral submissions at the hearing.
29 The claimant relied upon the translated affidavit of the employee Ms Holland and the amended affidavit of the industrial inspector Ms Dixon.
30 The respondents relied upon the signed witness statement of the first respondent, Mr Ly.
31 Viva voce evidence was also led from Ms Holland and Mr Ly at the hearing.
Principles relevant to determine the appropriate penalty
32 The procedure of the Court relevant to penalties is contained in the Industrial Magistrate’s Court (General Jurisdiction) Regulations 2005 (WA). 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.
33 The Act allows the Court to order a penalty paid either directly to a person directly affected by the conduct to which the contravention relates, to the claimant, or the treasurer. Section 83F(2) Industrial Relations Act 1979 (WA) (Industrial Relations Act).

34 The principles relevant to determination of a civil penalty are well-settled.
35 The High Court in Australian Building and Construction Commissioner v Pattinson [2022] HCA 13; (2022 ) 274 CLR 450 (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. Pattinson, [15].

36 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.
37 Regard must be had to the individual circumstances of the case and should not be determined by any comparison with another case.
38 The appellate courts have adopted a non-exhaustive range of considerations to which regard may be had in determining whether conduct calls for the imposition of a penalty and, if it does, the amount of that penalty. Callan v Smith [2021] WAIRC 216; (2021) 101 WAIG 1155 (Callan v Smith) at [90] citing the Federal decisions of Kelly v Fitzpatrick [2007] FCA 1080 and Mason v Harrington Corporation Pty Ltd [2007] FMCA 7.

Consideration of Penalty
Is a declaration of ‘wage theft’ appropriate?
39 The claimant urges the Court to make a finding that the respondents engaged in systematic and deliberate underpayment of vulnerable workers, describing the actions of the respondents as ‘wage theft’. The respondents argue that to make such a finding would be erroneous and unnecessary.
40 The claimant did not plead deliberate contraventions as part of its case: there was certainly the option to do so, since the penalty provisions in the Act allow for a higher penalty when the claimant establishes that the contravention is a serious contravention. See sections 83E(1)(a)(i), 83E(1)(b)(i) and 83EA Industrial Relations Act.

41 A contravention can be found to be serious where the claimant establishes that the person either knowingly committed the contravention, or the person was reckless as to whether the contravention would occur. Section 83EA(2) Industrial Relations Act.

42 In such circumstances, the Court has the capacity to award a penalty that is ten times higher than the usual penalty. Sections 83E(1)(a)(i) and 83E(1)(b)(i) Industrial Relations Act.

43 Where the evidence establishes that there has been deliberate and systematic non-compliance with the workplace obligations, it is entirely relevant to the assessment of penalty.
44 In Western Australia, there is no universal acceptance of the term ‘wage theft’. In his report Inquiry into Wage Theft in Western Australia, Report (2019), the former Chief Commissioner of the Western Australian Industrial Relations Commission Mr Tony Beech observed:
From the submissions made to the Inquiry, and from research done in the course of the Inquiry, I can confidently say that even though there is not a universal acceptance of the term ‘wage theft’ to describe underpayment of wages and entitlements, there is an almost unanimous view across all of the submissions received that the systematic and deliberate underpayment of wages and entitlements to a worker is to be condemned. Inquiry into Wage Theft in Western Australia, Report (2019) (Wage Theft Inquiry Report), pp 22  23.

45 Mr Beech drew a distinction between deliberate non-compliance and mistakes or oversights:
I recognise that the consequence for a worker is the same whether the underpayment was intentional or unintentional. However, it is important to draw a clear distinction between an employer’s deliberate and systematic non-compliance with the workplace obligations towards its workers on the one hand, and genuine mistakes and oversights which are likely to be corrected upon their discovery on the other, because the responses to, or sanctions arising from, the underpayment will differ according to the circumstances. Wage Theft Inquiry Report p 22.

46 The Industrial Magistrates Court is not a Court of pleadings, however, in practice, the parties have a duty to comply with procedural fairness. Should the claimant invite the Court to make specific findings of fact that demonstrate deliberateness and/or recklessness on the part of the employer, in fairness to the respondents, it is appropriate that those propositions form part of the originating claim.
47 In circumstances where the respondents have accepted responsibility at the outset by wholly conceding the claim, In this case, the respondents did not wholly accept the claim by way of the Response filed 24 April 2025, however, the part of the claim that was in dispute was later excised by way of the Amended Particulars of Claim filed with the Court on 20 May 2025.
it is unfair to then later seek that the Court make specific findings regarding deliberateness and wage theft when such propositions did not form part of the originating claim.
48 I do accept, however, that I can consider the entirety of the evidence that has been presented when forming a view about the overall running of the business, the vulnerability of the employees, the length of time of the contraventions and the resulting impact upon the employees when determining the appropriate penalty.
The nature and extent of the conduct and the circumstances in which it occurred
49 The respondents operated the business from about 30 May 2016 until 31 January 2022. During that time, the respondents contravened the Award on 485 occasions and contravened the records requirements of the Act pursuant to s 49D(2) on 1478 occasions.
50 The respondents paid a flat rate of pay per hour to each employee, irrespective of when they worked, including on weekends and public holidays. In doing so, they failed to pay each employee the appropriate amount of pay on weekdays and the appropriate amount of pay, including loadings, on weekends.
51 They also failed to provide the employees with payslips and failed to maintain a record of hours worked and wages paid.
52 The evidence establishes that Mr Chao and Ms Woung are husband and wife and both were involved in the daytoday running of the business. Ms Woung informed the industrial inspector that she was involved in assigning the hours of work to the employees, that she ordered stock and worked in the store on the weekends. She claimed that the business kept weekly timetables that recorded the actual hours worked by the employees and she asserted that the employees signed the timesheets at the end of each week. Exhibit 2 – Witness Statement of Jillian Denise Dixon, JDD14, pp 23  24.
She said that she disposed of the timetables at the end of the business lease. Exhibit 2, JDD14, p 24.
I do not accept this proposition. Based upon the evidence before the Court, including the sworn evidence of the employee, Ms Holland, I am satisfied that the business never in fact kept any employee timesheets, rosters or employment-related records at all. Instead, Mr Chao conveyed the roster to the employees via text message, collected the information from the employees about the hours they had actually worked via text message, conveyed that information to Ms Woung and then Ms Woung conveyed the total amount of hours worked to Mr Ly on a weekly basis. Exhibit 1 – Witness Statement of Kwanchanok Holland, [5]. See also ts 20.

53 I am also satisfied on the evidence that Ms Woung was involved in the daytoday running of the business with her husband Mr Chao rather than only ordering stock from time to time. By her own admission when interviewed by the industrial inspectors, she employed each of the two employees. Exhibit 2, JDD14, pp 13  14.
I am satisfied on the evidence that she knew the hours that they worked, including their weekend shifts, since she was responsible for conveying that information to Mr Ly. ts 20.
When she informed industrial inspectors that the employees did not work on weekends she was being untruthful. Exhibit 2, JDD14, pp 34  35.
The assertion that she ‘threw out’ the employment records at the end of the lease was also false. Exhibit 2, JDD14, p 24.

54 However, I am not satisfied that Ms Woung was aware that the two employees were being underpaid. Rather, she was ignorant of the fact that she (as a partner in a business) was required to comply with the relevant Award and the records requirements. I am satisfied that she had some involvement with the employees’ rate of pay, in that Mr Chao would ask her to speak with Mr Ly about any increases, Exhibit 1, [23].
however, I am not satisfied that Ms Woung was aware that the business was not paying the correct rate to the employees.
55 The evidence reveals that Mr Chao, as the manager of the business, was entirely aware of the amount of hours worked by each employee, since he was the primary contact for disseminating the roster and collecting the hours worked from the employees at the end of each week. Exhibit 1, [3]  [5].
He was also the primary person that Ms Holland spoke to about her rate of pay. I am satisfied on Ms Holland’s evidence that Mr Chao knew that the employees were not being paid according to the Award by reference to his words, ‘[w]e pay Asia way, not white way.’ Exhibit 1, [24].
I am also satisfied that Mr Chao, as the manager of the business, deliberately exploited Ms Holland as a temporary visa holder, by threatening to report her and have her kicked out of the country when she questioned him about her rate of pay. Exhibit 1, [29].

56 The evidence also establishes that as the manager of the business, Mr Chao never generated or kept any of the required records during the employees’ employment. When the investigation into the business commenced, I am satisfied on the evidence that Mr Chao pressured Ms Holland to sign an undated timesheet and then caused a false timesheet to be presented. Exhibit 1, [13], [14] and [18]  [19]; Exhibit 2, JDD15 and JDD16.
I will not speculate on his motivation for doing so, suffice to say, it was in his own interests to conceal the manner in which he had been operating the business.
57 I am also satisfied, by her own admissions to the industrial inspectors, that Ms Woung was involved in the creation of the false timesheet, however, I cannot be satisfied that she understood why it had been created or why she was required to fill in parts of the document. Exhibit 2, JDD14, pp 39  47 and 53  56.

58 I am satisfied on the evidence of Mr Ly that when the Department commenced its investigation into the business, he enquired with Mr Chao and Ms Woung regarding the provision to the Department of the relevant business records: this resulted in him being emailed the false timesheets by Mr Chao. Exhibit 2, JDD15: see specifically the email chain from Richard Ly to Sarah Rutherford dated 3 December 2021 at 11.35 am.
Having had the benefit of assessing Mr Ly’s credibility at the penalty hearing when he was called to give evidence, I am also satisfied that at the time he forwarded those timesheets to the Department, he was not aware that they were false. Exhibit 1, KH1 and KH2.

59 A careful examination of the documentary evidence reveals that the payslips provided to Ms Holland in October and November 2021 did not match the hours that she had recorded as having worked at the business. It is important to note that around this time, the Department had served a formal Notice to Produce employment records upon Ms Woung and had formally requested documentation related to the employees. Exhibit 2, [4].
It appears that the payslips provided to Ms Holland in October and November were an attempt to comply with the requirement to provide records.
60 Mr Ly’s evidence was that he informed Ms Woung that she needed to keep the business records and he later discovered that she had destroyed them at the end of the lease. Exhibit 3, [11] and [12].
He instructed his accountant to generate payslips initially upon the request of the Department and then later began generating them himself via the MYOB program. ts 20.

61 I am satisfied that the payslips given to Ms Holland just prior to the end of her employment were an inaccurate record of her hours worked. I am also satisfied that the payslips provided to the Department were completely inaccurate. I am not persuaded on the evidence that the payslips were deliberately generated by Mr Ly as part of a course of conduct. Rather, having assessed his evidence on affirmation, I conclude that the payslips provided to the Department were an attempt by the business (with the assistance of Mr Ly’s accountant) to reconstruct the employment records to comply with the formal request.
62 Mr Ly made no real inquiry as to whether the payslips or other documents sent to the Department were accurate – he should have done so. To send inaccurate business records to the investigator rather than to admit that no documents existed was a serious error of judgment, however, having assessed the whole of the evidence, it falls short in this case of establishing a course of conduct.
63 Having conducted a careful and considered assessment of the documentary evidence, along with an assessment of each of the witnesses at the penalty hearing, I am not satisfied that there was a systematic and deliberate scheme by the partners in the business to falsify records.
64 Further, the evidence does not satisfy me to the requisite standard that the partners of the business were consciously aware that Mr Chao was exploiting the employees and contravening the Award.
65 Although Ms Woung (as the fourth respondent) was involved in the day-to-day operation of the business, I am not satisfied that she was aware of her obligations under the regulatory regime and it appears that she allowed her husband to run the business in whatever manner he saw fit.
66 I am also not satisfied on the evidence that Mr Ly was aware the employees were being paid the incorrect rate of pay and that they were not being adequately compensated for the hours that they worked on the weekends. Information was conveyed to him weekly from the manager and he relied upon that information to generate the wages and later, the associated payslips. It was impossible for him to pay the applicable rates (including loadings) without being provided the particulars of the days and hours of the week that the employees worked and whether meal breaks were taken.
67 It is clear, however, that Ms Woung and Mr Ly never made any effort to verify whether the information that they were being provided was accurate. The system utilised by the respondents was utterly lacking and put simply, unacceptable. By relying upon inaccurate information, the employees were underpaid for several years and the partnership financially benefited from those underpayments.
68 As a partner in the business and being the person responsible for generating the wages, it was incumbent upon Mr Ly to ensure that the regulatory regime was complied with at all times and to ensure that the employees were adequately compensated.
69 It was also incumbent upon the partners to ensure that the manager they engaged was managing the business effectively and complying with the law. Ms Woung should have taken a more active role in protecting the employees due to her involvement in the day-to-day operations of the business. A partnership cannot escape penalty (or expect a reduction in the penalty) because they are ignorant of the way their business is being managed.
70 The manner in which the business was conducted, predominantly the lack of supervision of the manager of the business, along with the lack of recordkeeping and the disjointed system by which the employees were paid their wages was entirely deficient, resulting in immense inconsistencies and colossal underpayments that spanned several years.
71 The extent of the underpayments was difficult to ascertain, since the Department was required to rely upon the information that the employees kept when investigating the underpayments and the records contraventions.
72 Given these factors, the penalty for each breach of the Award and the records contraventions lies in the mid to high range.
The nature and extent of any loss or damage sustained
73 The underpayments of $61,192.03 and $39,411.10 are significant. The underpayments spanned several years and were numerous, including underpayments for hourly base rates, failure to pay loading and failure to compensate for lack of meal breaks.
74 Given the lack of employment records, the Department was unable to determine the full extent of the contraventions for Ms Nguyen.
75 The failure to maintain the necessary records required the employees to undertake their own recordkeeping and placed the onus upon each of them to ensure that they were paid. They did not have the requisite knowledge or experience to understand that they were being exploited by Mr Chao.
76 If the partners in the business had taken a more proactive role in overseeing their manager and took the time to invest in knowledge to ensure compliance with the regulatory system, then the underpayments could have been prevented.
77 The impact upon Ms Holland was acute. It is clear from her evidence that the underpayment of her wages and the manner in which Mr Chao managed the business caused her both financial and emotional distress.
78 There is no available evidence regarding the impact upon Ms Nguyen, though I consider that the total amount of her underpayment must have had a significant impact upon her and may have caused her financial distress.
79 This consideration indicates a penalty in the mid to high range.
Similar previous conduct
80 The respondents have not previously been found to have engaged in any breaches of the Award or any civil contraventions of this type, though the lack of previous contraventions has no role to play in the assessment of civil penalties, unless it supports the view that future contraventions are unlikely. Fair Work Ombudsman v DTF World Square Pty Ltd (in liq) (No 4) [2024] FCA 341 per Katzmann J at [54].

The size of the business
81 There is no substantive information of the size of the business during the relevant period. The business no longer operates, having concluded operations when the commercial lease ended. Exhibit 2, JDD14, page 37.

82 When in operation, the business employed both Ms Holland and Ms Nguyen to work at the store. Mr Chao worked at the premises as manager and Ms Woung also worked there.
83 The business activity statements submitted to the Australian Taxation Office reveal that the business generated sales in the following amounts: JDD6: see specifically the Activity Statements for the relevant periods.

a. July to September 2019: $133,460;
b. October to December 2019: $144,427;
c. January to March 2020: $92,576;
d. April to June 2020: $106,980;
e. July to September 2020: $150,231;
f. October to December 2020: $152,707;
g. January to March 2021: $138,372;
h. April to June 2021: $136,150;
i. July to September 2021: $149,794;
j. October to December 2021: $170,085; and
k. January to March 2022: $31,334.
84 The activity statements reveal that the total sales generated by the business spanning almost three years was $1,406,116. This is not an insignificant amount for a retail food business in a shopping centre, though in fairness to the respondents, the activity statements may not necessarily reflect the actual profit generated by the business.
85 The business cannot be characterised as a large-scale operation, though it appears that while the business was running, it was successful and would have generated profits to the respondents.
86 The multitude of breaches of the Award and the amount of records contraventions resulted in significant loss to the employees and the failure to pay wages in accordance with the Award would have resulted in a higher profit share to the partnership.
Totality and Course of Conduct
87 Section 83(4) of the Act prescribes the maximum penalty that is to be applied to any ‘single’ contravention of a civil penalty provision. Where multiple contraventions occur, there is a need to consider whether it is appropriate to reduce the penalty for individual contraventions and make an adjustment by way of a reduction for each contravention. Callan v Smith at [111].

88 The maximum penalty serves as a benchmark or a yardstick, Markarian v The Queen [2005] HCA 25, (2005) 228 CLR 357 at [31]; Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union [2017] FCAFC 113; (2017) 254 FCR 68 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; (2017) 254 FCR 68 at [108]  [149].
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. The principles relating to consideration of multiple contraventions of civil penalty provisions is discussed in Kelly v Fitzpatrick [2007] FCA 1080; (2007) 166 IR 14; Australian Ophthalmic Supplies Pty Ltd v McAlary-Smith [2008] FCAFC 8; (2008) 165 FCR 560; Fair Work Ombudsman v NSH North Pty Ltd t/as New Shanghai Charlestown [2017] FCA 1301; (2017) 275 IR 148.

89 When assessing whether the breaches arose as part of one course of conduct, the object is to avoid ‘double punishment’. Australian Competition and Consumer Commission v Employsure Pty Ltd [2023] FCAFC 5; (2023) 407 ALR 302 (ACCC v Employsure Pty Ltd) at [51]; Construction Forestry Mining and Energy Union v Cahill [2010] FCAFC 39; (2010) 194 IR 461 (CFMEU v Cahill) at [41].

90 The 1,963 breaches can properly be grouped into two groups being:
a. the 485 underpayment contraventions; and
b. the 1,478 records contraventions.
91 The contraventions arose essentially out of the same course of conduct, in that the respondents failed to pay the two employees their correct wages as required by the Award and failed to keep the required employment records.
92 Consequently, this should result in an adjustment when aggregating the individually assessed penalties.
Deliberateness of the Contraventions
93 It is clear that Mr Chao as the manager of the business was knowingly complicit in the underpayment of the two employees and also knowingly failed to maintain accurate records to ensure compliance with the regulatory regime. Later, during the Department’s investigation, Mr Chao forwarded false documentation to Mr Ly which the partnership relied upon.
94 There is a lack of sufficient evidence to support the proposition that the respondents, as a partnership, were aware of the actions of Mr Chao and knowingly engaged in deliberate and systematic non-compliance with their workplace obligations towards their employees.
95 The failure to ensure the adequate supervision of Mr Chao as the manager of the business, along with the lack of knowledge of the regulatory regime and rates pursuant to the relevant Award, resulted in multiple contraventions but that failure does not fall within the parameters of this consideration.
Cooperation with enforcement authorities
96 Upon commencement of the investigation, the partnership cooperated with the Department’s industrial inspectors. To the extent that there were any records relevant to the operation of the business and the employment of the workers, those records were provided. Ms Woung consented to participate in an electronic record of interview during the course of the investigation.
97 Upon commencement of the proceedings, the respondents admitted the claim and made a series of concessions by way of the filed Statement of Agreed Facts.
98 The respondents are entitled to a reduction in penalty for cooperation.
Specific and general deterrence
99 The respondents operated the business for several years in the hospitality sector, which has been identified as particularly susceptible to exploitation of employees. Often the industry attracts young, low paid and vulnerable workers. Wage Theft Inquiry Report, pp 89  90; Jillian Dixion, Department of Mines, Industry Regulations and Safety v Karakuyu [2025] WAIRC 00451; (2025) 105 WAIG 2074, [87]  [99] (Kucera IM).

100 Both Ms Nguyen and Ms Holland fell within the category of ‘vulnerable worker’. Ms Nguyen was only 19 years of age when she commenced working at the business and the claimant submitted that she had limited experience in the hospitality industry. See [33] of the claimant’s submissions filed 13 August 2025: there is no independent evidence before the Court related to Ms Nguyen but the respondents did not seek to challenge the claimant’s description of Ms Nguyen as a vulnerable worker.
Ms Holland was new to Australia, was initially working on a temporary visa and had only worked for about a week at another Thai restaurant prior to commencing her employment with the business. Exhibit 1, [28]  [32].
English is her second language: it is clear from her evidence that she did not understand her entitlements and was extremely susceptible to exploitation.
101 The first and second respondents, Mr Ly and his wife Siu Men Ly, are currently involved in the day-to-day operation of six businesses within the hospitality sector. There are thirteen other businesses operating in the sector but they are not involved in the daytoday running of those businesses. Exhibit 3, [13]  [16].

102 A further five businesses which they had been involved in had ceased trading by the date of the penalty hearing. Exhibit 3, [13].

103 The fourth respondent Ms Woung is named as an entity for three businesses that are currently trading in the sector. Agreed Statement of Facts filed 8 August 2025, Annexure B.

104 The fifth respondent Jennessa Oeng is named as an entity for one business that is currently trading in the sector. Agreed Statement of Facts, Annexure B.

105 The Act requires employers to comply with the relevant award, to keep accurate records and to make those available to employees by way of timesheets or other daily records to ensure that employees are paid their correct entitlements.
106 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.
107 Specific and general deterrence are paramount considerations, since although the respondents did not deliberately engage in the underpayment of each of their employees, they failed to adequately supervise a manager who did. In addition, the complete lack of any employment records ensured that such underpayments continued for around three years: a considerable length of time that ultimately impacted each of the employees substantially. The five respondents benefited financially by way of profit share in circumstances where there is evidence to suggest the business was very profitable.
108 The penalty must operate as a specific deterrent to the respondents, and also to other employers operating within the hospitality industry, to send the message that tacit involvement in a business does not abrogate an employer of their responsibility to ensure the adequate renumeration of the employees of their business.
109 These considerations lie in the high range.
Corrective action, contrition, and cooperation
110 The respondents admitted the contraventions and consented to the Court making orders to rectify the underpayments.
111 The respondents entered into a payment plan with the Department to repay $10,000 monthly until July 2026 and have not defaulted on any of the payments. As at the date of the penalty hearing, the respondents had repaid a total of $20,000.
112 The respondents are entitled to a reduction in penalty for their contrition.
113 Since the Department’s investigation, Mr Ly has migrated all of his current businesses that he manages to MYOB, and ‘[p]ayroll and payslips’ are issued to employees on a weekly pay cycle. Exhibit 3, [18].

114 He has undertaken to educate the managers of his other businesses regarding compliance with the regulatory regime and has taken a more ‘hands on’ approach to the management of his businesses by attending each business at least once a month to engage directly with employees and managers. Exhibit 3, [19]  [20].

115 Having carefully considered the conduct of Mr Ly subsequent to the Department’s investigation, along with the steps he has taken to ensure compliance with the regulatory regime, given the amount of businesses he and his wife are involved in, there is still a danger that further contraventions may arise, since no information has been provided about the specific systems that have been put in place to ensure adequate supervision of the various managers of each of the six businesses they are directly involved in.
116 Further, Mr Ly and his wife have no direct involvement with the 13 other businesses operating within the sector. In the absence of any evidence related to those businesses, there is no guarantee that those businesses have systems in place to adequately manage the requirements under the regulatory regime.
117 Similarly, the respondents Ms Woung and Ms Oeng have not provided any information to the Court with respect to regulatory compliance for the businesses that they continue to be involved with.
118 In such circumstances, although a reduction of the penalty for corrective action undertaken by Mr Ly is appropriate, it should not be a substantial reduction.
Financial position of the respondents
119 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 five respondents are jointly and severally liable for the penalty, having operated a partnership at the time of the contraventions.
120 The respondents assert that they do not have the means to readily pay a significant penalty. Respondent’s submissions filed 15 September 2025 at [50].
There is no information before the Court to determine the various financial positions of the respondents, though they accept, and do not resile from, the requirement to pay a substantial penalty. Counsel for the respondents conceded in oral submissions at the penalty hearing that a significant penalty is appropriate: see ts 5.

121 As noted in the Commissioner of Taxation v Arnold (No 2) [2015] FCA 34; (2015) 324 ALR 59 at [200]  [204], in most cases, this factor will not carry great weight in the assessment of penalty.
Assessment of Penalty
The Award contraventions
122 The respondents have admitted 1963 contraventions which can be categorised into two groups:
a. 485 underpayment contraventions; and
b. 1478 records contraventions.
123 At the time of the contraventions, the maximum penalties were:
a. $2000 for each breach of the Award; Section 83(4)(a)(ii) Industrial Relations Act.
and
b. $5000 for each breach of a civil penalty. Section 83E(1)(a) Industrial Relations Act.

124 Therefore, the total maximum penalty for breaching the Award is $970,000. The total maximum penalty for the records contraventions is $7,390,000.
125 The underpayment contraventions involved the breach of three provisions of the Award for each employee:
Award Clause
Nature of Entitlement
Number of Contraventions
Employee
11(3) & 11(4)
Ordinary rate of pay and casual loading
138
Holland
11(3) & 11(4)
Ordinary rate of pay and casual loading
110
Nguyen
13(1)
Payment in lieu of meal break
137
Holland
13(1)
Payment in lieu of meal break
100
Nguyen
126 Applying the reasoning in Callan v Smith [2021] WAIRC 00216; (2021) 101 WAIG 1155, Callan v Smith, [94]  [97].
it is appropriate to apply the ‘course of conduct’ principles to adjust the individually assessed penalties of clauses 11(3) and 11(4) for each employee, since the failure to pay the ordinary rate of pay, and then the failure to pay the necessary loadings, were the consequence of an overriding approach taken by the respondents to pay flat rates of pay to each employee throughout the course of their employment.
127 I do not consider that it is appropriate to make any further adjustment to the Award breaches in the circumstances. Although the 237 breaches of clause 13(1) could be categorised as breaches of the substantive ‘wages’ provision at clause 21A, it is imperative that employers ensure that meal breaks are taken. The fact that the Award allows for the provision of 50% of the ordinary hourly rate of pay until such time that the employee is released for a meal demonstrates the importance of such breaks in the hospitality sector. To make a further reduction for the clause 13(1) contraventions would go against the primary objective of promoting the public interest in compliance.
128 The Award contraventions were serious, in that they were committed over an extended period of time, involved two vulnerable employees and arose due to the lack of adequate supervision of the manager.
129 Having carefully considered all relevant factors and focusing on both specific and general deterrence, I consider the appropriate penalty for each contravention to be as follows:
a. for each of the 248 underpayment contraventions relating to Ms Holland, the amount of $500;
b. for each of the 237 underpayment contraventions relating to Ms Nguyen, the amount of $500.
130 This equates to an aggregate penalty of $242,500.
The Records Contraventions
131 The records conventions involved the breach of three provisions of the Act for each employee:
Section
Obligation
Number of Contraventions
Employee
49D(2)(c)
Record date of commencement
1
Holland
49D(2)(c)
Record date of commencement
1
Nguyen
49D(2)(d)
Record start and finish times, record pay period, record work breaks
707
Holland
49D(2)(d)
Record start and finish times, record pay period, record work breaks
527
Nguyen
49D(2)(e)
Record employee’s designation, gross and net payments and tax withheld, record any deductions and the reason
124
Holland
49D(2)(e)
Record employee’s designation, gross and net payments and tax withheld, record any deductions and the reason
118
Nguyen
132 The breaches of the three separate provisions of s 49D(2) can be categorised as one course of conduct for each employee, since they all arose as a consequence of the complete failure by the business to maintain any employment records.
133 It is appropriate to adjust the individually assessed penalties for the records contraventions for each employee to group the records contraventions into contraventions for each pay period as follows: Annexure A of the Agreed Statement of Facts filed 8 August 2025 states that there were 124 pay periods for the employee Holland and 118 pay periods for the employee Nguyen.

a. 124 contraventions for the employee Ms Holland;
b. 118 contraventions for the employee Ms Nguyen.
134 The records contraventions were very serious, in that the failure to keep accurate employment records facilitated the underpayments and hindered the Department in its ability to ascertain the full extent of the loss to the employee Ms Nguyen.
135 Having carefully considered all relevant factors and focusing on both specific and general deterrence, I consider the appropriate penalty for each records contravention to be as follows:
a. for each of the 124 records contraventions relating to Ms Holland, the amount of $2,000, and
b. for each of the 118 records contraventions relating to Ms Nguyen, the amount of $2,000.
136 This equates to an aggregate penalty of $484,000.
137 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. The question is whether an adjustment must be made so that if there is an overlap between the contraventions, a double penalty is not imposed. ACCC v Employsure Pty Ltd, [51]; CFMEU v Cahill, [41].

138 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 contraventions to $250 and each of the records contraventions to $500, adjusting the aggregate penalty for the underpayment contraventions to $121,250 and the aggregate penalty for the records contraventions to $242,000.
139 It is appropriate to apply a further discount to each aggregate penalty in the amount of 20% because the respondents admitted the contraventions at the commencement of the proceedings and negated the need for a trial.
140 Finally, the totality principle must be considered to ensure that the multiple penalties are just, appropriate and proportionate to the whole of the conduct. To impose a wholly separate penalty for each employee would fall outside the scope of this principle. Callan v Smith, [112].
There will be a further reduction of the total aggregate penalties in the amount of 20%.
141 The respondents will be required to pay:
a. a total penalty of $72,750 for the underpayment contraventions;
b. a total penalty of $145,200 for the records contraventions; and
c. $640.75 for disbursements.
142 It is appropriate that the penalties be paid to the claimant.



B. COLEMAN
INDUSTRIAL MAGISTRATE