Federal Court Declares Employer Accessory to Workplace Law Violations

OUTCOME: Allowed

FEDERAL COURT OF AUSTRALIA

[NAME] v [NAME] [APPELLANT] [2015] FCA 313 Citation: [NAME] v [NAME] [APPELLANT] [2015] FCA 313

Parties: [NAME] v [NAME] [NAME] [APPELLANT] and [APPELLANT] [NAME] v [NAME] [NAME] [APPELLANT] and [APPELLANT] numbers: SAD 27 of 2012 SAD 109 of 2012

Judge: [NAME] J

Date of judgment: 2 April 2015

Catchwords: PRACTICE AND PROCEDURE – application for default judgment against [RESPONDENT] and [RESPONDENT] respondents – the Court's power to make declarations of contravention on an application for a default judgment – where [RESPONDENT] and [RESPONDENT] respondents failed to defend the proceedings with due diligence – Federal Court Rules 2011 (Cth) rr 5.22, 5.23. INDUSTRIAL LAW – where the [APPELLANT] was declared to have contravened the Fair Work Act 2009 (Cth) – whether [RESPONDENT] and [RESPONDENT] respondents were accessories or secondary contraveners to the [APPELLANT]'s contraventions – where [RESPONDENT] and [RESPONDENT] respondents controlled the companies that engaged the [APPELLANT] as a subcontractor –where [RESPONDENT] and [RESPONDENT] respondents knew that the wages and conditions paid and accorded by the [APPELLANT] to his employees did not comply with the applicable federal award and the Fair Work Act 2009 (Cth) – where [RESPONDENT] and [RESPONDENT] respondents omitted to take any or any effective action to ensure the [APPELLANT] complied with the applicable federal award and the Fair Work Act 2009 (Cth) –Fair Work Act 2009 (Cth) s 550. Held: Orders made for declarations, service of orders, and the filing and service of amended pleadings.

Legislation: Building and Construction Industry Improvement Act 2005 (Cth) s 48 Fair Work Act 2009 (Cth) ss 44, 45, 535, 536, 550 Federal Court Rules 1979 (Cth) O 35A r 3(2)(c) Federal Court Rules 2011 (Cth) rr 4.5, 5.22, 5.23, 10.24 Trade Practices Act 1975 (Cth) s 75B

Cases cited: [NAME] v [NAME] [2005] FCA 433 [NAME] Commission v [COMPANY] and [NAME] [2006] FCA 1427; (2006) 236 ALR 665 [NAME] Commission v [COMPANY] & [NAME] (2007) 161 FCR 513 [NAME] Commission v [COMPANY] [2005] FCA 856 [NAME] Commission v [COMPANY] and [NAME] (2004) FCA 693; (2004) 207 ALR 329 [NAME] Commission v [COMPANY] & [NAME] [2012] FCAFC 56 [NAME] v Ministry for Transport [1991] 2 NZLR 693 [NAME] v [NAME] (1907) 1 KB 40 [NAME] v [COMPANY] (No 2) [2010] FCA 1156 [NAME] v [COMPANY] [COMPANY] [2008] FCA 569 [COMPANY] v Construction, Foresting, Mining and Energy Union [2006] WASC 144; (2006) 154 IR 228 [NAME] [COMPANY] v Bose [2006] FCA 94 R v [NAME] (1882) 8 QBD 534 R v Russell (1933) VLR 59 Randall v R (2004) 146 A Crim R 197 [COMPANY] v [NAME] Commission & [NAME] (2003) 216 CLR 53 [COMPANY] v [NAME] (No 2) [2011] FCA 1227 [NAME] v [COMPANY] (in liq) and [NAME] (1987) 73 ALR 233 Tuck v Robson (1970) 1 WLR 741 [NAME] v [NAME] (1985) 158 CLR 661

Smith GC and Hogan B, Criminal Law (7th ed, [NAME], 1992) p 132

Date of hearing: 7 October 2014

Place: [APPELLANT]: fair work DIVISION

Category: Catchwords

Number of paragraphs: 44

Counsel for the Applicant: [redacted]

Solicitor for the Applicant: [redacted]

Counsel for the [APPELLANT] The [APPELLANT] appeared in person SAD 27 of 2012:

Counsel for the [APPELLANT] The [APPELLANT] appeared in person SAD 109 of 2012:

Counsel for [RESPONDENT] [APPELLANT]: [[APPELLANT]] [APPELLANT] did not appear

IN THE FEDERAL COURT OF AUSTRALIA [APPELLANT] fair work DIVISION SAD 27 of 2012

BETWEEN: [NAME]

Applicant

[APPELLANT] OF ORDER: 2 april 2015 [APPELLANT]

THE COURT DECLARES THAT:

With Respect to the Employment of [NAME[NAME]

1. Pursuant to section 550 of the Fair Work Act 2009 (Cth) (Fair Work Act), Mr [APPELLANT] ([RESPONDENT] [APPELLANT]), during the period from 1 January 2010 to 30 July 2011, contravened section 45 of the Fair Work Act by Mr [NAME] [NAME] [APPELLANT] ([NAME] [APPELLANT]) failing to pay [APPELLANT[NAME]: (a) minimum weekly wages for work performed during ordinary hours pursuant to clause 16.1 of the [COMPANY] ([NAME]); (b) shiftwork penalty rates pursuant to clause 27.1 of the [NAME]; (c) weekend penalty rates pursuant to clause 27.2 of the [NAME]; (d) penalty rates on public holidays pursuant to clause 27.3 of the [NAME]; and (e) overtime rates pursuant to clause 28 of the [NAME].

2. Pursuant to section 550 of the Fair Work Act, Mr [APPELLANT] ([RESPONDENT] [APPELLANT]), during the period from 1 January 2010 to 30 July 2011, contravened: (a) section 45 of the Fair Work Act by [NAME] [APPELLANT] failing to make superannuation contributions on behalf of [NAME] pursuant to clause 23.2 of the [NAME]; (b) sub-section 44(1) of the Fair Work Act by [NAME] [APPELLANT] failing to pay [APPELLANT] annual leave entitlements pursuant to sub-section 90(2) of the Fair Work Act and clause 29.4(a) of the [NAME]; (c) sub-section 536(1) of the Fair Work Act by [NAME] [APPELLANT] failing to provide [APPELLANT[NAME] with pay slips; and (d) sub-section 535(1) of the Fair Work Act by [NAME] [APPELLANT] failing to make and keep records of the kind prescribed by Subdivision 1 of Division 3 Part 3-6 of the Fair Work Regulations 2009 (Regulations) in relation to [NAME[NAME]. With Respect to the Employment of [NAME]

3. Pursuant to section 550 of the Fair Work Act, Mr [APPELLANT] ([RESPONDENT] [APPELLANT]), during the period from 1 January 2010 to 15 April 2010, contravened section 45 of the Fair Work Act by [NAME] [APPELLANT] failing to pay [APPELLANT]: (a) minimum weekly wages for work performed during ordinary hours pursuant to clause 16.1 of the [NAME]; (b) shiftwork penalty rates pursuant to clause 27.1 of the [NAME]; (c) weekend penalty rates pursuant to clause 27.2 of the [NAME]; (d) penalty rates on public holidays pursuant to clause 27.3 of the [NAME]; and (e) overtime rates pursuant to clause 28 of the [NAME].

4. Pursuant to section 550 of the Fair Work Act, Mr [APPELLANT] ([RESPONDENT] [APPELLANT]), during the period from 1 January 2010 to 15 April 2010, contravened: (a) section 45 of the Fair Work Act by [NAME] [APPELLANT] failing to make superannuation contributions on behalf of [NAME[NAME] pursuant to clause 23.2 of the [NAME]; (b) sub-section 44(1) of the Fair Work Act by [NAME] [APPELLANT] failing to pay [APPELLANT] annual leave entitlements pursuant to sub-section 90(2) of the Fair Work Act and clause 29.4(a) of the [NAME]; (c) sub-section 536(1) of the Fair Work Act by [NAME] [APPELLANT] failing to provide [APPELLANT] with pay slips; and (d) sub-section 535(1) of the Fair Work Act by [NAME] [APPELLANT] failing to make and keep records of the kind prescribed by Subdivision 1 of Division 3 Part 3-6 of the Regulations in relation to [NAME]. With Respect to the Employment of [NAME]

5. Pursuant to section 550 of the Fair Work Act, Mr [APPELLANT] ([RESPONDENT] [APPELLANT]), during the periods from 1 January 2010 to 17 June 2010 and 15 July 2010 to 15 August 2010, contravened section 45 of the Fair Work Act by [NAME] [APPELLANT] failing to pay [APPELLANT[NAME]: (a) minimum weekly wages for work performed during ordinary hours pursuant to clause 16.1 of the [NAME]; (b) a part time loading pursuant to clause 12.4(b) of the [NAME]; (c) shiftwork penalty rates pursuant to clause 27.1 of the [NAME]; (d) weekend penalty rates pursuant to clause 27.2 of the [NAME]; (e) penalty rates on public holidays pursuant to clause 27.3 of the [NAME]; and (f) overtime rates pursuant to clause 28 of the [NAME].

6. Pursuant to section 550 of the Fair Work Act, Mr [APPELLANT] ([RESPONDENT] [APPELLANT]), during the periods from 1 January 2010 to 17 June 2010 and 15 July 2010 to 15 August 2010, contravened: (a) section 45 of the Fair Work Act by [NAME] [APPELLANT] failing to make superannuation contributions on behalf of [NAME[NAME] pursuant to clause 23.2 of the [NAME]; (b) sub-section 44(1) of the Fair Work Act by [NAME] [APPELLANT] failing to pay [APPELLANT] annual leave entitlements pursuant to sub-section 90(2) of the Fair Work Act and clause 29.4(a) of the [NAME]; (c) sub-section 536(1) of the Fair Work Act by [NAME] [APPELLANT] failing to provide [APPELLANT[NAME] with pay slips; and (d) sub-section 535(1) of the Fair Work Act by [NAME] [APPELLANT] failing to make and keep records of the kind prescribed by Subdivision 1 of Division 3 Part 3-6 of the Regulations in relation to [NAME[NAME]. With Respect to the Employment of [NAME[NAME]

7. Pursuant to section 550 of the Fair Work Act, Mr [APPELLANT] ([RESPONDENT] [APPELLANT]), during the period from 18 June 2010 to 14 July 2010, contravened section 45 of the Fair Work Act by [NAME] [APPELLANT] failing to pay [APPELLANT[NAME]: (a) minimum weekly wages for work performed during ordinary hours pursuant to clause 16.1 of the [NAME]; (b) a part time loading pursuant to clause 12.4(b) of the [NAME]; (c) shiftwork penalty rates pursuant to clause 27.1 of the [NAME]; (d) weekend penalty rates pursuant to clause 27.2 of the [NAME]; (e) penalty rates on public holidays pursuant to clause 27.3 of the [NAME]; and (f) overtime rates pursuant to clause 28 of the [NAME].

8. Pursuant to section 550 of the Fair Work Act, Mr [APPELLANT] ([RESPONDENT] [APPELLANT]), during the period from 18 June 2010 to 14 July 2010, contravened: (a) section 45 of the Fair Work Act by [NAME] [APPELLANT] failing to make superannuation contributions on behalf of [NAME[NAME] pursuant to clause 23.2 of the [NAME]; (b) sub-section 44(1) of the Fair Work Act by [NAME] [APPELLANT] failing to pay [APPELLANT[NAME] annual leave entitlements pursuant to sub-section 90(2) of the Fair Work Act and clause 29.4(a) of the [NAME]; (c) sub-section 536(1) of the Fair Work Act by [NAME] [APPELLANT] failing to provide [APPELLANT[NAME] with pay slips; and (d) sub-section 535(1) of the Fair Work Act by [NAME] [APPELLANT] failing to make and keep records of the kind prescribed by Subdivision 1 of Division 3 Part 3-6 of the Regulations in relation to [NAME].

[APPELLANT]

THE COURT DECLARES THAT:

With Respect to the Employment of [NAME[NAME]

9. Pursuant to section 550 of the Fair Work Act 2009 (Cth) (Fair Work Act), Mr [APPELLANT] ([RESPONDENT] [APPELLANT]), during the period from 1 January 2010 to 30 July 2011, contravened section 45 of the Fair Work Act by Mr [NAME] [NAME] [APPELLANT] ([NAME] [APPELLANT]) failing to pay [APPELLANT[NAME]: (a) minimum weekly wages for work performed during ordinary hours pursuant to clause 16.1 of the [COMPANY] ([NAME]); (b) shiftwork penalty rates pursuant to clause 27.1 of the [NAME]; (c) weekend penalty rates pursuant to clause 27.2 of the [NAME]; (d) penalty rates on public holidays pursuant to clause 27.3 of the [NAME]; and (e) overtime rates pursuant to clause 28 of the [NAME].

10. Pursuant to section 550 of the Fair Work Act, Mr [APPELLANT] ([RESPONDENT] [APPELLANT]), during the period from 1 January 2010 to 30 July 2011, contravened: (a) section 45 of the Fair Work Act by [NAME] [APPELLANT] failing to make superannuation contributions on behalf of [NAME[NAME] pursuant to clause 23.2 of the [NAME]; (b) sub-section 44(1) of the Fair Work Act by [NAME] [APPELLANT] failing to pay [APPELLANT] annual leave entitlements pursuant to sub-section 90(2) of the Fair Work Act and clause 29.4(a) of the [NAME]; (c) sub-section 536(1) of the Fair Work Act by [NAME] [APPELLANT] failing to provide [APPELLANT[NAME] with pay slips; and (d) sub-section 535(1) of the Fair Work Act by [NAME] [APPELLANT] failing to make and keep records of the kind prescribed by Subdivision 1 of Division 3 Part 3-6 of the Fair Work Regulations 2009 (Regulations) in relation to [NAME[NAME]. With Respect to the Employment of [NAME]

11. Pursuant to section 550 of the Fair Work Act, Mr [APPELLANT] ([RESPONDENT] [APPELLANT]), during the period from 1 January 2010 to 15 April 2010, contravened section 45 of the Fair Work Act by [NAME] [APPELLANT] failing to pay [APPELLANT]: (a) minimum weekly wages for work performed during ordinary hours pursuant to clause 16.1 of the [NAME]; (b) shiftwork penalty rates pursuant to clause 27.1 of the [NAME]; (c) weekend penalty rates pursuant to clause 27.2 of the [NAME]; (d) penalty rates on public holidays pursuant to clause 27.3 of the [NAME]; and (e) overtime rates pursuant to clause 28 of the [NAME].

12. Pursuant to section 550 of the Fair Work Act, Mr [APPELLANT] ([RESPONDENT] [APPELLANT]), during the period from 1 January 2010 to 15 April 2010, contravened: (a) section 45 of the Fair Work Act by [NAME] [APPELLANT] failing to make superannuation contributions on behalf of [NAME] pursuant to clause 23.2 of the [NAME]; (b) sub-section 44(1) of the Fair Work Act by [NAME] [APPELLANT] failing to pay [APPELLANT] annual leave entitlements pursuant to sub-section 90(2) of the Fair Work Act and clause 29.4(a) of the [NAME]; (c) sub-section 536(1) of the Fair Work Act by [NAME] [APPELLANT] failing to provide [APPELLANT] with pay slips; and (d) sub-section 535(1) of the Fair Work Act by [NAME] [APPELLANT] failing to make and keep records of the kind prescribed by Subdivision 1 of Division 3 Part 3-6 of the Regulations in relation to [NAME[NAME]. With Respect to the Employment of [NAME]

13. Pursuant to section 550 of the Fair Work Act, Mr [APPELLANT] ([RESPONDENT] [APPELLANT]), during the periods from 1 January 2010 to 17 June 2010 and 15 July 2010 to 15 August 2010, contravened section 45 of the Fair Work Act by [NAME] [APPELLANT] failing to pay [APPELLANT[NAME]: (a) minimum weekly wages for work performed during ordinary hours pursuant to clause 16.1 of the [NAME]; (b) a part time loading pursuant to clause 12.4(b) of the [NAME]; (c) shiftwork penalty rates pursuant to clause 27.1 of the [NAME]; (d) weekend penalty rates pursuant to clause 27.2 of the [NAME]; (e) penalty rates on public holidays pursuant to clause 27.3 of the [NAME]; and (f) overtime rates pursuant to clause 28 of the [NAME].

14. Pursuant to section 550 of the Fair Work Act, Mr [APPELLANT] ([RESPONDENT] [APPELLANT]), during the periods from 1 January 2010 to 17 June 2010 and 15 July 2010 to 15 August 2010, contravened: (a) section 45 of the Fair Work Act by [NAME] [APPELLANT] failing to make superannuation contributions on behalf of [NAME[NAME] pursuant to clause 23.2 of the [NAME]; (b) sub-section 44(1) of the Fair Work Act by [NAME] [APPELLANT] failing to pay [APPELLANT[NAME] annual leave entitlements pursuant to sub-section 90(2) of the Fair Work Act and clause 29.4(a) of the [NAME]; (c) sub-section 536(1) of the Fair Work Act by [NAME] [APPELLANT] failing to provide [APPELLANT[NAME] with pay slips; and (d) sub-section 535(1) of the Fair Work Act by [NAME] [APPELLANT] failing to make and keep records of the kind prescribed by Subdivision 1 of Division 3 Part 3-6 of the Regulations in relation to [NAME[NAME]. With Respect to the Employment of [NAME[NAME]

15. Pursuant to section 550 of the Fair Work Act, Mr [APPELLANT] ([RESPONDENT] [APPELLANT]), during the period from 18 June 2010 to 14 July 2010, contravened section 45 of the Fair Work Act by [NAME] [APPELLANT] failing to pay [APPELLANT[NAME]: (a) minimum weekly wages for work performed during ordinary hours pursuant to clause 16.1 of the [NAME]; (b) a part time loading pursuant to clause 12.4(b) of the [NAME]; (c) shiftwork penalty rates pursuant to clause 27.1 of the [NAME]; (d) weekend penalty rates pursuant to clause 27.2 of the [NAME]; (e) penalty rates on public holidays pursuant to clause 27.3 of the [NAME]; and (f) overtime rates pursuant to clause 28 of the [NAME].

16. Pursuant to section 550 of the Fair Work Act, Mr [APPELLANT] ([RESPONDENT] [APPELLANT]), during the period from 18 June 2010 to 14 July 2010, contravened: (a) section 45 of the Fair Work Act by [NAME] [APPELLANT] failing to make superannuation contributions on behalf of [NAME[NAME] pursuant to clause 23.2 of the [NAME]; (b) sub-section 44(1) of the Fair Work Act by [NAME] [APPELLANT] failing to pay [APPELLANT[NAME] annual leave entitlements pursuant to sub-section 90(2) of the Fair Work Act and clause 29.4(a) of the [NAME]; (c) sub-section 536(1) of the Fair Work Act by [NAME] [APPELLANT] failing to provide [APPELLANT[NAME] with pay slips; and (d) sub-section 535(1) of the Fair Work Act by [NAME] [APPELLANT] failing to make and keep records of the kind prescribed by Subdivision 1 of Division 3 Part 3-6 of the Regulations in relation to [APPELLANT[NAME]. THE COURT ORDERS THAT:

1. The applicant serve a copy of these orders on [RESPONDENT] [APPELLANT] by sending an email to the address [EMAIL] within twenty-four hours after these orders are made available by the Court.

2. The applicant have leave as against Mr [APPELLANT] ([RESPONDENT] [APPELLANT]) to file and serve the Fourth Further Amended Statement of [RESPONDENT] Application in respect of which leave has been granted to file and serve as against the first, [RESPONDENT] and [COMPANY].

3. In respect of [RESPONDENT] [APPELLANT], the applicant is taken to have filed and served the Fourth Further Amended Statement of [RESPONDENT] Application on 27 September 2014 in the manner described in the affidavit of [APPELLANT] affirmed on 6 October 2014.

4. The applicant serve a copy of these orders on [RESPONDENT] [APPELLANT] by sending an email to the address [EMAIL] within twenty-four hours after these orders are made available by the Court.

5. Liberty to apply. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

IN THE FEDERAL COURT OF AUSTRALIA [APPELLANT] fair work DIVISION SAD 109 of 2012

BETWEEN: [NAME]

Applicant

[APPELLANT] OF ORDER: 2 april 2015 [APPELLANT]

THE COURT DECLARES THAT:

With Respect to the Employment of [NAME[NAME]

1. Pursuant to section 550 of the Fair Work Act 2009 (Cth ) (Fair Work Act), Mr [APPELLANT] ([RESPONDENT] [APPELLANT]), during the period from 1 January 2010 to 30 April 2010, contravened section 45 of the Fair Work Act 2009 by [NAME] [NAME] [APPELLANT] ([NAME] [APPELLANT]) failing to pay [APPELLANT[NAME]: (a) minimum weekly wages for work performed during ordinary hours pursuant to clause 16.1 of the [COMPANY] ([NAME]); (b) shiftwork penalty rates pursuant to clause 27.1 of the [NAME]; (c) weekend penalty rates pursuant to clause 27.2 of the [NAME]; (d) penalty rates on public holidays pursuant to clause 27.3 of the [NAME]; and (e) overtime rates pursuant to clause 28 of the [NAME].

2. Pursuant to section 550 of the Fair Work Act, Mr [APPELLANT] ([RESPONDENT] [APPELLANT]), during the period from 1 January 2010 to 30 April 2010, contravened: (a) section 45 of the Fair Work Act by [NAME] [APPELLANT] failing to make superannuation contributions on behalf of [NAME[NAME] pursuant to clause 23.2 of the [NAME] (b) sub-section 44(1) of the Fair Work Act by [NAME] [APPELLANT] failing to pay [NAME] annual leave entitlements pursuant to sub-section 90(2) of the Fair Work Act and clause 29.4(a) of the [NAME]; (c) sub-section 536(1) of the Fair Work Act by [NAME] [APPELLANT] failing to provide [APPELLANT[NAME] with pay slips; and (d) sub-section 535(1) of the Fair Work Act by [NAME] [APPELLANT] failing to make and keep records of the kind prescribed by Subdivision 1 of Division 3 Part 3-6 of the Fair Work Regulations 2009 (Regulations) in relation to [NAME[NAME]. With Respect to the Employment of [NAME[NAME]

3. Pursuant to section 550 of the Fair Work Act, Mr [APPELLANT] ([RESPONDENT] [APPELLANT]), during the period from 1 January 2010 to 30 October 2010, contravened section 45 of the Fair Work Act by [NAME] [APPELLANT] failing to pay [APPELLANT[NAME]: (a) minimum weekly wages for work performed during ordinary hours pursuant to clause 16.1 of the [NAME]; (b) shiftwork penalty rates pursuant to clause 27.1 of the [NAME]; (c) weekend penalty rates provided under clause 27.2 of the [NAME]; (d) penalty rates on public holidays pursuant to clause 27.3 of the [NAME]; and (e) overtime rates pursuant to clause 28 of the [NAME].

4. Pursuant to section 550 of the Fair Work Act, Mr [APPELLANT] ([RESPONDENT] [APPELLANT]), during the period from 1 January 2010 to 30 October 2010, contravened: (a) section 45 of the Fair Work Act by [NAME] [APPELLANT] failing to make superannuation contributions on behalf of [NAME] pursuant to clause 23.2 of the [NAME]; (b) sub-section 44(1) of Fair Work Act by [NAME] [APPELLANT] failing to pay [APPELLANT[NAME] annual leave entitlements pursuant to sub-section 90(2) of the Fair Work Act and clause 29.4(a) of the [NAME]; (c) sub-section 536(1) of the Fair Work Act by [NAME] [APPELLANT] failing to provide [APPELLANT[NAME] with pay slips; and (d) sub-section 535(1) of the Fair Work Act by [NAME] [APPELLANT] failing to make and keep records of the kind prescribed by Subdivision 1 of Division 3 Part 3-6 of the Fair Work Regulations 2009 in relation to [NAME[NAME]. With Respect to the Employment of [NAME[NAME]

5. Pursuant to section 550 of the Fair Work Act, Mr [APPELLANT] ([RESPONDENT] [APPELLANT]), during the period from 1 January 2010 to 28 February 2010, contravened section 45 of the Fair Work Act by [NAME] [APPELLANT] failing to pay [APPELLANT[NAME] (a) minimum weekly wages for work performed during ordinary hours pursuant to clause 16.1 of the [NAME]; (b) shiftwork penalty rates pursuant to clause 27.1 of the [NAME]; (c) weekend penalty rates pursuant to clause 27.2 of the [NAME]; (d) penalty rates on public holidays pursuant to clause 27.3 of the [NAME]; and (e) overtime rates pursuant to clause 28 of the [NAME].

6. Pursuant to section 550 of the Fair Work Act, Mr [APPELLANT] ([RESPONDENT] [APPELLANT]), during the period from 1 January 2010 to 28 February 2010, contravened: (a) section 45 of the Fair Work Act by [NAME] [APPELLANT] failing to make superannuation contributions on behalf of [NAME[NAME] pursuant to clause 23.2 of the [NAME]; (b) section 45 of the Fair Work Act by [NAME] [APPELLANT] failing to inform [APPELLANT[NAME] of the terms of his engagement in accordance with clause 12.2 of the [NAME]; (c) sub-section 44(1) of the Fair Work Act by [NAME] [APPELLANT] failing to pay [APPELLANT[NAME] annual leave entitlements pursuant to sub-section 90(2) of the Fair Work Act and clause 29.4(a) of the [NAME]; (d) sub-section 536(1) of the Fair Work Act by [NAME] [APPELLANT] failing to provide [APPELLANT[NAME] with pay slips; and (e) sub-section 535(1) of the Fair Work Act by [NAME] [APPELLANT] failing to make and keep records of the kind prescribed by Subdivision 1 of Division 3 Part 3-6 of the Regulations in relation to [NAME[NAME]. With Respect to the Employment of [NAME[NAME]

7. Pursuant to section 550 of the Fair Work Act, Mr [APPELLANT] ([RESPONDENT] [APPELLANT]), in respect of two shifts worked between 6pm and 9pm on weekdays during 2010 ([NAME] Employment Period), contravened section 45 of the Fair Work Act by [NAME] [APPELLANT] failing to pay [APPELLANT[NAME]: (a) minimum weekly wages for work performed during ordinary hours pursuant to clause 16.1 of the [NAME]; (b) shiftwork penalty rates pursuant to clause 27.1 of the [NAME]; and (c) a casual loading pursuant to clause 12.5(a) of the [NAME].

8. Pursuant to section 550 of the Fair Work Act, Mr [APPELLANT] ([RESPONDENT] [APPELLANT]), during the [NAME] [APPELLANT] Employment Period, contravened: (a) section 45 of the Fair Work Act by [NAME] [APPELLANT] failing to inform [APPELLANT[NAME] of the terms of his engagement in accordance with clause 12.2 of the [NAME]; (b) sub-section 536(1) of the Fair Work Act by [NAME] [APPELLANT] failing to provide [APPELLANT[NAME] with pay slips; and (c) sub-section 535(1) of the Fair Work Act by [NAME] [APPELLANT] failing to make and keep records of the kind prescribed by Subdivision 1 of Division 3 Part 3-6 of the Fair Work Regulations 2009 in relation to [NAME[NAME]. With Respect to the Employment of [NAME]

9. Pursuant to section 550 of the Fair Work Act, Mr [APPELLANT] ([RESPONDENT] [APPELLANT]), during the period from 1 January 2010 to 30 June 2010, contravened section 45 of the Fair Work Act by [NAME] [APPELLANT] failing to pay [APPELLANT[NAME]: (a) minimum weekly wages for work performed during ordinary hours pursuant to clause 16.1 of the [NAME]; (b) shiftwork penalty rates pursuant to clause 27.1 of the [NAME]; (c) weekend penalty rates pursuant to clause 27.2 of the [NAME]; (d) penalty rates on public holidays pursuant to clause 27.3 of the [NAME]; and (e) overtime rates pursuant to clause 28 of the [NAME].

10. Pursuant to section 550 of the Fair Work Act, Mr [APPELLANT] ([RESPONDENT] [APPELLANT]), during the period from 1 January 2010 to 30 June 2010, contravened: (a) section 45 of the Fair Work Act by [NAME] [APPELLANT] failing to make superannuation contributions on behalf of [NAME[NAME] pursuant to clause 23.2 of the [NAME]; (b) sub-section 44(1) of the Fair Work Act by [NAME] [APPELLANT] failing to pay [APPELLANT[NAME] annual leave entitlements pursuant to sub-section 90(2) of the Fair Work Act and clause 29.4(a) of the [NAME]; (c) sub-section 536(1) of the Fair Work Act by [NAME] [APPELLANT] failing to provide [APPELLANT[NAME] with pay slips; and (d) sub-section 535(1) of the Fair Work Act by [NAME] [APPELLANT] failing to make and keep records of the kind prescribed by Subdivision 1 of Division 3 Part 3-6 of the Regulations in relation to [NAME[NAME]. With Respect to the Employment of [NAME[NAME]

11. Pursuant to section 550 of the Fair Work Act, Mr [APPELLANT] ([RESPONDENT] [APPELLANT]), during the period from 1 April 2010 to 30 June 2010, contravened section 45 of the Fair Work Act by [NAME] [APPELLANT] failing to pay [APPELLANT[NAME]: (a) minimum weekly wages for work performed during ordinary hours pursuant to clause 16.1 of the [NAME]; (b) shiftwork penalty rates pursuant to clause 27.1 of the [NAME]; (c) weekend penalty rates provided pursuant to clause 27.2 of the [NAME]; (d) penalty rates on public holidays pursuant to clause 27.3 of the [NAME]; and (e) overtime rates pursuant to clause 28 of the [NAME].

12. Pursuant to section 550 of the Fair Work Act, Mr [APPELLANT] ([RESPONDENT] [APPELLANT]), on and from 1 April 2010, contravened section 45 of the Fair Work Act by [NAME] [APPELLANT] failing to inform [APPELLANT[NAME] of the terms of his engagement in accordance with clause 12.2 of the [NAME].

13. Pursuant to section 550 of the Fair Work Act, Mr [APPELLANT] ([RESPONDENT] [APPELLANT]), during the period from 1 April 2010 to 30 June 2010, contravened: (a) section 45 of the Fair Work Act by [NAME] [APPELLANT] failing to make superannuation contributions on behalf of [NAME[NAME] pursuant to clause 23.2 of the [NAME]; (b) sub-section 44(1) of the Fair Work Act by [NAME] [APPELLANT] failing to pay [APPELLANT[NAME] annual leave entitlements pursuant to sub-section 90(2) of the Fair Work Act and clause 29.4(a) of the [NAME]; (c) sub-section 536(1) of the Fair Work Act by [NAME] [APPELLANT] failing to provide [APPELLANT] with pay slips; and (d) sub-section 535(1) of the Fair Work Act by [NAME] [APPELLANT] failing to make and keep records of the kind prescribed by Subdivision 1 of Division 3 Part 3-6 of the Regulations in relation to [NAME]. [APPELLANT]

THE COURT DECLARES THAT:

With Respect to the Employment of [NAME[NAME]

14. Pursuant to section 550 of the Fair Work Act 2009 (Cth ) (Fair Work Act), Mr [APPELLANT] ([RESPONDENT] [APPELLANT]), during the period from 1 January 2010 to 30 April 2010, contravened section 45 of the Fair Work Act 2009 by [NAME] [NAME] [APPELLANT] ([NAME] [APPELLANT]) failing to pay [APPELLANT]: (a) minimum weekly wages for work performed during ordinary hours pursuant to clause 16.1 of the [COMPANY] ([NAME]); (b) shiftwork penalty rates pursuant to clause 27.1 of the [NAME]; (c) weekend penalty rates pursuant to clause 27.2 of the [NAME]; (d) penalty rates on public holidays pursuant to clause 27.3 of the [NAME]; and (e) overtime rates pursuant to clause 28 of the [NAME].

15. Pursuant to section 550 of the Fair Work Act, Mr [APPELLANT] ([RESPONDENT] [APPELLANT]), during the period from 1 January 2010 to 30 April 2010, contravened: (a) section 45 of the Fair Work Act by [NAME] [APPELLANT] failing to make superannuation contributions on behalf of [NAME[NAME] pursuant to clause 23.2 of the [NAME] (b) sub-section 44(1) of the Fair Work Act by [NAME] [APPELLANT] failing to pay [APPELLANT[NAME] annual leave entitlements pursuant to sub-section 90(2) of the Fair Work Act and clause 29.4(a) of the [NAME]; (c) sub-section 536(1) of the Fair Work Act by [NAME] [APPELLANT] failing to provide [APPELLANT] with pay slips; and (d) sub-section 535(1) of the Fair Work Act by [NAME] [APPELLANT] failing to make and keep records of the kind prescribed by Subdivision 1 of Division 3 Part 3-6 of the Fair Work Regulations 2009 (Regulations) in relation to [NAME[NAME]. With Respect to the Employment of [NAME[NAME]

16. Pursuant to section 550 of the Fair Work Act, Mr [APPELLANT] ([RESPONDENT] [APPELLANT]), during the period from 1 January 2010 to 30 October 2010, contravened section 45 of the Fair Work Act by [NAME] [APPELLANT] failing to pay [APPELLANT[NAME]: (a) minimum weekly wages for work performed during ordinary hours pursuant to clause 16.1 of the [NAME]; (b) shiftwork penalty rates pursuant to clause 27.1 of the [NAME]; (c) weekend penalty rates provided under clause 27.2 of the [NAME]; (d) penalty rates on public holidays pursuant to clause 27.3 of the [NAME]; and (e) overtime rates pursuant to clause 28 of the [NAME].

17. Pursuant to section 550 of the Fair Work Act, Mr [APPELLANT] ([RESPONDENT] [APPELLANT]), during the period from 1 January 2010 to 30 October 2010, contravened: (a) section 45 of the Fair Work Act by [NAME] [APPELLANT] failing to make superannuation contributions on behalf of [NAME[NAME] pursuant to clause 23.2 of the [NAME]; (b) sub-section 44(1) of Fair Work Act by [NAME] [APPELLANT] failing to pay [APPELLANT[NAME] annual leave entitlements pursuant to sub-section 90(2) of the Fair Work Act and clause 29.4(a) of the [NAME]; (c) sub-section 536(1) of the Fair Work Act by [NAME] [APPELLANT] failing to provide [APPELLANT[NAME] with pay slips; and (d) sub-section 535(1) of the Fair Work Act by [NAME] [APPELLANT] failing to make and keep records of the kind prescribed by Subdivision 1 of Division 3 Part 3-6 of the Fair Work Regulations 2009 in relation to [NAME[NAME]. With Respect to the Employment of [NAME[NAME]

18. Pursuant to section 550 of the Fair Work Act, Mr [APPELLANT] ([RESPONDENT] [APPELLANT]), during the period from 1 January 2010 to 28 February 2010, contravened section 45 of the Fair Work Act by [NAME] [APPELLANT] failing to pay [APPELLANT[NAME] (a) minimum weekly wages for work performed during ordinary hours pursuant to clause 16.1 of the [NAME]; (b) shiftwork penalty rates pursuant to clause 27.1 of the [NAME]; (c) weekend penalty rates pursuant to clause 27.2 of the [NAME]; (d) penalty rates on public holidays pursuant to clause 27.3 of the [NAME]; and (e) overtime rates pursuant to clause 28 of the [NAME].

19. Pursuant to section 550 of the Fair Work Act, Mr [APPELLANT] ([RESPONDENT] [APPELLANT]), during the period from 1 January 2010 to 28 February 2010, contravened: (a) section 45 of the Fair Work Act by [NAME] [APPELLANT] failing to make superannuation contributions on behalf of [NAME[NAME] pursuant to clause 23.2 of the [NAME]; (b) section 45 of the Fair Work Act by [NAME] [APPELLANT] failing to inform [APPELLANT[NAME] of the terms of his engagement in accordance with clause 12.2 of the [NAME]; (c) sub-section 44(1) of the Fair Work Act by [NAME] [APPELLANT] failing to pay [APPELLANT[NAME] annual leave entitlements pursuant to sub-section 90(2) of the Fair Work Act and clause 29.4(a) of the [NAME]; (d) sub-section 536(1) of the Fair Work Act by [NAME] [APPELLANT] failing to provide [APPELLANT[NAME] with pay slips; and (e) sub-section 535(1) of the Fair Work Act by [NAME] [APPELLANT] failing to make and keep records of the kind prescribed by Subdivision 1 of Division 3 Part 3-6 of the Regulations in relation to [NAME[NAME]. With Respect to the Employment of [NAME[NAME]

20. Pursuant to section 550 of the Fair Work Act, Mr [APPELLANT] ([RESPONDENT] [APPELLANT]), in respect of two shifts worked between 6pm and 9pm on weekdays during 2010 ([NAME] Employment Period), contravened section 45 of the Fair Work Act by [NAME] [APPELLANT] failing to pay [APPELLANT[NAME]: (a) minimum weekly wages for work performed during ordinary hours pursuant to clause 16.1 of the [NAME]; (b) shiftwork penalty rates pursuant to clause 27.1 of the [NAME]; and (c) a casual loading pursuant to clause 12.5(a) of the [NAME].

21. Pursuant to section 550 of the Fair Work Act, Mr [APPELLANT] ([RESPONDENT] [APPELLANT]), during the [NAME] Employment Period, contravened: (a) section 45 of the Fair Work Act by [NAME] [APPELLANT] failing to inform [APPELLANT[NAME] of the terms of his engagement in accordance with clause 12.2 of the [NAME]; (b) sub-section 536(1) of the Fair Work Act by [NAME] [APPELLANT] failing to provide [APPELLANT[NAME] with pay slips; and (c) sub-section 535(1) of the Fair Work Act by [NAME] [APPELLANT] failing to make and keep records of the kind prescribed by Subdivision 1 of Division 3 Part 3-6 of the Fair Work Regulations 2009 in relation to [NAME[NAME]. With Respect to the Employment of [NAME]

22. Pursuant to section 550 of the Fair Work Act, Mr [APPELLANT] ([RESPONDENT] [APPELLANT]), during the period from 1 January 2010 to 30 June 2010, contravened section 45 of the Fair Work Act by [NAME] [APPELLANT] failing to pay [APPELLANT[NAME]: (a) minimum weekly wages for work performed during ordinary hours pursuant to clause 16.1 of the [NAME]; (b) shiftwork penalty rates pursuant to clause 27.1 of the [NAME]; (c) weekend penalty rates pursuant to clause 27.2 of the [NAME]; (d) penalty rates on public holidays pursuant to clause 27.3 of the [NAME]; and (e) overtime rates pursuant to clause 28 of the [NAME].

23. Pursuant to section 550 of the Fair Work Act, Mr [APPELLANT] ([RESPONDENT] [APPELLANT]), during the period from 1 January 2010 to 30 June 2010, contravened: (a) section 45 of the Fair Work Act by [NAME] [APPELLANT] failing to make superannuation contributions on behalf of [NAME[NAME] pursuant to clause 23.2 of the [NAME]; (b) sub-section 44(1) of the Fair Work Act by [NAME] [APPELLANT] failing to pay [APPELLANT[NAME] annual leave entitlements pursuant to sub-section 90(2) of the Fair Work Act and clause 29.4(a) of the [NAME]; (c) sub-section 536(1) of the Fair Work Act by [NAME] [APPELLANT] failing to provide [APPELLANT[NAME] with pay slips; and (d) sub-section 535(1) of the Fair Work Act by [NAME] [APPELLANT] failing to make and keep records of the kind prescribed by Subdivision 1 of Division 3 Part 3-6 of the Regulations in relation to [NAME]. With Respect to the Employment of [NAME[NAME]

24. Pursuant to section 550 of the Fair Work Act, Mr [APPELLANT] ([RESPONDENT] [APPELLANT]), during the period from 1 April 2010 to 30 June 2010, contravened section 45 of the Fair Work Act by [NAME] [APPELLANT] failing to pay [APPELLANT[NAME]: (a) minimum weekly wages for work performed during ordinary hours pursuant to clause 16.1 of the [NAME]; (b) shiftwork penalty rates pursuant to clause 27.1 of the [NAME]; (c) weekend penalty rates provided pursuant to clause 27.2 of the [NAME]; (d) penalty rates on public holidays pursuant to clause 27.3 of the [NAME]; and (e) overtime rates pursuant to clause 28 of the [NAME].

25. Pursuant to section 550 of the Fair Work Act, Mr [APPELLANT] ([RESPONDENT] [APPELLANT]), on and from 1 April 2010, contravened section 45 of the Fair Work Act by [NAME] [APPELLANT] failing to inform [APPELLANT[NAME] of the terms of his engagement in accordance with clause 12.2 of the [NAME].

26. Pursuant to section 550 of the Fair Work Act, Mr [APPELLANT] ([RESPONDENT] [APPELLANT]), during the period from 1 April 2010 to 30 June 2010, contravened: (a) section 45 of the Fair Work Act by [NAME] [APPELLANT] failing to make superannuation contributions on behalf of [NAME] pursuant to clause 23.2 of the [NAME]; (b) sub-section 44(1) of the Fair Work Act by [NAME] [APPELLANT] failing to pay [APPELLANT[NAME] annual leave entitlements pursuant to sub-section 90(2) of the Fair Work Act and clause 29.4(a) of the [NAME]; (c) sub-section 536(1) of the Fair Work Act by [NAME] [APPELLANT] failing to provide [APPELLANT[NAME] with pay slips; and (d) sub-section 535(1) of the Fair Work Act by [NAME] [APPELLANT] failing to make and keep records of the kind prescribed by Subdivision 1 of Division 3 Part 3-6 of the Regulations in relation to [APPELLANT[NAME]. THE COURT ORDERS THAT:

2. The applicant have leave as against Mr [APPELLANT] ([RESPONDENT] [APPELLANT]) to file and serve [RESPONDENT] of [RESPONDENT] Application in respect of which leave has been granted to file and serve as against the first, [RESPONDENT] and [COMPANY].

3. In respect of [RESPONDENT] [APPELLANT], the applicant is taken to have filed and served [RESPONDENT] of [RESPONDENT] Application on 27 September 2014 in the manner described in the affidavit of [APPELLANT] affirmed on 6 October 2014.

5. Liberty to apply. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. IN THE FEDERAL COURT OF AUSTRALIA [APPELLANT] 27 of 2012

BETWEEN: [NAME]

Applicant

[APPELLANT]

IN THE FEDERAL COURT OF AUSTRALIA [APPELLANT] 109 of 2012

BETWEEN: [NAME]

Applicant

[APPELLANT]

[RESPONDENT] [APPELLANT]

[RESPONDENT] [APPELLANT]

JUDGE: [NAME] J DATE: 2 april 2015 PLACE: [APPELLANT] FOR JUDGMENT

Introduction 1 The applicant seeks orders against [RESPONDENT] and [RESPONDENT] respondents to two proceedings before the Court. In SAD 27 of 2012, the applicant is the [NAME] ("[NAME]"), and the respondents are [NAME] [NAME] [APPELLANT], and [APPELLANT] ("the [NAME] [APPELLANT] proceeding"). [APPELLANT] ("[NAME]") was the fourth [APPELLANT] to the proceeding, but as between the [NAME] and that [APPELLANT] the proceeding has been resolved. In SAD 109 of 2012, the parties are the same except that Mr [NAME] [NAME] [APPELLANT] is the [APPELLANT] ("the [NAME] [APPELLANT] proceeding"). Again, [NAME] was the fourth [APPELLANT], but the proceeding as between the [NAME] and that [APPELLANT] has been resolved. The two proceedings were dealt with together at various interlocutory hearings, and both were listed for trial to commence on 7 October 2014. The two proceedings raise similar issues. 2 For the purposes of the reasons which follow, I can concentrate on one of the proceedings because my reasons and conclusions apply equally to both of them. In the reasons which follow, I refer to the [NAME] [APPELLANT] proceeding. 3 In broad terms, the [NAME] claims that [NAME] [APPELLANT] employed various persons to collect [NAME]. [NAME] claims that, in connection with that employment, [NAME] [APPELLANT] contravened various sections of the Fair Work Act 2009 (Cth) ("the Act"). [NAME] [APPELLANT] is [NAME] by the [NAME] to have been the principal contravener. [RESPONDENT] and (until the proceeding was resolved against it) the fourth [APPELLANT] were [NAME] to have been accessories or secondary contraveners in relation to the contraventions by [NAME] [APPELLANT]. To be an [NAME] or secondary contravener, a person needs to be involved in the contravention within the terms of s 550 of the Act. 4 The proceeding between the [NAME] and [NAME] [APPELLANT] has been resolved. I have made the following declarations against [NAME] [APPELLANT]: Employment of [APPELLANT[NAME]

1. During the period from 1 January 2010 to 30 July 2011, [NAME] [NAME] [APPELLANT] ([NAME] [APPELLANT]) contravened section 45 of the Fair Work Act 2009 (Cth) (Fair Work Act) by failing to pay [NAME[NAME]: (a) minimum weekly wages for work performed during ordinary hours pursuant to clause 16.1 of the [COMPANY] ([NAME]); (b) shiftwork penalty rates pursuant to clause 27.1 of the [NAME]; (c) weekend penalty rates pursuant to clause 27.2 of the [NAME]; (d) penalty rates on public holidays pursuant to clause 27.3 of the [NAME]; and (e) overtime rates pursuant to clause 28 of the [NAME].

2. During the period from 1 January 2010 to 30 July 2011, [NAME] [APPELLANT] contravened: (a) section 45 of the Fair Work Act by failing to make superannuation contributions on behalf of [NAME] pursuant to clause 23.2 of the [NAME]; (b) sub-section 44(1) of the Fair Work Act by failing to pay [NAME[NAME] annual leave entitlements pursuant to sub-section 90(2) of the Fair Work Act and clause 29.4(a) of the [NAME]; (c) sub-section 536(1) of the Fair Work Act by failing to provide [NAME[NAME] with pay slips; and (d) sub-section 535(1) of the Fair Work Act by failing to make and keep records of the kind prescribed by Subdivision 1 of Division 3 Part 3-6 of the Fair Work Regulations 2009 (Regulations) in relation to [NAME[NAME]. Employment of [NAME]

3. During the period from 1 January 2010 to 15 April 2010, [NAME] [APPELLANT] contravened section 45 of the Fair Work Act by failing to pay [NAME]: (a) minimum weekly wages for work performed during ordinary hours pursuant to clause 16.1 of the [NAME]; (b) shiftwork penalty rates pursuant to clause 27.1 of the [NAME]; (c) weekend penalty rates pursuant to clause 27.2 of the [NAME]; (d) penalty rates on public holidays pursuant to clause 27.3 of the [NAME]; and (e) overtime rates pursuant to clause 28 of the [NAME].

4. During the period from 1 January 2010 to 15 April 2010, [NAME] [APPELLANT] contravened: (a) section 45 of the Fair Work Act by failing to make superannuation contributions on behalf of [NAME[NAME] pursuant to clause 23.2 of the [NAME]; (b) sub-section 44(1) of the Fair Work Act by failing to pay [NAME[NAME] annual leave entitlements pursuant to sub-section 90(2) of the Fair Work Act and clause 29.4(a) of the [NAME]; (c) sub-section 536(1) of the Fair Work Act by failing to provide [NAME] with pay slips; and (d) sub-section 535(1) of the Fair Work Act by failing to make and keep records of the kind prescribed by Subdivision 1 of Division 3 Part 3-6 of the Regulations in relation to [NAME]. Employment of [NAME[NAME]

5. During the periods from 1 January 2010 to 17 June 2010 and 15 July 2010 to 15 August 2010, [NAME] [APPELLANT] contravened section 45 of the Fair Work Act by failing to pay [NAME[NAME]: (a) minimum weekly wages for work performed during ordinary hours pursuant to clause 16.1 of the [NAME]; (b) a part time loading pursuant to clause 12.4(b) of the [NAME]; (c) shiftwork penalty rates pursuant to clause 27.1 of the [NAME]; (d) weekend penalty rates pursuant to clause 27.2 of the [NAME]; (e) penalty rates on public holidays pursuant to clause 27.3 of the [NAME]; and (f) overtime rates pursuant to clause 28 of the [NAME].

6. During the periods from 1 January 2010 to 17 June 2010 and 15 July 2010 to 15 August 2010, [NAME] [APPELLANT] contravened: (a) section 45 of the Fair Work Act by failing to make superannuation contributions on behalf of [NAME[NAME] pursuant to clause 23.2 of the [NAME]; (b) sub-section 44(1) of the Fair Work Act by failing to pay [NAME[NAME] annual leave entitlements pursuant to sub-section 90(2) of the Fair Work Act and clause 29.4(a) of the [NAME]; (c) sub-section 536(1) of the Fair Work Act by failing to provide [NAME] with pay slips; and (d) sub-section 535(1) of the Fair Work Act by failing to make and keep records of the kind prescribed by Subdivision 1 of Division 3 Part 3-6 of the Regulations in relation to [NAME]. Employment of [NAME[NAME]

7. During the period from 18 June 2010 to 14 July 2010, [NAME] [APPELLANT] contravened section 45 of the Fair Work Act by failing to pay [NAME[NAME]: (a) minimum weekly wages for work performed during ordinary hours pursuant to clause 16.1 of the [NAME]; (b) a part time loading pursuant to clause 12.4(b) of the [NAME]; (c) shiftwork penalty rates pursuant to clause 27.1 of the [NAME]; (d) weekend penalty rates pursuant to clause 27.2 of the [NAME]; (e) penalty rates on public holidays pursuant to clause 27.3 of the [NAME]; and (f) overtime rates pursuant to clause 28 of the [NAME].

8. During the period from 18 June 2010 to 14 July 2010, [NAME] [APPELLANT] contravened: (a) section 45 of the Fair Work Act by failing to make superannuation contributions on behalf of [NAME[NAME] pursuant to clause 23.2 of the [NAME]; (b) sub-section 44(1) of the Fair Work Act by failing to pay [NAME[NAME] annual leave entitlements pursuant to sub-section 90(2) of the Fair Work Act and clause 29.4(a) of the [NAME]; (c) sub-section 536(1) of the Fair Work Act by failing to provide [NAME[NAME] with pay slips; and (d) sub-section 535(1) of the Fair Work Act by failing to make and keep records of the kind prescribed by Subdivision 1 of Division 3 Part 3-6 of the Regulations in relation to [NAME[NAME]. 5 The [NAME] did not press a claim for pecuniary penalties or other orders against [NAME] [APPELLANT]. 6 [RESPONDENT] or [RESPONDENT] respondents appeared on the first day of trial. The [NAME] seeks a default judgment against each of them under rr 5.22 and 5.23 of the Federal Court Rules 2011 (Cth) ("the Rules"). The relief she seeks is declarations of contraventions of the Act. By way of example, the following are the declarations sought against [RESPONDENT] [APPELLANT]: Employment of [APPELLANT[NAME]

1. Pursuant to section 550 of the Fair Work Act 2009 (Cth), Mr [APPELLANT] ([RESPONDENT] [APPELLANT]), during the period from 1 January 2010 to 30 July 2011, contravened section 45 of the Fair Work Act 2009 (Cth) (Fair Work Act) by Mr [NAME] [NAME] [APPELLANT] ([NAME] [APPELLANT]) failing to pay [APPELLANT[NAME]: (a) minimum weekly wages for work performed during ordinary hours pursuant to clause 16.1 of the [COMPANY] ([NAME]); (b) shiftwork penalty rates pursuant to clause 27.1 of the [NAME]; (c) weekend penalty rates pursuant to clause 27.2 of the [NAME]; (d) penalty rates on public holidays pursuant to clause 27.3 of the [NAME]; and (e) overtime rates pursuant to clause 28 of the [NAME].

2. Pursuant to section 550 of the Fair Work Act 2009 (Cth), Mr [APPELLANT] ([RESPONDENT] [APPELLANT]), during the period from 1 January 2010 to 30 July 2011, contravened: (a) section 45 of the Fair Work Act by [NAME] [APPELLANT] failing to make superannuation contributions on behalf of [NAME] pursuant to clause 23.2 of the [NAME]; (b) sub-section 44(1) of the Fair Work Act by [NAME] [APPELLANT] failing to pay [APPELLANT[NAME] annual leave entitlements pursuant to sub-section 90(2) of the Fair Work Act and clause 29.4(a) of the [NAME]; (c) sub-section 536(1) of the Fair Work Act by [NAME] [APPELLANT] failing to provide [APPELLANT[NAME] with pay slips; and (d) sub-section 535(1) of the Fair Work Act by [NAME] [APPELLANT] failing to make and keep records of the kind prescribed by Subdivision 1 of Division 3 Part 3-6 of the Fair Work Regulations 2009 (Regulations) in relation to [NAME[NAME]. Employment of [NAME]

3. Pursuant to section 550 of the Fair Work Act 2009 (Cth), Mr [APPELLANT] ([RESPONDENT] [APPELLANT]), during the period from 1 January 2010 to 15 April 2010, contravened section 45 of the Fair Work Act by [NAME] [APPELLANT] failing to pay [APPELLANT]: (a) minimum weekly wages for work performed during ordinary hours pursuant to clause 16.1 of the [NAME]; (b) shiftwork penalty rates pursuant to clause 27.1 of the [NAME]; (c) weekend penalty rates pursuant to clause 27.2 of the [NAME]; (d) penalty rates on public holidays pursuant to clause 27.3 of the [NAME]; and (e) overtime rates pursuant to clause 28 of the [NAME].

4. Pursuant to section 550 of the Fair Work Act 2009 (Cth), Mr [APPELLANT] ([RESPONDENT] [APPELLANT]), during the period from 1 January 2010 to 15 April 2010, contravened: (a) section 45 of the Fair Work Act by [NAME] [APPELLANT] failing to make superannuation contributions on behalf of [NAME[NAME] pursuant to clause 23.2 of the [NAME]; (b) sub-section 44(1) of the Fair Work Act by [NAME] [APPELLANT] failing to pay [APPELLANT] annual leave entitlements pursuant to sub-section 90(2) of the Fair Work Act and clause 29.4(a) of the [NAME]; (c) sub-section 536(1) of the Fair Work Act by [NAME] [APPELLANT] failing to provide [APPELLANT] with pay slips; and (d) sub-section 535(1) of the Fair Work Act by [NAME] [APPELLANT] failing to make and keep records of the kind prescribed by Subdivision 1 of Division 3 Part 3-6 of the Regulations in relation to [NAME]. Employment of [NAME[NAME]

5. Pursuant to section 550 of the Fair Work Act 2009 (Cth), Mr [APPELLANT] ([RESPONDENT] [APPELLANT]), during the periods from 1 January 2010 to 17 June 2010 and 15 July 2010 to 15 August 2010, contravened section 45 of the Fair Work Act by [NAME] [APPELLANT] failing to pay [NAME]: (a) minimum weekly wages for work performed during ordinary hours pursuant to clause 16.1 of the [NAME]; (b) a part time loading pursuant to clause 12.4(b) of the [NAME]; (c) shiftwork penalty rates pursuant to clause 27.1 of the [NAME]; (d) weekend penalty rates pursuant to clause 27.2 of the [NAME]; (e) penalty rates on public holidays pursuant to clause 27.3 of the [NAME]; and (f) overtime rates pursuant to clause 28 of the [NAME].

6. Pursuant to section 550 of the Fair Work Act 2009 (Cth), Mr [APPELLANT] ([RESPONDENT] [APPELLANT]), during the periods from 1 January 2010 to 17 June 2010 and 15 July 2010 to 15 August 2010, contravened: (a) section 45 of the Fair Work Act by [NAME] [APPELLANT] failing to make superannuation contributions on behalf of [NAME] pursuant to clause 23.2 of the [NAME]; (b) sub-section 44(1) of the Fair Work Act by [NAME] [APPELLANT] failing to pay [APPELLANT] annual leave entitlements pursuant to sub-section 90(2) of the Fair Work Act and clause 29.4(a) of the [NAME]; (c) sub-section 536(1) of the Fair Work Act by [sic [NAME] [APPELLANT]] failing to provide [APPELLANT[NAME] with pay slips; and (d) sub-section 535(1) of the Fair Work Act by [NAME] [APPELLANT] failing to make and keep records of the kind prescribed by Subdivision 1 of Division 3 Part 3-6 of the Regulations in relation to [NAME]. Employment of [NAME[NAME]

7. Pursuant to section 550 of the Fair Work Act 2009 (Cth), Mr [APPELLANT] ([RESPONDENT] [APPELLANT]), during the period from 18 June 2010 to 14 July 2010, contravened section 45 of the Fair Work Act by [NAME] [APPELLANT] failing to pay [APPELLANT[NAME]: (a) minimum weekly wages for work performed during ordinary hours pursuant to clause 16.1 of the [NAME]; (b) a part time loading pursuant to clause 12.4(b) of the [NAME]; (c) shiftwork penalty rates pursuant to clause 27.1 of the [NAME]; (d) weekend penalty rates pursuant to clause 27.2 of the [NAME]; (e) penalty rates on public holidays pursuant to clause 27.3 of the [NAME]; and (f) overtime rates pursuant to clause 28 of the [NAME].

8. Pursuant to section 550 of the Fair Work Act 2009 (Cth), Mr [APPELLANT] ([RESPONDENT] [APPELLANT]), during the period from 18 June 2010 to 14 July 2010, contravened: (a) section 45 of the Fair Work Act by [NAME] [APPELLANT] failing to make superannuation contributions on behalf of [NAME[NAME] pursuant to clause 23.2 of the [NAME]; (b) sub-section 44(1) of the Fair Work Act by [NAME] [APPELLANT] failing to pay [APPELLANT[NAME] annual leave entitlements pursuant to sub-section 90(2) of the Fair Work Act and clause 29.4(a) of the [NAME]; (c) sub-section 536(1) of the Fair Work Act by [NAME] [APPELLANT] failing to provide [APPELLANT[NAME] with pay slips; and (d) sub-section 535(1) of the Fair Work Act by [NAME] [APPELLANT] failing to make and keep records of the kind prescribed by Subdivision 1 of Division 3 Part 3-6 of the Regulations in relation to [NAME[NAME]. 7 If these declarations are made, the [NAME] seeks further orders in relation to the service of the orders on [RESPONDENT] [APPELLANT], and the fixing of a date for the hearing of submissions as to the appropriate pecuniary penalties. Similar orders are sought against [RESPONDENT] [APPELLANT], although in the case of [RESPONDENT] [APPELLANT], the [NAME] seeks additional orders relating to the pleadings, and the service of the pleadings. 8 For the reasons which follow, I think that the orders sought by the [NAME] against [RESPONDENT] and [RESPONDENT] respondents in the [NAME] [APPELLANT] proceeding, and in the [NAME] [APPELLANT] proceeding, should be made.

Were each of [RESPONDENT] and [RESPONDENT] Respondents in default under r 5.22? 9 Rule 5.22 provides as follows: 5.22 When a party is in default A party is in default if the party fails to: (a) do an act required to be done, or to do an act in the time required, by these Rules; or (b) comply with an order of the Court; or (c) attend a hearing in the proceeding; or (d) prosecute or defend the proceeding with due diligence. 10 The [NAME] relied primarily on the failure of each of [RESPONDENT] and [RESPONDENT] respondents to defend the [NAME] [APPELLANT] proceeding with due diligence (i.e. r 5.22(d)), although she did not abandon reliance on the other paragraphs should that be necessary. 11 I am satisfied that each of [RESPONDENT] and [RESPONDENT] respondents has failed to defend the [NAME] [APPELLANT] proceeding with due diligence. 12 [RESPONDENT] [APPELLANT] was represented by [NAME] until early April 2014. After those solicitors ceased to act, [RESPONDENT] [APPELLANT] took no part in the proceedings. An affidavit of [APPELLANT] affirmed on 6 October 2014 sets out the [NAME]'s attempts to contact [RESPONDENT] [APPELLANT], and her efforts to keep [RESPONDENT] [APPELLANT] informed of the conduct and progress of the proceedings. Reference may be made to Ms [NAME] affidavit and it is not necessary for me to set out the details. A summary of [RESPONDENT] [APPELLANT]'s involvement, including his defaults, is as follows: (1) [RESPONDENT] [APPELLANT] had solicitors representing him until 4 April 2014 when those solicitors filed a notice of ceasing to act. (2) At no time thereafter did [RESPONDENT] [APPELLANT] file a notice of address for service as required by r 4.5 of the Rules. (3) The [NAME] has made numerous attempts to contact [RESPONDENT] [APPELLANT], but he has not responded at any time. (4) [RESPONDENT] [APPELLANT] did not appear at the directions hearing on 30 April 2014, the case management conference on 13 June 2014, or on the first day of trial (i.e., 7 October 2014). The trial date was fixed at a time when [RESPONDENT] [APPELLANT] was represented by solicitors (i.e. 8 January 2014). 13 I find that [RESPONDENT] [APPELLANT] was aware of the proceedings and of the trial date. I find that he has chosen to take no part in the proceedings since April 2014. I find that [RESPONDENT] [APPELLANT] has not defended the proceeding with due diligence within r 5.22 (d) of the Rules. 14 [RESPONDENT] [APPELLANT] has not filed an address for service or appeared at any hearing held in the proceedings. He did not appear on the first day of trial. In fact, the [NAME] had difficulty serving [RESPONDENT] [APPELLANT], and I made orders for substituted service under r 10.24 of the Rules on 28 May 2012 ([NAME] [APPELLANT] proceeding), and on 30 August 2012 ([NAME] [APPELLANT] proceeding) 15 A [RESPONDENT] affidavit of Ms [APPELLANT] affirmed on 6 October 2014 establishes that, on 18 June 2012, [RESPONDENT] [APPELLANT] wrote to the [NAME] advising her that he had received a copy of the originating application and statement of claim and, according to him, had referred them to his trustee in bankruptcy. [RESPONDENT] [APPELLANT] [NAME] in the letter that he had become bankrupt in February 2012. Ms [NAME] affidavit also establishes numerous attempts by the [NAME] to contact [RESPONDENT] [APPELLANT]. 16 [RESPONDENT] [APPELLANT] has effectively chosen to ignore these proceedings, and I find that he has not defended the proceeding with due diligence within r 5.22(d) of the Rules.

Should the Declaratory Relief sought by the [NAME] be granted? 17 Before the introduction of the Federal Court Rules 2011 (Cth), default judgments were dealt with in O 35A of the Federal Court Rules 1979 (Cth). The equivalent of what is now r 5.23(c) was O 35A r 3(2)(c). I set out O 35A r 3(2)(c) and r 5.23(c): 3 Orders on default (2) If a [APPELLANT] is in default, the Court may: (c) if the proceeding was commenced by an application supported by a statement of claim or the Court has ordered that the proceeding continue on pleadings — give judgment against the [APPELLANT] for the relief that: (i) the applicant appears entitled to on the statement of claim; and (ii) the Court is satisfied it has power to grant; Rule 5.23 Orders on default (2) If a [APPELLANT] is in default, an applicant may apply to the Court for: (c) if the proceeding was started by an originating application supported by a statement of claim, or if the Court has ordered that the proceeding continue on pleadings — an order giving judgment against the [APPELLANT] for the relief claimed in the statement of claim to which the Court is satisfied that the applicant is entitled; or ... 18 I start with a number of general observations on the Court's power to make declarations on an application for default judgment. 19 In [NAME] v [NAME] [2005] FCA 433 ("[NAME] v [NAME]") at [3] Heerey J said that O 35A r 3(2)(c) did not require proof by way of evidence of the applicant's claim, but rather, satisfaction on the part of the Court that, on the face of the statement of claim, there was a claim for relief and that the Court had jurisdiction to grant that relief. In that case, in relation to an [NAME] infringement of a registered design, Heerey J gave judgment in default, including injunctions and orders for delivery up and the payment of costs. 20 The decision in [NAME] v [COMPANY] has been followed in subsequent cases involving applications for default judgment: [NAME] Commission v [COMPANY] [2005] FCA 856 (injunctions and other orders under the Trade Practices Act 1974 (Cth)); [NAME] [COMPANY] v Bose [2006] FCA 94 (damages for breach of contract); [NAME] v [COMPANY] [2008] FCA 569 (injunction and other relief in connection with the infringement of a patent). Where the Rule of Court dealing with default judgments is engaged by a [APPELLANT]'s default, the allegations of fact in the statement of claim are deemed to be admitted: [NAME] Commission v [COMPANY] & [NAME] (2007) 161 FCR 513 at 523, [42]. I agree with Flick J in [COMPANY]. v [NAME] (No 2) [2011] FCA 1227 at [19] and [23] that, despite the difference in wording between O 35A r 3(2)(c) and r 5.23(2)(c), this principle applies to r 5.23(2)(c) in the same way it did to O 35A r 3(2)(c). 21 In [NAME] Commission v [COMPANY] and [NAME] [2006] FCA 1427; (2006) 236 ALR 665, Kiefel J, sitting as a judge of this Court, made a number of important points which were not overturned or criticised by the [ADDRESS] when the matter went on appeal ([NAME] Commission v [NAME].[COMPANY] (In Liquidation) and [NAME] (2007) 161 FCR 513). First, [NAME] held that O 35A r 3(2)(c) involves an admission of the facts [NAME] in the statement of claim. It does not involve a concession by a [APPELLANT] that the applicant is entitled to the relief sought (at 677, [44]). Secondly, [NAME] said that the view that declarations would not be made on deemed admissions was, in fact, based on a rule of practice, not a rule of law. In view of modern developments in the use of declarations, caution should be exercised in applying the rule of practice (at 680-681, [58]). [NAME] went on to say (at 681, [59]): It may no longer be correct to have a practice which operates as a prohibition in every case of default and preferable to consider the circumstances pertaining to the particular case and the purpose and effect of the declaration. Millett J made declaratory orders in [NAME] v [NAME] Co Ltd [1991] 1 WLR 541; [1991] 2 All ER 821 where justice to the plaintiff required it. The order, however, operated principally inter partes and it might be doubted whether it would be of interest to other persons. Cases such as this, involving the protection of consumers, are of public interest. Declarations are often utilised in such cases to identify for the public what conduct contributes a contravention and to make apparent that it is considered to warrant an order recognising its seriousness. It is however important that there be no misunderstanding as to the basis upon which they are made. This could be overcome by a statement, preceding the declarations, that orders are made: "upon admissions which [the [APPELLANT] in question] is taken to have made, consequent upon non-compliance with orders of the court". 22 As far as the particular circumstances of this case are concerned, declarations are appropriate because they are likely to have a deterrent effect: [NAME] Commission v [COMPANY] and [NAME] (2004) FCA 693; (2004) 207 ALR 329 at 333, [22] per [NAME] J; [NAME] v [COMPANY] (No 2) [2010] FCA 1156 at [210] per [NAME]. Furthermore, there is utility in setting out the basis for any pecuniary penalties which may be ordered: [COMPANY] v [NAME] Commission & [NAME] (2003) 216 CLR 53 at 92, [95] per Gummow, [NAME] JJ. 23 Finally, I am not bound to refuse declarations because no-one appeared to oppose them being made. The persons with the requisite interest in opposing the declarations could have appeared and could have opposed them. The fact that they have chosen not to do so does not mean that declaratory relief cannot be granted: [NAME] Commission v [COMPANY] & [NAME] [2012] FCAFC 56 at [14], [18] and [34]. 24 I turn now to the facts relating to the [NAME] contraventions, and [RESPONDENT] and [RESPONDENT] respondents' involvement in the contraventions. It will be apparent from what I said earlier, that the facts reflect the allegations in the Statement of Claim. 25 At all material times, [RESPONDENT] [APPELLANT] was the sole director, company secretary and sole beneficial owner of all the issued shares in two companies, [COMPANY] ("[NAME]") (a company now in liquidation), and [COMPANY] ("[NAME]"). The two [NAME] provided [COMPANY] to [NAME]. [NAME] made a written agreement with [NAME] to provide such services, and [NAME] and [NAME] subsequently entered into a written agreement with [NAME] [APPELLANT] for him to provide the services to them. 26 [RESPONDENT] [APPELLANT] was the general manager of both [NAME] and, with [RESPONDENT] [APPELLANT], had the principal management and control of the business of [NAME] and [NAME] in relation to those companies' dealings with [NAME], and in relation to the [NAME] engaged by [NAME] in relation to the provision of [COMPANY]. 27 [RESPONDENT] and [RESPONDENT] respondents were in effective control of the two [NAME]. [NAME] [APPELLANT] was dependent upon those companies for his business. The pay rates that [NAME] [APPELLANT] was able to pay were a function of the fees that [NAME] paid under the subcontract. [NAME] had entered into its agreement with [NAME] on the basis that it was in a position to monitor and control, and would monitor and control, the manner in which its [NAME] paid employees who were used to provide the services and the keeping of employee records by the [NAME]. [NAME] [APPELLANT] was not a sophisticated businessman and, in relation to the manner in which he conducted his business, including the wage rates he paid the [NAME], he was subject to the direction of [RESPONDENT] and [RESPONDENT] respondents. In the circumstances, [RESPONDENT] and [RESPONDENT] respondents had the capacity to control, direct or influence (or all of these) the conduct of [NAME] [APPELLANT] in relation to the wages and conditions that he paid and accorded to his employees, and the practices that [NAME] [APPELLANT] adopted with respect to the issuing of payslips and the keeping of employee records in relation to the employees. 28 [RESPONDENT] and [RESPONDENT] respondents were responsible for making the contract between [NAME] and [NAME] [APPELLANT], and negotiating the rates [NAME] paid to [NAME] [APPELLANT] under the contract. [RESPONDENT] and [RESPONDENT] respondents were each familiar with the basis and rates upon which [NAME] [APPELLANT] employed [NAME] at the [NAME]. [NAME] and [NAME] employed supervisors in South Australia who reported to [RESPONDENT] and [RESPONDENT] respondents as to the manner in which [NAME] [APPELLANT] employed [NAME] at the [NAME]. It may be inferred from these matters that, at all times prior to 1 January 2010 and after that date, [RESPONDENT] and [RESPONDENT] respondents knew that [NAME] [APPELLANT] was paying the employees either fixed or lump sum amounts per week for their services, not based on hourly rates of pay, or rates of pay determined only by [NAME] [APPELLANT], but rather based on the fees that [NAME] paid to [NAME] [APPELLANT] under the subcontract, and that those amounts or rates were not calculated having regard to the rates and conditions of employment prescribed by any award. 29 [RESPONDENT] and [RESPONDENT] respondents were senior officers of [NAME] and [NAME], and those companies carried on the business of providing [COMPANY] to [NAME], including by way of subcontracting that work to other persons. In the course of carrying out such a business, they were required to and, as a matter of course, did acquire detailed knowledge of the incidents of award coverage of employees performing trolley collection work, and of workplace laws regulating employees in the trolley collection business. The award modernisation process was well-known and it was well-known that, as part of that process, a federal award regulating the rates and conditions of [NAME] had been made in 2009, that it would come into effect on 1 January 2010, and that it would apply to all employers in South Australia. [RESPONDENT] and [RESPONDENT] respondents knew that the [NAME] applied in that manner before 1 January 2010 as they were informed of this by a memorandum of legal advice dated 12 May 2008 from [RESPONDENT] to [NAME]. In the circumstances, [RESPONDENT] and [RESPONDENT] respondents each knew for some time before 1 January 2010 that from that date the wage rates and conditions of the employees would be regulated by a federal award, and that from that date [NAME] [APPELLANT] would be obliged to comply with the provisions of the Act in relation to the issuing of payslips and the keeping of employee records. Furthermore, they knew on 1 January 2010, and at all material times after that, that the wage rates and conditions of the employees were regulated by a federal award, and that [NAME] [APPELLANT] was obliged to comply with the provisions of the Act in relation to the issuing of payslips and the keeping of employee records. 30 The observance by [NAME] [APPELLANT] of the increased wages and conditions prescribed by the federal award would have had a substantial impact upon the profitability of his business and entailed a renegotiation of the rates under the subcontract. [NAME] nor [RESPONDENT] and [RESPONDENT] respondents received any request by [NAME] [APPELLANT] after 1 January 2010 for an increase in the rates under the subcontract. [RESPONDENT] [APPELLANT] nor [RESPONDENT] [APPELLANT] made any inquiry or took any step to ascertain whether [NAME] [APPELLANT], after 1 January 2010, was paying and according the employees the rates and conditions prescribed by the federal award, or observing the provisions of the Act in relation to issuing of payslips and keeping employee records. In the circumstances, [RESPONDENT] and [RESPONDENT] respondents each knew that the wage rates and conditions that [NAME] [APPELLANT] applied in relation to the [NAME] after 1 January 2010 were less beneficial than those that [NAME] [APPELLANT] was required to observe by the applicable award, and [NAME] [APPELLANT] was not issuing payslips and not keeping employee records in accordance with the Act. 31 Despite having the knowledge referred to above, [RESPONDENT] and [RESPONDENT] respondents each omitted to take any, or any effective action, either before or after 1 January 2010 to ensure that, after 1 January 2010, [NAME] [APPELLANT] complied with the federal award regulating the wage rates and conditions of the employees from that date, or that he complied with the provisions of the Act in relation to the issuing of payslips and the keeping of employee records from that date. By omitting to take any, or any effective action, they induced [NAME] [APPELLANT] into the belief that neither they nor [NAME] required him, on and from 1 January 2010, to comply with award regulated wages and conditions in relation to his employment of the employees, or to comply with the provisions of the Act in relation to the issuing of payslips and the keeping of employee records, and that the continuation of the subcontract was not dependent upon [NAME] [APPELLANT] complying with award regulated wages and conditions in relation to his employment of the employees, or to comply with the provisions of the Act in relation to the issuing of payslips and the keeping of employee records, and that the employment arrangements that [NAME] [APPELLANT] had in place with the employees were acceptable to [RESPONDENT] and [RESPONDENT] respondents. 32 By reason of all of the foregoing matters, [RESPONDENT] and [RESPONDENT] respondents brought about, encouraged, or facilitated (or all of these), [NAME] [APPELLANT]'s conduct in paying the employees wage rates and according the employees conditions after 1 January 2010 that were less beneficial than those regulated by the applicable award, and in failing to comply with the provisions of the Act in relation to the issuing of payslips and the keeping of employee records, associated themselves with [NAME] [APPELLANT]'s conduct in that regard, or rendered [NAME] [APPELLANT]'s conduct in that regard more likely. 33 I need to be satisfied that on these facts, each of [RESPONDENT] and [RESPONDENT] respondents was involved in the contraventions committed by [NAME] [APPELLANT] in relation to the underpayment of wages, making of superannuation contributions, the issuing of payslips and the keeping of employee records within the meaning of s 550(2)(c) of the Act. That was the paragraph relied on by the [NAME]. It provides as follows: A person is involved in a contravention of a civil remedy provision if, and only if, the person : .... (c) has been in any way by act or omission, directly or indirectly, knowingly concerned in or party to the contraventions; 34 The [NAME] referred me to a number of authorities which she submitted were relevant in ascertaining the scope of this paragraph. She started with the well-known decision of the High Court in [NAME] v [NAME] (1985) 158 CLR 661. That case concerned the application of s 75B of the Trade Practices Act 1974 (Cth), a section which was in similar, but not identical terms, to s 550(2)(c) of the Act. [ADDRESS] said that, in order to fall within the terms of s 75B, the [NAME] must have knowledge of all of the essential facts even if he or she does not know that those facts constitute a contravention. 35 The [NAME] next referred to R v [NAME] (1882) 8 QBD 534, and in particular, the observations of [NAME] J at 557-558: It is no criminal offence to stand by, a mere passive spectator of a crime, even of murder. Non-interference to prevent a crime is not itself a crime. But the fact that a person was voluntarily and purposely present witnessing the commission of a crime, and offered no opposition to it, though he might reasonably be expected to prevent and had the power so to do, or at least to express his dissent, might under some circumstances, afford cogent evidence upon which a jury would be justified in finding that he wilfully encouraged and so aided and abetted. 36 In this context, the [NAME] also referred to [NAME] v [NAME] (1907) 1 KB 40, R v Russell (1933) VLR 59, Tuck v Robson (1970) 1 WLR 741, Randall v R (2004) 146 A Crim R 197, and [NAME] v Ministry for Transport [1991] 2 NZLR 693 at 698 per [NAME] J. 37 The [NAME] also referred to the decision of the [ADDRESS] of this Court in [NAME] v [COMPANY] (in liq) and [NAME] (1987) 73 ALR 233. In that case, the [NAME] was found to have been knowingly concerned in a contravention of s 52 of the Trade Practices Act within s 75B of the Act. The [NAME] was held liable because he played a significant part in the contravention by keeping important information from the applicants and by accepting joint responsibility for certain false statements. 38 In [COMPANY] v Construction, Foresting, Mining and Energy Union [2006] WASC 144; (2006) 154 IR 228 [NAME] in the course of construing s 48(2) of the Building and Construction Industry Improvement Act 2005 (Cth), which is in identical terms to s 550(2) of the Act, said that (at 234, [25]): A person is directly or indirectly knowingly concerned in or party to a contravention if he or she has full knowledge of the essential facts or matters constituting the contravention and is an intentional participant by virtue of some act or conduct on his or her part which contributes to the commission of the offence. The person must engage in some act or conduct, including an intentional omission, which implicates or involves him or her in the contravention. 39 Finally, the [NAME] referred to the following passage from [NAME[NAME] and [NAME[NAME], Criminal Law (7th ed, [NAME], 1992) p 132: Where [NAME] has a right to control the actions of [NAME] and he deliberately refrains from exercising it, his activity may be a positive encouragement to the other to perform an illegal act, and, therefore, in aiding and abetting. A husband who stands by and watches his wife drown their children is guilty of abetting the homicide. His deliberate abstention from action gives encouragement and authority to his wife's act. If a licensee of a public house stands by and watches his customers drinking after hours, he is guilty of aiding and abetting them in doing so. 40 These then were the cases to which I was referred by the [NAME]. I was not referred to a case which provides clear assistance on the question presently before me, and I am not aware of any such case. I would also make the point that this case is somewhat unique because I proceed by reference to facts which reflect general allegations in the Statement of Claim. 41 I have reached the following conclusions. I do not think that there is any difficulty in concluding that [RESPONDENT] and [RESPONDENT] respondents were the alter ego or controlling minds of the [NAME]. Those companies were in a contractual relationship with [NAME] [APPELLANT] for the latter to provide [COMPANY]. In order to provide those services, [NAME] [APPELLANT] employed various persons and he did not meet his obligations as an employer. He contravened each of ss 45, 44(1), 536(1) and 535(1). [RESPONDENT] and [RESPONDENT] respondents know of the essential elements of the contraventions? Of the seven paragraphs in the Fourth Further Amended Statement of Claim, three contain allegations of knowledge on the part of [RESPONDENT] and [RESPONDENT] respondents. They knew before and after 1 January 2010 that [NAME] [APPELLANT] was not paying his employees in accordance with the terms of an award (paragraph 48). They knew for some time prior to 1 January 2010 that from 1 January 2010 [NAME] [APPELLANT]'s employees would be regulated by a federal award, and that he would be subject to the obligations in the Act, including ss 536(1) and 535(1) (paragraph 49). They knew that the terms and conditions [NAME] [APPELLANT] afforded his employees after 1 January 2010 were less beneficial than the terms and conditions prescribed by the applicable award, and that he was not issuing payslips and not keeping employee records in compliance with the Act (paragraph 50). 42 I have carefully considered whether there is a sufficient allegation of knowledge of the particular instances of the [NAME] contravention of s 45 (e.g., a failure to pay minimum weekly wages, a failure to pay shiftwork penalty rates, etc.). I have reached the conclusion that there is, particularly in light of the allegation that each of [RESPONDENT] and [RESPONDENT] respondents knew that [NAME] [APPELLANT] was paying his employees fixed or lump sum amounts based on fees that they were paying to [NAME] [APPELLANT], and the allegation that they were aware that a federal award regulating the rates and conditions of [NAME] had been made in 2009 and would come into effect on 1 January 2010. 43 The next question is whether it can be said that the conduct of [RESPONDENT] [APPELLANT], and the conduct of [RESPONDENT] [APPELLANT], whether by act or omission and directly or indirectly is sufficient to meet the description of being knowingly concerned in the contravention or party to the contravention. I think that the answer to that question in this case is yes, and in reaching that conclusion, I have relied principally on the allegation (taken to be admitted) that, at all material times, [RESPONDENT] and [RESPONDENT] respondents had the capacity to control, direct or influence the conduct of [NAME] [APPELLANT] in relation to the wages and conditions that were paid and accorded to his employees by [NAME] [APPELLANT], and the practices that [NAME] [APPELLANT] adopted with respect to the issuing of payslips and keeping of employee records in relation to employees and the allegation (taken to be admitted) that [NAME] [APPELLANT] was not a sophisticated businessman and he was subject to the direction of [RESPONDENT] and [RESPONDENT] respondents in relation to the manner in which he conducted his business, including in relation to the wage rates he paid the [NAME].

Conclusion 44 I will make the declarations and other orders sought by the [NAME]. I will also fix a date for the hearing of submissions as to the appropriate pecuniary penalties. I certify that the preceding forty-four (44) numbered paragraphs are a true copy of the Reasons for Judgment herein of the [NAME] [NAME].

Associate: Dated: 2 April 2015