2025 WAIRC 00229
INDUSTRIAL MAGISTRATES COURT OF WESTERN AUSTRALIA


CITATION
:
2025 WAIRC 00229



CORAM
:
INDUSTRIAL MAGISTRATE C. TSANG



HEARD
:
MONDAY, 3 FEBRUARY 2025



DELIVERED
:
TUESDAY, 8 APRIL 2025



FILE NO.
:
M 116 OF 2024



BETWEEN
:
CHRISTOPHER APLIN


CLAIMANT





AND





ARC HOLDINGS (WA) PTY LTD


FIRST RESPONDENT





MR THOMAS JOHN GRIFFITHS


SECOND RESPONDENT

CatchWords : INDUSTRIAL LAW - Application for imposition of civil penalties for a contravention of s 84T(1) of the Industrial Relations Act 1979 (WA) requiring a person to comply with a compliance notice – Whether there is a reasonable excuse under s 84T(3) of the Industrial Relations Act 1979 (WA)
Legislation : Industrial Relations Act 1979 (WA), ss 83E, 84T, 84U
Cases referred
to in reasons: : Callan v Smith [2021] WAIRC 00216
Community and Public Sector Union v Telstra Corporation Inc [2001] FCA 1364
Dixon v Stojic [2024] WAIRC 00177
Fair Work Ombudsman v ANSA Finance Pty Ltd [2022] FedCFamC2G 833
Fair Work Ombudsman v Kentwood Industries Pty Ltd [2011] FCA 579
Fair Work Ombudsman v Offshore Marine Services Pty Ltd [2012] FCA 498
Fair Work Ombudsman v Pacific Security Services Pty Ltd [2021] FedCFamC2G 111
Fair Work Ombudsman v Viper Industries Pty Ltd [2015] FCCA 492
Gardos v Baker [2024] WAIRC 00128
Potter v Fair Work Ombudsman [2014] FCA 187
Result : Penalties imposed with costs
Representation:
Claimant : Mr J Carroll (of counsel)
Respondent : Mr K Bowyer (of counsel)



REASONS FOR DECISION
Background
1 On 28 August 2024, the claimant (Inspector) filed an Originating Claim, stating:
PARTICULARS OF CLAIM
1. The Claimant, Chris Aplin, is employed as a public service officer in the Department of Energy, Mines, Industry Regulation and Safety (the Department) and is designated as an industrial inspector pursuant to section 98(1) of the Industrial Relations Act 1979 [(WA) (Act)].
2. The Minister for Industrial Relations has directed designated industrial inspectors ‘to carry out such duties and exercise such powers as may lawfully be required to secure the observance of the provisions of the [Act]’.
3. This claim is made pursuant to sections 83E(1) and 84T(2) of the [Act].
4. material times [sic], Since at least April 2000, the First Respondent, a body corporate, has operated a business trading as ARC Switchboards or ARC SWITCHBOARDS.
5. Since 14 April 1999, Mr Thomas John Griffiths, the Second Respondent, has been sole Director and Company Secretary of the First Respondent.
6. Ms Chiara Catalucci is employed as a public service officer in the Department and was, at all material times, that is, up to and including 8 May 2023, designated as an industrial inspector pursuant to section 98(1) of the [Act].
7. Accompanied by a covering letter to the Second Respondent, Ms Catalucci issued the First Respondent with a compliance notice dated 8 May 2023 (the Compliance Notice) requiring the First Respondent to take the actions specified in the Compliance Notice.
8. Ms Catalucci personally served the Compliance Notice on the First Respondent on 8 May 2023 at the First Respondent’s offices at [redacted], by handing the Compliance Notice to the Second Respondent.
9. The Compliance Notice required the payment of $9,345.21 to Mr Patrick McCormick, a former employee of the First Respondent. It also required the provision of reasonable evidence of the First Respondent’s compliance with the notice to Ms Catalucci.
10. The First Respondent was required to comply with the Compliance Notice, and provide evidence of compliance, on or before 6 June 2023.
11. The First Respondent did not comply with the Compliance Notice by the date required for compliance or at all.
12. The First Respondent has not complied with the Compliance Notice since that date:
a) Mr McCormick has not received any payment from the First Respondent;
b) The Department has not received evidence of any payment.
ALLEGED CONTRAVENTIONS
13. The First Respondent has not taken the actions required by the Compliance Notice, namely:
a) Paid Mr McCormick $9,345.21;
b) provided the Department with evidence of compliance.
14. The First Respondent has therefore contravened section 84T(1) of the [Act], which requires compliance with a compliance notice; this is a civil penalty provision for the purposes of section 83E of the [Act] with the penalties in section 84T of the [Act] applying to the contravention.
15. The Second Respondent is a person involved in the contravention of the civil penalty provision. The Second Respondent did aid, abet, counsel or procure the contravention pursuant to section 83E(1B)(a) of the [Act], and/or was by, act or omission, directly or indirectly, knowingly concerned in or party to the contravention pursuant to section 83E(1B)(c) of the [Act], as:
(i) The Second Respondent was served with the Compliance Notice and therefore has knowledge of it;
(ii) The Compliance Notice was not complied with;
(iii) As the sole Director of the First Respondent, the Second Respondent was served with the Compliance Notice and where the Compliance Notice was not complied with, he has the knowledge that it was not complied with.
(iv) The Second Respondent omitted to comply with the Compliance Notice, or to arrange compliance with the Compliance Notice.
ORDERS SOUGHT
1. The First Respondent, ARC Holdings (WA) Pty Ltd, pay a penalty for the contravention of a civil penalty provision, such penalty to be determined and imposed by the Court pursuant to sections 83E(1) and 84T(2)(a) of the [Act].
2. The Second Respondent, Mr Thomas John Griffiths, pay a penalty as a person taken to have contravened a civil penalty provision pursuant to sections 83E(1A) and 83E(1B)(a) or (c) of the [Act], such penalty to be determined and imposed by the Court pursuant to sections 83E(1) and 84T(2)(b) of the [Act].
3. Pursuant to section 83E(11) of the [Act], the Respondents to pay the disbursements incurred by the Claimant in relation to the proceedings.
2 On 25 September 2024, the respondents filed a Response, stating:
1. At all material times, since at least April 2000, the First Respondent, a body corporate, has operated a business trading as ARC Switchboards [or] ARC SWITCHBOARDS.
2. Since 14 April 1999, Mr Thomas John Griffiths, the Second Respondent, has been the Sole Director and Company Secretary of the First Respondent.
3. The Respondents have at all times been ready, willing and able to make payment of the sum in the Compliance Notice to Patrick McCormick.
4. Solicitors for the Respondents have requested the details of where to make payment of the sum.
5. The Claimant has not provided the details of where to make payment of the sum.
6. Solicitors for the Claimant confirmed the details of where to make the payment of the sum on 18 September 2024.
7. The Respondent has made the payment in full for the sum owed under the compliance notice to Patrick McCormick on 23 September 2024.
8. The Respondents therefore oppose any orders sought. The proceedings ought to be dismissed.
3 The matter was listed for a directions hearing on 1 November 2024.
4 At the directions hearing, I observed that the Response did not appear to dispute the fact that the Compliance Notice had not been complied with. The Response indicated that the amount required to be paid under the Compliance Notice was paid after the filing of the Originating Claim. Consequently, it appeared that the only issue in dispute was the reasoning behind the nonpayment in accordance with the Compliance Notice requirements.
5 Counsel for the Inspector stated that the Inspector’s stance was that the Response essentially admitted to a contravention, in substance, if not in form. Transcript, Aplin v ARC Holdings (WA) Pty Ltd, Industrial Magistrates Court of Western Australia, 1 November 2024, 3.

6 Counsel for the respondents stated Ibid.
:
FARAH, MS: Yes, your Honour. I tend to agree that, in – it’s a matter of form, at this point, that’s in contest. We say that if your Honour wishes to proceed to list the matter, just for a hearing on the degree of a penalty that should be invoked, we’re in your Honour’s hands, at this point in time.
7 As a result, I heard from counsel for the parties on the Orders that should be made, and issued Orders on the following terms:
1. The matter is to be listed for a half-day penalty hearing not before 28 January 2025.
2. The parties are to file any statement of agreed facts and a bundle of any agreed documents by 4:00pm on 15 November 2024.
3. The claimant is to file and serve any witness statements, and any documents which are not agreed documents, upon which he intends to rely by 4:00pm on 29 November 2024.
4. The respondents are to file and serve any witness statements, and any documents which are not agreed documents, upon which they intend to rely by 4:00pm on 13 December 2024.
5. The claimant is to file and serve a written outline of submissions and list of authorities upon which he intends to rely by 4:00pm on 3 January 2025.
6. The respondents are to file and serve a written outline of submissions and list of authorities upon which they intend to rely by 4:00pm on 17 January 2025.
7. If a party intends to rely upon documents as evidence at the trial, that party must lodge those documents with the Court, together with a Form 29 – Multipurpose Form under the heading ‘Copies of Records’, and then provide a stamped copy of the documents to the other party in accordance with the dates set out in orders 3 and 4 above.
8. Each witness statement shall –
(a) be written and attached to a Form 29 – Multipurpose Form under the heading ‘Witness Statement’;
(b) be written in numbered paragraphs;
(c) identify at the beginning of the statement the identity of the person making the statement and the nature of that person’s relationship to the parties to the claim;
(d) detail the evidence to be given by the person at trial; and
(e) have attached copies of any documents referred to in the witness statement that are in the possession or control of the person making the statement.
9. Evidence in chief in this matter be adduced by way of witness statements which will stand as the evidence in chief of the maker. Evidence in chief other than that contained in the witness statement may only be adduced by leave of the Industrial Magistrate.
10. The parties have liberty to apply.
8 On 22 January 2025, the respondents filed their written outline of submissions, stating:
2. The Respondents were held to have committed the contraventions without being provided the opportunity to be heard as to any defence in relation to the claim. The Respondents still object to this course of action.
…
29. The Respondents were not afforded the opportunity to be heard on any such potential points of defence at the Initial Hearing.
9 It is therefore necessary to note at this point in these reasons that the respondents’ submissions at [8] above are rejected, for the following reasons:
(a) The respondents were represented by counsel at the directions hearing who actively participated in the directions hearing, as outlined at [6] and [7] above.
(b) On 1 November 2024, the Orders at [7] above were issued to the parties.
(c) On 11 November 2024, the parties were notified that the penalty hearing was listed on Monday, 3 February 2025 at 10:00am.
(d) Despite Order 10 (at [7] above) expressly providing the parties with liberty to apply, the respondents did not file an application to have the Orders varied.
(e) The respondents were receiving legal advice at all times Transcript, Aplin v ARC Holdings (WA) Pty Ltd, Industrial Magistrates Court of Western Australia, 3 February 2025, 10.
.
(f) Contrary to the respondents’ submissions at [8] above, the respondents concede to the contravention in their written submissions: (emphasis added)
46. The Respondents failure to comply with the compliance notice has resulted in Mr McCormick being delayed in receiving his long service leave entitlements in the sum of $9,345.21. The Respondents accept this is a significant sum of money.
…
50. This is the first contravention of its kind by either the First or Second Respondents.
…
52. There was only one breach. This consideration is therefore irrelevant.
…
58. Senior management was involved in the breaches in that Mr Griffiths as director of Arc was involved in the decision.
The evidence
10 On 11 November 2024, the parties filed a statement of agreed facts, stating: [Exhibit 3]
The parties agree as follows:
1. The first respondent (ARC Holdings) is a body corporate and at all material times has operated a business trading as ARC Switchboards or ARC SWITCHBOARDS.
2. ARC Holdings’ registered office is [redacted].
3. The second respondent (Mr Griffiths) has been the sole director and secretary of ARC Holdings since 14 April 1999.
4. On 8 May 2023, Ms Chiara Catalucci, a public service officer designated as an industrial inspector pursuant to [s 98(1) of the Act], served a compliance notice (Compliance Notice) and covering letter on ARC Holdings by handing the Compliance Notice and cover letter to Mr Griffiths at ARC Holdings’ registered office at [redacted].
5. Agreed Document 1 is a copy of the covering letter accompanying the Compliance Notice.
6. Agreed Document 2 is a copy of the Compliance Notice.
7. The Compliance Notice required ARC Holdings to do the following on or before 6 June 2023:
(a) pay $9,345.21 to Mr Patrick McCormick, a former employee of ARC Holdings; and
(b) provide evidence of such payment to Ms Catalucci.
8. ARC Holdings did not pay $9,345.21 to Mr Patrick McCormick and provide evidence of such to Ms Catalucci on or before 6 June 2023.
9. ARC Holdings paid $9,345.21 to Mr Patrick McCormick on or around 18 September 2024.
10. Mr Griffiths:
(a) as the sole director and secretary of ARC Holdings, was the person responsible for ensuring ARC Holdings complied with the Compliance Notice;
(b) as the person who received service of the Compliance Notice for and on behalf of ARC Holdings was aware of the requirements in the Compliance Notice on and from 8 May 2023;
(c) did not take sufficient steps to ensure that ARC Holdings complied with the Compliance Notice on or before 6 June 2023;
(d) knew that ARC Holdings did not comply with the Compliance Notice on or before 6 June 2023; and
(e) at all times from 8 May 2023 to 6 June 2023, as sole director and secretary of ARC Holdings, had the power to ensure that ARC Holdings complied with the Compliance Notice.
11. By application accepted for filing on 2 June 2023, ARC Holdings applied to the Industrial Magistrates Court (IMC) for a review of the Compliance Notice under s 84U(1)(a) of the [Act]. The proceedings were given court number M 72 of 2023.
12. On 5 June 2023, ARC Holdings lodged a Form 6 Application with the IMC in M 72 of 2023 applying for an order under s 84U(2) of the [Act] that the operation of the Compliance Notice be stayed (Form 6 Application). The Form 6 Application was accepted for filing on 6 June 2023.
13. The respondent to M 72 of 2023 undertook not to enforce the Compliance Notice whilst M 72 of 2023 remained on foot and as a consequence ARC Holdings withdrew the Form 6 Application.
14. On 22 December 2023, the IMC delivered its decision in M 72 of 2023 dismissing the application for review. On 16 January 2024 ARC Holdings lodged an appeal to the Full Bench of the WA Industrial Relations Commission seeking an extension of time in which to appeal against the decision in M 72 of 2023. The proceedings were numbered FBA 2 of 2024. By decision delivered on 28 May 2024, the Full Bench dismissed FBA 2 of 2024.
11 On 20 November 2024, the Inspector filed a witness statement of Chiara Catalucci signed on 18 November 2024, stating: [Exhibit 1]
1. My name is Chiara Catalucci.
2. I am employed as a public service officer in [the Department].
3. At all material times, until 4 August 2023, I had been designated as an industrial inspector pursuant to [s 98(1) of the Act] by the CEO of the Department.
4. Attached and marked “CC01” is a true copy of designations dated 28 February 2020, 8 February 2021, 09 March 2021, 2 February 2022, 16 June 2022, 25 August 2022, 13 January 2023 and 4 August 2023. [Exhibit 2]
5. I am no longer designated as an industrial inspector as I have been appointed to a different position within the Department.
6. The Compliance Notice I issued on 8 May 2023 and served on Mr Thomas John Griffiths that day required ARC Holdings (WA) Pty Ltd to:
a) pay $9,345.21 to Mr Patrick McCormick;
b) provide evidence to me of the payment by 6 June 2023, via post to Private Sector Labour Relations, [redacted] or email to [redacted].
7. My email address, [redacted] did not change when I ceased to be an industrial inspector and I continue to receive emails that are sent to that address.
8. As at today’s date, I have not received any evidence of payment by mail or by email.
9. I have checked the Department’s document management system today and confirmed no mail has been received from either Respondent relating to the payment.
10. I declare that this statement is true to the best of my knowledge and belief and that I have made this statement knowing that if it is tendered in evidence I will be guilty of a crime if I have wilfully included in this statement anything which I know to be false or that I do not believe to be true.
12 On 8 January 2025, the respondents filed an affidavit of the second respondent, John Griffiths affirmed on 7 January 2024, stating: [Exhibit 5]
1. On or about 8 May 2023, I was served with a Compliance Notice issued by Senior Industrial Inspector Chiara Catalucci on behalf of Mr Patrick McCormick.
2. I instructed my legal representatives to file an Originating Claim seeking to set aside the Compliance Notice which was filed with Industrial Magistrates Court on 2 June 2023.
3. On 22 December 2023, the matter was determined by IM Tsang and orders were made confirming the Compliance Notice.
4. I instructed my solicitors to appeal the decision of IM Tsang, such Notice of Appeal was filed on 16 January 2024.
5. On 28 May 2024, Orders were made dismissing the Appeal.
6. On 24 June 2024, I instructed my solicitors that I did not wish to challenge the Orders that were made. I telephoned my legal representative, Kyle Kutasi. We had the following conversation:
JG: I need to pay [McCormick]. I need to confirm payment details?
KK: No worries. Leave it with me.
7. I have not received any further notice from my legal representative, from Mr McCormick or from any Industrial Inspector as to where payment was to be made.
8. Despite being ready and willing to pay since 24 June 2024, I did not receive any confirmation of the correct details to make payment.
9. On 5 September 2024, I was served with the Originating Claim commencing these proceedings.
10. I immediately made arrangements to make payment in accordance with the Compliance Notice by paying into the trust account of my solicitors. A copy of a receipt of payment is annexed and marked “JG-1”.
The law and relevant principles
13 The version of the Act that applies to these proceedings is the version current from 1 July 2022 to 12 November 2024.
14 Section 84T of the Act states:
84T. Person must comply with compliance notice
(1) A person must comply with a compliance notice.
(2) A contravention of subsection (1) is not an offence but the subsection is a civil penalty provision for the purposes of section 83E, except that the pecuniary penalty cannot exceed –
(a) in the case of a body corporate – $30 000;
(b) in the case of an individual – $6 000.
(3) Subsection (1) does not apply if the person has a reasonable excuse.
15 Sections 83E(1), (1A), (1B), (6)(d), (10) and (11) of the Act state:
83E. Civil penalty provision, proceedings for contravening
(1) If a person contravenes a civil penalty provision, the industrial magistrate’s court may, on an application to the court, make an order imposing a pecuniary penalty on the person …
(1A) A person who is involved in a contravention of a civil penalty provision is taken to contravene that provision.
(1B) A person is involved in a contravention of a civil penalty provision if, and only if, the person –
(a) aids, abets, counsels or procures the contravention; or
(b) induces the contravention, whether by threats or promises or otherwise; or
(c) is in any way, by act or omission, directly or indirectly, knowingly concerned in or party to the contravention; or
(d) conspires with others to effect the contravention.
…
(6) Except as provided in subsections (6a) and (7A), an application for an order under this section may be made by –
…
(d) an industrial inspector.
…
(10) Where, on an application under subsection (6), the industrial magistrate’s court does not make an order under subsection (1) or (2), the court may, by order, dismiss the application.
(11) An order under subsection (1), (2) or (10) may be made in any case with or without costs, but in no case can any costs be given against the Registrar, the deputy registrar, or an industrial inspector.
16 On 18 December 2024 and 22 January 2025, the Inspector and the respondents filed their written submissions. They agreed that the factors set out in Callan v Smith [2021] WAIRC 00216 (Callan) [90] are relevant to the determination of any penalty that ought to be imposed.
17 At the penalty hearing, both counsel relied on their written submissions. Counsel for the Inspector made oral submissions that addressed the issues in the respondents’ written submissions.
Consideration – Reasonable excuse
18 The respondents argue that s 84T(3) of the Act states that the requirement for a person to comply with a compliance notice under s 84T(1) does not apply if the person has a reasonable excuse. In relation to their reasonable excuse, the respondents submit: (footnotes omitted)
9. The [Act] does not provide a definition of the term ‘reasonable excuse’. However, it is intended to provide a potential defence to a non-complying employer [Gardos v Baker [2024] WAIRC 00128 (Gardos) [35]].
10. This court has indicated that interpretation of these words can be assisted by reference to case law which has interpreted and applied subsections 716(5) and (6) of the Fair Work Act 2009 (Cth) [FW Act] which are cast in near identical terms to subsections 84T(1) and 84T(3) [Gardos [36]–‍[37]].
11. In Fair Work Ombudsman v ANSA Finance Pty Ltd [2022] FedCFamC2G 833 [(ANSA)] at [49] and [109], Forbes J held the [excuse] provided must be one which would be regarded as reasonable, by the reasonable person in all the relevant circumstances. It is a matter to be determined objectively by the court having regard to all the evidence.
12. In Fair Work Ombudsman v Pacific Security Services Pty Ltd [2021] FedCFamC2G 111 at [49] citing Potter v Fair Work Ombudsman [2014] FCA 187 [(Potter)] at [72], Blake J, held that a person seeking to argue that they have a reasonable excuse for noncompliance with a compliance notice, bears the onus of proof.
The Respondents’ Reasonable Excuse
13. The Respondents were served with the compliance notice on or about 8 May 2023.
14. The Respondents instructed their legal representatives to file an application pursuant to s 84U(1) in relation to the Compliance Notice on 2 June 2023.
15. The Respondents subsequently instructed their legal representatives to file an application seeking the stay of the compliance notice on 6 June 2023.
16. The Applicant provided an undertaking not to enforce the compliance notice ‘unless and until the application for review is determined’ on 9 June 2023.
17. The application was not finally determined until Friday, 22 December 2023, when the compliance notice was confirmed.
18. Upon being notified of the matter, the Respondents then instructed their legal representatives to file an appeal against the decision.
19. The appeal was lodged on 16 January 2024.
20. The appeal was ultimately dismissed on 27 May 2024 on the basis that the Full Bench of the Industrial Relations Commission was not satisfied that it was appropriate to grant an extension of time for the filing of the appeal.
21. The Respondents decided not to challenge the decision any further and proceeded to instruct their legal representatives to make payment in accordance with the compliance notice. These instructions were given on or about 24 June 2024.
22. The Respondents legal representatives had a phone conversation in June or July 2024 with the Applicant’s legal representative, in which it was communicated to same that the only reason that payment had not yet been made was that the Respondents were awaiting confirmation of the relevant payment details.
23. The Respondents should not be blamed for not making payment without confirmation of the correct transaction details. The Court would accept on judicial notice that it is common practice in today’s day and age to seek confirmation of the payment details prior to making a payment by way of electronic funds transfer. It could not have been expected of the Respondents to make a payment to an account without first confirming the details. Particularly so when the only payment details available were details provided in the compliance notice which was dated more than thirteen (13) months prior.
24. Between the date of the telephone conversation and 29 August 2024, the date of service of the Originating Claim, the Applicant did not provide any confirmation of the payment details which were requested to be confirmed in order to comply.
25. Additionally, the Applicant made no demand of the Respondents. Much can be made of this, particularly when the First Respondent made an application to have the Compliance Notice stayed and the response to that application was for the Applicant to offer a consent position in which they undertook not to enforce the Compliance Notice until a determination was made (which was accepted). It is contrary to that position (and that undertaking) to now claim that there has been a failure to comply where the enforcement power to the Compliance Notice was voluntarily surrendered by the Applicant.
26. The Respondents made payment into their legal representative’s trust account on 16 September 2024.
27. It is not in dispute that the Respondents’ legal representatives have since made payment on behalf of the Respondents in accordance with the compliance notice.
28. The Respondents should not be blamed for pursuing their legal entitlement to have the compliance notice reviewed and to appeal the determination.
19 The Inspector submits:
(a) The obligation to comply with the Compliance Notice arose on 6 June 2023. Thus, any reasonable excuse must have existed at that time to be a valid defence.
(b) The respondents’ evidence of events in 2024 cannot serve as a reasonable excuse and is relevant only for mitigating penalties. However, it is not mitigatory because ARC Holdings’ contravention caused the delay in Mr McCormick being paid. Accepting the respondents’ reasons for the delay would create a perverse incentive for recipients of compliance notices to delay compliance, citing outdated bank account details as an excuse. This undermines public policy.
(c) Mr Griffiths’ evidence does not rise to a reasonable excuse for the following reasons:
(i) Firstly, the evidence relates to the wrong time period and does not address the time when noncompliance occurred.
(ii) Secondly, ARC Holdings was obliged to comply with the terms of the Compliance Notice, which specified payment into Mr McCormick’s bank account. Any error in the account details is a matter for the Inspector to resolve, not the respondents. The Compliance Notice required ARC Holdings to make payment to the specified account, regardless of whether it was actually Mr McCormick’s account.
(iii) Thirdly, there is no evidence before the Court that suggests the respondents took reasonable steps to clarify the payment details. Mr Griffiths’ evidence indicates that he spoke with his solicitor on 24 June 2024 and said, ‘I need to confirm payment details’ and did not receive any further notice ‘as to where payment was to be made’ before being served with the Originating Claim on 5 September 2024. There is nothing in Mr Griffiths’ evidence to demonstrate that reasonable steps were taken to clarify the payment details, in circumstances where the onus lies upon the respondents to establish such facts.
20 The respondents rely upon ANSA, a decision of Judge Forbes of the Federal Circuit and Family Court of Australia (Division 2), delivered on 14 October 2022, involving Ansa Finance’s contraventions of ss 716(5) and 536(1) of the FW Act.
21 Sections 716(5) and (6) of the FW Act state:
Person must not fail to comply with notice
(5) A person must not fail to comply with a notice given under this section.
Note: This subsection is a civil remedy provision (see Part 4-1).
(6) Subsection (5) does not apply if the person has a reasonable excuse.
22 In relation to s 716(5) and an employer’s reasonable excuse, Forbes J says: ANSA [146]–[152]: (footnotes omitted)
Reasonable excuse
146. Pursuant to s 716(5) of the FW Act, a failure to comply with a compliance notice is a contravention of the [FW Act]. However, that provision does not apply if a person has a ‘reasonable excuse’. Where a reasonable excuse is demonstrated the civil remedy provision relating to failure to comply is not engaged.
147. An employer who seeks to rely on the exception of ‘reasonable excuse’ bears the onus of proof. The excuse proffered must be one which would be regarded as reasonable by a reasonable person in the relevant circumstances. It is a matter to be determined objectively by the Court having regard to all the evidence.
148. The Court’s consideration of whether there is a ‘reasonable excuse’ is properly directed to the steps required to be taken under the compliance notice. It is not an enquiry into whether the alleged substantive contravention of fair work instruments has been made out by the Ombudsman or whether the respondents have a proper basis to contest the Inspector’s reasonable belief. The relevant question is whether objectively the respondent had a reasonable excuse for not doing what the compliance notice required it to do.
149. The Ombudsman submits that under the statutory scheme any legal or merit challenge to the validity of a compliance notice should be made by way of an application for review under s 717 of the Act. Counsel for the Ombudsman likened that to an avenue for judicial review that would normally be available in relation to administrative decisions. There is some force in this submission.
150. The thrust of the Ombudsman’s submission is that the statutory compliance scheme can be likened to the framework around other summary statutory infringements such as parking or traffic fines. In like situations a person who receives an infringement notice usually faces a binary choice – either comply with the notice or challenge the basis of it by initiating some kind of judicial review. If review is not sought, the infringement notice presumptively stands as a valid instrument and requires the recipient to take the steps required by the notice. So too it is with a compliance notice under the FW Act. In the absence of an application for review pursuant to s 717, the recipient is required to take the steps specified in the notice unless it has a ‘reasonable excuse’.
151. In my view it is implicit from the text of the legislative scheme that a disagreement with the alleged substantive contravention or the form of the notice does not constitute a reasonable excuse unless an application for review has been made. If an application for review is made the Court has power to stay its operation on terms it considers appropriate. Parliament cannot have intended that an employer’s disagreement with a notice, without more, could nullify the operation of s 716(5).
152. In my view the question for the Court is whether Ansa Finance can establish a reasonable excuse for not being able to do the things that the Compliance Notices required it to do. It is a question properly directed to the recipient’s capacity or ability, rather than its will.
23 Sections 716(5) and (6) of the FW Act are in effectively the same terms as ss 84T(1) and (3) of the Act:
Fair Work Act 2009 (Cth) – s 716
Industrial Relations Act 1979 (WA) – s 84T
Person must not fail to comply with notice
(5) A person must not fail to comply with a notice given under this section.
Note: This subsection is a civil remedy provision (see Part 4-1).
(6) Subsection (5) does not apply if the person has a reasonable excuse.
Person must comply with compliance notice
(1) A person must comply with a compliance notice.
…
(3) Subsection (1) does not apply if the person has a reasonable excuse.
24 As such, and applying ANSA [151]–[152], I find that the respondents have not established that they have a reasonable excuse for ARC Holdings not complying with the Compliance Notice, for the following reasons.
25 While the Compliance Notice contains attachments, it is in effect a two-page document stating:
This Compliance Notice requires the employer to:
a) take the specified actions described in this notice to remedy the direct effects of the contravention outlined below; and
b) provide reasonable evidence of compliance with this notice to me by 6 June 2023.
…
Required action under this Compliance Notice
The employer is required to take the following actions to remedy the direct effects of the contravention.
1. Rectify the identified underpayment by making payment in full of the relevant amount to the employee listed in the table above.
Mr Patrick McCormick’s bank account details:
BSB [redacted]
Account [redacted]
2. Produce reasonable evidence to me of compliance with the action specified in point [1] above, such as a pay slip which sets out gross and net payment; and a bank transfer receipt showing the net payment made to the employee.
3. Evidence of compliance must be provided to me on or before 6 June 2023 via post or email:
Mail
Private Sector Labour Relations
[redacted]
Email
[redacted]
4. The employer’s rights and obligations under this Compliance Notice are attached. The Department encourages the employer to seek independent advice from a lawyer, accountant or employer association in relation to this Compliance Notice.
5. Please contact me on [redacted] if you have any questions regarding this notice.
26 A cover letter accompanied the Compliance Notice. The cover letter is a oneandahalfpage document stating:
What do you need to do now?
This is the Employer’s opportunity to fix these issues without going to court. If the Employer complies with the Compliance Notice by 31 May 2023, the Department will not take further action in relation to the contravention set out in the Compliance Notice.
ACTION REQUIRED
DUE DATE
1. Read the attached Compliance Notice

2. Make payment in full to the employee
06/06/2023
3. Provide evidence to me of payment to the employee
06/06/2023
I will review the evidence to determine the Employer’s compliance with this Notice

If the Employer does not comply with the Compliance Notice by 6 June 2023, the Department may take the Employer to court. Failing to comply with a Compliance Notice attracts a maximum civil penalty of $30,000 for a body corporate and $6,000 for an individual. In addition to an order from the Industrial Magistrates Court to make the payment to the employee.
What if the Employer doesn’t agree with the Compliance Notice?
The Employer can apply to the Industrial Magistrates Court for a review of the Compliance Notice on the following grounds:
a) the contravention set out in the Compliance Notice did not occur; and/or
b) the Compliance Notice does not comply with the Industrial Relations Act 1979.
You will need to contact the Industrial Magistrates Court on 9420 4467 or at www.imc.wa.gov.au for information on applying for a review of the Compliance Notice before the due date.
The Department also encourages the Employer to seek independent advice in relation to this Compliance Notice.
You may contact me on [redacted] or at [redacted] to discuss the Compliance Notice. There is also additional information regarding Compliance Notices and our Compliance and Enforcement Policy on the Department’s website at https://www.commerce.wa.gov.au/publications/private-sector-labour-relations-division-compliance -and-enforcement-policy.
Yours sincerely
Chiara Catalucci
SENIOR INDUSTRIAL INSPECTOR
PRIVATE SECTOR LABOUR RELATIONS
⚠
ATTENTION
To avoid legal proceedings, the Employer must complete all of the actions required in the attached Compliance Notice before 6 June 2023.
27 As outlined in [25]–[26] above, ARC Holdings’ obligations under the Compliance Notice could not have been made more plain.
28 By the statement of agreed facts, the parties agree on the following facts:
(a) ARC Holdings disputed the alleged substantive contravention and applied to the Court for a review of the Compliance Notice (M 72/2023).
(b) Shortly afterwards, ARC Holdings applied to the Court for an order that the operation of the Compliance Notice be stayed. The respondent to M 72/2023 undertook not to enforce the Compliance Notice while M 72/2023 remained on foot, and consequently ARC Holdings withdrew its application for a stay.
(c) On 22 December 2023, the decision in M 72/2023 was delivered, dismissing ARC Holdings’ application for review.
29 Despite seeking a stay in M 72/2023, the respondents have not produced any evidence explaining why ARC Holdings neither complied with the Compliance Notice nor pursued a stay of its operation following the decision in M 72/2023 being delivered on 22 December 2023.
30 Mr Griffiths deposes to instructing his solicitors to appeal the decision in M 72/2023, and the Full Bench issuing Orders dismissing the appeal on 28 May 2024. However, he has not provided any evidence explaining why ARC Holdings did not comply with the Compliance Notice on 28 May 2024.
31 Mr Griffiths deposes to instructing ARC Holdings’ solicitors on 24 June 2024 that he did not wish to challenge the Full Bench’s orders dismissing the appeal. This is 27 days after the Full Bench issued its orders. Any appeal to the Industrial Appeal Court ‘must be instituted within 21 days from the date of the decision against which the appeal is brought’ Section 90(2) of the Act.
. The respondents have not provided any evidence explaining the reason for the delay in instructing their solicitors following the Full Bench issuing orders on 28 May 2024.
32 While Mr Griffiths deposes to having the following conversation with his solicitor, and the respondents’ submissions request the court take judicial notice that ‘it is common practice in today’s day and age to seek confirmation of the payment details prior to making a payment by way of electronic funds transfer’, the respondents have not provided any evidence of Arc Holdings’ inability to comply with the Compliance Notice on 24 June 2024:
JG: I need to pay [McCormick]. I need to confirm payment details?
KK: No worries. Leave it with me. Exhibit 5 – Affidavit of John Griffiths filed 8 January 2025, [6].

33 The respondents have not provided any evidence to suggest that they made attempts to comply with the Compliance Notice.
34 This is in circumstances where the respondents accept that they bear the onus of proof: respondents’ submissions [12] (at [18] above).
35 As outlined in [25]–‍[27] above, the details regarding when payment was to be made and where payment was to be made were clearly stipulated in the Compliance Notice.
36 I agree with the Inspector’s submissions that the Compliance Notice required ARC Holdings to make payment to Mr McCormick’s bank account. If there was any error in this regard, it was an issue for the Inspector to address.
37 Relevantly, the Compliance Notice specified a two-step process that ARC Holdings needed to follow to achieve compliance. The first step was to make payment to Mr McCormick, and the second step was to provide the Inspector with confirmation that the payment had indeed been made to Mr McCormick.
38 It is an agreed fact that ARC Holdings belatedly fulfilled the first step of this process by making the payment to Mr McCormick on or around 18 September 2024.
39 However, the respondents have not provided any evidence to demonstrate that ARC Holdings complied with the second step of the process.
40 The respondents have not provided any evidence to suggest that they held any reasonable belief as to why payment could not have been made to the bank account stipulated in the Compliance Notice.
41 Relevantly, there is no dispute that ARC Holdings ultimately made the payment to Mr McCormick’s bank account stipulated in the Compliance Notice.
42 The respondents bear the onus to prove a reasonable excuse: Potter [72]. They have not provided evidence of incapacity or inability to comply with the Compliance Notice, failing to meet this burden. Seeking a review under s 84U does not suspend the Compliance Notice’s operation, absent a stay. ARC Holdings’ choice to appeal the decision in M 72/2023 without securing a stay, does not constitute a reasonable excuse: ANSA [151].
43 The respondents argue (at [23] of their written submissions at [18] above), it was reasonable to delay payment until confirming bank details, given the Compliance Notice’s age. However, this resembles a disagreement with the form of the Compliance Notice, which ANSA [151] holds ‘does not constitute a reasonable excuse unless an application for review has been made’.
44 The Compliance Notice clearly stated Mr McCormick’s bank details. Seeking confirmation of Mr McCormick’s bank details in June 2024 – over a year after the 6 June 2023 deadline, more than six months after the IMC decision in M 72/2023 was delivered on 22 December 2023, and despite the Full Bench dismissing ARC Holdings’ appeal on 28 May 2024 – does not constitute a reasonable excuse, as the Compliance Notice provided clear bank details, and the respondents have provided no evidence of their inability to make payment to this bank account.
45 It is evident from ANSA [151]–‍[152], that the ‘reasonable excuse’ exception to compliance with a compliance notice, requires objective inability to comply with the compliance notice, not subjective disagreement with either the contravention alleged in the compliance notice or the form of the compliance notice.
46 The respondents’ failure to provide any evidence to suggest that they were unable to make payment to the bank account stipulated in the Compliance Notice, undermines their defence.
47 In these circumstances, I find that the respondents have not established a reasonable excuse for ARC Holdings ‘not being able to do the things that the [Compliance Notice] required it to do’: ANSA [152].
48 I am not satisfied the respondents have established a reasonable excuse as to noncompliance that is directed to ARC Holdings’ ‘capacity or ability’ to comply with the Compliance Notice: ANSA [152].
49 Therefore, I find ARC Holdings to have contravened s 84T(1) of the Act.
50 As outlined in the statement of agreed facts [10] (at [10] above), Mr Griffiths, as sole director and secretary, received the Compliance Notice, was aware of its requirements, was the person responsible for ensuring ARC Holdings’ compliance with the Compliance Notice, knew of ARC Holdings’ noncompliance, and had the power to ensure ARC Holdings’ compliance.
51 In the circumstances of the agreed facts (at [10] and [50] above), Mr Griffiths’ conduct, whether characterised as his act of not ensuring ARC Holdings’ compliance, or his omission in ensuring ARC Holdings’ compliance, renders him involved in ARC Holdings’ contravention of s 84T(1) under s 83E(1B)(c) of the Act. As a person involved in a contravention of s 84T(1), Mr Griffiths is taken to have contravened s 84T(1) under s 83E(1A) of the Act.
52 Consequently, it is necessary to consider whether penalties should be imposed on the respondents, considering the factors outlined in Callan [90].
Consideration – Penalty
Callan [90(a)] and [90(b)]: the nature and extent of the conduct which led to the breaches; the circumstances in which that conduct took place
53 The Inspector submits:
17. There was a single contravention by each of the respondents. ARC Holdings’ failure to comply with the compliance notice and Mr Griffiths’ involvement in that contravention.
18. The factual circumstances of the contraventions are set out in the agreed facts.
19. The notice of compliance was served on 8 May 2023 with the date for compliance being 6 June 2023. The notice required ARC Holdings to pay Mr Patrick McCormick, a former employee of ARC Holdings, $9,345.21, and to provide the industrial inspector evidence of such payment. The sum of money was calculated on the basis of the industrial inspector’s reasonable belief that such sum was owed by ARC Holdings to Mr McCormick under the Long Service Leave Act 1958 (WA), with the sum becoming due under that Act on 29 October 2020.
20. ARC Holdings paid Mr McCormick the sum identified in the compliance notice on 23 September 2024, over 15 months after the due date for compliance. ARC Holdings did not provide evidence of the payment to the industrial inspector however the industrial inspector accepts the payment has been made.
21. The context of the non-compliance is as follows:
(a) The compliance notice identified the bank account where the sum of money the subject of the compliance notice needed to be paid. Accordingly, at all times ARC Holdings and Mr Griffiths had sufficient information to enable ARC Holdings to comply with the notice.
(b) On 2 June 2023 ARC Holdings applied to this Court for review of the compliance notice (proceedings M 72 of 2023).
(c) On 5 June 2023 ARC Holdings applied to this Court for an order that the operation of the compliance notice be stayed.
(d) Before that application could be dealt with, the industrial inspector agreed not to enforce the compliance notice until the conclusion of M 72 of 2023 and ARC Holdings withdrew its application for a stay of the operation of the compliance notice.
(e) M 72 of 2023 was dismissed on 22 December 2023.
(f) On 16 January 2024 ARC Holdings lodged a notice of appeal against the decision in M 72 of [2023] (proceedings FBA 2 of 2024). No application was made to stay the operation of the compliance notice.
(g) FBA 2 of 2024 was dismissed on 28 May 2024.
(h) The present proceedings were commenced on 28 August 2024.
(i) ARC Holdings paid the sum of money identified in the compliance notice to Mr McCormick [on] 23 September 2024, after having been served with the originating claim in these proceedings.
22. The facts supporting Mr Griffiths’ involvement in the contravention are also set out in the agreed facts. He has at all material times been the sole director and secretary of ARC Holdings. He received the compliance notice, was responsible for making sure it was complied with, and had the power to ensure it was compiled with. He also knew ARC Holdings did not comply with the compliance notice and did not take sufficient steps to ensure it was complied with. These facts establish his ‘involvement’ in the contravention under s 83E(1B)(c) of the [Act], and by virtue of s 83E(1A), is taken to have contravened s 84T(1).
23. The nature and circumstances of the contraventions are significant:
(a) The money the subject of the compliance notice was not paid until some 15 months after the date for compliance.
(b) The sum of money was only paid after these proceedings were commenced. It can be inferred that the sum of money would not have been paid if these proceedings were not commenced.
(c) The sum of money is significant. Just under $10,000 is a significant sum for any employee, and on the inspector’s reasonable belief, the sum was owed to the employee at the end of October 2020.
(d) The respondents were aware that it was necessary to obtain a stay of the operation of the compliance notice to be relieved from the obligation to comply with the notice.
(e) Even if the respondents were labouring under a mistaken belief that the money did not need to be paid until the conclusion of the Full Bench proceedings (which belief would not have been a reasonable belief), ARC Holdings did not take steps to make the payment immediately after those proceedings were dismissed.
24. The facts and circumstances demonstrate knowing and intentional non-compliance.
25. The present contravention is a very serious example of a contravention of a compliance notice as the circumstances undermine the purpose of the compliance notice regime.
54 The respondents submit:
37. This matter involves a single contravention of the [Act]. The contravention was made by the First Respondent, and the Claimant is seeking that the Second Respondent be held personally responsible for his specific involvement in the solitary contravention.
38. The maximum penalty that may be imposed for the contravention is a fine of $30,000 on the First Respondent and a fine of $6,000 on the Second Respondent.
39. The Respondents received the compliance notice and proceeded to engage with the Compliance Notice by seeking its review. The Compliance Notice was not ignored.
40. It would be a mischaracterisation of the Respondents actions to find that a deliberate choice was made not to comply with the notice. Rather, the Respondents pursued their entitlement to seek to have the compliance notice reviewed and set aside. Once the Respondents accepted that their legal view was wrong, the only delay in making payment arose out of either a failure on behalf of the Claimant to confirm the payment information or a miscommunication between the legal representatives concerning the payment details.
41. The Respondents never intended to avoid or obfuscate their legal responsibilities and duties.
42. The resources expended by the Department, its legal advisors, and the Court could have been avoided by simply following up with the Respondents once the review proceedings concluded.
43. The circumstances in which the conduct took place are set out in paragraphs 13 to 27 of these submissions.
44. However, it should be noted that the conduct the subject matter of the Compliance Notice arose initially from the Respondents having taken the view that they had complied with the requirements of long service leave entitlements because they formed the view that his service was not continuous.
45. Although ultimately this view was found to be incorrect, this should not be held against the Respondents.
55 In response to the respondents’ written submissions [25] (at [18] above) that the Inspector made no demand of the respondents, the Inspector submits:
(a) The lack of demand is not relevant to this matter. This matter does not involve a civil debt, where a demand might typically be made prior to the commencement of proceedings. Instead, this matter involved the issuance of a compliance notice, which required compliance on the pain of civil penalties. Therefore, no demands were necessary.
(b) The respondents’ argument that a demand was required further demonstrates their lack of understanding and insight into their obligations in relation to compliance notices. This highlights the need for specific deterrence to reinforce the importance of compliance with the State’s industrial laws, particularly in relation to compliance notices.
56 I reject the respondents’ submissions [25] (at [18] above) that ‘much can be made of’ the Inspector not making a demand for ARC Holdings to comply with the Compliance Notice before enforcing it. Unlike a civil debt which may require a demand, a compliance notice is a statutory directive with a fixed time for compliance (in this case, 6 June 2023). The Compliance Notice stipulated what steps ARC Holdings was required to take in compliance with it. The cover letter to the Compliance Notice reinforced that if ARC Holdings does not comply with the Compliance Notice that the Department may take it to court, seeking penalties for noncompliance. The Inspector is not required to make a demand that ARC Holdings comply with the Compliance Notice before seeking to enforce it. The terms of the Compliance Notice and the accompanying cover letter warned of penalties for noncompliance, negating any need for further demand.
57 I do not accept the respondents’ submissions [40]–‍[41] (at [54] above) that they never intended to avoid or obfuscate their legal responsibilities and duties, and did not deliberately choose to not comply with the Compliance Notice but rather pursued their entitlement to have the Compliance Notice reviewed. It is undisputed that Arc Holdings applied to have the Compliance Notice reviewed. However, in circumstances where the respondents were aware of the requirement to obtain a stay of the operation of the Compliance Notice for ARC Holdings to be relieved from the obligation to comply with it, yet they failed to take the necessary steps to apply for a stay once the IMC decision was handed down, and failed to make the payment even after the Full Bench proceedings were dismissed, their submission that noncompliance with the Compliance Notice was not deliberate cannot be accepted.
58 As outlined at [29]–[46] above, the respondents have not provided any evidence of any attempts to make the payment to the bank account stipulated in the Compliance Notice, nor provided any evidence as to why they held a reasonable belief that payment could not be made to the bank account stipulated in the Compliance Notice. Relevantly, it is an agreed fact that ARC Holdings paid the amount stipulated in the Compliance Notice to the bank account stipulated in the Compliance Notice shortly after being served with the Originating Claim.
Callan [90(c)]: the nature and extent of any loss or damage sustained as a result of the breaches
59 The Inspector submits:
26. ARC Holdings’ failure to comply with the compliance notice has resulted in a continued nonpayment of Mr McCormick’s alleged lawful entitlement in circumstances where the alleged entitlement arose at the end of October 2020. For any employee the loss of $9,345.21 is considerable.
27. Additionally, enforcement proceedings require the dedication of considerable time and resources by the Department, its legal advisors, and the Court. ARC Holdings and Mr Griffiths knowingly did not comply with the compliance notice, thus requiring the commencement of these proceedings. Litigation and the associated cost to the public would have been avoided if ARC Holdings had complied with the compliance notice.
60 The respondents submit:
46. The Respondents failure to comply with the compliance notice has resulted in Mr McCormick being delayed in receiving his long service leave entitlements in the sum of $9,345.21. The Respondents accept this is a significant sum of money.
47. However, the nature of the entitlement, being long service leave, should be distinguished from that of underpayments of entitlements such as wages or superannuation. The entitlement is one that he would have received at a discrete period in time as opposed to seeing regular shortfall in his income throughout his employment or having suffered the detrimental impact of not having had his superannuation entitlements potentially growing in his superannuation fund over the course of his employment. Instead, he has received his lump sum later than at the date of his termination.
48. This is not to minimise the significance of the sum that Mr McCormick was ultimately required to wait for, but to point out that it was not a loss that occurred over the course of his employment and does not have the same consequential impact as underpayment of superannuation.
49. Any damage suffered by Mr [McCormick] is limited to a small sum of interest.
61 In response to the respondents’ written submissions [47] (at [60] above), which suggests that the delay in payment of long service leave is less serious because it is paid upon termination of employment, unlike wages which are paid weekly or fortnightly, the Inspector submits it should not be accepted as:
(a) Firstly, the Compliance Notice required ARC Holdings to pay Mr McCormick the amount that equated to the long service leave payment that was due to him upon the termination of his employment, which took place in October 2020. The payment was not made until almost four years later, in September 2024.
(b) Secondly, the respondents’ submission reveals their lack of understanding and appreciation of the serious nature and potential consequences of failing to comply with industrial laws.
62 I find that ARC Holdings’ failure to comply with the Compliance Notice resulted in a considerable loss for Mr McCormick, as he was deprived of his long service leave entitlement of $9,345.21 from the end of October 2020 until the payment was made in September 2024.
63 While the respondents argue that the nature of long service leave is different from other entitlements such as wages or superannuation, the delay in payment still caused financial harm to Mr McCormick, and there is no evidence that any damage suffered is limited to a small sum of interest.
64 Furthermore, ARC Holdings’ non-compliance with the Compliance Notice led to the commencement of enforcement proceedings, which required the dedication of considerable time and resources by the Department, its legal advisors, and the Court.
65 Litigation and the associated costs to the public could have been avoided if ARC Holdings had complied with the Compliance Notice.
Callan [90(d)]: whether there had been similar previous conduct by the respondent
66 The Inspector submits:
28. There is no evidence either respondent has previously been found by a Court to have engaged in similar conduct. Although the WAIRC has previously found ARC Holdings to have denied an employee a contractual benefit.
67 The respondents submit:
50. This is the first contravention of its kind by either the First or Second Respondents.
51. The Respondents have always endeavoured to meet their obligations as employers.
68 While the Inspector has referred to the Commission previously finding ARC Holdings to have denied an employee a contractual benefit, there is no evidence that either respondent has been found to have contravened a civil penalty provision of an industrial law. Therefore, I agree with the respondents that this is the first contravention of its kind by either respondent.
Callan [90(e)]: whether the breaches are properly distinct or arose out of the one course of conduct
69 The respondents submit:
52. There was only one breach. This consideration is therefore irrelevant.
70 I agree with the respondents that there is a single breach.
Callan [90(f)]: the size of the business enterprise involved
71 The Inspector submits:
29. The claimant has no information about the size of ARC Holdings’ business.
30. However, and in any event, for the reasons identified by Kucera IM in [Gardos] [86]–[87] (and the cases cited therein), even if ARC Holdings is a small business, that factor is of little relevance in the present case.
72 The respondents submit:
53. This consideration held to have little bearing other than that, in some cases, the fact that a business is small may be reason to show some leniency on penalty. There is no evidence before the Court as to Arc’s size. The Court, however, would take it on judicial notice that ARC Holdings is not a large corporation such as Telstra or Sanitarium who are well known across the nation upon whom penalties for the purpose of general deterrence have greater effect due to their publicity.
73 In response to the respondents’ written submissions [53] (at [72] above), which suggests that penalties imposed on larger corporations have a greater deterrent effect, the Inspector submits it should not be accepted as:
(a) Firstly, the submission is not supported by any evidence.
(b) Secondly, the submission is not inherently obvious. For instance, there is no reason why the Inspector cannot make public statements about the imposition of penalties on small companies or sole traders to emphasise the general deterrent effect of a penalty.
74 I find that the size of ARC Holdings is not a significant factor in determining the penalties for non-compliance of the Compliance Notice.
75 While the respondents suggest that the size of the business may warrant some leniency in penalty, there is no evidence before the Court to support this assertion.
76 Furthermore, the deterrent effect of penalties is not inherently dependent on the size of the business, as the Inspector can make public statements regarding the imposition of penalties on small companies or sole traders to emphasise the general deterrent effect of a penalty.
Callan [90(g)]: whether or not the breaches were deliberate
77 The Inspector submits:
31. It is open to find that the contraventions were deliberate in the sense that they were knowing and intentional. This can be inferred from the fact that ARC Holdings was aware it needed to obtain a stay of the operation of the compliance notice to be excused from not complying with the notice. Despite not obtaining any such stay, ARC Holdings did not comply, and it knew that it had not complied.
32. The fact that ARC Holdings promptly paid the sum of money after these proceedings were commenced demonstrate it was financially able to comply if it wanted to comply.
78 The respondents submit:
54. The alleged breaches were not deliberate.
55. The Respondents had turned their mind to Mr McCormick’s entitlements and had formed the decision that he was not entitled to long service leave. This can be distinguished from refusing to pay Mr McCormick long service leave with the knowledge that Mr McCormick was entitled to be paid such a sum. This is clear from the Respondents’ choice to make an application to review the Compliance Notice and to consequently seek to appeal the determination of the application.
56. Once it was clear to the Respondents that a mistake had been made at law, the Respondents took steps to make the required payment including confirming that they had the correct payment details to ensure there were no further issues.
57. If the Claimant’s had clearly confirmed the payment details as they did on 18 September 2024, then payment would have been made much earlier.
79 In response to the respondents’ written submissions [55] (at [78] above), which suggests that the respondents considered Mr McCormick’s entitlements and determined that he was not owed long service leave, the Inspector submits it should not be accepted as:
(a) Firstly, this matter is not an enforcement claim relating to underpaid long service leave, but rather a claim involving non-compliance with a compliance notice. Unless the Compliance Notice is set aside or withdrawn, it must be complied with, regardless of whether the underlying entitlement is owed.
(b) Secondly, the submission highlights the respondents’ lack of understanding of their obligations in relation to compliance notices.
80 I find that the breaches were deliberate. The respondents were aware that ARC Holdings needed to obtain a stay of the operation of the Compliance Notice to be excused from complying with it, but they did not take the necessary steps to obtain such a stay. Furthermore, despite not obtaining a stay, ARC Holdings did not comply with the Compliance Notice, and its sole director knew that it had not complied.
81 The fact that ARC Holdings promptly paid the sum of money after the commencement of these proceedings demonstrates that it was financially able to comply with the Compliance Notice if it had chosen to do so.
82 The respondents’ argument that they had formed the decision that Mr McCormick was not entitled to long service leave does not absolve ARC Holdings of the responsibility to comply with the Compliance Notice. Once ARC Holdings’ application for review of the Compliance Notice was dismissed on 22 December 2023, and absent a stay of the Compliance Notice, compliance was required regardless of the respondents’ position on whether or not the underlying entitlement is owed.
Callan [90(h)]: whether senior management was involved in the breaches
83 The Inspector submits:
33. The agreed facts establish Mr Griffiths, the second respondent, was at all times the sole director and secretary of ARC Holdings and involved in the contraventions.
84 The respondents submit:
58. Senior management was involved in the breaches in that Mr Griffiths as director of Arc was involved in the decision.
59. However, as set out above, senior management was only involved to the extent that an error was made in identifying Mr McCormick’s entitlements. This was not due to improper systems or a failure to put mitigating steps in place.
85 In response to the respondents’ written submissions [59] (at [84] above), the Inspector submits:
(a) The respondents’ submissions falls into the same error as their written submissions [55]. The respondents’ focus on whether long service leave was owed is irrelevant. The focus needs to be on compliance with the Compliance Notice.
(b) The respondents have not provided any justifiable explanation or evidence as to why compliance was not achieved, either on the dates required by compliance, or at least when the IMC proceedings were complete.
86 I find that senior management was involved in the breaches, as Mr Griffiths, the sole director and secretary of ARC Holdings, was involved in the decision-making process and had knowledge of the Compliance Notice.
87 The respondents’ argument that senior management was only involved to the extent that an error was made in identifying Mr McCormick’s entitlements does not absolve ARC Holdings’ responsibility to comply with the Compliance Notice.
88 I agree with the Inspector that the focus should be on compliance with the Compliance Notice, rather than on whether long service leave was owed.
89 The respondents have not provided any justifiable explanation nor evidence as to why compliance was not achieved, either on the date required by the Compliance Notice or at least when the IMC proceedings were complete.
Callan [90(i)] and [90(j)]: whether the party committing the breach had exhibited contrition; whether the party committing the breach had taken corrective action
90 The Inspector submits:
34. ARC Holdings has now paid the sum the subject of the compliance notice, however payment was only made after these proceedings were commenced.
35. The purpose of the compliance notice regime is defeated if recipients of compliance notices refuse to comply until being forced to the door of the courtroom by way of civil penalty proceedings.
36. Accordingly, such conduct (delayed payment after these proceedings were commenced) does not demonstrate contrition.
37. It provides some modest corrective action, but little weight should be given to that factor given the delay in paying the sum of money and given the apparent impetus for paying the money was the commencement of these proceedings.
38. Additionally, the response to the claim in these proceedings demonstrates a profound lack of insight into the fact of, and seriousness of, the contraventions. The respondents consider the fact that the sum has now been paid means these proceedings ought to be dismissed. That response suggests the respondents misunderstand the obligation that arose under the compliance notice.
39. Accordingly, specific deterrence is a significant factor in the determination of an appropriate penalty.
91 The respondents submit:
60. The Respondents have exhibited their contrition by taking corrective action as set out below.
61. The Respondents have made the payment of long service leave required of them. It is not disputed that this occurred soon after confirmation of the correct payment details was provided on 18 September 2024.
62. This confirmation was only provided after these enforcement proceedings were brought.
92 It is an agreed fact that ARC Holdings made payment to Mr McCormick after these proceedings were commenced. As such, I do not accept that payment to Mr McCormick demonstrates the respondents’ contrition.
93 At no time, either in their evidence or written submissions, have the respondents expressed any remorse for ARC Holdings’ noncompliance with the Compliance Notice.
Callan [90(k)]: whether the party committing the breach had cooperated with the enforcement authorities
94 The respondents submit:
63. The Respondents have been cooperative and have actively engaged with the industrial inspectors.
64. In fact, it was the Claimant’s failure to confirm the payment details of Mr McCormick that has led to these proceedings being brought.
95 In response to the respondents’ written submissions [63]–[64] (at [94] above), the Inspector submits that the respondents’ submissions are not borne out by either the agreed facts or the respondents’ evidence.
96 I agree with the Inspector that there is no evidence of the respondents’ cooperation with the industrial inspectors. Cooperation might have included promptly contacting the Inspector to resolve payment concerns or providing partial evidence of intent to comply. No such steps are evidenced here.
Callan [90(l)]: the need to ensure compliance with minimum standards by provision of an effective means for investigation and enforcement of employee entitlements
97 The Inspector submits:
40. In Fair Work Ombudsman v Viper Industries Pty Ltd [2015] FCCA 492 [42], Judge Emmett noted that:
[an] intentional failure to comply with a mandatory notice issued by the workplace regulator is ‘conduct … [which] undermines the utility and effectiveness of a fundamental object’ of the FW Act. The failure to comply undermines and frustrates the powers conferred on the Fair Work Inspectors, which are conferred for the purposes of providing an effective means of enforcing compliance with lawful minimum entitlements. There is a significant cost to the public by reason of the need to bring this matter before the court to enforce compliance.
41. As explained above, the purpose of the compliance notice regime is to provide industrial inspectors with an efficient means of achieving compliance with the provisions of industrial awards and employment laws and to provide employees with their unpaid lawful entitlements as soon as possible. Compliance notices are an alternative to enforcement proceedings under section 83 of the [Act].
42. In Fair Work Ombudsman v Kentwood Industries Pty Ltd [2011] FCA 579 [35] it was held that, in imposing a penalty against the respondents, it is necessary for the Court to set the penalty in a range that reinforces the fundamental importance of compliance with the employment standards enshrined in Commonwealth workplace laws.
43. It is similarly important that a penalty be set that reinforces the importance of compliance with the [Act].
98 The respondents submit:
65. The purpose of the compliance notice was achieved from the outset. The compliance notice was responded to and engaged with by the Respondents and the proper procedure for resolving the dispute as to compliance was followed.
66. Upon the confirmation of the compliance notice, the Respondents have shown themselves to be ready and willing to comply. There is no need to reinforce to the Respondents that they need to engage with and comply with compliance notices and determination by the Court.
99 In response to the respondents’ written submissions [65] (at [98] above), the Inspector submits:
(a) The respondents’ submission, to the effect that the purpose of the Compliance Notice was achieved, illustrates their misunderstanding of the compliance notice regime.
(b) The purpose of the Compliance Notice was to have Mr McCormick paid by 6 June 2023, and that was not achieved.
100 I find that the need to ensure compliance with lawful minimum entitlements by providing an effective means for investigation and enforcement of employee entitlements is a crucial factor in this case.
101 ARC Holdings’ failure to comply with the Compliance Notice undermined the utility and effectiveness of the compliance notice regime, as it frustrated the powers conferred on the industrial inspectors to enforce compliance with lawful minimum entitlements.
102 The purpose of the compliance notice regime is to provide industrial inspectors with an efficient means of achieving compliance with the provisions of industrial awards and employment laws, and to provide employees with their unpaid lawful entitlements as soon as possible. In this case, the purpose of the Compliance Notice was not achieved, as Mr McCormick was not paid until September 2024.
103 The imposition of penalties against the respondents is necessary to reinforce the fundamental importance of compliance with the employment standards enshrined in the State’s industrial laws and to ensure that the compliance notice regime serves its intended purpose.
Callan [90(m)]: the need for specific and general deterrence
104 The Inspector submits:
44. As explained above, specific deterrence is a significant factor in the present matter.
45. General deterrence is also significant. The respondents’ conduct significantly undermines the effectiveness and purpose of the compliance notice regime. While a recipient of a compliance notice is entitled to seek review of the notice, the recipient is required to comply with the notice unless a stay is granted or the notice is withdrawn.
46. In Community and Public Sector Union v Telstra Corporation Inc [2001] FCA 1364 [9], Finkelstein J observed that ‘even if there be no need for specific deterrence, there will be occasions when general deterrence must take priority, and in that case a penalty should be imposed to mark the law’s disapproval of the conduct in question, and act as a warning to others not to engage in similar conduct’.
47. As noted by Gilmore J in Fair Work Ombudsman v Offshore Marine Services Pty Ltd [2012] FCA 498 [(Offshore)] the imposition of a monetary penalty carries the greatest impact in terms of general deterrence.
48. In this case, general deterrence looms large as well as specific deterrence.
49. It is necessary that the penalty imposed be sufficient to deter others who might be likely to contravene the [Act] (and in particular the compliance notice regime).
105 The respondents submit:
67. There is no need for specific deterrence as the Respondents have accepted the Court’s determination that McCormick’s employment was continuous.
68. Mr McCormick’s case was a unique one and a similar contravention will not be repeated now that the legal question of such an employee’s entitlements in Mr McCormick’s circumstances has now been determined.
106 I find that both specific and general deterrence are significant factors in this case.
107 ARC Holdings’ non-compliance with the Compliance Notice not only requires specific deterrence to prevent further contraventions by the respondents but also necessitates general deterrence to discourage others from engaging in similar conduct.
108 The imposition of a monetary penalty carries the greatest impact in terms of general deterrence, as noted by Gilmore J in Offshore: Inspector’s submissions [47] at [104] above.
109 In this case, the need for deterrence is paramount, requiring that the penalty imposed be sufficient to discourage contraventions of the Act, especially the compliance notice regime.
110 The respondents’ argument that there is no need for specific deterrence, as they have accepted the Court’s determination that Mr McCormick’s employment was continuous, does not absolve them of their responsibility to comply with the Compliance Notice.
111 Furthermore, the respondents’ contention that Mr McCormick’s case was unique and a similar contravention will not be repeated does not negate the need for both specific and general deterrence to ensure compliance with the Act and the compliance notice regime.
The parties’ submissions on quantum
112 As to the quantum of the penalty to be imposed, the Inspector submits:
50. The claimant submits the contraventions of s 84T are at the upper end of seriousness for contraventions. Given the objective seriousness of the contraventions evidenced by the nature and circumstances of the contraventions, the involvement of senior management, the lack of contrition which requires specific deterrence, and the significant need for general deterrence to ensure that the compliance notice regime is effective and fulfils its purpose, a penalty in the upper range is appropriate (in excess of $20,000 for ARC Holdings, and in excess of $4,000 for Mr Griffiths).
113 As to the quantum of the penalty to be imposed, the respondents submit: (footnotes omitted)
Comparable cases and request for comity
69. In the recent case of [Dixon v Stojic [2024] WAIRC 00177], where the Respondents had only made partial repayments $8,000 of a larger underpayment of $11,251.34, the respondents were found to have shown contrition despite failing to make full repayments and breaching a payment plan. The respondents were issued a fine of $1,000 each for failing to comply with the compliance notice. In that case, after the compliance notice was not complied with, the Department’s General Manager of Compliance wrote to either comply with the notice or provide a reasonable excuse for any noncompliance. This correspondence was responded to with a plea of financial difficulty by the respondents who, once rejected, proceeded to ignore further correspondence from the Department. The objective seriousness of this offence rises above that of the present matter, even if the Claimant’s submissions are taken at their highest.
70. [Gardos] concerned an offence where no contrition was shown by the respondent, no repayment was made, and the respondent sought to excuse himself by way of unsubstantiated financial difficulty, for which a penalty at the high end of the range was imposed at $5,000, the respondent being an individual.
71. The court ought to have consideration to such decisions when considering what penalty to apply in this matter, if any.
Conclusion
72. In all of the circumstances, it would not be appropriate to impose a penalty on either of the Respondents. The primary objective of having Mr McCormick’s entitlements paid has been met. While it is unfortunate that the legal dispute concerning Mr McCormick’s entitlement led to a delay in him receiving his entitlement, this should not be held against the Respondents as all parties engaged actively and promptly with procedures set out below.
73. That the Claimant would seek a penalty in the high range is not appropriate considering that the Claimant failed to provide the confirmation that the Respondent had reasonably requested and made no demand for payment after the court hearings had been exhausted.
74. The Claimant brings these proceedings on an assumption that the Respondents were hoping to avoid payment until enforcement proceedings were brought, despite there having been recent communication between the parties concerning facilitating payment and avoiding an administrative error.
75. The court would therefore not err if the proceedings were disposed of pursuant to section 83E(1) of the [Act].
114 In determining the appropriate penalties, I have considered the parties’ submissions on quantum. The Inspector submits that a penalty in the upper range is appropriate: $20,000 for ARC Holdings and $4,000 for Mr Griffiths. The respondents, on the other hand, argue that it would not be appropriate to impose a penalty on either of them, citing various reasons such as the primary objective of having Mr McCormick’s entitlements paid having been met, the lack of demand for payment from the Inspector, and the assumption of the Inspector that the respondents were hoping to avoid payment until enforcement proceedings were brought.
115 While ARC Holdings paid Mr McCormick in September 2024, this occurred only after these proceedings began, diminishing its weight as evidence of contrition and reducing its weight against the need for deterrence.
116 After considering the submissions made by both parties and the relevant factors outlined in Callan, I find that the respondents’ contraventions are at the mid-point of seriousness for contraventions, given the objective seriousness of the contraventions evidenced by the nature and circumstances of the contraventions, its duration, deliberate nature, impact on Mr McCormick, the involvement of senior management, the lack of contrition which requires specific deterrence, and the significant need for general deterrence to ensure that the compliance notice regime is effective and fulfils its purpose.
117 A mid-range penalty reflects the breach’s seriousness, tempered by the respondents’ first contravention and eventual payment.
Conclusion
118 The contravention’s mid-range seriousness warrants penalties at 50% of the statutory maximum under s 84T(2) of the Act (at [14] above), of $15,000 for ARC Holdings and $3,000 for Mr Griffiths.
119 These penalties reflect the need for both specific and general deterrence, the seriousness of the contraventions, and the involvement of senior management, while noting this is a first contravention for the respondents. The penalties imposed are intended to serve as a deterrent and reinforce the importance of compliance with the State’s industrial laws, particularly in relation to compliance notices.
120 Having found that an order imposing a pecuniary penalty should issue in accordance with s 83E(1) of the Act, I also find that an order for costs should be made under s 83E(11).
121 In the Originating Claim, the Inspector sought an order for the respondents to pay the disbursements they had incurred in relation to the proceedings. Following the penalty hearing, the Inspector confirmed that the incurred disbursements are $123.75 for a process server serving the Originating Claim on Mr Griffiths. An order for this amount will issue.
Orders
122 For the preceding reasons, I will issue the following orders:
(a) The first respondent pay the claimant a pecuniary penalty of $15,000 for a contravention of s 84T(1) of the Act.
(b) The second respondent pay the claimant a pecuniary penalty of $3,000 for being taken to contravene s 84T(1) of the Act by virtue of s 83E(1A) of the Act.
(c) The first respondent pay the claimant’s costs of $123.75 pursuant to s 83E(11) of the Act.



C. TSANG
INDUSTRIAL MAGISTRATE