2025 WAIRC 00323
INDUSTRIAL MAGISTRATES COURT OF WESTERN AUSTRALIA


CITATION
:
2025 WAIRC 00323



CORAM
:
INDUSTRIAL MAGISTRATE R. COSENTINO



HEARD
:
WEDNESDAY, 7 MAY 2025



DELIVERED
:
WEDNESDAY, 7 MAY 2025



FILE NO.
:
M 13 OF 2025



BETWEEN
:
ANDREA QUATTRONE


CLAIMANT





AND





STEVEN RONALD SWEETMAN


RESPONDENT

CatchWords : INDUSTRIAL LAW – default judgment entered for contraventions of the Fair Work Act 2009 (Cth) – determination of amounts to be paid by non-employer respondent – whether non-employer respondent can be ordered to pay an underpayment amount under s 545 – determination of penalties – deliberateness of conduct of person involved in contraventions by a company – penalties determined
Legislation : Fair Work Act 2009 (Cth)
Industrial Magistrate’s Court (General Jurisdiction) Regulations 2005 (WA)
Instrument : Commercial Sales Award 2010
Case(s) referred
to in reasons: : Fair Work Ombudsman v NSH North Pty Ltd trading as New Shanghai Charlestown [2017] FCA 1301; 275 IR 148
Mason v Harrington Corporation Pty Ltd [2007] FMCA 7
Australian Ophthalmic Supplies Pty Ltd v McAlary-Smith [2008] FCAFC 8; 165 FCR 560
Australian Building and Construction Commissioner v Pattinson [2022] HCA 13; 274 CLR 450
Commonwealth v Director, Fair Work Building Industry Inspectorate [2015] HCA 46; 258 CLR 482
Fair Work Ombudsman v NoBrace Centre Pty Ltd (in liq) (No 2) [2019] FCCA 2970
Fair Work Ombudsman v Grouped Property Services Pty Ltd (No 2) [2017] FCA 557
Fair Work Ombudsman v Go Yo Trading Pty Ltd [2012] FMCA 865
Result : Pecuniary penalty to be paid by respondent to claimant
Representation:
Claimant : Mr W. Milward (of counsel)
Respondent : Mr Z. Tomich (of counsel)


REASONS FOR DECISION
(Given extemporaneously at the conclusion of the hearing, extracted from the transcript of proceedings and edited by her Honour for clarity of expression, to insert headings and to include complete citations)
Relevant procedural history and reasons for today’s hearing
1 In these proceedings, the claimant, Andrea Quattrone, claims the respondent, Steven Sweetman, was in breach of the Fair Work Act 2009 (Cth) (FWA) by virtue of his involvement under section 550 of the FWA in breaches that a company called RM Technology Pty Ltd was found to have committed in other proceedings before the Industrial Magistrates Court: M 145 of 2024 Quattrone v RM Technology Pty Ltd (First Proceeding).
2 Mr Quattrone’s Originating Claim seeks orders requiring Mr Sweetman to pay to him the amounts RM Technology was ordered to pay in the First Proceedings. It recites the fact that orders were made against RM Technology in the First Proceeding. The Originating Claim then particularises the claims in these proceedings, by reference to the breaches and quantum found in the First Proceeding. The Originating Claim also sets out why it is alleged Mr Sweetman was accessorily liable for RM Technology’s breaches in the First Proceeding.
3 On 10 March 2025, the Court gave default judgment in favour of Mr Quattrone as Mr Sweetman had failed to comply with regulation 14 of the Industrial Magistrate’s Court (General Jurisdiction) Regulations 2005 (WA), which required a response to the claim to be lodged within 14 days after service. The 10 March 2025 orders were in these terms:
1. Pursuant to Regulation 8(2) of the Industrial Magistrate’s Court (General Jurisdiction) Regulations 2005 (WA) there be default judgment for the claimant against the respondent in respect of the claim that the respondent breached section 45 of the Fair Work Act 2009 (Cth).
a. On 17 occasions in respect of the failure to pay the claimant for work performed;
b. On 31 occasions in respect of the failure to pay the claimant overtime for work performed;
c. On 31 occasions in respect of the failure to pay the claimant a vehicle allowance for kilometres driven in the performance of his duties;
d. On 3 occasions in respect of the failure to pay the claimant superannuation due in respect of wages payable to the claimant in respect of work performed in each of 3 quarters during the financial year 2018-2019.
2. Pursuant to Regulation 8(2) of the Industrial Magistrate’s Court (General Jurisdiction) Regulations 2005 (WA) there be default judgment for the claimant against the respondent in respect of the claim that the respondent breached section 44(1) of the Fair Work Act 2009 (Cth) on 1 occasion in respect of the failure to pay the claimant annual leave due to be paid following the cessation of his employment.
3. The respondent pay to the claimant in respect of the identified breaches an amount to be determined at the hearing of the Application for Orders 4 and 5 of the Application lodged on 7 March 2025.
4. The respondent pay a penalty in respect of the identified breaches in an amount to be determined at the hearing of the Application for Orders 4 and 5 of the Application lodged on 7 March 2025.
5. If the respondent seeks to be heard at the hearing of the Application for Orders 4 and 5 of the Application lodged on 7 March 2025, the respondent must file and serve a response to the Application, together with a Form 29 – Multipurpose Form under the title Response to Claimant’s Application, by no later than 24 March 2025.
4 Mr Sweetman filed what was described as a ‘Response’ to Mr Quattrone’s application for default judgment on 24 March 2025 together with an affidavit. These documents foreshadowed grounds for seeking to set aside the default judgment but did not address the orders that should be made as a consequence of default judgment being entered.
5 Mr Sweetman then applied to have the default judgment set aside. I dismissed that application on 14 April 2025. Ex tempore, Quattrone v Sweetman, Industrial Magistrates Court of Western Australia, 14 April 2025.

6 The hearing for the purposes of determining what if any payment should be made pursuant to the orders for default judgment was originally listed for 26 March 2025. It was adjourned to 14 April pending the outcome of Mr Sweetman’s application to set aside default judgment. There was insufficient time remaining after the hearing of Mr Sweetman’s application on 14 April 2025, and so the hearing was again adjourned to 23 April 2025, and then further adjourned on Mr Sweetman’s request, to today.
7 Mr Sweetman filed submissions for the purposes of today’s hearing. His submissions did not take issue with the Court’s power to make the orders that Mr Quattrone is seeking but addressed the quantum of compensation and penalties.
Order 3: What must the respondent pay to the claimant following default judgment?
8 The judgment in the First Proceeding refers to an amount of $39,412.17 (plus interest) which RM Technology, as Mr Quattrone’s employer, was found to have underpaid to him. RM Technology was ordered to pay this amount to Mr Quattrone being amounts it was required to pay Mr Quattrone under the FWA but had failed to pay to him.
9 Mr Quattrone claims the same amount in these proceedings. However, he has not referred me to any provision of the FWA which empowers the Industrial Magistrates Court (IMC) to order Mr Sweetman to pay this amount, when Mr Sweetman was not his employer. The claim against Mr Sweetman is not made on the basis that he was Mr Quattrone’s employer, but rather was on the basis of section 550’s accessorial liability provisions. That section says:
A person who is involved in a contravention of a civil remedy provision is taken to have contravened that provision.
10 The default judgment amounts to a finding that Mr Sweetman contravened the provisions of the FWA. See Order 1 and Order 2 of the 10 March 2025 Orders.
As a consequence of that finding, the Industrial Magistrates Court, being an eligible State or Territory Court, can make orders in accordance with section 545(3) of the FWA:
An eligible State or Territory court may order an employer to pay an amount to, or on behalf of, an employee of the employer if the court is satisfied that:
(a) An order granting an injunction, or interim injunction, to prevent, stop or remedy the effects of a contravention;
(b) an order awarding compensation for loss that a person has suffered because of the contravention.
11 Section 545(3) refers to orders against an employer and contraventions by an employer. Mr Sweetman is not and was not Mr Quattrone’s employer.
12 The IMC’s powers under section 545(3) are in contrast to the powers of the Federal Court and the Federal Circuit and Family Court of Australia under section 545(1), by which those Courts can:
[M]ake any order [that] the Court considers appropriate if the Court [considers that] a person … contravened … a civil remedy provision.
Including:
an order awarding compensation for loss… Fair Work Act 2009 (Cth) section 545(2)(b).

to a person who has suffered loss as a result of the contravention.
13 The ability to award compensation against a person who has contravened a civil remedy provision is wider under section 545(1) than it is under subsection (3). Indeed, the IMC is not empowered to award compensation per se. It is empowered to order payment of an amount that an employer was required to pay to the employee.
14 Accordingly, while the default judgment entered against Mr Sweetman is a finding, in effect, that he has contravened the FWA, this in itself does not create a liability for Mr Sweetman to pay any amount. The accessorial liability claim under section 550 does not trigger the power to make an order under section 545(3) simply because Mr Sweetman is not an employer for the purpose of section 545(3). Section 550 does not have the effect of making him an employer.
15 So, for the purpose of Order 3 of the orders made on 10 March 2025, I determine the amount the respondent is required to pay to be nil. It follows that I also decline to make an order for the payment of interest.
Order 4: Determination of Penalties
16 The respondent is an individual. The maximum penalty with respect to a contravention of sections 45 and 44 of the FWA by an individual is 60 penalty units.
17 The rate of a penalty unit is set by section 4AA of the Crimes Act 1914 (Cth). The relevant rate is that applicable at the date of the contravening conduct. The contraventions occurred over the period from 26 October 2018 to 28 June 2019, when a penalty unit was $210. The maximum penalty in respect of each contravention is therefore $12,600.
18 There is no real controversy in relation to how the IMC’s discretion as to penalties is to be approached. The parties have each summarised the relevant principles in their written submissions. I respectfully refer to and adopt the approach outlined by Bromwich J in Fair Work Ombudsman v NSH North Pty Ltd trading as New Shanghai Charlestown [2017] FCA 1301; 275 IR 148 at [36]:
(1) Identify the separate contraventions, with each breach of each obligation being a separate contravention, and each breach of a term of the Award being a separate contravention.
(2) Consider whether each separate contravention should be dealt with independently or with some degree of aggregation for those contraventions arising out of a course of conduct, noting that section 557 of the [FWA] provides that two or more contraventions of a given civil remedy provision are to be taken to be a single contravention if committed by the same person and arising out of a course of conduct by that person.
(3) Consider whether there should be further adjustment to ensure that, to the extent of any overlap between groups of separate aggregated contraventions, there is no double penalty imposed, and that the penalty is an appropriate response to what each respondent did.
(4) Consider the appropriate penalty in respect of each final individual group of contraventions, taken in isolation.
(5) Consider the overall penalties arrived at, including by reference to those which may be proposed by the [Fair Work Ombudsman] (as permitted by Commonwealth v Director, Fair Work Building Industry Inspectorate [2015] HCA 46; 258 CLR 482… at [64]) and what is proposed by the respondents, and apply the totality principle, to ensure that the penalties for each respondent are appropriate and proportionate to the conduct viewed as a whole, making such adjustments as are necessary: see Kelly v Fitzpatrick [2007] FCA 1080; 166 IR 14 at [30]; Australian Ophthalmic Supplies Pty Ltd v McAlary-Smith [2008] FCAFC 8; 165 FCR 560 at [23]. [71] and [102].
19 The non-exhaustive range of considerations to which regard may be had in determining whether particular conduct calls for the imposition of a penalty, and if so, the amount of the penalty are:
(a) the nature and extent of the conduct which led to the breaches;
(b) the circumstances in which the conduct took place;
(c) the nature and extent of any loss sustained as a result of those breaches;
(d) whether there has been any similar previous conduct by the respondent;
(e) whether the breaches were properly distinct or arose out of one course of conduct;
(f) the size of the business enterprise involved;
(g) whether or not the breaches were deliberate;
(h) whether senior management was involved in the breaches;
(i) whether the party committing the breaches exhibited contrition;
(j) whether the party committing the breaches have taken corrective action;
(k) whether the party committing the breaches cooperated with enforcement authorities;
(l) the need to ensure compliance with minimum standards by provision of an effective means for the investigation and enforcement of entitlements; and,
(m) the need for specific and general deterrence. Mason v Harrington Corporation Pty Ltd [2007] FMCA 7.

20 This list is not ‘a rigid catalogue of matters for attention.’ At the end of the day my task is to ‘fix a penalty which pays appropriate regard to the circumstances in which the contraventions have occurred and the need to sustain public confidence in the statutory regime which imposes the obligations’. Australian Ophthalmic Supplies Pty Ltd v McAlary-Smith [2008] FCAFC 8; 165 FCR 560 at [91]; Australian Building and Construction Commissioner v Pattinson [2022] HCA 13; 274 CLR 450 (Pattinson) at [19], [48].

21 Although the above factors provide useful guidance, the task of assessing the appropriate penalty is not an exact science. Commonwealth v Director, Fair Work Building Industry Inspectorate [2015] HCA 46; 258 CLR 482 at [47].

22 The purpose of a civil penalty is primarily, if not wholly, to promote the public interest in compliance with the laws that have been contravened. The focus of a civil penalty determination will be issues of specific and general deterrence, but that focus should not lead to a penalty so high as to be oppressive. Fair Work Ombudsman v NoBrace Centre Pty Ltd (in liq) (No 2) [2019] FCCA 2970 at [66]; Fair Work Ombudsman v Grouped Property Services Pty Ltd (No 2) [2017] FCA 557 at [388]; Pattinson [40].

23 This matter involves 83 separate contraventions of section 45 of the FWA and one contravention of section 44(1).
24 Applying section 557(1) of the FWA:
(a) 17 contraventions relating to the failure to pay the claimant the minimum wages due for work performance must be taken to be a single contravention.
(b) 31 contraventions in relation to failure to pay penalty rates or overtime must be taken to be a single contravention.
(c) 31 contraventions in relation to the failure to pay a vehicle allowance are to be taken as a single contravention.
(d) Three contraventions concerning the failure to pay superannuation must be taken to be a single contravention.
(e) One contravention concerning the failure to pay annual leave on termination is a further single contravention.
25 Accordingly, there are five distinct breaches for the purpose of section 557 of the FWA, with a theoretical maximum penalty payable of $63,000.
26 Because Mr Sweetman applied to set aside the default judgment, he was perhaps necessarily committed to focusing on establishing a defence to the claim on its merits. Indeed, in counsel’s oral submissions today, and in counsel’s written submissions, he maintained that he did not breach the FWA in relation to unpaid overtime or vehicle allowance. Eventually, counsel conceded that the submission was not open in light of the default judgment.
27 Perhaps unexpectedly in these circumstances, there is no evidence of corrective action being taken or of contrition, nor evidence of matters that might ordinarily be taken into account as mitigating factors.
28 In the First Proceeding I made determinations as to the penalties payable by RM Technology for its contraventions, being the contraventions that Mr Sweetman has been found to have been involved in for the purposes of these proceedings. In other words, contraventions in the First Proceeding and those now being considered have the same factual basis. Ordinarily, I might adopt the same approach to setting penalties now that I did in other proceedings for corresponding contraventions.
29 However, this hearing in relation to penalties was contested, whereas the First Proceeding was not. There was additional evidence placed before me that was not before me in the First Proceeding. In these circumstances, I believe there are good reasons to depart from the approach taken in the First Proceeding.
30 There have been many assertions of fact made in written submissions and oral submissions on behalf of Mr Sweetman which were not supported by evidence that was properly before me today. Where those asserted facts were not supported by evidence before me, I have not taken those matters into consideration in relation to the determination of penalty unless they were facts that were conceded or uncontentious.
Contravention 1: Unpaid Wages and Overtime
31 Nature and extent of the conduct: This course of conduct involved underpayment of the minimum wage rate under the Commercial Sales Award 2010 to one employee, Mr Quattrone, over a period of approximately 31 weeks to 35 weeks, amounting in total to $14,283.06. The loss and damage suffered as a result of the breach is commensurate with this amount. It is neither insignificant nor of the worst kind.
32 The circumstances in which the conduct took place: Mr Sweetman’s liability is based on the accessorial liability provisions of the FWA as a person who was involved in contraventions committed by RM Technology as Mr Quattrone’s employer. Mr Sweetman’s involvement is derived from, firstly, there being default judgment against RM Technology, secondly, there being default judgment in these proceedings, and thirdly, Mr Sweetman being a director of RM Technology and the person principally responsible for the conduct of its business.
33 Mr Quattrone points out that he was a vulnerable worker as his visa and the ability to remain in Australia were tied to his employment with RM Technology. The evidence in this regard was limited to the contract of employment attached to his affidavit, which states that the employment commencement date was subject to the grant of a 186 visa. It was uncontroversial that a visa was attached to the employment.
34 What was controversial, and what Mr Sweetman takes issue with, is Mr Quattrone’s characterisation of himself as a vulnerable worker. In written submissions, it was submitted that Mr Sweetman was generous to Mr Quattrone. Mr Sweetman’s counsel points out that once Mr Quattrone obtained permanent residency, he continued to work as a contractor for ‘the respondent’, but I take it this is intended to mean RM Technology. While there was no admissible evidence before me as to these matters, I do understand it is uncontentious that Mr Quattrone did continue to work for RM Technology in a different capacity after the period that the claim relates to.
35 However, I accept that Mr Quattrone’s visaholding status does mean he was vulnerable in the relevant sense. In Fair Work Ombudsman v Go Yo Trading Pty Ltd [2012] FMCA 865, a number of authorities are cited, accepting the proposition that foreign nationals holding a visa fall into a class of vulnerable workers. The Court there said:
Foreign nationals working in Australia on visas, be they 417 visas or 457 visas or some other form of visa, in my view, represent a particular class of employee who are potentially vulnerable to improper practices by their employer. The cases demonstrate that those characteristics mean that a particular employee concerned is of a vulnerable class: see, for example, Fair Work Ombudsman v Taj Palace Tandoori Indian Restaurant Pty Ltd [2012] FMCA 258, Fair Work Ombudsman v Orwill Pty Ltd [2011] FMCA 730; Fair Work Ombudsman v Sanada Investments Pty Ltd [2010] FMCA 401 at [60]. Fair Work Ombudsman v Go Yo Trading Pty Ltd [2012] FMCA 865 at [15].

36 Nature and extent of the loss: I have already referred to the extent of the loss being in the amount of $14,283.06.
37 Whether or not the breach was deliberate: This issue was a focus of submissions that were made before me today, and considerable attention was given to it.
38 By an affidavit made on 10 April 2025, Mr Quattrone deposed that he reported to Mr Sweetman. The affidavit attaches a copy of Mr Quattrone’s employment contract, which is signed by Mr Sweetman as managing director. Mr Quattrone refers to discussions and correspondence with Mr Sweetman about payments due to him, including reference to an email from Mr Sweetman to him where Mr Sweetman says:
I have tonight paid you the wages for pay week ending [19 August 2018]… Will work on the [balance] owing over the week as the funds come in from the sales.
39 Also attached to Mr Quattrone’s affidavit at schedule E were a series of documents, including pay summaries and a spreadsheet detailing payments that had been made in one column and payments that remained owing under another column.
40 Mr Sweetman’s counsel submitted this evidence demonstrates that he made attempts to remedy the underpayments and the breaches were not deliberate. Mr Quattrone’s counsel, on the other hand, submits this is evidence that Mr Sweetman knew that RM Technology had failed to pay Mr Quattrone wages due to him.
41 I accept the claimant’s submission in this regard. While Mr Sweetman may have given assurances that the underpayments would be remedied, they ultimately were not. To be ‘deliberate’, it is not necessary that there be an intention to contravene the law or an intention to act with bad faith. ‘Deliberate’ means that the conduct was not inadvertent or unintentional.
42 For the purpose of the application to set aside the judgment, Mr Sweetman made an affidavit in which he says that payments to ‘contractors’ were set up and processed as batch payments by RM Technology’s bookkeeper based on tax invoices prepared and submitted by the contractors themselves. All he did was to authorise the overall batch payment.
43 Further, in submissions today, Mr Sweetman’s counsel submits that the batch payments were made without access to the spreadsheet in schedule E of Mr Sweetman’s affidavit so at the time of the batch payments were made, any underpayments were not brought directly to his attention or highlighted. So he suggests – implicitly if not expressly – that he did not seek to drill down into the batch payments or to check the amounts being paid to ensure that the payments were aligned with what was due to Mr Quattrone.
44 In other words, Mr Sweetman did not take steps to ensure Mr Quattrone was paid when it was due.
45 Combined with the evidence that Mr Sweetman was involved in discussions with Mr Quattrone about monies due to him, and the evidence that Mr Sweetman was given spreadsheets detailing the amounts due, I must conclude that in authorising batch payments, Mr Sweetman was also authorising RM Technology’s underpayments.
46 RM Technology’s contraventions were deliberate and Mr Sweetman’s involvement in the contraventions was therefore also deliberate in the relevant sense.
47 Finally, in relation to whether the breaches were deliberate, the respondent’s counsel submitted that:
[T]he only reason payment may not have been made would be due to a lack of financial performance by the company from time to time.
48 Again, there was no evidence before me to support this assertion. But implicit in the submission is a further assertion that RM Technology would have made good the underpayments when it was in a financial position to do so.
49 I note that Mr Sweetman was not liable to make payments to Mr Quattrone, rather RM Technology was. Mr Sweetman’s submission is to the effect that he was willing to ensure that RM Technology paid Mr Quattrone what he was owed, at some point in time, depending on cash flow. In other words, Mr Sweetman was well-intentioned, and there was goodwill in the relationship between him and Mr Quattrone. The cause of the underpayments was cash flow difficulties.
50 In light of this submission, it is surprising that the contraventions were not simply admitted at the earliest opportunity. Had the contraventions been admitted, including by not attempting to set aside the default judgment, this might have been a factor which would have mitigated the penalties.
51 Cash flow difficulties, while a commercial explanation for the breaches by RM Technology and therefore an explanation for Mr Sweetman’s involvement in RM Technology’s breaches, is nevertheless no excuse for the breaches. The making of payments prescribed by minimum conditions in workplace relations legislation is an essential condition of running any business which engages employees.
52 If Mr Sweetman had demonstrated by evidence that despite his intentions and actions, RM Technology was unable to meet its obligations to Mr Quattrone, that might have been a relevant mitigating factor. But no such evidence is before me.
53 The size of the business enterprise involved: It is uncontentious that the RM Technology business was a small business, which employed or engaged 20 to 25 people as either employees or contractors, as well as a bookkeeper. I infer that it did not have a significant internal human resources capacity. However, as the respondent is an individual, business size is not a particularly weighty factor.
54 Whether there has been similar previous conduct by the alleged contravener: There is no evidence of any similar previous conduct by Mr Sweetman. He asserts that in 40 years of business, there had been no prior claims against either RM Technology or himself. This is uncontentious, and so I accept that the respondent is a first-time contravener.
55 Contrition and corrective action: Mr Sweetman has not shown any contrition. Corrective action was really for RM Technology to take rather than Mr Sweetman. So corrective action has limited relevance in this matter.
56 Need for specific and general deterrence: Mr Sweetman’s evidence is that RM Technology was placed into liquidation on 3 February 2025. Mr Sweetman ceased to be a director of the company on that date.
57 I understand this to mean that RM Technology has resolved to wind up and has therefore ceased trading. I also understand that this means Mr Sweetman has ceased to be involved in the business. Accordingly, specific deterrence does not call for a penalty at the high end of the scale.
58 Mr Sweetman submits that the stress of his own and immediate family members’ ill health and the liquidation of RM Technology are mitigating factors, and that no penalty should be applied because of those mitigating factors.
59 However, there is no evidence that these stressors were occurring at the relevant time, that is, the time that the contraventions occurred. Therefore, I would not take them into account as mitigating, at least in terms of mitigating the seriousness of the conduct itself. With more complete evidence, these factors might have been relevant to, for instance, capacity to pay or the need for deterrence. But the evidence was insufficiently developed to have an impact on my penalty determination.
60 Mr Quattrone’s counsel submitted that the appropriate penalty for this breach was 80% to 90% of the maximum, commensurate with the approach in Fair Work Ombudsman v NoBrace Centre Pty Ltd (in liq) (No 2) [2019] FCCA 2970. He says that the breaches represent the very worst misconduct because not only were wages not paid at all for work performed, but payslips were issued misrepresenting the wages to have been paid. Paragraph 18 of the Mr Quattrone’s Affidavit lodged 10 April 2025.

61 As I alluded to earlier, there are matters before me today that were not before the IMC when setting the penalty for the corresponding contravention at 45% of the maximum in the First Proceeding.
62 These new factors, in particular:
(a) that Mr Quattrone is a vulnerable worker;
(b) Mr Sweetman’s lack of contrition; and
(c) Evidence of payslips mispresenting the wages that had been paid.
do warrant a higher penalty than was applied in the First Proceeding. Having regard to these factors, a penalty around the mid to higher end of the range is appropriate, and I would impose a penalty of 70% of the maximum, or $8,820 for contravention 1.
Contravention 2 – penalty rates and overtime
63 This course of conduct involved underpayment of the overtime rates on weekdays and Saturdays under the Commercial Sales Award 2010 to one employee, Mr Quattrone, over the previously mentioned nine-month period, amounting in total to $3,538.34.
64 The loss and damage suffered as a result of the breach is commensurate with this amount. It is not insignificant, but it is at the lower end of the scale of seriousness.
65 Unlike the position in relation to contravention 1, I do not consider the evidence demonstrates that Mr Sweetman had actual knowledge of the nature and extent of RM Technology’s contravention.
66 The discussions Mr Quattrone had with Mr Sweetman about underpayment appear to relate to the base rate of pay or ordinary wages. To have knowledge there was an underpayment of overtime and penalty rates, Mr Sweetman needed to have knowledge that Mr Quattrone was working overtime hours. Nothing before me indicates that he had such knowledge, giving the contraventions the deliberateness that I discussed in relation to contravention 1.
67 The other factors discussed under contravention 1 are, however, otherwise equally applicable.
68 In the First Proceeding, I set this penalty at 15% of the maximum penalty, but for the same reasons I stated in relation to contravention 1, I would impose a higher penalty rate here. I would impose a penalty of 35% of the maximum, or $4,410 for contravention 2.
Contravention 3 – Vehicle Allowance
69 This course of conduct involved nonpayment of the vehicle allowance for the use of the claimant’s own vehicle for work performed under the Commercial Sales Award 2010 over the same period for 16,943 kilometres, and amounting in total to $13,215.
70 The loss and damaged suffered as a result of the breach is commensurate with this amount. It is neither insignificant nor of the worst kind.
71 The other factors discussed under contravention 2 are otherwise equally applicable. Having regard to those factors, a penalty around the middle of the range is appropriate. In the First Proceeding, I considered 40% appropriate. In these proceedings, I would impose a penalty of 60% of the maximum or $7,560 for contravention 3.
Contravention 4 – Unpaid Superannuation
72 This contravention involved failure to make superannuation contribution for wages earned but unpaid amounting to $1,356.89 over the same period of 31 to 35 weeks. The loss and damage suffered, again, is commensurate with this amount. It’s not insignificant, but it is at the lower end of the scale of seriousness.
73 This breach is akin to a secondary breach. It is a consequence of underpayment of wages and overtime. To that extent, it is not distinct and severable the way the other breaches are. For this reason, I consider a nominal penalty, or one at the lowest end of the range, is appropriate, as I did in the First Proceeding. I would impose a penalty of $100 in respect of this breach.
Contravention 5 – Annual Leave on Termination
74 This contravention involved the nonpayment of 252.14 hours of accrued annual leave on termination, payable under section 90 of the FWA, and valued at $6,550.86.
75 The loss and damage suffered as a result of the breach is commensurate with this amount. It is neither insignificant nor of the worst kind.
76 While other breaches involved a course of conduct, this breach was a single instance.
77 The other factors discussed under contravention 2 are otherwise equally applicable. Having regard to those factors, a penalty at the low to mid end of the range is appropriate. A penalty of 40% of the maximum or $5,040 for contravention 5 is appropriate, and this is consistent with the approach I took in relation to the First Proceeding.
Totality
78 The penalties determined at the previous step are:
Contravention 1
70%
$8,820
Contravention 2
35%
$4,410
Contravention 3
60%
$7,560
Contravention 4

$100
Contravention 5
40%
$5,040
Total

$25,930
79 The totality of the penalty must be reassessed in light of the totality of the offending behaviour. If the resulting penalty is disproportionately harsh, it may be necessary to reduce the penalty for individual contraventions.
80 A reduction of the total is required to ensure the total penalty is one that strikes a reasonable balance between oppressive severity and the need for deterrence in respect of the particular case. This is consistent with the principle that the penalty must not be excessive and must be just and appropriate in all the circumstances of the case. In this case, the discount required is relatively modest. A discount of 10% bringing the total penalty payable by Mr Sweetman to $23,337 is appropriate.
81 I will order that penalty be paid to the claimant in accordance with section 546(3) of the FWA.
Costs
82 Mr Quattrone has applied for an order that Mr Sweetman pay his costs of the proceedings.
83 I am not inclined to make an order for costs. The basis for the application for costs is the respondent’s conduct in the course of these proceedings, and while the claimant has acknowledged that applications of this type are not usually associated with costs orders, the claimant does claim costs on the basis of the respondent’s delays in these proceedings having caused the claimant to incur increased costs.
84 The respondent has not conducted these proceedings in the most efficient manner, but on the occasions when the respondent has sought additional time to do certain things or has sought an adjournment, I have generally accepted that there were good reasons to allow that additional time, or that it was appropriate to grant the adjournment. The respondent was unsuccessful in its application to set aside the judgment, but the consequence of that lack of success is that the claimant was able to proceed to obtain orders in default without needing to prove his claims at trial.
85 So, while I accept the respondent’s conduct has caused the proceedings to be more protracted, and this outcome to have come later than it would have had the respondent not applied to set aside the default judgment, I am not persuaded that there has been unreasonable acts or omissions that have caused the claimant to incur costs. And so accordingly, there will be no order as to costs.
Orders and disposition
86 My orders are:
1. For the purpose of Order 3 of the Orders made on 10 March 2025, the amount the respondent is required to pay is nil.
2. For the purpose of Order 4 of the Orders made on 10 March 2025, and pursuant to section 546(1) of the Fair Work Act 2009 (Cth), the respondent is to pay a pecuniary penalty of $23,337.00.
3. The penalty in Order 2 is be paid to the claimant in accordance with section 546(3) of the Fair Work Act 2009 (Cth).
4. There be no order as to costs.




R. COSENTINO
INDUSTRIAL MAGISTRATE