2026 WAIRC 00527
INDUSTRIAL MAGISTRATES COURT OF WESTERN AUSTRALIA


CITATION
:
2026 WAIRC 00527



CORAM
:
INDUSTRIAL MAGISTRATE D. SCADDAN



HEARD
:
WEDNESDAY, 24 JUNE 2026



DELIVERED
:
FRIDAY, 17 JULY 2026



FILE NO.
:
M 76 OF 2025



BETWEEN
:
AUSTRALIAN WORKERS' UNION


CLAIMANT





AND





SPARROWS SERVICES AUSTRALIA PTY LTD


RESPONDENT

CatchWords : INDUSTRIAL LAW – Assessment of a civil pecuniary penalty – Contravention of s 323(1) of the Fair Work Act 2009 (Cth) – Deductions made for overpayment of wages contrary to s 324 of the Fair Work Act 2009 (Cth) – Penalty imposed
Legislation : Fair Work Act 2009 (Cth)
Crimes Act 1914 (Cth)
Fair Work Regulations 2009 (Cth)
Cases referred
to in reasons: : Australian Workers’ Union v Sparrows Services Australia Pty Ltd [2026] WAIRC 00245
Australian Building and Construction Commissioner v Pattinson [2022] HCA 13; (2022) 274 CLR 450
Fair Work Ombudsman v Priority Matters Pty Ltd [No 5] [2020] FCCA 901
Patrick Stevedores Holdings Pty Limited v Construction, Forestry, Maritime, Mining and Energy Union [No 4] [2021] FCA 1481
Fair Work Ombudsman v Construction, Forestry, Maritime, Mining and Energy Union [2019] FCAFC 69
Construction, Forestry and Maritime Employees Union v Qube Ports Pty Ltd [2025] FCA 208
Australian Building and Construction Commissioner v Powell [No 2] [2019] FCA 972
Auimatagi v Australian Building and Construction Commissioner [2018] FCAFC 191; (2018) 267 FCR 268
Result : Penalty imposed
Representation:
Claimant : Mr B. Bullock (of counsel)
Respondent : Mr G. Bull (of counsel)


REASONS FOR DECISION (PENALTY)
1 On 23 April 2026, the Industrial Magistrates Court of Western Australia (the Court) published its reasons for finding that Sparrows Services Australia Pty Ltd (respondent) was not entitled to make deductions from the pay of employee, Stephen Thomas (Mr Thomas), in the fortnights ending 18 October 2024 and 1 November 2024 (the Deductions). Australian Workers’ Union v Sparrows Services Australia Pty Ltd [2026] WAIRC 00245.

2 Notably, the Deductions were made in response to an overpayment of $1,195.50 in the preceding pay period ending 4 October 2024 (the Overpayment).
3 Consequently, the Court found the respondent did not pay ‘in full’ the amounts payable to Mr Thomas in relation to the performance of work for the weeks 5 to 18 October 2024 and 19 October to 1 November 2024.
4 The Court was satisfied that the Australian Workers’ Union (AWU) had proven to the requisite standard that the respondent contravened s 323(1) of the Fair Work Act 2009 (Cth) (FWA) in failing to pay the amounts in full to Mr Thomas as claimed by the AWU for work performed in the weeks ending on:
(a) 18 October 2024; and
(b) 1 November 2024 (the Liability Decision).
5 In its originating claim, the AWU sought the payment of a civil penalty for any contravention found by the Court (the Claim).
6 These are the Court’s reasons in respect of the imposition of a civil penalty.
7 Schedule I of these reasons outlines the provisions of the FWA and principles relevant in determining an appropriate pecuniary penalty (if any) for the respondent’s contraventions.
Findings in the Liability Decision
8 While the Court accepted that one of the respondent’s staff members had spoken with Mr Thomas about the repayment of the Overpayment and told him what was intended and sent him a letter for him to consent to the Deductions, the respondent did not obtain Mr Thomas’s written authorisation to make the Deductions.
9 Further, the Deductions were not for Mr Thomas’s benefit and were not reasonable where they were for the respondent’s benefit so that it could recover money overpaid to him in the fortnight ending 4 October 2024.
10 The Court found that the Deductions were not authorised in compliance with s 324(1)(a) or s 324(1)(c) of the FWA. Therefore, the respondent was not entitled to make the Deductions for the performance of work in the fortnights ending 18 October 2024 and 1 November 2024.
11 The general terms of the employment contract relied upon by the respondent did not, and could not, overcome the statutory requirements under s 324(2)(a)(i) and s 324(2)(aa) of the FWA and reg 2.12A of the Fair Work Regulations 2009 (Cth).
Other Evidence on Penalty
12 The respondent relied upon a witness statement by Brian Sargeant (Mr Sargeant) signed on 7 May 2026. Exhibit 1 – witness statement of Brian Sargeant signed on 7 May 2026.

13 Mr Sargeant is the respondent’s Regional Manager, Australia, responsible for the overall management of the respondent’s Australian business. Exhibit 1 [1]  [3].

14 Mr Sargeant states that the respondent has always included a general provision in their employment contracts to recover any overpayments made to employees. Exhibit 1 [4].

15 Mr Sargeant initiated the payroll audit for the week ending 4 October 2024, identifying the Overpayment. He was aware of the letter sent to Mr Thomas advising him of the intended repayment of the Overpayment, which included a provision for Mr Thomas to confirm the acceptance of the deduction plan by signing and returning a copy of the correspondence. Exhibit 1 [5]  [7].

16 Mr Sargeant states that without his knowledge, the payroll team proceeded with the Deductions despite Mr Thomas having not returned the signed acknowledgement of the Overpayment and the Deductions plan. Exhibit 1 [9].

17 He was advised by the payroll team that this occurred because Mr Thomas rarely returned any requested paperwork. Notwithstanding this, the Deductions occurred contrary to the respondent’s established practices and should not have occurred without the receipt of a copy of Mr Thomas’s written authority to make the Deductions. Exhibit 1 [10].

18 Mr Sargeant states that he became aware of what happened upon the receipt of an application for default judgement made by the AWU in August 2025. Mr Thomas was no longer employed by the respondent at this time. Exhibit 1 [11].
He further says that he instructed the payroll team that under no circumstances were they to make overpayment deductions without a signed employee authorisation. Exhibit 1 [12].

19 Following the Liability Decision, Mr Sargeant says he further instructed the payroll team that it is unlawful to deduct any overpayments from employee wages without their written authorisation regardless of the contents of any modern award provision or contract of employment. He accepts that in making the Deductions, the respondent has contravened s 323 of the FWA. Exhibit 1 [13].

20 Mr Sargeant says that the actions he has put in place will ensure this type of breach does not occur in the future. Exhibit 1 [16].

21 He instructed the payroll team to repay the Deductions to Mr Thomas’s bank account, along with the interest ordered by the Court. Exhibit 1 [14].
This occurred in May 2026.
22 In cross-examination, while he could not recall the exact date, Mr Sargeant said that the respondent had conducted a further audit of its payroll to ensure that there were no other similar occurrences of deductions. He said there was one other incident of a deduction made for an overpayment to an employee, but that the employee concerned agreed to the deduction. ts 19.

23 The AWU’s concern raised in cross-examination was whether the audit was conducted for the purposes of the penalty hearing and after the filing of submissions, which Mr Sargeant denied. ts 20.

24 Mr Sargeant also said that the respondent’s operation in Australia was reasonably small, albeit it was part of a larger international corporation. In February 2026, the respondent commenced receiving human resources support from the larger corporation because it included more professional support and improved processes. ts 20.

Submissions
25 Both parties referred to the law in respect of the determination of an appropriate pecuniary penalty for contraventions of the FWA. I do not intend to recite the parties’ references to the applicable law. Schedule I to these reasons sets out a summary of those principles.
Claimant
26 In summary, the claimant submits that:
(a) a penalty of between 15% and 20% of the maximum is the appropriate penalty;
(b) the object of a civil penalty is to promote the public interest in compliance with the provisions of the FWA by securing future compliance;
(c) there are two contraventions of s 323 of the FWA, arising from the Deductions. These contraventions are contraventions of a civil remedy provision: s 539(2) of the FWA;
(d) the maximum penalty applicable is five times the maximum number of penalty units proscribed for a natural person (given the respondent is a corporation);
(e) the contraventions are properly characterised at the medium level where the respondent knew the Deductions could not be made unless authorised in writing, and did not try to follow up with Mr Thomas for his consent before making the first of the Deductions;
(f) it is irrelevant that Mr Thomas had a habit of not responding to paperwork, and the respondent is seeking to minimise the breach;
(g) there has been no meaningful attempt to improve compliance with the law beyond Mr Sargeant informing the respondent’s payroll of not to do the same again;
(h) the respondent has shown no contrition and took the issue to a contested hearing;
(i) the contraventions were not inadvertent or technical, where the respondent actively sought written authorisation and made the Deductions knowing that Mr Thomas’s had not signed and returned the written authorisation;
(j) the respondent is a large company and larger since its merger with ‘Altrad’; and
(k) the evidence demonstrates that the respondent did not audit its payroll immediately, and only did so in response to the AWU’s submissions indicating that it was not taking the issues seriously.
Respondent
27 In summary, the respondent submits:
(a) the contraventions subject to a penalty relate to a single employee;
(b) there is no evidence that the respondent has previously engaged in like contravening conduct;
(c) the respondent is a modestlysized company, albeit it is now part of a larger international business;
(d) notwithstanding its size, the respondent attempts to ensure that it complies with the Agreement.
(e) the contraventions were a result of a misinterpretation of the provisions of a modern award, Mr Thomas’s employment contract and the respondent did not deliberately contravene the FWA. The respondent understood that it could make the Deductions in compliance with the relevant modern award and employment contract;
(f) the contravention is a ‘one-off’ rather than ‘the latest instance of the contravenor’s pursuit of a strategy of deliberate recalcitrance’; Australian Building and Construction Commissioner v Pattinson [2022] HCA 13; (2022) 274 CLR 450 (Pattinson) [47].

(g) there is no evidence of exploitation or underpayments;
(h) the respondent has taken corrective action demonstrating the respondent’s contrition and efforts to reduce the risk of similar issues occurring in the future;
(i) there is otherwise a culture of compliance; and
(j) the Deductions were made in good faith and were not malicious.
28 The respondent characterises the contraventions at the lower end of seriousness and either no penalty or a penalty of less than 10% is appropriate, where the interests of specific and general deterrence are not served by the circumstances of this case.
The Nature, Extent and Circumstances of the Conduct
29 There was an accepted Overpayment to Mr Thomas, and one of the respondent’s staff engaged with Mr Thomas to discuss and arrange repayment by sending a letter to Mr Thomas requesting his consent to the make the Deductions from his pay over the next two fortnights.
30 What the respondent did not do was to actually obtain Mr Thomas’s written authorisation prior to making the Deductions. On the strength of its prior engagement with Mr Thomas, the respondent went ahead and made the Deductions.
31 There is no evidence before the Court that this is a common practice by the respondent, and it appears that it was borne of some frustration by the respondent’s staff with Mr Thomas’s lack of written response to any other communication.
32 This does not absolve the respondent of its obligation under s 324 of the FWA, but it highlights, consistent with Mr Sargeant’s evidence, that it is not the respondent’s usual practice. Further, even if the respondent’s audit of its payroll occurred after the lodgement of the AWU’s submissions, what it demonstrates is that this is not a widespread issue but appears to be a ‘oneoff’ transgression.
Course of Conduct
33 Each of the contraventions are attributable to the same conduct. That is, an equal deduction by the respondent over two pays to account for the Overpayment.
34 The respondent submits that the two contraventions of s 323 of the FWA are properly characterised as a single contravention where the contraventions flowed from the same course of conduct consistent with s 557(1) and s 557(2) of the FWA.
35 The effect of s 557 of the FWA is that if the same person commits two or more contraventions of the provisions in s 557(2), then they can be taken to constitute a single contravention if it arose out of the same course of conduct. Section 323 of the FWA is included in s 557(2), and s 557(3) does not apply where there has been no prior contravention of s 323 by the respondent.
36 Further, s 557 does not preclude operation of common law course of conduct principles. Patrick Stevedores Holdings Pty Limited v Construction, Forestry, Maritime, Mining and Energy Union [No 4] [2021] FCA 1481 [152], referring to Fair Work Ombudsman v Construction, Forestry, Maritime, Mining and Energy Union [2019] FCAFC 69 [183]  [184].
In Fair Work Ombudsman v Priority Matters Pty Ltd [No 5] [2020] FCCA 901, Driver J explained at [27]:
In addition to the statutory course of conduct provision, it is open to the Court to consider the application of common law course of conduct principles where the contraventions contain common elements or can be said to overlap with each other. The courts have confirmed a broad discretion in approach to ensuring that penalties applied are appropriate to the conduct in a particular case. Commonly this is achieved by grouping contraventions together for the purpose of determining penalty, although other approaches are available. It may be appropriate for the Court to group contraventions where, if they were treated separately, this would potentially penalise a respondent twice for the same or substantially similar conduct. (footnotes omitted)
37 I am satisfied that the respondent’s two contraventions of s 323 of the FWA each constituted a contravention of a civil penalty provision, which arose from the respondent’s deduction from two pays to recover the Overpayment. However, within each of the contraventions the Deductions constitutes a course of conduct to which s 557 applies. Therefore, I am satisfied that while there are two contraventions, a single course of conduct lead to the two contraventions.
38 For the purposes of s 557 of the FWA and the imposition of an appropriate penalty, there is a single contravention of s 323 of the FWA.
39 If I am wrong about that, an appropriate penalty for the two contraventions should avoid double punishment for this same conduct.
Deliberate Conduct
40 The respondent submitted that it did not deliberately contravene the FWA. I accept that the respondent did not deliberately set out to contravene the FWA or circumvent industrial laws. However, it was aware that it required Mr Thomas’s written consent to make the Deductions, otherwise it would not have sent a letter to him which was required to be signed by him and returned to the respondent.
41 Notwithstanding the respondent’s staff had a conversation with Mr Thomas and sent out a letter, it made the Deductions without his written authorisation and, at the very least, was careless and oblivious of its application of s 324 of the FWA.
42 The respondent has an obligation to both understand and apply industrial laws. It is not open to the respondent to breach its obligations or take the high moral ground because the contravention came about because of an overpayment of money.
Similar Previous Conduct of the Respondent
43 The parties did not refer to any similar previous conduct by the respondent.
44 The respondent has not been previously found to have contravened the FWA.
45 This is a mitigating factor in favour of the respondent.
Applicable Maxima
46 The maximum penalty with respect to a contravention of s 50 of the FWA by the respondent is 300 penalty units, given the respondent is a body corporate.
47 At the date of the contraventions the penalty unit value was as follows: See s 4AA of the Crimes Act 1914 (Cth) and s 12 of the FWA. Notably, there was an increase in the penalty unit value on 7 November 2024, six days after the second deduction on 1 November 2024.

Dates of Contravening Conduct
Penalty Unit
October/November 2024
$ 313
48 The theoretical maximum is $93,900 for each contravention with the total theoretical maximum being $187,800.
49 However, noting the Court’s finding as it relates to course of conduct, the total maximum applied is $93,900.
Size of the Respondent and Involvement of Senior Management
50 There is no evidence of the involvement of senior management in the contravention. The evidence in the Liability Decision indicates that the respondent’s staff member engaged with Mr Thomas to arrange repayment of the Overpayment, but did not follow through on the correct process under s 324 of the FWA.
51 Mr Sargeant was not aware of the contravention until after the Claim was commenced. While the respondent has joined a larger organisation, at the time it was a modest business.
52 This factor is at worst neutral or not an aggravating factor.
Cooperation, Contrition and Corrective Action
53 While the respondent cooperated in the legal proceedings, the respondent’s counsel’s oral submission to the Court indicated that had the AWU discussed the issue with the respondent before commencing the Claim, the money would have been repaid earlier.
54 If the respondent was prepared to respond to discussions prior to the Claim commencing, one wonders the utility in not admitting the contravention at an earlier stage. The respondent was entitled to defend the Claim, but it dilutes counsel’s submission to the Court that it had a ‘legitimate’ defence under the relevant modern award (which it did not) and under the employment contract (which it also did not).
55 The respondent has repaid the Deductions to Mr Thomas, albeit after being ordered by the Court to do so.
56 The respondent has taken some corrective action in terms of informing its payroll that it cannot make deductions otherwise than in accordance with s 324 of the FWA. That is, it has informed its staff of the law, and no more.
57 Some mitigation attributes to the respondent’s actions but it is not significant.
Loss or Damage Suffered
58 There is no evidence of any loss or damage suffered by Mr Thomas. He was not entitled to the Overpayment, but the respondent was not entitled to make the deductions unless it complied with s 324 of the FWA. In the alternative, the respondent was required to commence legal proceedings in another jurisdiction to recover its money.
59 This is a neutral factor in considering the penalty to be imposed.
Deterrence
60 It is often said deterrence, specific and general, is the principal (if not sole) objective in determining civil penalties. Pattinson [16].
That is, imposing a penalty that promotes the public interest in compliance with, in this case, industrial laws.
61 In Pattinson, at [71], the majority judgment concluded that a court’s ‘real task under s 546’ is ‘fixing the penalty which it considers fairly and reasonably to be appropriate to protect the public interest from future contraventions of the Act’ where, at [58], ‘the maximum penalty is intended by the Act to be imposed in respect of a contravention warranting the strongest deterrence within the prescribed cap’:
The penalty that is appropriate to protect the public interest by deterring future contraventions of the Act may also be moderated by taking into account other factors of the kind adverted to by French J in [Trade Practices Commission v CSR Ltd [1990] FCA 762; [1991] ATPR 41-076]. For example, where those responsible for a contravention of the Act express genuine remorse for the contravention, it might be considered appropriate to impose only a moderate penalty because no more would be necessary to incentivise the contraveners to remain mindful of their remorse and their public expressions of that remorse to the court. Similarly, where the occasion in which a contravention occurred is unlikely to arise in the future because of changes in the membership of an industrial organisation, a modest penalty may be appropriate having regard to the reduced risk of future contraventions.
It is not necessary to multiply examples further. It is sufficient to say that a Court empowered by s 546 to impose an ‘appropriate’ penalty must act fairly and reasonably for the purpose of protecting the public interest by deterring future contraventions of the Act. Pattinson [47]  [48].

Determination
62 Specific deterrence has some, but not no, role to play with respect to the respondent’s contravention. The contravention arose where the respondent failed to comply with s 324 of the FWA by making unlawful deductions from Mr Thomas’s pay. The respondent has taken steps to reiterate to its staff that deductions cannot be made from employees’ pay other than in accordance with s 324 of the FWA.
63 The respondent does not have a history of contravening industrial laws.
64 This leaves the issue of general deterrence.
65 Comments made by Feutrill J, at [94], in Construction, Forestry and Maritime Employees Union v Qube Ports Pty Ltd [2025] FCA 208 may be relevant, albeit they were directed to specific deterrence:
Contraventions are not only the consequence of intentional or deliberate conduct but carelessness, oversight and inadvertence. Part of deterrence involves encouraging employers to implement and maintain systems, policies, procedures and a culture aimed at preventing careless, unintentional or ignorant contraventions of the Act. Therefore, the size and spread of an employer’s operation is not a reason for diminishing corporate responsibility for historical contraventions as these may be indicative of systemic or underlying failings in corporate systems, policies, procedures and culture and, therefore, of an ongoing and enhanced risk of future contraventions.
66 Guidance may also be derived from Bromberg J in Australian Building and Construction Commissioner v Powell [No 2] [2019] FCA 972 at [28] to [30], referring to Auimatagi v Australian Building and Construction Commissioner [2018] FCAFC 191; (2018) 267 FCR 268 (at [176]):
It is a fundamental principle, at the core of the judicial power to impose a penalty, that the imposition is for the contravention in question. Prior contraventions, even so many and often so serious as the Union may have engaged in in the past, is a factor which may be taken into account in determining the appropriate quantum for the contravention; it cannot be taken to lead to a penalty that is disproportionate to the gravity of the instant contravention. The maximum is for the worst category of cases.
67 His Honour later agreed with the applicant’s contention and stated, at [34] and [35]:
[T]here is no general principle that, if a person contravenes a civil penalty provision on a genuine but mistaken view on an arguable question of law, there should be no penalty. Whether or not a penalty should be imposed will always depend on all of the circumstances considered principally by reference to the need for specific and general deterrence.
It is well settled and not in contest that an honest and reasonable belief may be a relevant mitigating or ameliorating factor in determining whether or not a penalty is to be imposed and, if so, the extent of the penalty imposed. (citations omitted)
68 I am not satisfied that this is an occasion where imposing no penalty is appropriate. Employers are not entitled to deduct money from employees’ pay unless in compliance with s 324 of the FWA, some other written law or an order of a court. It is not open to employers to help themselves to employees’ wages for work performed by the employee. It does not matter that there was an error and an employee was overpaid. If the employee does not agree in writing to repay the money, the employer must take alternative legal steps for recovery, which may expose the employee to other litigation costs. That is a matter the employee will need to consider if they do not agree with or to repay an overpayment.
69 Any purported beneficence by the employer in supposedly shielding the employee from other legal proceedings is irrelevant.
70 Accordingly, general deterrence is a significant factor for the Court.
71 I am satisfied that given all of the factors referred to above, this is a contravention for which a penalty at the lower, not lowest, end of the scale is appropriate.
Penalty to be imposed
72 Taking all of the factors into account, including the mitigatory factors, the appropriate penalty aimed to secure compliance by deterring contraventions of this type is $8,000.
73 For the avoidance of doubt, I would have arrived at the same figure if my finding as it relates to a single course of conduct is incorrect. The principles of common law where the contraventions had the same elements arising from the same action would have necessitated a penalty that did not result in double punishment.
74 I do not consider any further reduction to be warranted to account for an imbalance between oppression and deterrence.
75 I do not consider that there is anything before the Court, which suggests that it should be awarded other than to the successful initiating party. Accordingly, the payment of the pecuniary penalty should be paid to the AWU.
Orders
76 Pursuant to s 546(1) of the FWA, where the Court is satisfied that the respondent has contravened a civil penalty provision, the respondent is to pay a pecuniary penalty in the amount of $8,000.
77 Pursuant to s 546(3)(b) of the FWA, the pecuniary penalty is to be paid to the AWU.





D. SCADDAN
INDUSTRIAL MAGISTRATE





Schedule I: Pecuniary Penalty Orders Under the Fair Work Act 2009 (Cth)
Pecuniary Penalty Orders
[1] The FWA provides that the Court may order a person to pay an appropriate pecuniary penalty if the Court is satisfied that the person has contravened a civil remedy provision: s 546(1) of FWA. The maximum penalty for each contravention by a natural person, expressed as a number of penalty units, set out in a table found in s 539(2) of the FWA: s 546(2) of the FWA. If the contravener is a body corporate, the maximum penalty is five times the maximum number of penalty units proscribed for a natural person: s 546(2) of the FWA.
[2] The purpose served by penalties was described by Katzmann J in Fair Work Ombudsman v Grouped Property Services Pty Ltd [No 2] [2017] FCA 557 (Grouped Property Services) at [388] in the following terms:
In contrast to the criminal law, however, where, in sentencing, retribution and rehabilitation are also relevant, the primary, if not the only, purpose of a civil penalty is to promote the public interest in compliance with the law. This is achieved by imposing penalties that are sufficiently high to deter the wrongdoer from engaging in similar conduct in the future (specific deterrence) and to deter others who might be tempted to contravene (general deterrence). The penalty for each contravention or course of conduct is to be no more and no less than is necessary for that purpose. (omitting citations)
[3] In Pattinson [42], the plurality confirmed that civil penalties ‘are not retributive, but rather are protective of the public interest in that they aim to secure compliance by deterring repeat contraventions’. However, ‘insistence upon the deterrent quality of a penalty should be balanced by insistence that it “not be so high as to be oppressive”’: [40], citing NW Frozen Foods Pty Ltd v Australian Competition and Consumer Commission [1996] FCA 1134; (1996) 71 FCR 285.
[4] In Kelly v Fitzpatrick [2007] FCA 1080; 166 IR 14 [14], Tracey J adopted the following ‘non‑exhaustive range of considerations to which regard may be had in determining whether particular conduct calls for the imposition of a penalty, and if it does the amount of the penalty’ which had been set out by Mowbray FM in Mason v Harrington Corporation Pty Ltd [2007] FMCA 7:
(a) The nature and extent of the conduct which led to the breaches.
(b) The circumstances in which that conduct took place.
(c) The nature and extent of any loss or damage sustained as a result of the breaches.
(d) Whether there had been similar previous conduct by the respondent.
(e) Whether the breaches were properly distinct or arose out of the one course of conduct.
(f) The size of the business enterprise involved.
(g) Whether or not the breaches were deliberate.
(h) Whether senior management was involved in the breaches.
(i) Whether the party committing the breach had exhibited contrition.
(j) Whether the party committing the breach had taken corrective action.
(k) Whether the party committing the breach had cooperated with the enforcement authorities.
(l) The need to ensure compliance with minimum standards by provision of an effective means for investigation and enforcement of employee entitlements and
(m) The need for specific and general deterrence.
[5] The list is not ‘a rigid catalogue of matters for attention. At the end of the day the task of the Court 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.’ (Buchanan J in Australian Ophthalmic Supplies Pty Ltd v McAlary-Smith [2008] FCAFC 8; (2008) 165 FCR 560 (Australian Ophthalmic Supplies) [91]).
[6] Although these factors provide useful guidance, the task of assessing the appropriate penalty is not an exact science: Commonwealth v Director, Fair Work Building Inspectorate [2015] HCA 46; (2015) 258 CLR 482 [47]. The Court must ultimately fix a penalty that pays appropriate regard to the contraventions that have occurred: Pattinson [19]. ‘[A] court empowered by s 546 to impose an “appropriate” penalty must act fairly and reasonably for the purpose of protecting the public interest by deterring future contraventions of the Act:’ Pattinson [48].
[7] ‘Multiple contraventions’ may occur because the contravening conduct done by an employer:
(a) resulted in a contravention of a single civil penalty provision or resulted in the contravention of multiple civil penalty provisions;
(b) was done once only or was repeated; and
(c) was done with respect to a single employee or was done with respect to multiple employees.
[8] The fixing of a pecuniary penalty for multiple contraventions is subject to s 557 of the FWA. It provides that two or more contraventions of specified civil remedy provisions by an employer are taken be a single contravention if the contraventions arose out of a course of conduct by the employer. Subject to proof of a ‘course of conduct’, the section applies to contravening conduct that results in multiple contraventions of a single civil penalty provision whether by reason of the same conduct done on multiple occasions or conduct done once with respect to multiple employees: Rocky Holdings Pty Ltd v Fair Work Ombudsman [2014] FCAFC 62; (2014) 221 FCR 153; Fair Work Ombudsman v South Jin Pty Ltd [No 2] [2016] FCA 832 [22] (White J) The section does not apply to cases where the contravening conduct results in the contravention of multiple civil penalty provisions (example (a) above): Grouped Property Services [411].
[9] The totality of the penalty must be re-assessed 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. Australian Ophthalmic Supplies [47]  [52].
[10] Section 546(3) of the FWA also provides:
Payment of penalty
(3) The court may order that the pecuniary penalty, or a part of the penalty, be paid to:
(a) the Commonwealth; or
(b) a particular organisation; or
(c) a particular person.
[11] In Milardovic v Vemco Services Pty Ltd (No 2) [2016] FCA 244 [40] - [44], Mortimer J, in light of Sayed v Construction, Forestry, Mining and Energy Union [2016] FCAFC 4; 239 FCR 336, summarised the law:
[T]he power conveyed by s 546(3) is ordinarily to be exercised by awarding any penalty to the successful applicant. … [T]he initiating party is normally the proper recipient of the penalty as part of a system of recognising particular interests in certain classes of persons … in upholding the integrity of awards and agreements the subject of penal proceedings. Where a public official vindicates the law by suing for and obtaining a penalty, it is appropriate that the penalty be paid to the Consolidated Revenue Fund. Otherwise, the general rule remains appropriate, that the penalty is to be paid to the party initiating the proceeding, with the [Gibbs v The Mayor, Councillors and Citizens of City of Altona [1992] FCA 553; 37 FCR 216] … exception that the penalty may be ordered to be paid to the organisation on whose behalf the initiating party has acted. (original emphasis) (omitting citations)