NSW Prosecution Outcomes
NSW Industrial Relations has listed the following Prosecution cases and outcomes for your information.
| Employer prosecuted | Court Reference / CSO-Ref | Offence | Description of offence | Summary Outcome | Sentencing Date |
|---|---|---|---|---|---|
|
Aptus Cloud Technology Pty Ltd |
2021/00234749 | s.387(2) & 400 IR Act | Failure to comply, without lawful excuse, with an inspector's requirements. | Prosecution for failing to comply with an inspector's requirement to produce records and deliver information. The Company and Director pleaded guilty to the offences. At the time of sentencing the company no longer had employees and the director was the only person working in the company. The Director was also ill for a period of the time. After the prosecution was commenced, the director provided the required records and information. The company and director had no prior convictions. The court noted that a significant amount of time had elapsed without compliance with the inspector's notice to produce records and deliver information. However, the court also emphasised the need for the penalty to deter others in the community. Criminal convictions were recorded and out of a maximum of $11,000, after a discount was applied for an early plea of guilty, the Company was fined $3000, and the Director also separately fined $3000. | 10/11/2021 |
| Hussain Ali Shafaie | 2022/0068315 | s.129(6) IR Act | Failure to keep records required to be kept by industrial instrument. | A Taxi Owner was prosecuted for failing to keep three different types of records required to be kept by bailors. The bailor pleaded guilty to failing to keep three different types of records required to be kept by an industrial instrument. The Bailor was 55, with ten children, including three under the age of 18, who was the sole earner for the family, with no criminal history, whose income was affected by COVID-19. The Bailor operated 4 taxis, with one of those four inoperative at the time. The bailor was the sole earner with a large family, with limited English, whose capacity to earn was affected by COVID-19, who had no prior record. The defendant also sought the court's discretion and applied for no recording of the conviction. However, the Court took into account the need for employees to be protected by way of records and could not come to the view that it is appropriate to not record a conviction. Out of a maximum penalty of $2200, the Bailor was fined $600 for each of the three failures, totaling $1800. | 6/6/2022 |
| Michael Bailey Associates Pty Ltd | 2022/00180734 | s.4(5)(a) LSL Act | Failure to correctly pay LSL on termination | The Company did not pay the long service leave on termination and did not make the payment until after the prosecution had already commenced. The court convicted the Company and delivered a guilty verdict (following a defended hearing). The court ordered the company to pay a penalty of $500 (out of max $2200). The court also ordered the company to pay interest to the complainant in the amount of $485.40, because the company had pleaded not guilty and paid the entitlement after the Court Attendance Notice was served and filed. | 2/9/2023 |
| Michael Lee Garlick (Director of Michael Bailey Associates Pty Ltd) | 2022/00184475 | s.10A LSL Act | Executive Liability for corporate offences of director/person involved in management | The court found that the Director had a laissez faire attitude towards his responsibilities as a director and that he was not compliant with his obligations as a director to take reasonable steps under section 10A of the Long Service Leave Act 1955. The court also found that despite the director having other directorships that he held, was still obligated to apply himself to the serious matter of a worker not being paid long service leave. The court convicted the director and delivered a guilty verdict following a defended hearing. The court ordered a penalty of $1500 (out of max $2200) and ordered the director to pay prosecutor process server costs of $151.25 for not agreeing to accept service by email. | 2/9/2023 |
| James Furlong (person involved in management of and with influence over Michael Bailey Associates Pty Ltd) | 2022/00184465 | s.10A LSL Act | Executive Liability for corporate offences of director/person involved in management | The court found that the Group Managing Director (who was an employee of the parent Company, and not a director or employee of the offending Company) was an individual involved in the management of the Company and did not take reasonable steps to ensure that the Company paid the worker their long service leave entitlement and found that the evidence pointed to the Group Managing Director playing cat and mouse with the inspector and also in the court proceedings. The court convicted the Group Managing Director and delivered a guilty verdict following a defended hearing. The court ordered a penalty $1500 (out of max $2200) and ordered the Group Managing Director to pay the prosecutor process server costs of $151.25 for not agreeing to accept service by email. | 2/9/2023 |
| Tricon Security Pty Ltd | 2022/0334603 | s.10(3)(b) LSL Act | Employer defeating, evading, avoiding the operation of the Act (by not granting long service leave or discussing with worker their application for long service leave) | The prosecution was commenced against the Company for failing to take steps to grant long service leave that a worker had applied to take. The business had a small number of employees and the particular worker concerned was a long term casual employee of 15 years. There was a lot of back and forth between the worker and the director about the worker's desire to take long service leave. The Company claimed that because of the size of the business the Company was not able to make arrangements for the casual worker to take leave. However, the court found that the employer should still have been able to make arrangements to allow the worker to take long service leave at some point in the future that was reasonable. The court took into account the small size of the business and the early plea of guilty and convicted the company and ordered the Company pay a penalty of $500. The court recorded a conviction against the director and ordered no additional penalty. | 24/2/2023 |
| s.387(2) of the IR Act | Failure to comply with requirement of inspector (i.e. notice to produce) | The prosecution was commenced against the Company for failing to comply with an inspector's requirements to produce records and information. The company did not fully comply with the notice to produce records and deliver information issued by the inspector by the due date, and only partially complied with the notice after the due date. The court took into account the small size of the company and after giving the discount for the early plea of guilty, recorded a conviction against the company and ordered a penalty of $1000. The court recorded a conviction against the director and ordered no additional penalty. | 24/2/2023 | ||
| s.4(8) of LSL Act | Employer not to make payment in lieu of long service leave | The prosecution was commenced against the Company for making payment to a worker in lieu of granting them long service leave. The Company had paid out the long service leave in lieu of granting long service leave to the worker. The court took into account the small size of the business and after giving a discount for the early plea of guilty, the court recorded a conviction against the company and ordered a penalty of penalty $500. The court recorded a conviction against the director and ordered no additional penalty. | 24/2/2023 | ||
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Mosaic Brands Limited
Noni B Holdings Pty Limited
Pretty Girl Fasion Group Pty. Ltd.
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2022/00350873
2022/00392151
2023/00048368
|
s.4(5)(a) & 4(7) LSL Act | Failure to correctly pay LSL | Group was very cooperative with the inspector. A deed entered into by the Mosaic Group committing to engage and pay for a third party to conduct a broad audit of the Mosaic Group's compliance under the direction of the Inspectorate. The offences were committed over a lengthy period of time and were not self-reported. The court specifically noted that the Mosaic Group were large companies which had resources to correctly comply with their obligations and that the question of underpayment of wages is a matter of some community concern. The amounts of underpayments on termination approached $50,000 in total. The court noted that the companies were cooperative and remorseful and that the underpayments while not deliberate, occured due to a lack of care and diligence on the part of the Mosaic Group and its staff in not picking up the payroll system errors for a number of years. In considering the Mosaic Group's application for a non-conviction, the court determined that the underpayments were neither trivial, nor extenuating and that they were too serious and widespread for there to be an outcome which does not generate a conviction to send a message generally and specifically about the large number of underpayments of employee entitlements by large companies. The court considered the individual amounts of each underpayment and after applying the discount for an early plea of guilty, categorised the offences into four categories based on the size of the amount of underpayment. The first category of underpayments over $2000 would attract a penalty of $1500. The second category of underpayments between $1000 and $2000 would attract a penalty of $1000. The third category of underpayments between $500 and $1000 would attract a penalty of $500. The fourth category of underpayments under $500 would be recorded convictions with no further penalty. In total, the Mosaic Group was penalised $29,000, which at the time of the sentencing was the largest ever penalty ordered by the Court for long service leave underpayments. | 19/5/2023 |
| Steven William Ottow (Director of Assured Services Group Pty Ltd) | 2023/00232519 | s.387(2) & 400 IR Act | Fail to comply with requirement of inspector (i.e. notice to produce) | The prosecution was for an offence of failing to comply with an inspector's requirements to produce records and information. The director was prosecuted for permitting the company of which he was a director from committing this offence. The Company was in liquidation and was not prosecuted. The director pleaded guilty to the offence. The director had no prior convictions. The court noted that it was necessary to send a message to other directors and employers in the community that it was necessary for them to comply with requirements to produce records and information and to respond to and communicate with inspectors conducting investigations in a timely manner (general deterrence). In setting the penalty, the court took into account the difficult financial circumstances, ordered a penalty of $500 out of a maximum penalty of $11,000. The criminal conviction was recorded. | 21/8/2023 |