Prosecution outcomes - NSW Industrial Relations

Failure to comply with a requirement of an inspector – s. 387(2) IR Act

Obstruct inspector in the exercise of the inspector’s powers – s. 10(2)(b) LSL Act  

$11,000

$2,200

Convictions were recorded and the defendant was fined $5,000 for the IR Act offence and $1,000 for the LSL Act offence. 50% moiety to the prosecutor.

The court accepted this was a serious example of offending of this kind, noting that the defendant had not complied with the inspector’s investigation over a period of 12 months. The court noted that deterrence was a significant factor because a failure to respond to a NTP means the prosecutor cannot calculate the worker’s long service leave entitlement and the worker cannot be paid their entitlement. 

Failure to comply with a requirement of an inspector – s. 387(2) IR Act

Obstruct inspector in the exercise of the inspector’s powers – s. 10(2)(b) LSL Act  

$11,000

$2,200

Convictions were recorded and the defendants were fined $1,000 each for the IR Act offence and $500 each for the LSL Act offence. Moiety of 50% to the prosecutor. By consent, Ashlex was ordered to pay $388.37 professional costs to the prosecutor and $9,979.92 to the relevant worker for their long service leave. By consent, Mr Hutchinson was ordered to pay $388.37 professional costs to the prosecutor.

The court accepted that Mr Hutchinson had personal circumstances impacting on his abilities to respond to the NTP but held that it was not appropriate to not record convictions. The court noted that the $11,000 maximum penalty for an offence under s. 387(2) of the IR Act reflects the seriousness of the offending and that it is important that action is taken by employers to engage with inspectors and consider worker’s rights to long service leave. 

Employer defeating, evading, avoiding or preventing the operation of the Act – s. 10(3)(b) LSL Act

Payment made in lieu of long service leave - s. 4(8) LSL Act

Failure to comply with a requirement of an inspector – s. 387(2) IR Act

$2,200

$2,200

$11,000

Convictions recorded and the defendant was fined $500 for the s. 10(3)(b) LSL Act offence, $500 for the s. 4(8) LSL Act offence and $1,000 for the s. 387(2) offence.

The court accepted that although the company was small and there were difficulties in covering work if an employee took long service leave, 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.

Accessorial liability of director for corporate offence - s.10B LSL Act x 2

Failure to comply with a requirement of an inspector – s. 387(2) IR Act 

$2,200

$11,000

Mosaic Brands Limited

Noni B Holdings Pty Limited

Pretty Girl Fashion Group Pty. Ltd.

Failure to correctly pay LSL – s. 4(5)(a) LSL Act

Failure to correctly pay LSL – s. 4(7) LSL Act 

Conviction recorded and defendants fined a total of $29,000.

The court noted that the offences were committed over a lengthy period and were not self-reported. Although the offending was not deliberate, it was due to a lack of care and diligence by companies with resources to ensure compliance.  The court took into account the early guilty pleas, the defendants cooperation and willingness to submit to a further audit at own cost, that the defendants had paid the monies owed and the amounts of the underpayments. 

Conviction recorded and the defendant was fined $500.

The court noted that it is necessary for employers to comply with requirements to produce records and information and to respond to and communicate with inspectors conducting investigations in a timely manner. The court took into account the defendant’s financial position and the significant time period over which the failure to respond occurred.  

Conviction recorded and the defendant was fined $500.

The court noted that withholding payment for an extraneous reason is not a valid defence. The court took into account that the defendant ultimately paid the worker their long service leave. 

Conviction recorded and the defendant was fined $1,500.

The court found that the Director had a laissez faire attitude towards his directorial responsibilities and that he was not compliant with his obligations as a director to take reasonable steps under s 10A of the LSL Act. The court also found that despite the Director holding other directorships, he was still obligated to apply himself to the serious matter of a worker not being paid long service leave. The Director was obliged to make enquiries to ensure the worker was paid. 

Conviction recorded and defendant fined $1,500 and ordered to pay the process server costs of $151.25.

The court found that the defendant, an employee of the parent company, was an individual involved in the management of the employer company and did not take reasonable steps to ensure that the Company paid the worker their long service leave entitlement.

Conviction recorded and defendant fined $600 for each of the three failures.

The Court noted the need for workers to be protected by way of records. The Court took into account the early guilty plea and the defendant’s financial circumstances. 

Conviction recorded and defendant fined $3,000.

The Court noted employers are obliged to maintain records and comply with investigations. The Court took into account the early guilty plea and the significant length of time the defendant failed to comply with the Notice.

Conviction recorded and defendant fined $3,000.

The Court noted employers are obliged to maintain records and comply with investigations. The Court took into account the early guilty plea, the defendant’s personal circumstances and the significant length of time the defendant failed to comply with the Notice. The Court did not accept the defendant’s explanation that he forgot about the notice.