Prosecution outcomes - NSW Industrial Relations
| Employer prosecuted | Offence | Max. Penalty | Offence details | Outcome | Sentencing Date |
|---|---|---|---|---|---|
| Jim Demetrios Nicholas | 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 | The defendant, a sole trader, was prosecuted for failing to respond to a Notice to Produce Records and Deliver Information (NTP) issued on him by an inspector. The defendant had also not responded to two prior NTPs issued on him by the inspector. The defendant had no criminal history. | 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. | 13/11/2024 |
| Ashlex Pty. Ltd.; Allan Hutchinson | 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 | Ashlex and its sole Director, Mr Hutchinson, were prosecuted for failing to respond to a Notice to Produce Records and Deliver Information (NTP) issued on Ashlex by an inspector. Ashlex had also not responded to two prior NTPs issued on it by the inspector. Neither Ashlex nor Mr Hutchinson had a criminal history. | 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. | 17/12/2024 |
Employer prosecuted Jim Demetrios Nicholas Offence 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 Max. Penalty $11,000
$2,200 Offence details The defendant, a sole trader, was prosecuted for failing to respond to a Notice to Produce Records and Deliver Information (NTP) issued on him by an inspector. The defendant had also not responded to two prior NTPs issued on him by the inspector. The defendant had no criminal history. Outcome 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. Sentencing Date 13/11/2024 |
Employer prosecuted Ashlex Pty. Ltd.; Allan Hutchinson Offence 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 Max. Penalty $11,000
$2,200 Offence details Ashlex and its sole Director, Mr Hutchinson, were prosecuted for failing to respond to a Notice to Produce Records and Deliver Information (NTP) issued on Ashlex by an inspector. Ashlex had also not responded to two prior NTPs issued on it by the inspector. Neither Ashlex nor Mr Hutchinson had a criminal history. Outcome 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. Sentencing Date 17/12/2024 |
| Employer prosecuted | Offence | Max. Penalty | Description of offence | Outcome | Sentencing Date |
|---|---|---|---|---|---|
| Tricon Security Pty Ltd | 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 | Defendant did not take steps to grant long service leave or discuss with the worker their application for long service leave. Defendant responded late and partially to a Notice to Produce Records and Deliver Information. The defendant had no prior convictions. | 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. | 24/2/2023 |
| Patrick John McDonald (director of Tricon Security Pty Ltd) | 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 | The Director’s company did not take steps to grant long service leave or discuss with the worker their application for long service leave. The company responded late and partially to a Notice to Produce Records and Deliver Information. | Conviction recorded. No penalty imposed. | 24/2/2023 |
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 | $2,200 | A compliance audit identified Mosaic Brands underpaid 27 workers, Noni B underpaid 173 workers and Pretty Girl Fashion underpaid 124 workers. | 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. | 19/5/2023 |
| Steven William Ottow (Director of Assured Services Group Pty Ltd) | Failure to comply with a requirement of an inspector – s. 387(2) IR Act | $11,000 | The Director’s company failed to respond to four notices to produce issued by an inspector. The defendant had no prior convictions. | 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. | 21/8/2023 |
| Michael Bailey Associates Pty Ltd | Failure to correctly pay LSL – s. 4(5)(a) LSL Act | $2,200 | The defendant did not pay long service leave on termination. | 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. | 2/9/2023 |
| Michael Lee Garlick (Director of Michael Bailey Associates Pty Ltd) | Executive Liability for corporate offences of director/person involved in management – s. 10A LSL Act | $2,200 | The Director’s company did not pay long service leave on termination. | 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. | 2/9/2023 |
| James Furlong (person involved in management of and with influence over Michael Bailey Associates Pty Ltd) | Executive Liability for corporate offences of director/person involved in management – s. 10A LSL Act | $2,200 | The employer company did not pay the long service leave on termination. | 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. | 2/9/2023 |
Employer prosecuted Tricon Security Pty Ltd Offence 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 Max. Penalty $2,200
$2,200
$11,000 Description of offence Defendant did not take steps to grant long service leave or discuss with the worker their application for long service leave. Defendant responded late and partially to a Notice to Produce Records and Deliver Information. The defendant had no prior convictions. Outcome 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. Sentencing Date 24/2/2023 |
Employer prosecuted Patrick John McDonald (director of Tricon Security Pty Ltd) Offence 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 Max. Penalty $2,200
$11,000 Description of offence The Director’s company did not take steps to grant long service leave or discuss with the worker their application for long service leave. The company responded late and partially to a Notice to Produce Records and Deliver Information. Outcome Conviction recorded. No penalty imposed. Sentencing Date 24/2/2023 |
Employer prosecuted Mosaic Brands Limited Noni B Holdings Pty Limited Pretty Girl Fashion Group Pty. Ltd. Offence Failure to correctly pay LSL – s. 4(5)(a) LSL Act Failure to correctly pay LSL – s. 4(7) LSL Act Max. Penalty $2,200 Description of offence A compliance audit identified Mosaic Brands underpaid 27 workers, Noni B underpaid 173 workers and Pretty Girl Fashion underpaid 124 workers. Outcome 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. Sentencing Date 19/5/2023 |
Employer prosecuted Steven William Ottow (Director of Assured Services Group Pty Ltd) Offence Failure to comply with a requirement of an inspector – s. 387(2) IR Act Max. Penalty $11,000 Description of offence The Director’s company failed to respond to four notices to produce issued by an inspector. The defendant had no prior convictions. Outcome 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. Sentencing Date 21/8/2023 |
Employer prosecuted Michael Bailey Associates Pty Ltd Offence Failure to correctly pay LSL – s. 4(5)(a) LSL Act Max. Penalty $2,200 Description of offence The defendant did not pay long service leave on termination. Outcome 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. Sentencing Date 2/9/2023 |
Employer prosecuted Michael Lee Garlick (Director of Michael Bailey Associates Pty Ltd) Offence Executive Liability for corporate offences of director/person involved in management – s. 10A LSL Act Max. Penalty $2,200 Description of offence The Director’s company did not pay long service leave on termination. Outcome 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. Sentencing Date 2/9/2023 |
Employer prosecuted James Furlong (person involved in management of and with influence over Michael Bailey Associates Pty Ltd) Offence Executive Liability for corporate offences of director/person involved in management – s. 10A LSL Act Max. Penalty $2,200 Description of offence The employer company did not pay the long service leave on termination. Outcome 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. Sentencing Date 2/9/2023 |
| Employer prosecuted | Offence | Max. Penalty | Offence details | Outcome | Sentencing Date |
|---|---|---|---|---|---|
| Hussain Ali Shafaie | Failure to keep records required to be kept by industrial instrument – s. 129(6) IR Act | $2,200 | A Taxi Owner failed to keep three different types of records required to be kept under the relevant industrial instrument. The defendant had no criminal history. | 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. | 6/6/2022 |
Employer prosecuted Hussain Ali Shafaie Offence Failure to keep records required to be kept by industrial instrument – s. 129(6) IR Act Max. Penalty $2,200 Offence details A Taxi Owner failed to keep three different types of records required to be kept under the relevant industrial instrument. The defendant had no criminal history. Outcome 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. Sentencing Date 6/6/2022 |
| Employer prosecuted | Offence | Max. Penalty | Offence details | Outcome | Sentencing Date |
|---|---|---|---|---|---|
| Aptus Cloud Technology Pty Ltd | Failure to comply with a requirement of an inspector – s. 387(2) IR Act | $11,000 | The defendant failed to respond to two Notices to Produce Records and Deliver Information issued by an inspector and responded late to a third 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 and the significant length of time the defendant failed to comply with the Notice. | 11/10/2021 |
| Pankaj Patel (director of Aptus Cloud Technology Pty Ltd) | Failure to comply with a requirement of an inspector – s. 387(2) IR Act | $11,000 | The Director’s company failed to respond to three Notices to Produce Records and Deliver Information issued by an inspector and responded late to a third 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. | 11/10/2021 |
Employer prosecuted Aptus Cloud Technology Pty Ltd Offence Failure to comply with a requirement of an inspector – s. 387(2) IR Act Max. Penalty $11,000 Offence details The defendant failed to respond to two Notices to Produce Records and Deliver Information issued by an inspector and responded late to a third Notice. Outcome 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. Sentencing Date 11/10/2021 |
Employer prosecuted Pankaj Patel (director of Aptus Cloud Technology Pty Ltd) Offence Failure to comply with a requirement of an inspector – s. 387(2) IR Act Max. Penalty $11,000 Offence details The Director’s company failed to respond to three Notices to Produce Records and Deliver Information issued by an inspector and responded late to a third Notice. Outcome 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. Sentencing Date 11/10/2021 |
| Employer prosecuted | Offence | Max. Penalty | Offence details | Outcome | Sentencing Date |
|---|---|---|---|---|---|
| GM Cabs Pty Ltd | Breach of an industrial instrument – s. 357(1) IR Act | $10,000 | The defendant did not pay a taxi driver employee annual leave contrary to the Taxi Industry (Contract Drivers) Contract Determination 1984. Defendant had no prior convictions. | Conviction recorded and $500 civil penalty imposed. Defendant ordered to pay $5,000 professional costs, as agreed. The Court noted the matter is serious and noted the need for employers to pay entitlements to people who are in relatively weak positions as employees. The Court took into account that the taxi industry at the time was under stress and the early guilty plea. | 11/6/2019 |
| Employer prosecuted | Offence | Max. Penalty | Offence details | Outcome | Sentencing Date |
|---|---|---|---|---|---|
| Smilegroup Pty Ltd | Failure to correctly pay LSL - s. 4(5)(a) LSL Act | $2,200 | Conviction recorded and defendant fined $1,000. | 27/2/2017 |
| Employer prosecuted | Offence | Max. Penalty | Offence details | Outcome | Sentencing Date |
|---|---|---|---|---|---|
| St Peters Transport Pty Ltd | Failure to exhibit industrial instrument - s.361(1) IR Act | $1,100 | Inspector inspected the defendant’s business premises and the defendant did not display a copy of the contract determination. | Conviction recorded and defendant fined $220. | 17/7/2015 |
| Employer prosecuted | Offence | Max. Penalty | Offence details | Outcome | Sentencing Date |
|---|---|---|---|---|---|
| Bennelong Cabs Pty Ltd | Breach of an industrial instrument – s. 357(1) IR Act | $10,000 | Bailee not paid annual leave entitlement. | Convicted and $4,000 civil penalty imposed. Defendant ordered to pay $16,671 annual leave to bailee plus interest, as agreed. | 21/8/2013 |
| Herxin Pty Ltd | Breach of an industrial instrument – s. 357(1) IR Act | $10,000 | Bailee not paid annual leave entitlement. | Convicted and $1,000 civil penalty imposed. Defendant ordered to pay $4,166.40 annual leave to bailee plus interest. | 21/8/2013 |
| Alexandria Cab & Auto Service | Breach of an industrial instrument – s. 357(1) IR Act | $10,000 | Bailee not paid annual leave entitlement. | Conviction recorded and $5,000 civil penalty imposed. Defendant ordered to pay $18,823.75 annual leave to the bailee and $2,900 professional costs to the prosecutor. | 18/11/2013 |
| Employer prosecuted | Offence | Max. Penalty | Offence details | Outcome | Sentencing Date |
|---|---|---|---|---|---|
| Allan Phillip Parker t/as BW Appliance Services Wagga Wagga | Failure to correctly pay LSL - s.4(5)(a) Failure to comply with a requirement of an inspector – s. 387(2) IR Act Failure to pay annual holiday pay - s.4(1) and 4(3) Annual Holidays Act 1944 | $2,200
$11,000
$1,100 | Employee not paid annual leave and long service leave. Defendant had no prior convictions. | Conviction recorded and defendant fined $1,500, defendant ordered to pay $500 professional costs to the prosecutor – s 4(5)(a) LSL Act. Conviction recorded and defendant fined $3,000 – s. 387(2) LSL Act. Conviction recorded and defendant fined $1,000 – s. 4(1) and 4(3) Annual Holidays Act. Defendant ordered to pay $18,932.72 outstanding entitlement to long service leave and annual holidays to employee. | 14/6/2011 |