The Court imposed penalties of $90,000 (salary contravention) and $50,000 (superannuation contravention) against a corporate employer that completely failed to pay an employee's wages and superannuation for over a year. The Court held that the increased maximum penalties under s 546(2AA) of the Fair Work Act (inserted by the Closing Loopholes No. 2 Act) did not apply because the applicant failed to prove the employer was not a small business employer — specifically, the applicant could not establish that New Zealand-based employees were employed by the alleged controlling associated entity rather than a subsidiary. The Court also confirmed, following Peninsula Health (No 3), that a finding of 'serious contravention' under s 557A cannot be sought at the penalty stage if not pleaded in the originating application or pursued at the liability stage, as the respondent must be put on notice of such allegations.
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