Fair Work Ombudsman v South Jin Pty Ltd (No 2) [2016] FCA 832

Fair Work Ombudsman v South Jin Pty Ltd (No 2) [2016] FCA 832

Penalties are imposed on the second respondent (Mr Jin), the third and fourth respondents (Coastal Trolley Services Pty Ltd and Mr Stroop) as accessories for various contraventions of industrial instruments and legislative provisions relating to underpayments, failure to provide pay slips and keep proper records between 2009 and 2010. The penalties reflect the number and seriousness of the individual contraventions, the course of conduct, deterrence, and avoid double punishment. Part of the penalties are to be distributed to the underpaid employees as agreed.

Parties
Applicant: Fair Work Ombudsman; First Respondent: South Jin Pty Ltd (ACN 133 198 099); Second Respondent: Ki Bok Jin; Third Respondent: Coastal Trolley Services Pty Ltd (ACN 100 786 909); Fourth Respondent: Edward Stroop
Jurisdiction
Australia
Judgment Date
22 July 2016
Procedural Posture
Civil / Penalty Hearing and Imposition of Declarations and Penalties in Relation to Accessorial Liability
Outcome
Penalties imposed; declarations made; partial relief granted; balance of application dismissed.
Legal Topics
Accessorial Liability, Contraventions of Industrial Awards, Underpayment of Entitlements, Fair Work Act, Record Keeping Obligations, Pay Slip Obligations, Penalty Calculation and Principles
Employment Law Industrial Law Accessorial Liability Contraventions of Industrial Awards Underpayment of Entitlements Fair Work Act Record Keeping Obligations Pay Slip Obligations +1 more

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Parties

Fair Work Ombudsman

Applicant

South Jin Pty Ltd (ACN 133 198 099)

First Respondent

Ki Bok Jin

Second Respondent

Coastal Trolley Services Pty Ltd (ACN 100 786 909)

Third Respondent

Edward Stroop

Fourth Respondent

Procedural Posture

Civil / Penalty Hearing and Imposition of Declarations and Penalties in Relation to Accessorial Liability

Legal Issues

  1. 1 What are the appropriate penalties for accessorial liability for contraventions of the Cleaning Services Award 2010 and relevant Industrial Legislation?
  2. 2 How should penalties be calculated where contraventions occurred as part of a course of conduct, involving multiple employees and overlapping statutory regimes?
  3. 3 What is the effect of general and specific deterrence in the calculation of penalty?

Ratio Decidendi

Penalties are imposed on the second respondent (Mr Jin), the third and fourth respondents (Coastal Trolley Services Pty Ltd and Mr Stroop) as accessories for various contraventions of industrial instruments and legislative provisions relating to underpayments, failure to provide pay slips and keep proper records between 2009 and 2010. The penalties reflect the number and seriousness of the individual contraventions, the course of conduct, deterrence, and avoid double punishment. Part of the penalties are to be distributed to the underpaid employees as agreed.

Court Disposition

Penalties imposed; declarations made; partial relief granted; balance of application dismissed.

Orders

  • Penalties totalling $44,350 imposed on Mr Jin.
  • Penalties totalling $38,000 imposed on Coastal Trolley Services Pty Ltd.