Fair Work Ombudsman v NSH North Pty Ltd trading as New Shanghai Charlestown [2017] FCA 1301

Fair Work Ombudsman v NSH North Pty Ltd trading as New Shanghai Charlestown [2017] FCA 1301

Civil penalties must be imposed at levels that reflect the seriousness and systematic nature of the breaches, the deliberate creation of false records, and the need for deterrence in the hospitality industry; mitigating factors and cooperation warrants a discount, but not to avoid separate penalties for company and individual directors; grouping and totality principles limit excessive penalties but do not negate individual responsibility.

Jurisdiction
Australia
Judgment Date
10 November 2017
Procedural Posture
Civil Penalty Proceedings / Judgment and Penalty Determination
Outcome
Penalties imposed against all four respondents for admitted contraventions; orders for rectification of underpayments; further orders for payment of penalties to the Commonwealth within 60 days; applicant given liberty to apply in event of non-compliance.
Legal Topics
['civil Penalties' 'record Keeping' 'false Employment Records' 'minimum Wage Entitlements' 'award Compliance' 'superannuation' 'accessorial Liability' 'general and Specific Deterrence']
['employment & Industrial Relations' 'industrial Law'] ['civil Penalties' 'record Keeping' 'false Employment Records' 'minimum Wage Entitlements' 'award Compliance' 'superannuation' 'accessorial Liability' 'general and Specific Deterrence']

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Procedural Posture

Civil Penalty Proceedings / Judgment and Penalty Determination

Legal Issues

  1. 1 ['What penalties are appropriate for systematic contraventions of the Fair Work Act and Regulations including underpayment of employees and creation of false records?' 'To what degree should penalties be imposed on individuals where they are owners or directors of a contravening corporation?' 'How should the principles of grouping under s 557 FW Act and the totality principle affect penalty determination?' 'What weight should be given to cooperation, contrition, corrective actions, and mitigating circumstances?']

Ratio Decidendi

Civil penalties must be imposed at levels that reflect the seriousness and systematic nature of the breaches, the deliberate creation of false records, and the need for deterrence in the hospitality industry; mitigating factors and cooperation warrants a discount, but not to avoid separate penalties for company and individual directors; grouping and totality principles limit excessive penalties but do not negate individual responsibility.

Court Disposition

Penalties imposed against all four respondents for admitted contraventions; orders for rectification of underpayments; further orders for payment of penalties to the Commonwealth within 60 days; applicant given liberty to apply in event of non-compliance.

Orders

  • ['First respondent pay $128,309.95 (less amounts already rectified) plus interest to applicant within 60 days, to be disbursed to Employees or Commonwealth per directions.' 'First respondent pay civil penalties of $301,920.' 'Second respondent pay civil penalties of $54,672.' 'Third respondent pay civil penalties of...