Fair Work Ombudsman v Foot & Thai Massage Pty Ltd (in liquidation) (No 8) [2024] FCA 483

Fair Work Ombudsman v Foot & Thai Massage Pty Ltd (in liquidation) (No 8) [2024] FCA 483

Given the first respondent's contraventions of the Fair Work Act 2009 and deliberate, serious misconduct leading to significant underpayments and distress to vulnerable employees, and having regard to the deficiencies in record-keeping and the effect of the deed of company arrangement, it is appropriate to order compensation for underpayments (less amounts already paid under the DOCA), compensation for non-economic loss, and pecuniary penalties against the respondents. The penalties are set with reference to the seriousness, deterrence, and the course of conduct principles. Claims of the employees are not barred insofar as the DOCA does not provide otherwise or where the claims relate to...

Parties
Applicant: Fair Work Ombudsman; First Respondent: Foot & Thai Massage Pty Ltd (in liquidation); Second Respondent: Colin Kenneth Elvin; Third Respondent: Jun Millard Puerto
Jurisdiction
Australia
Judgment Date
10 May 2024
Procedural Posture
Civil / Relief/remedies After Liability Judgment
Outcome
Declarations and orders as to compensation and penalties made in favour of applicant; no order as to costs; enforcement of orders against first respondent only with leave of court.
Legal Topics
Contraventions of Fair Work Act, Underpayment of Wages, Pecuniary Penalties, Compensation for Non Economic Loss, Deed of Company Arrangement, Civil Double Jeopardy, Employee Record Keeping, Adverse Action and Discrimination, Accessory Liability
Employment and Industrial Relations Industrial Law Contraventions of Fair Work Act Underpayment of Wages Pecuniary Penalties Compensation for Non Economic Loss Deed of Company Arrangement Civil Double Jeopardy +3 more

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 5 Authorities cited 65 Party arguments 2 Amounts and remedies 13
Sign in to unlock

Parties

Fair Work Ombudsman

Applicant

Foot & Thai Massage Pty Ltd (in liquidation)

First Respondent

Colin Kenneth Elvin

Second Respondent

Jun Millard Puerto

Third Respondent

Procedural Posture

Civil / Relief/remedies After Liability Judgment

Legal Issues

  1. 1 Whether compensation orders should be made for underpaid employees following company administration and deed of company arrangement
  2. 2 Whether compensation should include amounts for non-economic loss
  3. 3 Appropriateness and quantum of pecuniary penalties against respondents

Ratio Decidendi

Given the first respondent's contraventions of the Fair Work Act 2009 and deliberate, serious misconduct leading to significant underpayments and distress to vulnerable employees, and having regard to the deficiencies in record-keeping and the effect of the deed of company arrangement, it is appropriate to order compensation for underpayments (less amounts already paid under the DOCA), compensation for non-economic loss, and pecuniary penalties against the respondents. The penalties are set with reference to the seriousness, deterrence, and the course of conduct principles. Claims of the employees are not barred insofar as the DOCA does not provide otherwise or where the claims relate to...

Court Disposition

Declarations and orders as to compensation and penalties made in favour of applicant; no order as to costs; enforcement of orders against first respondent only with leave of court.

Orders

  • First and second respondents to pay to applicant $971,092.27 (total underpayments after credit for payments made) as compensation for underpayments, for distribution to employees or the Commonwealth (if not found), within 28 days.
  • First and second respondents to pay to applicant $30,000 for non-economic loss suffered by Ms Amacio, Ms Bantilan, Mr Benting, and Ms Isugan, and $25,000 for non-economic loss suffered by Ms Castaneda, Ms Ortega, and Ms Sarto, within 28 days.