Fair Work Ombudsman v Lam [2021] FCA 205

Fair Work Ombudsman v Lam [2021] FCA 205

Because there was no evidence sufficient to establish whether domestic workers and nannies had traditionally been covered by awards, the Court would not declare that the Award applied and would not grant declaratory relief for award-dependent contraventions. Mr Lam's admitted non-award contraventions, including failure to pay accrued annual leave, requiring excessive weekly hours, failure to keep prescribed records and failure to provide payslips, warranted penalties totalling $32,500. Ms Tong was knowingly involved in the excessive-hours contravention and was liable under s 550, warranting a penalty of $5,000.

Jurisdiction
Australia
Judgment Date
11 March 2021
Procedural Posture
Application for Declarations and Pecuniary Penalties for Alleged Contraventions of the Fair Work Act 2009 (cth) and the Miscellaneous Award 2010 (cth) / Determination of Penalties and Declaratory Relief After Consent Order for Payment of the Underpayment
Outcome
Civil penalties were to be imposed on Mr Lam in the amount of $32,500 and on Ms Tong in the amount of $5,000. Declaratory relief was to be granted only for contraventions not depending on application of the Award, with consent injunctive relief requiring Mr Lam to undertake online education. No order as to costs was...
Legal Topics
['fair Work Act Contraventions' 'modern Award Coverage' 'underpayment of Wages' 'national Employment Standards' 'record Keeping and Payslips' 'accessorial Liability' 'pecuniary Penalties' 'declaratory Relief']
['industrial Law' 'employment and Industrial Relations'] ['fair Work Act Contraventions' 'modern Award Coverage' 'underpayment of Wages' 'national Employment Standards' 'record Keeping and Payslips' 'accessorial Liability' 'pecuniary Penalties' 'declaratory Relief']

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Procedural Posture

Application for Declarations and Pecuniary Penalties for Alleged Contraventions of the Fair Work Act 2009 (cth) and the Miscellaneous Award 2010 (cth) / Determination of Penalties and Declaratory Relief After Consent Order for Payment of the Underpayment

Legal Issues

  1. 1 ["Whether the Court should declare that the Miscellaneous Award 2010 (Cth) applied to Ms Romero's employment as a domestic worker and nanny." 'Whether contraventions depending on application of the Award should be the subject of declaratory relief.' 'What pecuniary penalties should be imposed on Mr Lam for admitted contraventions of the Fair Work Act 2009 (Cth).' 'Whether and in what amount Ms Tong should be penalised for knowing involvement in requiring Ms Romero to work more than 38 hours per week.']

Ratio Decidendi

Because there was no evidence sufficient to establish whether domestic workers and nannies had traditionally been covered by awards, the Court would not declare that the Award applied and would not grant declaratory relief for award-dependent contraventions. Mr Lam's admitted non-award contraventions, including failure to pay accrued annual leave, requiring excessive weekly hours, failure to keep prescribed records and failure to provide payslips, warranted penalties totalling $32,500. Ms Tong was knowingly involved in the excessive-hours contravention and was liable under s 550, warranting a penalty of $5,000.

Court Disposition

Civil penalties were to be imposed on Mr Lam in the amount of $32,500 and on Ms Tong in the amount of $5,000. Declaratory relief was to be granted only for contraventions not depending on application of the Award, with consent injunctive relief requiring Mr Lam to undertake online education. No order as to costs was...

Orders

  • ['The parties bring in short minutes of order to give effect to these reasons within 7 days.' 'Mr Lam is to pay the Commonwealth a pecuniary penalty of $32,500 within 28 days.' 'Ms Tong is to pay the Commonwealth a pecuniary penalty of $5,000 within 28 days.' 'Declaratory relief is to be granted for contraventions...