Fair Work Ombudsman v Tac Pham Pty Ltd [2018] FCA 120

Fair Work Ombudsman v Tac Pham Pty Ltd [2018] FCA 120

On the agreed facts and admissions, the first respondent had comprehensively failed to apply the Restaurant Industry Award 2010 to vulnerable part-time employees, including junior employees, and had failed to provide compliant pay slips, thereby contravening ss 45 and 536(2) of the Fair Work Act 2009 (Cth). The second respondent, who managed the business day to day and made wage decisions, was involved in those contraventions under s 550. Although the respondents repaid the underpayments, admitted liability, cooperated after the audit letter and showed some contrition, their conduct was in reckless disregard of workplace laws following prior dealings with the Fair Work Ombudsman. Treating...

Jurisdiction
Australia
Judgment Date
20 February 2018
Procedural Posture
Civil Penalty Proceeding Under the Fair Work Act 2009 (cth) for Contraventions of the Restaurant Industry Award 2010 and Pay Slip Obligations / Judgment on Declarations, Training Order and Pecuniary Penalties After Agreed Facts and Admissions
Outcome
Declarations made; pecuniary penalties imposed; training order made; liberty to apply granted.
Legal Topics
['underpayment of Wages' 'restaurant Industry Award 2010' 'minimum Rates of Pay' 'penalty Rates' 'split Shift Allowance' 'pay Slips' 'accessorial Liability' 'civil Penalties' 'deterrence']
['industrial Law' 'employment and Industrial Relations'] ['underpayment of Wages' 'restaurant Industry Award 2010' 'minimum Rates of Pay' 'penalty Rates' 'split Shift Allowance' 'pay Slips' 'accessorial Liability' 'civil Penalties' 'deterrence']

Case Brief

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Procedural Posture

Civil Penalty Proceeding Under the Fair Work Act 2009 (cth) for Contraventions of the Restaurant Industry Award 2010 and Pay Slip Obligations / Judgment on Declarations, Training Order and Pecuniary Penalties After Agreed Facts and Admissions

Legal Issues

  1. 1 ['Whether the first respondent contravened s 45 of the Fair Work Act 2009 (Cth) by failing to comply with clauses of the Restaurant Industry Award 2010 concerning minimum rates, penalty rates and split shift allowances.' 'Whether the first respondent contravened s 536(2) of the Fair Work Act 2009 (Cth) by failing to give pay slips containing information required by regs 3.46(1) and 3.46(5) of the Fair Work Regulations 2009 (Cth).' "Whether, pursuant to s 550 of the Fair Work Act 2009 (Cth), the second respondent was involved in the first respondent's contraventions." 'What pecuniary penalties should be imposed on each respondent, including how the contraventions should be grouped for penalty purposes and the application of the totality principle.']

Ratio Decidendi

On the agreed facts and admissions, the first respondent had comprehensively failed to apply the Restaurant Industry Award 2010 to vulnerable part-time employees, including junior employees, and had failed to provide compliant pay slips, thereby contravening ss 45 and 536(2) of the Fair Work Act 2009 (Cth). The second respondent, who managed the business day to day and made wage decisions, was involved in those contraventions under s 550. Although the respondents repaid the underpayments, admitted liability, cooperated after the audit letter and showed some contrition, their conduct was in reckless disregard of workplace laws following prior dealings with the Fair Work Ombudsman. Treating...

Court Disposition

Declarations made; pecuniary penalties imposed; training order made; liberty to apply granted.

Orders

  • ['The Court declared that the first respondent contravened s 45 of the Fair Work Act 2009 (Cth) by contravening clauses 20.1, 20.3, 34.1, 34.2 and 24.2 of the Restaurant Industry Award 2010, and contravened s 536(2) of the Fair Work Act 2009 (Cth) by failing to provide pay slips containing information required by...