Fair Work Ombudsman v Blue Sky Kids Land Pty Ltd (in liq) (No 4) [2024] FCA 1475

Fair Work Ombudsman v Blue Sky Kids Land Pty Ltd (in liq) (No 4) [2024] FCA 1475

Having regard to the seriousness and systematic nature of the contraventions, deliberate underpayments, lack of contrition, impact on vulnerable migrant workers, and need for deterrence, substantial pecuniary penalties are appropriate and compensation orders for unpaid superannuation contributions should be made.

Parties
Applicant: Fair Work Ombudsman; First Respondent: Blue Sky Kids Land Pty Ltd (ACN 108 233 709) (in liquidation); Second Respondent: Q Fay Trading Company Pty Ltd (ACN 147 861 569) (in liquidation); Third Respondent: Guo Dong Gu; Fourth Respondent: Fei Rong Yang
Jurisdiction
Australia
Judgment Date
20 December 2024
Procedural Posture
Civil / Penalty and Compensation Orders Post Liability Judgment
Outcome
Pecuniary penalties imposed against all respondents; compensatory orders for unpaid superannuation contributions; liberty to apply in event of non-compliance; no order as to costs.
Legal Topics
Pecuniary Penalties, Contraventions of Fair Work Act, Superannuation Contributions, Employee Underpayments, Record Keeping Obligations, Pay Slip Obligations, General Protections
Industrial Law Employment Law Pecuniary Penalties Contraventions of Fair Work Act Superannuation Contributions Employee Underpayments Record Keeping Obligations Pay Slip Obligations +1 more

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Parties

Fair Work Ombudsman

Applicant

Blue Sky Kids Land Pty Ltd (ACN 108 233 709) (in liquidation)

First Respondent

Q Fay Trading Company Pty Ltd (ACN 147 861 569) (in liquidation)

Second Respondent

Guo Dong Gu

Third Respondent

Fei Rong Yang

Fourth Respondent

Procedural Posture

Civil / Penalty and Compensation Orders Post Liability Judgment

Legal Issues

  1. 1 Appropriate pecuniary penalties for contraventions of civil remedy provisions under Fair Work Act 2009 (Cth)
  2. 2 Orders for compensation for failure to make superannuation contributions
  3. 3 Application of penalty unit values and totality/principles in fixing penalties

Ratio Decidendi

Having regard to the seriousness and systematic nature of the contraventions, deliberate underpayments, lack of contrition, impact on vulnerable migrant workers, and need for deterrence, substantial pecuniary penalties are appropriate and compensation orders for unpaid superannuation contributions should be made.

Court Disposition

Pecuniary penalties imposed against all respondents; compensatory orders for unpaid superannuation contributions; liberty to apply in event of non-compliance; no order as to costs.

Orders

  • By 17 January 2025, the First and Third Respondents are ordered to make superannuation contributions on behalf of Xibing Cen ($2,252.42), Xing Yang ($3,381.34), and Tzu Fong Yu ($1,262.65) to their nominated funds.
  • By 17 January 2025, First, Third and Fourth Respondents are ordered to make superannuation contributions on behalf of Xibing Cen ($1,678.76), Xing Yang ($1,916.33), Tzu Fong Yu ($736.36), Jin Zhang ($2,173.21) for unpaid loadings and penalty rates.