Fair Work Ombudsman v Absynthe Restaurant Pty Ltd & Anor

The Fair Work Ombudsman (FWO) brought proceedings against Absynthe Restaurant Pty Ltd and its director, Mr. David John Smith, alleging contraventions of the *Fair Work Act 2009* (Cth) (the Act). The dispute concerned alleged underpayments of wages and entitlements to employees of the restaurant, as well as alleged breaches of record-keeping and pay slip obligations. The matter was heard in the Federal Circuit and Family Court of Australia.

The court was required to determine whether Absynthe Restaurant Pty Ltd had contravened various provisions of the Act, including those relating to minimum wages, overtime, annual leave, and personal/carer's leave. Additionally, the court had to consider whether Mr. Smith, as a director, was knowingly concerned in, or party to, the alleged contraventions by the company, thereby rendering him personally liable under section 550 of the Act. The FWO also alleged breaches of the company's obligations to keep accurate employee records and issue compliant pay slips.

Judge Jarrett found that the company had indeed contravened the Act by failing to pay employees their minimum entitlements and by failing to provide accurate pay slips and maintain proper records. The court applied the principles of statutory interpretation to the relevant provisions of the Act and the applicable modern award. Crucially, the court found that Mr. Smith was knowingly concerned in, and party to, the company's contraventions, based on his active involvement in the management of the business and his knowledge of the employees' working arrangements and remuneration. The court considered the evidence presented regarding the company's financial position and the director's awareness of the underpayments.

The court ordered Absynthe Restaurant Pty Ltd to pay the outstanding employee entitlements and imposed pecuniary penalties for the contraventions. Mr. Smith was also found personally liable for certain contraventions and ordered to pay pecuniary penalties. The court also made orders for the company to rectify its record-keeping and pay slip practices.