Fair Work Ombudsman v Andary

In this case, the Fair Work Ombudsman sought a penalty against Mr Andary for underpaying an employee. The matter was heard in the Federal Circuit Court of Australia, where the respondent, Mr Andary, did not participate in the proceedings. The court was required to determine the appropriate penalty for Mr Andary's failure to comply with the Fair Work Act 2009, particularly in light of his non-cooperation with the authorities and his status as a first-time offender.

The court considered various factors in determining the penalty, including the seriousness of the breach, Mr Andary's lack of cooperation, and the need to deter future breaches. The court emphasised that the size of the business should not be a mitigating factor, as all employers, regardless of size, are obligated to adhere to industrial instruments. The court concluded that an appropriate penalty would be $3,500. This penalty, while less than what the Fair Work Ombudsman had sought, was deemed sufficient to achieve general deterrence and to send a strong message about the importance of compliance with industrial laws.

The court also addressed the issue of where the penalty should be paid. Given that the Fair Work Ombudsman had funded the prosecution, it was appropriate for the penalty to be paid to the Commonwealth. The court's final orders included the imposition of a penalty of $3,500 payable to the Commonwealth and the expression of significant disapproval of Mr Andary's conduct, intended as a personal deterrence against future breaches.