Fair Work Ombudsman v Austop Natural Therapy and Supplies Pty Ltd

The Fair Work Ombudsman brought proceedings against Austop Natural Therapy and Supplies Pty Ltd (the First Respondent) and its director, Mr. Jian Li (the Second Respondent), alleging contraventions of the *Fair Work Act 2009* (Cth) and the Hair and Beauty Industry Award 2010. The dispute concerned the underpayment of a foreign national employee, Ms. Zhongyu Zhou, in relation to minimum rates of pay, overtime, penalty rates for weekend and public holiday work, annual leave, annual leave loading, and superannuation contributions. The court was required to determine the extent of these contraventions and assess appropriate penalties.

The court was tasked with determining the contraventions of various civil remedy provisions of the *Fair Work Act* and the Award, specifically sections 45 and 44 of the Act, and relevant clauses of the Award concerning minimum wages, overtime, penalty rates, annual leave entitlements, annual leave loading, and superannuation. In addition to establishing the contraventions, the court needed to consider the appropriate penalty to be imposed on the First Respondent, taking into account factors relevant to the assessment of penalties under the Act.

In its reasoning, the court noted the admitted contraventions by the First Respondent, including failures to pay minimum rates, overtime, penalty rates, annual leave, annual leave loading, and superannuation contributions to Ms. Zhou. The court acknowledged that the underpayments had been substantially rectified by the respondents. However, it also considered the misleading and deceptive conduct of the accountant involved, the need for general and specific deterrence, and applied the totality principle in assessing the penalty. The court declared by consent that the First Respondent had contravened the specified provisions of the *Fair Work Act* and the Award.

The court ordered that the First Respondent pay a penalty of $10,000. The Second Respondent was ordered to pay a penalty of $2,000. The First Respondent was also ordered to pay the Fair Work Ombudsman’s legal costs.