Fair Work Ombudsman v Darna Pty Ltd

The Fair Work Ombudsman (FWO) brought proceedings against Darna Pty Ltd (Darna) in the Federal Circuit and Family Court of Australia. The dispute concerned Darna's alleged contravention of the *Fair Work Act 2009* (Cth) (the Act) by failing to pay an employee, Ms. K. L. Tran, her minimum entitlements under the National Employment Standards (NES) and the relevant modern award. Specifically, the FWO alleged that Darna failed to pay Ms. Tran annual leave entitlements and personal/carer's leave entitlements.

The court was required to determine whether Darna had contravened section 44(1) of the Act by failing to provide Ms. Tran with her minimum entitlements to annual leave, and whether Darna had contravened section 90(1) of the Act by failing to provide Ms. Tran with her minimum entitlements to personal/carer's leave. The court also needed to consider whether Darna's conduct was a contravention of a civil penalty provision and, if so, to determine the appropriate penalty.

Judge Hartnett found that Darna had indeed contravened the Act by failing to pay Ms. Tran her accrued annual leave and personal/carer's leave entitlements. The court applied the principles of statutory interpretation to the relevant provisions of the Act and the applicable modern award, concluding that Darna had a clear obligation to provide these entitlements. The court noted that the employer bears the onus of demonstrating compliance with minimum employment standards. In determining the penalty, the court considered factors such as the seriousness of the contravention, Darna's size and financial capacity, and whether the contravention was deliberate or due to oversight.

The court ordered Darna Pty Ltd to pay a penalty of $1,500 to the Commonwealth. Darna was also ordered to rectify the contraventions by paying Ms. Tran the outstanding amounts for her annual leave and personal/carer's leave entitlements, including any applicable leave loading.