Fair Work Ombudsman v Foot & Thai Massage Pty Ltd (in liquidation) (No 6)

In this case, the Fair Work Ombudsman (FWO) sought to enforce a penalty against Foot & Thai Massage Pty Ltd (FTM), a company in liquidation, for underpaying its employees. The Federal Court was asked to determine whether a referee's report on the extent of the underpayments should be adopted. The parties had been unable to agree on the amount of underpayments owed to the employees, so the court had referred the matter to a Registrar as a referee to make an inquiry and provide a report. The referee's report was opposed by one of the respondents, Mr Elvin, on several grounds.

The primary legal issue was whether the referee's report should be adopted, given Mr Elvin's objections. The court considered whether the referee had procedurally fair considered all the evidence, particularly the Elvin Affidavit and the second amended defence and statement of claim (2AD). The court also examined whether the referee had relied on any evidence that was irrelevant or not properly before her. The court found that the referee had performed her own calculations, independent of the evidence provided by the parties, and had considered all relevant evidence in making her determinations.

The court concluded that the referee had afforded procedural fairness to the parties, as required by law, and had not erred in her approach. The referee had not relied on any irrelevant evidence or failed to consider the Elvin Affidavit, as Mr Elvin had contended. Instead, the referee had performed her own calculations based on the agreed facts and applicable rates. The court held that the referee was well-equipped to make her determinations and had done so in a procedurally fair manner. Accordingly, the court ordered that the referee's report be adopted in its entirety.