Fair Work Ombudsman v G and Z United Pty Ltd

In a penalty proceeding before Judge Baird of the Federal Circuit Court of Australia, the Fair Work Ombudsman alleged contraventions of the Fair Work Act 2009 (Cth) by G and Z United Pty Ltd (G&Z) and Ms Zhang. The dispute centred on admitted contraventions relating to underpayments and breaches of award provisions. G&Z admitted breaching sections 45, 535, and 536 of the Act, while Ms Zhang admitted being knowingly concerned in or a party to these contraventions, thereby being taken to have committed them herself under section 550 of the Act. The parties agreed on the form of declarations but disagreed on the quantum of penalties to be imposed.

The court was required to determine the appropriate penalties for G&Z and Ms Zhang, considering submissions on how contraventions should be grouped and the applicable penalty units. The Ombudsman contended for 11 separate contraventions, with maximum penalties ranging from $54,000 to $27,000 for G&Z and $10,800 to $5,400 for Ms Zhang, based on a penalty unit of $180. The Ombudsman proposed total penalties of $128,520 to $185,895 for G&Z and $32,130 to $41,310 for Ms Zhang. Conversely, the respondents argued for grouping the contraventions into two courses of conduct: underpayment of wages (7 breaches) and award administration defaults (4 breaches). They submitted penalties of $800 per wage underpayment breach and $1,250 per administration breach for G&Z, totalling $10,600. For Ms Zhang, they argued her accessorial liability was limited to a specific period, proposing a total penalty of $3,500.

Judge Baird noted that all principal and accessorial contraventions had been admitted. The core of the dispute lay in the application of penalty provisions, specifically whether to treat each instance of contravention separately or group them into broader courses of conduct. The Ombudsman's approach of identifying 11 contraventions, some attracting higher maximum penalties, was contrasted with the respondents' submission of two distinct courses of conduct. The court also considered the period of Ms Zhang's culpability, with the respondents arguing for a reduced penalty based on her involvement from December 2015. The decision would hinge on the court's interpretation of the grouping provisions and the extent of Ms Zhang's knowledge and involvement.