Fair Work Ombudsman v Gothic Downs Pty Ltd (No 2)

The case involves the Fair Work Ombudsman, acting on behalf of certain employees, suing Gothic Downs Pty Ltd and its sole director, Mr. Conforto, for underpayment of wages and superannuation contributions. The dispute was heard in the Federal Circuit and Family Court of Australia. The court was tasked with determining whether Gothic Downs Pty Ltd and Mr. Conforto had contravened the Fair Work Act by underpaying wages and superannuation for certain employees and, if so, what penalties should be imposed.

The primary legal issue was whether the respondents demonstrated contrition, corrective action, and cooperation with the authorities. The respondents argued that they had rectified the underpayments by making the required payments to the affected employees shortly before the liability hearing. However, they admitted that these payments were made very late. The court also considered whether the respondents' failure to file affidavit evidence and their submissions on liability, which were filed on the morning of the liability hearing, demonstrated a lack of cooperation and contrition.

The court found that the respondents did not demonstrate sufficient contrition for their actions. They did not file any affidavit evidence and filed their submissions on liability very late, frustrating the progress of the matter. Additionally, the respondents' late payments to the affected employees were seen as an attempt to minimize consequences rather than a demonstration of contrition. The court accepted the Ombudsman's submission that there was no evidence of Mr. Conforto expressing any contrition or that the company had amended its work practices to prevent future contraventions. As such, the court ruled that there was no warrant for applying a discount on penalty for cooperation.

The court ordered that Gothic Downs Pty Ltd pay the Fair Work Ombudsman's costs of and incidental to the proceeding on the standard basis.