Fair Work Ombudsman v Gothic Downs Pty Ltd

The Fair Work Ombudsman ("the Ombudsman") filed an application against Gothic Downs Pty Ltd and its sole director, Giuseppe Conforto, alleging that the company failed to comply with two compliance notices and that Mr. Conforto was accessorily liable for the company's contraventions. The dispute centers on Gothic's alleged failure to comply with specific terms of the General Retail Industry Award 2010 and the National Employment Standards, particularly concerning the underpayment of wages and allowances to two employees, Dawinder Kaur and Sahar Abdulkarim. The primary legal issues before the court were whether Gothic failed to comply with the compliance notices issued by the Ombudsman and, if so, whether Mr. Conforto was accessorily liable for those failures.

The court found that the respondents had the burden of proving any inaccuracies in the Ombudsman's calculations. Given that the respondents did not provide any evidence to counter the Ombudsman's figures, the court accepted the Ombudsman's calculations for the purpose of determining interest. The court ruled that Gothic did indeed fail to comply with the compliance notices, as it did not rectify the underpayments to Kaur and Abdulkarim within the specified timeframes. Furthermore, the court found Mr. Conforto accessorily liable for Gothic's contraventions, as he was the sole director of the company at the relevant times.

The court granted the declarations and orders sought by the Ombudsman, except for the penalty orders, which were to be determined after further submissions from the parties. The court emphasized that any difficulties with the calculations and demonstrating the accuracy of Gothic's figures were the company's own responsibility and could not be attributed to the Ombudsman.