Fair Work Ombudsman v Hu (No 3)

In the matter of Fair Work Ombudsman v Hu (No 3), the Fair Work Ombudsman, acting as the Commonwealth's workplace relations regulator, sought pecuniary penalties against Binqi Hu for contraventions of sections 45 and 546 of the Fair Work Act 2009 (Cth). The contraventions related to the underpayment of wages to employees of HRS Country, a company for which Ms Hu was the director and sole shareholder. The contraventions included the failure to pay adult minimum hourly rates, casual loadings, public holiday rates, and paid rest breaks, as well as the failure to include prescribed information in payslips. The parties agreed on the penalties to be imposed, which amounted to $22,440 in total. The primary legal issue before the court was the imposition of penalties for the admitted contraventions of the Fair Work Act. The court had to consider whether the penalties proposed by the parties were appropriate, given the nature and extent of the contraventions.

The Federal Circuit and Family Court of Australia, exercising its jurisdiction under section 659D of the Fair Work Act, found that the agreed penalties were appropriate. The court took into account several factors, including the seriousness of the contraventions, the degree of intentionality, and the financial benefit obtained by HRS Country from the contraventions. The court also considered the impact of the contraventions on the employees and the need for deterrence. The court found that the penalties, which were proportionate to the contraventions and the financial benefit obtained by HRS Country, served the purposes of punishment, deterrence, and compensation. The penalties were thus imposed on Ms Hu, to be distributed to the affected employees in amounts proportionate to their outstanding underpayments. In the event that any of the employees could not be located, the balance of the penalties was to be paid into the Consolidated Revenue Fund of the Commonwealth.

The court issued several orders, including that Ms Hu pay the penalties within 28 days, that the penalties be distributed to the employees within 180 days, and that the Fair Work Ombudsman have liberty to apply for enforcement if the orders were not complied with. The court made no order as to costs.