Fair Work Ombudsman v Inverted Mountain Pty Ltd

The Fair Work Ombudsman brought proceedings against Inverted Mountain Pty Ltd, Mr. Manning, and Mr. Kruize. The dispute concerned Inverted Mountain Pty Ltd's failure to comply with a Compliance Notice issued under section 716 of the *Fair Work Act 2009* (Cth), as well as its failure to make and keep employee records and provide payslips. Mr. Manning and Mr. Kruize were alleged to have been knowingly concerned in these contraventions. The matter was heard in the Federal Court of Australia.

The court was required to determine whether Inverted Mountain Pty Ltd had contravened the *Fair Work Act* by failing to comply with the Compliance Notice, failing to make and keep employee records, and failing to provide payslips. It also needed to determine whether Mr. Manning and Mr. Kruize were knowingly concerned in these contraventions, and if so, to impose appropriate civil penalties pursuant to section 546 of the Act.

The court found that Inverted Mountain Pty Ltd had failed to comply with the Compliance Notice, which had been issued over a year prior, and had still not produced the required records regarding employee pay, leave, or superannuation contributions. The respondents conceded that payments were not made in accordance with the *Restaurant Industry Award 2010*. The court accepted the Fair Work Ombudsman's submission that the failure to provide adequate records and payslips was not trivial and that the respondents' conduct was deliberate, noting that timesheets were destroyed and records were not kept. The court also considered the respondents' claims of financial hardship but found them unsupported by evidence, and noted that the capacity to pay is of less relevance than the objective of general deterrence.

The court made declarations that Inverted Mountain Pty Ltd had contravened the *Fair Work Act* and ordered that civil penalties be paid by the respondents. The court also ordered compliance with the Compliance Notice, noting that penalties are imposed for non-compliance, not for the notice itself.