Fair Work Ombudsman v Joseph and Anor

The Federal Circuit Court of Australia heard a matter between the Fair Work Ombudsman (Applicant) and Rekha Thakadiyal Joseph and Jijo Thiruvankavil Esahac (Respondents). The dispute concerned allegations of wage theft and contraventions of various provisions of the *Fair Work Act 2009* (Cth) and the *Fair Work Regulations 2009* (Cth) in relation to the employment of Mr Kurian, a holder of a Temporary Business Entry (Class UC) Temporary Work (Skilled) (subclass 457) visa. The Respondents operated the Blue Moon Restaurant in partnership and had sponsored Mr Kurian's visa.

The court was required to determine the appropriate pecuniary penalties to be imposed on the Respondents for numerous contraventions. These contraventions included failing to pay Mr Kurian minimum rates of pay, penalty rates for Saturday, Sunday, and public holiday work, and overtime rates. Further contraventions involved failing to pay annual leave and personal leave entitlements, including leave loading and entitlements upon termination. The Respondents were also alleged to have unreasonably required Mr Kurian to spend amounts payable to him, failed to keep and provide accurate employee records and payslips, and provided false and misleading documents and information to a Fair Work Inspector.

By consent, the court made declarations that the Respondents had contravened the specified civil penalty provisions. The court's reasoning, as reflected in the agreed orders, acknowledged the significant underpayment of $153,352.01 to Mr Kurian, which represented approximately 66% of his minimum entitlements. The court also considered the Respondents' actions in setting up a bank account in Mr Kurian's name, making payments into it, and then withdrawing funds, as well as the deliberate concealment of underpayments and the provision of false information to a Fair Work Inspector. The court noted that Mr Kurian was vulnerable due to his visa sponsorship and residency arrangements with the Respondents.

The court ordered that the Respondents be jointly and severally liable to pay $153,352.01 plus interest to the Applicant for distribution to Mr Kurian. Furthermore, the First Respondent was ordered to pay pecuniary penalties of $63,600, and the Second Respondent was ordered to pay pecuniary penalties of $55,600, to the Consolidated Revenue Fund of the Commonwealth of Australia. These penalties were imposed in respect of the contraventions admitted by the parties.