FEDERAL CIRCUIT COURT OF AUSTRALIA
| FAIR WORK OMBUDSMAN v JS TOP PTY LTD & ANOR | [2017] FCCA 1689 |
| Catchwords: INDUSTRIAL LAW – Application for imposition of pecuniary penalties – contravention of Fair Work Act – underpayment of entitlements – failing to make employee records – failing to ensure records are not false and misleading – making use of employee records that are false and misleading. |
| Legislation: Fair Work Act 2009, ss.45(1), 550(1), 535(1), 557(1), 557(2), 712 Fair Work Regulations 2009, regs.3.33, 3.44(1), 3.44(6) |
| Applicant: | Fair Work Ombudsman |
| First Respondent: | Js Top Pty Ltd |
| Second Respondent: | Jim Chien Ching Chang |
| File Number: | BRG 296 of 2016 |
| Judgment of: | Judge Jarrett |
| Hearing date: | 13 September 2016 |
| Date of Last Submission: | 13 September 2016 |
| Delivered at: | Brisbane |
| Delivered on: | 21 July 2017 |
REPRESENTATION
| Counsel for the Applicant: | Ms Gall |
| Solicitors for the Applicant: | Officer of the Fair Work Ombudsman |
| Solicitors for the First and Second Respondents: | Tonio Lawyers |
ORDERS
THE COURT DECLARES THAT:
The First Respondent contravened:
(a)s.45 of the Fair Work Act 2009 (Cth) by virtue of a contravention of cl.17 of the General Retail Industry Award 2010 by failing to pay 8 of its employees the minimum hourly wage prescribed by that Award;
(b)s.45 of the Fair Work Act 2009 (Cth) by virtue of a contravention of cl.13.2 of the General Retail Industry Award 2010 and cl.A.5.4 of Schedule A of the General Retail Industry Award 2010 by failing to pay 8 of its employees the casual loading prescribed by that Award;
(c)s.45 of the Fair Work Act 2009 (Cth) by virtue of a contravention of cl.29.4(b) of the General Retail Industry Award 2010 and cl.A.7.3 of Schedule A of the General Retail Industry Award 2010 by failing to pay the Saturday loading prescribed by that Award;
(d)s.45 of the Fair Work Act 2009 (Cth) by virtue of a contravention of cl.29.4(c) of the General Retail Industry Award 2010 and cl.A.7.3 of Schedule A of the General Retail Industry Award 2010 by failing to pay the Sunday loading prescribed by that Award;
(e)s.45 of the Fair Work Act 2009 (Cth) by virtue of a contravention of cl.30.3(a) of the General Retail Industry Award 2010 and cl.A.7.3 of Schedule A of the General Retail Industry Award 2010 by failing to pay the weekday shiftwork rates prescribed by that Award;
(f)s.45 of the Fair Work Act 2009 (Cth) by virtue of a contravention of cl.30.3(b) of the General Retail Industry Award 2010 and cl.A.7.3 of Schedule A of the General Retail Industry Award 2010 by failing to pay the Saturday shiftwork rates prescribed by that Award;
(g)s.45 of the Fair Work Act 2009 (Cth) by virtue of a contravention of…
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- Case
- [2017] FCCA 1689
- Decision Date
CaseChat Overview and Summary
The court was required to determine the extent of JS Top Pty Ltd's contraventions of the *Fair Work Act* and *Fair Work Regulations*, specifically in relation to the underpayment of minimum wages, casual loadings, and shiftwork rates under the General Retail Industry Award 2010. Additionally, the court had to consider contraventions relating to the failure to create and maintain employee records, and the knowing use of false or misleading records. The court also had to determine the extent of Mr Chang's involvement in these contraventions for the purposes of s.550(1) of the Act.
The court found that JS Top Pty Ltd had contravened the *Fair Work Act* by failing to pay employees the minimum hourly wage, casual loading, and various shiftwork rates prescribed by the General Retail Industry Award 2010. Furthermore, the court determined that JS Top Pty Ltd had contravened provisions of the Act and Regulations by failing to make accurate employee records detailing remuneration and hours worked, and by knowingly using false or misleading records, including through the 7-Eleven Payroll System and in response to a Notice to Produce. Mr Chang was found to have been involved in all of these contraventions.
Consequently, the court ordered JS Top Pty Ltd to pay pecuniary penalties totalling $140,000 and Mr Chang to pay pecuniary penalties totalling $28,000. By consent, the court also made further orders requiring JS Top Pty Ltd to engage an external auditor to conduct a compliance audit of its workplace relations practices, display a workplace notice detailing employee entitlements, and to attempt to resolve any future complaints from employees.
Orders
Orders of the court
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Background
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Decision
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