Fair Work Ombudsman v Kang

The Fair Work Ombudsman (FWO) brought proceedings against Mr. Kang, alleging contraventions of the *Fair Work Act 2009* (Cth) (the Act) concerning the underpayment of an employee. The dispute centred on whether Mr. Kang was an employer within the meaning of the Act and, if so, whether he had failed to pay the employee minimum lawful entitlements, including wages and superannuation. The matter was heard in the Federal Circuit and Family Court of Australia.

The primary legal issue before the Court was to determine whether Mr. Kang was an employer of the individual in question, notwithstanding the characterisation of their relationship as one of independent contracting. This involved an assessment of the true nature of the relationship, considering factors such as control, integration, provision of tools and equipment, and the opportunity for profit or loss. A secondary issue was, if Mr. Kang was found to be an employer, whether he had contravened the Act by failing to pay the employee minimum wages and superannuation contributions as required by the applicable award.

Judge Jarrett found that the relationship between Mr. Kang and the individual was one of employment, not independent contracting. The Court applied the multifactorial test for determining employment status, noting that while the individual performed tasks that could be characteristic of an independent contractor, the overarching reality of the arrangement pointed towards employment. Key factors included the degree of control Mr. Kang exercised over the manner in which the work was performed, the integration of the individual into Mr. Kang's business operations, and the lack of genuine opportunity for the individual to profit or incur a loss independently. Consequently, Mr. Kang was found to be an employer and had contravened the Act by failing to meet his obligations regarding minimum wages and superannuation.