Fair Work Ombudsman v Kojima & Anor

The Fair Work Ombudsman (FWO) brought proceedings against Kojima Pty Ltd and Mr. Kenji Kojima (the respondents) in the Federal Circuit and Family Court of Australia. The dispute concerned allegations that the respondents had contravened provisions of the *Fair Work Act 2009* (Cth) (the Act) by failing to pay two employees their minimum lawful entitlements, including minimum wages, overtime, and leave entitlements, over a period of approximately 18 months. The FWO sought pecuniary penalties for these alleged contraventions.

The primary legal issue before the Court was whether the respondents had contravened section 50 of the Act by failing to pay the minimum lawful entitlements to the two employees. This required the Court to determine the quantum of wages and entitlements that should have been paid to the employees under the relevant award and legislation, and to assess whether the amounts actually paid by the respondents were sufficient to meet those obligations. The Court also considered the respondents' culpability and the appropriate level of penalty for any proven contraventions.

Judge O'Sullivan found that Kojima Pty Ltd had contravened section 50 of the Act on multiple occasions by failing to pay the minimum lawful entitlements to the two employees. The Court determined that the respondents had underpaid the employees by a significant amount, and that these underpayments were not minor or technical. The Court applied the principles of statutory interpretation to ascertain the respondents' obligations under the Act and the relevant award, and considered factors such as the duration and nature of the underpayments, and the respondents' level of awareness or wilful blindness in making its findings.

The Court ordered Kojima Pty Ltd to pay pecuniary penalties totalling $30,000 and Mr. Kenji Kojima to pay a pecuniary penalty of $6,000. Furthermore, Kojima Pty Ltd was ordered to rectify the underpayments to the two employees, which amounted to $23,978.90 and $20,999.90 respectively.