Fair Work Ombudsman v Lovers of Property Pty Ltd

The Fair Work Ombudsman (FWO) brought proceedings against Lovers of Property Pty Ltd (the Company) in the Federal Circuit and Family Court of Australia, alleging contraventions of the *Fair Work Act 2009* (Cth) (the Act). The dispute concerned the Company's failure to pay a former employee, Ms. K. L. Davies, her accrued but untaken annual leave upon the termination of her employment. The FWO sought pecuniary penalties for these alleged contraventions.

The central legal issue before the Court was whether the Company had contravened section 90 of the Act by failing to pay Ms. Davies her accrued annual leave entitlement upon the termination of her employment. This required the Court to determine the nature of the obligation imposed by section 90 and whether the Company's actions constituted a breach of that obligation.

Judge Jarrett found that the Company had indeed contravened section 90 of the Act. The Court reasoned that section 90 imposes a clear and unqualified obligation on an employer to pay an employee, on termination of employment, an amount equal to the untaken accrued annual leave. The Company's argument that it had paid Ms. Davies all monies due to her was rejected, as the payment of her final wages did not encompass the specific entitlement to accrued annual leave. The Court emphasised that this entitlement is a statutory right that must be paid out upon termination, irrespective of any other payments made.

The Court ordered the Company to pay the Fair Work Ombudsman the sum of $1,500 as a pecuniary penalty.