Fair Work Ombudsman v Mamak Pty Ltd (in Liquidation)

The Fair Work Ombudsman (FWO) brought proceedings against Mamak Pty Ltd (in Liquidation) concerning alleged contraventions of the *Fair Work Act 2009* (Cth) and its Regulations. The dispute centred on the company's failure to keep proper employee records and its provision of false or misleading payroll records to the FWO during an investigation into underpayments. The matter was heard by Emmett J.

The court was required to determine whether Mamak Pty Ltd had contravened section 535(1) of the *Fair Work Act* by failing to make and keep pay and casual hours records for an employee, Ms Ibrahim, during a specified period. Additionally, the court had to consider whether the company had breached regulation 3.44(1) of the *Fair Work Regulations* by making and keeping records it knew to be false or misleading, and regulation 3.44(6) by providing those false or misleading records to the FWO on two separate occasions. A key issue was whether the company's conduct in relation to the false or misleading records was inadvertent, as submitted by the respondents, or deliberate.

Emmett J rejected the respondents' submissions that the provision of false or misleading records was inadvertent. The court found that the respondents had admitted that the payroll advices were false or misleading, that they were responsible for authorising their creation, knew they were false or misleading, and knew they had been provided to the FWO. This knowledge was established despite the respondents' claims of inadvertent deletions and attempts to improve record-keeping systems. The court noted that one instance of providing false records occurred after the company had already been penalised for similar conduct. The evidence did not support the assertion of inadvertent deletions as an explanation for the provision of records containing incorrect pay rates, net amounts, and superannuation contributions, particularly when the company insisted the records were not false or misleading when issues were raised. Consequently, the court found the provision of these records to be a deliberate attempt to mislead the FWO and conceal wrongdoing.