Fair Work Ombudsman v New Image Photographics Pty Ltd and Anor (No.2)

Fair Work Ombudsman v New Image Photographics Pty Ltd and Anor (No.2) concerned proceedings brought by the Fair Work Ombudsman against New Image Photographics Pty Ltd and Mr. David John Smith, alleging contraventions of the *Fair Work Act 2009* (Cth) (the Act). The dispute centred on alleged underpayments of wages and entitlements to employees of New Image Photographics, and the alleged involvement of Mr. Smith in these contraventions. The matter came before Judge Jarrett of the Federal Circuit and Family Court of Australia.

The primary legal issues before the Court were whether New Image Photographics Pty Ltd had contravened specific provisions of the Act by failing to pay employees their minimum entitlements, and whether Mr. Smith was knowingly concerned in, or party to, those contraventions. The Court was required to determine the extent of the underpayments and the appropriate penalties to be imposed for any proven contraventions.

Judge Jarrett found that New Image Photographics Pty Ltd had contravened the Act by failing to pay minimum wages and entitlements to a number of employees. The Court also found that Mr. Smith was knowingly concerned in, and party to, these contraventions. In reaching this conclusion, the Court considered the evidence presented regarding the employment arrangements, the applicable award rates, and the actual payments made. The Court applied the principles of statutory interpretation to the relevant provisions of the Act and relevant industrial instruments, and considered the principles for determining liability for accessory contraventions. The Court ordered New Image Photographics Pty Ltd to pay pecuniary penalties and to rectify the underpayments. Mr. Smith was also ordered to pay pecuniary penalties.