Fair Work Ombudsman v Nobrace Centre Pty Ltd & Anor (No. 2)

This matter concerned penalties and compensation following a finding of liability against the Second Respondent, Mr. Chen, for his involvement in the First Respondent's, Nobrace Centre Pty Ltd, contravention of section 716(5) of the *Fair Work Act 2009* (Cth). The contravention involved a failure to comply with a Compliance Notice issued on 16 February 2018. The Court, presided over by Judge Blake, had previously delivered a liability judgment on 2 May 2019, declaring Mr. Chen to have committed the contravention pursuant to section 550 of the Act.

The legal issues before the Court were the determination of an appropriate pecuniary penalty for Mr. Chen's contravention and whether Mr. Chen should be ordered to personally pay compensation to the affected employee, Mr. Yao. The Applicant, the Fair Work Ombudsman, sought a penalty in the very high range, between 85% and 95% of the maximum penalty for a single contravention by an individual, which was $6,300. Additionally, the Applicant sought an order for Mr. Chen to pay $32,889.98 plus interest to Mr. Yao, representing the underpayment of wages, noting that a portion of the original amount specified in the Compliance Notice was excluded as it related to a period more than six years prior to the commencement of proceedings.

In reaching its decision, the Court considered the submissions and evidence presented by the Applicant, including affidavits from an inspector and the affected employee. The Applicant highlighted that the contravention was a single instance and that the employee was of a non-English-speaking background and held an employer-sponsored visa, factors that underscored the importance of deterrence. The Applicant also submitted that Mr. Chen had shown no contrition or remorse. Given that the First Respondent was in liquidation, the Court was required to consider the personal liability of the Second Respondent for both penalties and compensation.