Fair Work Ombudsman v Nobrace Centre Pty Ltd (in Liquidation)

The Fair Work Ombudsman (the applicant) commenced proceedings in the Federal Court of Australia against Nobrace Centre Pty Ltd (in liquidation) (the principal contravenor), and two individuals, Mr. and Mrs. Kim (the accessories). The dispute concerned multiple contraventions of the *Fair Work Act 2009* (Cth) by the principal contravenor, including failures to pay minimum weekly wages, overtime, weekend and public holiday loadings, and annual leave entitlements. These contraventions were alleged to have occurred in circumstances where the principal contravenor and the employee participated in a sham arrangement designed to facilitate the employee's acquisition of a working visa and permanent residency.

The court was required to determine whether the principal contravenor had contravened the Fair Work Act, and to what extent the accessories were involved in these contraventions. Further, the court had to consider the applicant's claims for pecuniary penalties against the principal contravenor and the accessories, and for compensation for the employee. The court also needed to assess whether it was appropriate to make orders for joint and several liability for compensation against the accessories, given their differing levels of involvement.

In her reasoning, Judge A Kelly found that the principal contravenor had contravened the Fair Work Act in numerous respects. The court determined that the accessories were involved in these contraventions to differing extents, and therefore were also taken to have contravened the relevant civil remedy provisions. Applying established principles regarding the imposition of pecuniary penalties, the court considered the seriousness of the contraventions, the need for deterrence, and the circumstances of the case, including the sham arrangement. Similarly, in relation to compensation, the court was satisfied that it was appropriate to make orders for the recovery of unpaid entitlements. The court ultimately ordered pecuniary penalties against the principal contravenor and the accessories, and ordered compensation to be paid to the employee. While the accessories were found liable for compensation, the court conditioned the orders to prevent double recovery, reflecting the differing liabilities of each accessory.