Fair Work Ombudsman v NoBrace Centre Pty Ltd

The Fair Work Ombudsman (the applicant) brought proceedings against NoBrace Centre Pty Ltd (the respondent) concerning alleged contraventions of the *Fair Work Act 2009* (Cth) and the *Fair Work Regulations 2009* (Cth). The dispute arose from the employment of an individual who initially arrived in Australia on a working holiday visa. This employee subsequently sought and obtained sponsorship from the respondent for a Temporary Work (Skilled) Visa (subclass 457), which required a minimum annual remuneration of $50,000. A sham employment contract was executed, and while pay and income tax were recorded at the required rate, the employee was actually paid at a lower hourly rate. The employee was not a passive participant, having requested and obtained the employer's support for a permanent visa. Following the sale of the business, the employee's employment was terminated, and the sponsorship visa was withdrawn. The Ombudsman's investigation revealed that the employee's actual rate of pay was below that prescribed by the relevant Award, and other entitlements were not paid.

The court was required to determine whether NoBrace Centre Pty Ltd had contravened the *Fair Work Act 2009* (Cth) and *Fair Work Regulations 2009* (Cth) by failing to pay minimum entitlements prescribed by the Health Professionals and Support Services Award 2010, including minimum wages, and by making unauthorised deductions from the employee's pay. Further issues included the respondent's failure to keep and provide accurate records and pay slips, and whether there was a reasonable excuse for non-compliance with a notice to produce documents. The court also considered the principles of accessorial liability, specifically the degree of connection and knowledge required for a secondary participant to be involved in contraventions.

Justice Kelly applied the principles of accessorial liability, stating that a sufficiently direct and practical connection to the wrongdoing is necessary. It is sufficient to establish that the participants were aware of the material facts and circumstances constituting the contraventions, without necessarily understanding the legal characterisation or legality of the conduct. The court clarified that intent to cause injury or damage is not required, nor is knowledge of the precise legal entitlements or award names. However, actual knowledge of the essential facts comprising the primary contravention, or wilful blindness through deliberate abstention from inquiry in the face of suspicious circumstances, could ground involvement. The court found that knowledge that the system of payment was non-compliant with the Act, Regulations, or Award could lead to involvement in a contravention.

The court granted declarations regarding the contraventions. However, it found that the existence of a threat of continuation of the conduct was not proven, and therefore, there was no utility in granting injunctions.