Fair Work Ombudsman v PTES 928 Pty Ltd

The Fair Work Ombudsman, in this instance represented by an officer, brought an action against PTES 928 Pty Ltd, Polytrade, PES, Ms Ho, and Mr Cheng in the Federal Circuit and Family Court of Australia. The central issue was the significant underpayment of wages to employees working at two waste management facilities operated by Polytrade in Victoria. The underpayments occurred despite the employees being classified as level 2 employees under the relevant award and working various shifts including nights, weekends, and public holidays. The court had to determine whether the contraventions of the award and the Fair Work Act 2009 (FW Act) were proven and, if so, what penalties should be imposed on each respondent.

The court examined the legal principles of accessorial liability, the totality principle, and the course of conduct to determine the appropriate penalties. It was established that each respondent was involved in the contraventions to varying degrees. The court concluded that the penalties should be proportionate to the nature and extent of the wrongdoing. The Fair Work Ombudsman sought pecuniary penalties and declaratory relief, but the latter was declined due to its lack of utility. The court imposed substantial penalties on each respondent, taking into account the severity of the breaches and the need for deterrence.

The court found the respondents liable for significant underpayments of wages and imposed pecuniary penalties. The penalties were calculated based on the totality of the contraventions, with a focus on deterrence and ensuring accountability. The penalties were set at $200,375.00 for PES, $138,600.00 for Polytrade, $8,820.00 for Ms Ho, and $27,720.00 for Mr Cheng. These amounts were deemed proportionate to the breaches and intended to serve as a deterrent for future violations.

The final orders required the respondents to pay the specified penalties to the Commonwealth within 28 days. No costs were awarded as per the provisions of the FW Act and no application for costs was made. The decision underscores the importance of compliance with award obligations and the court's willingness to impose significant penalties for serious breaches.