Fair Work Ombudsman v TAC Pham Pty Ltd

The Fair Work Ombudsman (the applicant) commenced proceedings in the Federal Circuit Court of Australia against TAC Pham Pty Ltd (the first respondent) and Ms Cuc Thi Thu Pham (the second respondent). The applicant alleged that the first respondent contravened various provisions of the *Fair Work Act 2009* (Cth) concerning minimum wages, penalty rates, allowances, and payslip requirements, and that the second respondent was knowingly involved in these contraventions. The proceedings sought pecuniary penalties against both respondents.

The court was required to determine the appropriate penalties for the admitted contraventions, including those deemed "serious contraventions" under section 557A of the Act. A key aspect of the proceedings was the respondents' prior contraventions and penalties imposed by the Federal Court in *Fair Work Ombudsman v Tac Pham Pty Ltd* [2018] FCA 120 for similar breaches occurring in an earlier period. The court also had to consider the respondents' submissions regarding their level of culpability, the impact of the second respondent's language proficiency, and the first respondent's financial position.

Judge Kendall found that the respondents had admitted to contraventions of the *Fair Work Act 2009* (Cth), including serious contraventions, and that these admissions were binding under section 191 of the *Evidence Act 1995* (Cth). Despite the respondents' attempt to resile from their admissions regarding the seriousness of the contraventions, the court rejected this argument. The court noted the respondents' previous contraventions and the imposition of penalties in prior proceedings, which indicated a pattern of non-compliance. However, the court also took into account factors such as the second respondent's demonstrated efforts to rectify payroll issues, her limited English proficiency, and the advice from an accountant that her conduct was not deliberate. The court applied principles of penalty assessment, considering the objective seriousness of the contraventions, the respondents' subjective culpability, and mitigating factors.

The court ordered the first respondent, TAC Pham Pty Ltd, to pay penalties totalling $191,646, and the second respondent, Ms Cuc Thi Thu Pham, to pay penalties of $38,394. These penalties were to be paid into the Consolidated Revenue Fund of the Commonwealth of Australia within 120 days. The applicant was granted liberty to apply to the court should these orders not be complied with.