Fair Work Ombudsman v Terrence Cyril Thomas (Trading as over the Top Happy Cleaning Services Pty Ltd)

The Federal Circuit Court of Australia, in Melbourne, considered penalties to be imposed on Terrence Cyril Thomas, trading as Over the Top Happy Cleaning Services Pty Ltd, the respondent. The applicant, the Fair Work Ombudsman, alleged that the respondent, a sole trader operating a contract cleaning business, employed three cleaners on temporary student visas. These cleaners, Mr Raphel, Mr Shah, and Mr Khalid, worked a number of hours for the respondent but were not paid any wages. The matter proceeded to a penalty hearing after the respondent failed to appear at a previous hearing on 6 February 2013, despite being properly served.

The court was required to determine the appropriate penalties for the respondent's contraventions of various industrial laws. These contraventions included failing to pay Mr Raphel minimum rates of pay, a part-time allowance, a shift work penalty, and accrued annual leave upon termination. Additionally, the respondent failed to pay Mr Shah and Mr Khalid minimum wages, a part-time allowance for Mr Shah, a casual loading for Mr Khalid, and accrued annual leave upon termination for Mr Shah. These failures constituted breaches of the Building Services (Victoria) Award 2003, the Fair Work Act 2009, and the Workplace Relations Act.

Judge Riley applied the principles for determining penalties under the Fair Work Act 2009, considering the nature and gravity of the contraventions, the period over which they occurred, and the respondent's conduct. The court noted that the respondent had failed to pay any wages at all to the three employees for all hours worked, which was a significant contravention. The court also took into account the fact that the respondent did not appear at the hearing, suggesting a lack of engagement with the legal process.

Consequently, the court ordered the respondent to pay an aggregate penalty of $52,800. This penalty was to be paid to the Commonwealth within 60 days. The order also stipulated that if the respondent was unable to locate any of the employees within 30 days, the amounts owed to them were to be paid to the Consolidated Revenue Fund of the Commonwealth within a further 14 days. The applicant was granted liberty to apply on seven days' notice if any of these orders were not complied with.