Fair Work Ombudsman v Timi Trading Pty Ltd as Trustee for the Nguyen Vo Trust

The Fair Work Ombudsman brought proceedings against Timi Trading Pty Ltd as Trustee for the Nguyen Vo Trust and related individuals in the Federal Court of Australia. The dispute concerned multiple contraventions of the Fair Work Act 2009 (Cth) and an applicable award, relating to record-keeping, provision of false and misleading documents, breaches of a flexibility term, and payment other than in money.

The court was required to determine the appropriate penalties for these contraventions, considering the principles of specific and general deterrence. A key issue was how to approach the imposition of penalties where the conduct underlying multiple contraventions substantially overlapped, and whether certain contraventions should attract separate penalties. The court also had to consider the maximum penalties available under the Fair Work Act for the various respondents.

Jarrett J applied the principle that penalties should have a "sting or burden" to achieve specific and general deterrence. The court accepted the parties' agreed approach to grouping contraventions where conduct substantially overlapped, thereby avoiding separate penalties for certain breaches. This approach was consistent with previous case law. The court also acknowledged that a contravention involving a significant underpayment that had been repaid would not attract a separate penalty. The court emphasised the importance of general deterrence, particularly within the café and restaurant industry, to protect vulnerable workers and to signal that such contraventions would not be tolerated.

The court ordered penalties totalling $441,000 for the first respondent, $88,200 for the second and third respondents, and $12,600 for the fourth respondent, reflecting the agreed grouping of contraventions and the statutory maximums.