Fair Work Ombudsman v Yorktor Pty Ltd

In *Fair Work Ombudsman v Yorktor Pty Ltd*, McNab J of the Federal Court of Australia considered the quantum of a pecuniary penalty to be imposed on the Second Respondent, the sole director and manager of the First Respondent, Yorktor Pty Ltd (in liquidation). The dispute arose from the First Respondent's failure to comply with a compliance notice issued by the Fair Work Ombudsman, which required rectification of underpayments of wages and superannuation to a casual employee, Ms Melissa Fulton.

The court was required to determine the appropriate pecuniary penalty against the Second Respondent for contravening section 716(5) of the *Fair Work Act 2009* (Cth) by failing to comply with the compliance notice. This involved assessing the Second Respondent's accessorial liability for the contravention, given his admitted knowledge of the factual matters constituting the contravention and his responsibility for the company's compliance with its legal obligations.

McNab J accepted the admitted facts and evidence establishing the Second Respondent's knowledge and responsibility. The court noted the significant amount of the underpayments to the employee and the lack of evidence that these had been rectified. Furthermore, the court considered the broader context of widespread non-compliance within the accommodation and food services industry, as evidenced by the Fair Work Ombudsman's data. Despite a discount for cooperation, the court found that the Second Respondent had shown very little engagement in the investigation or proceedings.

Consequently, McNab J imposed a penalty of $3,500.00 against the Second Respondent pursuant to section 546(1) of the *Fair Work Act 2009* (Cth). This amount was ordered to be paid to the Commonwealth, with the Commonwealth to remit it to the employee, as provided by section 546(3) of the Act.