Fairwork Ombudsman v Blue Impression Pty Ltd & Ors (No.2)

Link copied
Case Copied 72 min read

FEDERAL CIRCUIT COURT OF AUSTRALIA

FAIRWORK OMBUDSMAN v BLUE IMPRESSION PTY LTD & ORS (No.2) [2017] FCCA 2797
Catchwords:
INDUSTRIAL LAW – Application for imposition of pecuniary penalties – contraventions of Fair Work Act 2009 – admissions by first and second respondents – finding of accessorial liability in relation to third respondent – declaration of involvement in contraventions by first and second respondents no penalty sought against second respondent – whether parity an issue –appropriate penalty for first and third respondent – penalties ordered.

Legislation:

Fair Work Act 2009 (Cth), ss.12, 45, 535, 536, 539, 545, 546, 550, 557, 682

Fair Work Regulations 2009 (Cth) r.3.44,

Cases cited:

Fair Work Ombudsman v Blue Impression Pty Ltd & Ors [2017] FCCA 810
Mason v Harrington Corporation Pty Ltd [2007] FMCA 7
Kelly v Fitzpatrick (2007) 166 IR 14
Australian Ophthalmic Supplies Pty Ltd v Mc Alary-Smith [2008] FCAFC 8
Commonwealth of Australia v Director, Fair Work Building Industry Inspectorate [2015] HCA 46
Murrihy v Betezy.com.au Pty Ltd (No 2) [2013] FCA 1146
Fair Work Ombudsman v Grouped Property Services Pty Ltd (No 2) [2017] FCA 557
Gibbs v The Mayor, Councillors and Citizens of City of Altona [1992] FCA 374
Fair Work Ombudsman v ACN 052 182 180 Pty Ltd & Anor [2013] FCCA 688 Fair Work Ombudsman v Soleimani & Anor [2014] FCCA 2380
Fair Work Ombudsman v Taj Palace Tandoori Indian Restaurant Pty Ltd & Anor [2012] FMCA 258
Fair Work Ombudsman v South Jin Pty Limited (No.2) [2016] FCA 832
Fair Work Ombudsman v Mamak Pty Ltd & Ors [2016] FCCA 2104
Rocky Holdings Pty Ltd v Fair Work Ombudsman [2014] FCAFC 62
Fair Work Ombudsman v Devine Marine Group Pty Ltd [2015] FCA 370
Lynch v Buckley Sawmills Pty Ltd [1984] FCA 306
Fair Work Ombudsman v NSH North Pty Ltd trading as New Shanghai Charlestown [2017] FCA 1301
Fair Work Ombudsman v Cuts Only The Original Barber Pty Ltd & Ors [2014] FCCA 2381
Fair Work Ombudsman v A Dalley Holdings Pty Ltd [2013] FCA 509
Mornington Inn Pty Ltd v Jordan [2008] FCAFC 70
Plancor Pty Ltd v Liquor  Hospitality and Miscellaneous Union [2008] FCAFC 170
Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (Werribee Shopping Centre Case) [2017] FCA 1235
Australian Competition and Consumer Commission v Reckitt Benckiser (Australia) Pty Ltd [2016] FCAFC 181
Shizas v Commissioner of Police [2017] FCA 61

Applicant: FAIR WORK OMBUDSMAN
First Respondent: BLUE IMPRESSION PTY LTD (CAN 151 494 763)
Second Respondent: SZE TENG WONG
Third Respondent: EZY ACCOUNTING 123 PTY LTD (CAN 105 317 691)
File Number: MLG 2721 of 2015
Judgment of: Judge O'Sullivan
Hearing date: 2 November 2017
Date of Last Submission: 2 November 2017
Delivered at: Melbourne
Delivered on: 16 November 2017

REPRESENTATION

Counsel for the Applicant: Mr Tracey
Solicitors for the Applicant: Fair Work Ombudsman
Counsel for the First Respondent: Mr Galbraith
Solicitors for the First Respondent: Jem Lawyers
Counsel for the Second Respondent Mr Galbraith
Solicitors for the…
CaseChat AU logo

Keep reading for free

Create a free CaseChat account to read Fairwork Ombudsman v Blue Impression Pty Ltd & Ors (No.2) and more:

  • Read every judgment in full
  • Ask AI and get answers linked to paragraphs
  • See how each paragraph was cited in later cases
  • Download judgments as PDF or Word
Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details
Case
[2017] FCCA 2797
Decision Date

CaseChat Overview and Summary

The Federal Court of Australia, constituted by O'Sullivan J, considered a dispute brought by the Fair Work Ombudsman against Blue Impression Pty Ltd and two individuals, Mr. and Mrs. Kim, who were directors of the company. The Ombudsman alleged contraventions of the *Fair Work Act 2009* (Cth) and the *Fair Work Regulations 2009* (Cth) concerning the employment of two employees. The core of the dispute involved allegations of underpayment of wages and the provision of false and misleading records, which the Ombudsman contended constituted breaches of statutory obligations.

The court was required to determine whether Blue Impression Pty Ltd, and by extension its directors, had contravened specific provisions of the *Fair Work Act 2009* (Cth), including those relating to minimum wages, record-keeping, and the provision of payslips. Central to the proceedings was the interpretation of ss. 535 and 536 of the Act, which deal with the creation and retention of employee records and the provision of accurate payslips, respectively. The court also had to consider the extent to which the directors could be held personally liable for the company's alleged contraventions, particularly in light of their roles and responsibilities within the corporate structure.

O'Sullivan J applied the principles of statutory interpretation to the relevant sections of the *Fair Work Act 2009* (Cth) and the *Fair Work Regulations 2009* (Cth). The court found that Blue Impression Pty Ltd had contravened the Act by failing to keep accurate employee records and provide correct payslips, leading to underpayments. The reasoning focused on the objective falsity of the records and payslips provided, irrespective of any intent to deceive. Furthermore, the court determined that Mr. and Mrs. Kim were involved in the contraventions, making them personally liable under s. 550 of the Act, which addresses accessory liability. The court considered the evidence presented regarding their knowledge and participation in the company's operations and their role in the preparation and dissemination of the false records.

The court ordered Blue Impression Pty Ltd to pay pecuniary penalties for the contraventions. Additionally, Mr. and Mrs. Kim were also ordered to pay pecuniary penalties, reflecting their personal involvement and responsibility for the company's breaches. The court also made orders for the rectification of the underpayments to the affected employees.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.