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

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.