FWO v China Sanan Engineering Construction Corp

The Federal Circuit Court of Australia heard a dispute between the Fair Work Ombudsman (FWO) and China Sanan Engineering Construction Corp. The FWO alleged that China Sanan Engineering Construction Corp had contravened provisions of the *Fair Work Act 2009* (Cth) by failing to comply with a notice issued under section 487 of the Act. This notice required the company to provide certain documents and information relevant to an investigation into alleged underpayment of employees.

The central legal issue before the Court was whether China Sanan Engineering Construction Corp had a valid excuse for its failure to comply with the section 487 notice. The company contended that it was unable to comply because the requested documents were located overseas and that the cost and logistical difficulties of retrieving them constituted a reasonable excuse. The Court was therefore required to determine the scope of what constitutes a "reasonable excuse" for non-compliance with a notice issued under the *Fair Work Act 2009*.

Judge Simpson reasoned that the *Fair Work Act 2009* imposes a strict obligation on employers to comply with lawful notices issued by the FWO. While acknowledging the practical challenges of retrieving documents from overseas, the Court found that these difficulties did not, in themselves, constitute a reasonable excuse for non-compliance. The Act provides mechanisms for the FWO to seek assistance in obtaining overseas documents, and the company had not adequately explored or utilised these avenues. The Court emphasised that the onus was on the respondent to demonstrate a lawful and compelling reason for non-compliance, which it had failed to do. The Court found that China Sanan Engineering Construction Corp had contravened section 487 of the *Fair Work Act 2009*.