Fair Work Ombudsman v Han Investments Pty Ltd [2017] FCA 623

FEDERAL COURT OF AUSTRALIA

Fair Work Ombudsman v Han Investments Pty Ltd [2017] FCA 623 File numbers: WAD 247 of 2016 WAD 248 of 2016 WAD 249 of 2016

Judge: BARKER J

Date of judgment: 31 May 2017

Catchwords: INDUSTRIAL LAW – admitted contraventions of s 535(1) of the Fair Work Act 2009 (Cth) and the Fair Work Regulations 2009 (Cth) – failure to make and keep records – accessorial liability – assessment of penalties – factors considered

Legislation: Corporations Act 2001 (Cth) s 459A Fair Work Act 2009 (Cth) ss 535, 535(1), 545(1), 545(2)(a), 546(3)(a), 557(2)(n) Fair Work Regulations 2009 (Cth) regs 3.33(2), 3.33(3), 3.34, 3.34(a), 3.36(1), 3.44(b)

Date of hearing: 5 May 2017

Registry: Western Australia

Division: Fair Work Division

National Practice Area: Employment & Industrial Relations

Category: Catchwords

Number of paragraphs: 143

Counsel for the Applicant: Mr AJ Power

Solicitor for the Applicant: Clayton Utz

Counsel for the Respondents: Mr DV Blades

Solicitor for the Respondents: Christina Chang Lawyers

ORDERS WAD 247 of 2016

BETWEEN: FAIR WORK OMBUDSMAN Applicant

AND: HAN INVESTMENTS PTY LTD ACN 074 318 371 First Respondent

TRAM HOANG HAN Second Respondent

JUDGE: BARKER J DATE OF ORDER: 31 MAY 2017

THE COURT ORDERS THAT:

1. Declarations that the first respondent contravened s 535(1) of the Fair Work Act 2009 (Cth) by failing to make and keep records prescribed by: (a) regulation 3.33(2) of the Fair Work Regulations 2009 (Cth), specifying the hours worked by irregular part-time employees; (b) regulation 3.33(3) of the Fair Work Regulations 2009 (Cth), specifying the details of loadings and penalty rates in the Award; (c) regulations 3.34(a) and 3.44(b) of the Fair Work Regulations 2009 (Cth), specifying the number of overtime hours worked by any employee each day and when an employee started and ceased working overtime hours; and (d) regulation 3.36(1) of the Fair Work Regulations 2009 (Cth), specifying any leave that the employee takes and the balance of the employee's entitlement to that leave from time to time. 2. A declaration that the second respondent was involved in each of the contraventions of the first respondent as set out in order (1) above. 3. Orders pursuant to s 545(1) and/or s 545(2)(a) of the Fair Work Act 2009 (Cth) that within a period of two months of the order, the first respondent: (a) register with the applicant's 'My Account' portal at http://www.fairwork.gov.au/my-account/registerpage.aspx and complete the profile, including the award options; (b) download and complete for all current employees of the first respondent the following templates at https://www.fairwork.gov.au/how-we-wil/-helpltemplates and-guides: (i) letter of engagement - full-time/part-time employee templates; (ii) part-time hours of work agreement or variation; (iii) full-time hours of work agreement or variation; (iv) roster template; (v) timesheet template; and (vi) record of employee details template; and (c) arrange for an officer of the first respondent to complete the 'Hiring employees' training module in the Online Learning Centre at https://www.fairwork.gov.au/how-we-will-help/online-training. 4. An order pursuant to s 545(1) of the Fair Work Act 2009 (Cth) that the first respondent provide written confirmation and evidence to the applicant of its compliance with the order in order (3) above, within seven days of the timeframe specified in order (3) above. 5. As against the first respondent, there be imposed a pecuniary penalty of $15,000. 6. As against the second respondent, there be imposed a pecuniary penalty of $2,500. 7. An order that, pursuant to s 546(3)(a) of the Fair Work Act 2009 (Cth), these pecuniary penalties be paid by the first and second respondents to the Commonwealth within six months. 8. An order that the applicant have liberty to apply on 7 days' notice in the event that any of the preceding orders are not complied with. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.