Fair Work Ombudsman v Sushi Bay Pty Ltd (in liq) (No 2) [2024] FCA 76

FEDERAL COURT OF AUSTRALIA

Fair Work Ombudsman v Sushi Bay Pty Ltd (in liq) (No 2) [2024] FCA 76 File number: NSD 122 of 2022

Judgment of: KATZMANN J

Date of judgment: 14 February 2024

Catchwords: INDUSTRIAL LAW – where related companies in restaurant industry alleged to have contravened Fair Work Act 2009 (Cth) and Fair Work Regulations 2009 (Cth) in multiple respects – where companies operated a centralised payroll system which involved paying certain employees wage rates purportedly in accordance with applicable modern award for certain hours of work and below-award cash rates for additional hours worked, whether companies contravened s 45 of FW Act by erroneously classifying some employees, by failing to pay overtime rates or public holiday, Saturday and Sunday penalty rates – where employees sponsored on temporary work visas asked to pay back some of their earnings, whether companies contravened s 323 of FW Act – where payroll records did not record cash payments, understated hours worked and failed to record overtime hours when overtime had been worked, whether companies contravened s 535(4) of FW Act and/or reg 3.44 of FW Regulations by knowingly making and keeping false or misleading records – where documents provided to Fair Work inspectors did not disclose cash payments and understated hours worked, whether s 718A of FW Act contravened – where contraventions on or after 15 September 2017 were "serious contraventions" for purpose of s 557A of FW Act – whether companies had requisite knowledge – whether contravening conduct part of a systematic pattern of conduct – whether sole director of companies involved in contraventions

Legislation: Corporations Act 2001 (Cth) s 471B Evidence Act 1995 (Cth) s 128 Fair Work Act 2009 (Cth) ss 12, 14(1)(a), 45, 323, 325, 327, 535, 551, 555, 557A, 718A Fair Work Amendment (Protecting Vulnerable Workers) Act 2017 (Cth) Fair Work Regulations 2009 (Cth) reg 3.44 Explanatory Memorandum, Fair Work Amendment (Protecting Vulnerable Workers) Bill 2017 Supplementary Explanatory Memorandum, Fair Work Amendment (Protecting Vulnerable Workers) Bill 2017 Heydon JD, Cases and Materials on Evidence (Butterworths, 1975) Heydon JD, Cross on Evidence (12th ed, LexisNexis Butterworths, 2021) Macquarie Dictionary (8th ed, Macquarie Dictionary Publishers, 2020) The Macquarie Dictionary (1st ed, Macquarie Library, 1981) The New Shorter Oxford English Dictionary (4th ed, Clarendon Press, 1993)