Fair Work Ombudsman v Foot & Thai Massage Pty Ltd (in liquidation) (No 4)

• Jurisdiction: Australia Federal only
• Judgment Date: 14 October 2021
• Neutral Citation: [2021] FCA 1242
• Court: Federal Court
• Date: 14 October 2021

FEDERAL COURT OF AUSTRALIA

Fair Work Ombudsman v Foot & Thai Massage Pty Ltd (in liquidation) (No 4) [2021] FCA 1242

File number(s):	ACD 41 of 2018
Judgment of:	KATZMANN J
Date of judgment:	14 October 2021
Catchwords:	INDUSTRIAL LAW — allegations of multiple contraventions of numerous civil penalty provisions of the Fair Work Act 2009 (Cth) relating to employment of seven massage therapists recruited to work from the Philippines — which, if any, award applied — whether employer contravened s 45 of the Act by failing to pay minimum wages, public holiday and overtime rates — whether employer contravened s 44 by failing to comply with National Employment Standards — where employees worked long hours, were required to be available to perform massages throughout the time the employer’s premises were open to the public and were not paid overtime rates, whether employees were requested or required to work unreasonable hours contrary to s 62(1) — whether employer failed to pay untaken annual leave entitlements on termination as required by s 90(2) — whether employer failed to give employees a Fair Work Information Statement in accordance with s 125 — whether sufficient for employer to put a copy on a wall in the staff room— whether by making deductions from their wages purportedly to repay loans in the absence of written authorisations, employer acted contrary to s 323(1) — where employer allegedly required employees to return a portion of their salaries in cash, whether employer required employees to spend amounts from their wages for the benefit of the employer contrary to s 325(1) ; INDUSTRIAL LAW — adverse action — whether employer took adverse action against employees in contravention of s 340 by threatening to repatriate them to the Philippines if they exercised their workplace rights to make a complaint or inquiry — whether employer took adverse action against employees in contravention of s 351 by reason of their race, national extraction and/or social origin ; INDUSTRIAL LAW — coercion — whether employer threatened to return employees to the Philippines or have their families there killed if they reported their working conditions to authorities in contravention of s 343(1) ; INDUSTRIAL LAW — record keeping contraventions — whether employer made or kept records and/or pay slips of the kind prescribed by the Fair Work Regulations 2009 (Cth) — whether employer contravened s 535(1) by failing to make and keep records of the number of overtime hours worked or the start and finish times of overtime hours worked contrary to reg 3.34; of the periods of annual leave taken and the balance of their entitlements to annual leave from time to time contrary to reg 3.36(1); and of the nature of the termination of the employees’ employment contrary to reg 3.40 — whether pay records false or misleading to employer’s knowledge in contravention of reg 3.44(1) — whether employer made use of entries in employee records knowing the entries were false or misleading — whether employer failed to provide pay slips to employees for parts of their periods of employment in contravention of s 536(1) and whether employer contravened s 536(2) because pay slips did not include certain information prescribed by reg 3.46 ACCESSORIAL LIABILITY — whether sole director of employer who recruited employees and who was admittedly responsible for the overall direction, management and supervision of employer’s operations was knowingly concerned in employer’s contraventions — whether supervisory employee was knowingly concerned in some of the contraventions ; CORPORATIONS — deed of company arrangement — where employer had entered into a deed of company arrangement and the employees in question were parties to the deed and had been paid according to its terms, whether deed extinguishes the underlying liability — whether Ombudsman a creditor —whether an order of any kind could be made against employer ; PRACTICE AND PROCEDURE — whether leave should be granted to Ombudsman to amend pleadings after conclusion of hearing
Words & phrases:	“give”, “require”, “spend”, “in his or her employment”, “race”, “national extraction”, “social origin”
Legislation:	Acts Interpretation Act 1901 (Cth) ss 15AA, 46 Bankruptcy Act 1966 (Cth) s 82(3) Conciliation and Arbitration Act 1904 (Cth) s 5(1) (repealed) Corporations Act 2001 (Cth) ss 435A, 435C, 444A(4), 444D(1), 473B, 553, 553B Evidence Act 1995 (Cth) s 140 Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth) Sch 9, subitem 5 Fair Work Act 2009 (Cth) ss 3, 11, 12, 14, 26, 27, 44(1), 45, 46, 47, 48(4), 48, 61, 62, 90, 116, 117, 124, 125, 153, 194, 195, 323, 324, 325, 326, 327, 336, 340, 341, 342, 343, 348, 351, 360, 361, 535, 536, 545(3), 546(1), 549, 551, 682, 771, 772, 723, 793 Federal Court of Australia Act 1976 (Cth) s 37M Migration Act 1958 (Cth) ss 140UA, 140V, 140X, 140XB, 140XC, 235, 245AB, 245AG, 245AR, 245AS Racial Discrimination Act 1975 (Cth) ss 10, 15(1) Fair Work Regulations 2009 (Cth) regs 2.02, 2.12, 3.33, 3.34, 3.36, 3.40, 3.44(1), 3.44(6), 3.46(2) Federal Court Rules 2011 (Cth) rr 1.32, 1.40, 8.21, 16.08, 16.53 Legal Services Directions 2017 (Cth) App B, cl 2 Migration Regulations 1994 (Cth) reg 2.79(2) Proceeds of Crime Regulations 2002 (Cth) reg 6(l) Confiscation of Criminal Assets Act 2003 (ACT) ss 84(1), 85(1) Crimes Act 1900 (ACT) s 30 Criminal Code 2002 (ACT) ss 62, 64 Discrimination Act 1991 (ACT) ss 7(1), 10 Equal Opportunity Act 1984 (Vic) s 4 (repealed) Equal Opportunity Act 2010 (Vic) s 4 ; Hair and Beauty Industry Award 2010 ccl 3.1, 4, 7, 17, Sch B Health Professionals and Support Services Award 2010 ccl 3.1, 4, 7, 11.2, 14, 15, 18.5(a), 23, 24, 28.1, 32.2, A.2.5, A.5, A.7.3, B.1, Sch C International Convention on the Elimination of All Forms of Racial Discrimination, opened for signature 21 December 1965, 660 UNTS 195 (entered into force 4 January 1969) Art 1.1 Fair Work Amendment (Protecting Vulnerable Workers) Bill 2017 (Cth) Explanatory Memorandum to the Corporate Law Reform Bill 1992 (Cth) Explanatory Memorandum to the Fair Work Bill 2008 (Cth)
Cases cited:	4 yearly review of modern awards – Health Professionals and Support Services Award 2010 [2019] FWCFB 8538 Adler v Australian Securities and Investments Commission [2003] NSWCA 131; 21 ACLC 1810; 46 ACSR 504; 179 FLR 1 Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175 Atkins Freight Services Pty Ltd v Fair Work Ombudsman [2017] FCA 1134 Australian Beverage Distributors v Evans & Tate Premium Wines Pty Ltd [2006] NSWSC 560; 58...