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Perspective

General Manager relies on cultural differences to mitigate exploitation of workers

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Following an investigation into two Hello Juice Stores, the Fair Work Ombudsman (FWO) found various provisions of the Fair Work Act 2009 (Cth), Fair Work Regulations 2009 (Cth) and the Fast Food Industry Award 2010 had been by Skypac Group, Skypic Group and Mr Gong (the General Manager of both stores). The contraventions include:

  • underpayments of 29 employees totalling $38,458;
  • failure to meet requirements regarding pay slips and employee records;
  • making and using false and misleading records to conceal contraventions;
  • requiring some affected employees to pay back monies recovered as underpayments; and
  • failure to comply with a notice to produce.

Mr Gong claimed his conduct was impacted by a “Chinese Culture difference” and “average English”. The Federal Circuit Court rejected this as a mitigating factor.

Penalties imposed were:

  • Skypac Group: $161,988.75
  • Skypic Group: $80,325
  • Mr Gong: $34,616

See FWO v Skypac Group Pty Ltd & Ors [2020] FCCA 2332

Lessons

  1. Differing cultural views or norms cannot prevail over statutory requirements and constitute no excuse for contraventions. It’s an argument that is often put by employers and always fails. See FWO v Wongtas Pty Ltd (No 2) [2012] FCA 30 and FWO v New Shanghai Charlestown [2017] FCA 1301
  2. In determining a penalty for such contraventions, the court will consider any prior contraventions, the damage/loss suffered, whether they were deliberate, whether corrective action was taken and the need for specific and general deterrence. Grave contraventions, such as producing false or misleading records, merit a penalty at the higher end

Written by Nes Demir

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