Fair Work Ombudsman Sandra Parker

August 20, 2021

A Maclagan dairy farmer has been fined $17,500 after failing to comply with a notice issued under the Fair Work Act.

The Fair Work Ombudsman secured the penalty in the Federal Circuit Court against sole trader Mark Leonard Hess.

The penalty was imposed in response to Mr Hess failing to comply with a Compliance Notice requiring him to back-pay an employee, and breaching record-keeping and pay slip laws.

Mr Hess back-paid the employee $6150.37 in wages and $548.28 superannuation only after the Fair Work Ombudsman began legal action.

Fair Work Ombudsman Sandra Parker said business operators that failed to act on Compliance Notices needed to be aware they could face court-imposed penalties on top of having to back-pay workers.

“When Compliance Notices are not followed, we are prepared to take legal action to ensure workers receive their lawful entitlements,” Ms Parker said.

“Any employees with concerns about their pay or entitlements should contact us for free advice and assistance.”

The affected worker, from France, was on a working holiday visa when he was employed by Mr Hess on a casual basis to do general farm work, house cleaning and to milk and feed cows.

The regulator commenced its investigation after the worker lodged a request for assistance.

A Fair Work Inspector issued a Compliance Notice to Mr Hess in February 2020 after forming a belief Mr Hess had underpaid the worker’s casual minimum rates and failed to pay him penalty rates for public holiday work, under the Pastoral Award 2010, between August and November, 2019.

The Notice required Mr Hess to calculate and back-pay the worker’s outstanding entitlements.

The contraventions occurred despite the Fair Work Ombudsman having formally cautioned Mr Hess, and educated him on his obligations, during a previous investigation in 2018.

Judge Michael Jarrett found that this increased the seriousness of the contraventions.

“The contraventions have come about as a result of a conscious and deliberate decision not to comply with the (Fair Work) Act. He has ignored reasonable warnings given to him by the (Fair Work Ombudsman),” Judge Jarrett said.

Judge Jarrett said there was a need to impose a penalty to deter Mr Hess from further contraventions.

“Moreover, the penalties should be set at a level to deter others who may engage in similar conduct and must not be seen by others as just an acceptable cost of doing business,” the judge said.

“I accept that recipients of statutory notices issued by the (Fair Work Ombudsman) must be under no misapprehension about their obligations to comply with those notices and that failure to do so will result in consequences.”

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