In the case of Fair Work Ombudsman v Jooine (Investment) Pty Ltd & Anor [2013] FCCA 2144 the Fair Work Ombudsman successfully prosecuted a company and its director for breach of the sham contracting provisions in the Fair Work Act 2009 (Cth) (FWA) resulting in fines of over $50,000 on the company and the director. The penalties imposed were in addition to unpaid wages and entitlements owed to the worker.This case involved the engagement of a worker to undertake cleaning duties.
The factors that supported the finding that the worker was an employee were:
- The worker replied to an advertisement placed by Jooine and not the other way around
- The worker had no prior experience in running his own business
- The worker attended two days of training provided by Jooine and received instructions on duties to perform when cleaning
- The worker was provided with all products with which to carry out his duties except for the gloves
- The worker wore a uniform which contained Jooine’s name and logo
- The worker’s work was controlled by Jooine’s director and given feedback
- The worker was paid hourly rather than for the completion of work
The director was the sole director, secretary and shareholder of Jooine. The court found that the director was responsible for the day to day management, direction and control of Jooine’s operations, and that it was the cause of Jooine’s contraventions under the FWA. The director admitted to being involved in Jooine’s contravention of relevant sections of the FWA, thereby attracting personal liability in relation to the contraventions.
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