Case name
Australian Building and Construction Commissioner v Open Tiling Services Pty Ltd & Anor
Known as
Open Tiling
Commonwealth Courts Portal reference and link

SYG2121/2020

Applicant
Australian Building and Construction Commissioner
Respondent(s)
  • Open Tiling Services Pty Ltd
  • Jae Jung Kim
Date filed
State/Territory
NSW
Breach(es) found
Wages and entitlements
Status
Finalised
Date finalised
Link to liability and penalty judgment

Australian Building and Construction Commissioner v Open Tiling Pty Ltd & Anor

Summary of court decision

The Federal Circuit Court on 5 August 2021 awarded a New South Wales worker $88,949 in underpayments following ABCC legal action against his employer – Open Tiling Services Pty Ltd and its director Jae Jung Kim.

In addition to directing the company to pay outstanding wages and superannuation entitlements, Open Tiling Services was penalised $69,300 and Mr Kim $13,860 for their contraventions of the Fair Work Act 2009 (Cth).

In commencing legal action, the ABCC alleged the company contravened the National Employment Standards in the Fair Work Act 2009, and the terms of Open Tiling’s own enterprise agreements resulting in the employee, a Korean national, being significantly underpaid.

The Court found Open Tiling and Mr Kim failed to pay the employee minimum pay rates, public holiday and overtime rates, fare and meal allowances and failed to make regular superannuation contributions. The company also failed to provide the employee with pay slips.

The Court also found Open Tiling terminated the employee without giving the minimum period of notice and failed to pay him his accrued annual leave on termination.  

Judge Driver noted that while Mr Kim and Open Tiling relied on advice, which was incorrect, and took steps to rectify the underpayment when it was brought to their attention, the matter was relatively significant having regard to its effect on the employee.

Total Penalties
Penalties awarded against Penalties awarded
Open Tiling Pty Ltd $69,300
Jae Jung Kim $13,860
Total penalties $83,160

Open Tiling Services Pty Ltd and its director Jae Jung Kim were also required to pay the former employee $88,949 in underpayments.

Historical content

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