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) at time of filing
Open Tiling Services Pty Ltd, Jae Jung Kim
Date filed
State/Territory
NSW
Alleged breach(es) at time of filing
Wages and entitlements
Status
Current
Summary at time of filing

The ABCC has filed proceedings in the Federal Circuit Court alleging NSW company Open Tiling Services Pty Ltd underpaid an employee more than $230,000 in wages, entitlements and superannuation.

Among the alleged contraventions, the ABCC claims Open Tiling 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.

It is also alleged Open Tiling failed to make and keep appropriate records and failed to give pay slips to the employee when required by law. Open Tiling director Mr Jae Jung Kim is alleged to be an accessory to the contraventions committed by Open Tiling.

In its statement of claim, the ABCC alleges:

  • In July 2015, Open Tiling hired the employee to perform tiling work. Open Tiling paid the employee a flat hourly rate and regularly required the employee to work 50 hours per week, including weekend work.
  • In January 2017, Open Tiling and the employee signed a written employment contract to facilitate the employee’s application for a 457 visa. Once this contract commenced in March 2018 (following the granting of the 457 visa), the employee continued to be paid less than he was entitled to under the relevant enterprise agreements.
  • In May 2019, Open Tiling terminated the employee without giving the minimum period of notice and failed to pay the employee his accrued annual leave on termination.  

It is alleged Open Tiling’s repeated pattern of underpayment of wages and entitlements over a prolonged period contravened the Fair Work Act 2009 by failing to:

  • Make and keep prescribed employee records
  • Give pay slips when required
  • Pay annual leave
  • Pay wages and entitlements in full and on time and
  • Give the minimum period of notice of termination or payment in lieu.

The ABCC is alleging Open Tiling’s underpayments totalled $232,505.24. In addition, $24,733.27 in superannuation contributions remain unpaid. To date the company has only repaid $21,500 of the underpayments to the employee with $211,005.24 yet to be paid.

The ABCC is seeking the repayment of all outstanding monies, along with the ordering of pecuniary penalties against Open Tiling and Mr Kim.

In this case, the maximum available penalty for each contravention is $54,000 for a body corporate and $10,800 for an individual in respect of contraventions that occurred between 31 July 2015 and 30 June 2017, and $63,000 for a body corporate and $12,600 for an individual in respect of contraventions that occurred on or after 1 July 2017.

Historical content

28 Sep 2020 - ABCC alleges NSW company underpaid worker more than $230,000