Yang v Fair Seafood Pty Ltd [2025] SAET 110

1. Ms Romeo acknowledges that Ms Yang has been underpaid. She stated the following in relation to annual leave:[3]

Balance at end of employment: 178.87406 hours (Exhibit B3)

Final Net Termination Payment as outlined on Guang's final payslip $7,283.20 (Exhibit B4). This includes payment for Annual Leave taken on 31.03.2025, Personal/Carer's Leave taken 01.04.2025 to 11.04.2025 as per Guang's medical certificate supplied by SAET on 21.08.2025 as Exhibit A6, Unused Leave Payment of 178.87 hours and Leave Loading of 17.5% for 178.87 hours. These amounts are subject to regular PAYG obligations.

The Amount of $7,283.20 will be paid in full into Guang's nominated bank account.

1. Ms Yang claims an amount of $10,457.75 for unpaid annual leave.[4] She stated that during the term of her employment, the name of the employing entity has changed several times, from Fair Seafood originally, to the Trust, and back to Fair Seafood.[5] The payslips Ms Yang submitted state that she was paid firstly by Fair Fish (SA) Co-operative Limited, then by Fair Seafood Pty Ltd, then by Fair Seafood Pty Ltd ATF the Fair Seafood Unit Trust and then by the Trustee for the Fair Seafood Unit Trust.
2. Ms Yang has set out the basis of her calculation in writing and has specified different rates and amounts payable for different periods of time. She also advised that whereas Fair Seafood's records showed her as having 87.1867 hours of annual leave at 7 July 2024, the records show the balance as 66.2 hours just one week later on 14 July 2024, without her having taken any paid leave during that time.[6]
3. I consider the calculations performed by Ms Yang to be more reliable and accurate than the records of Fair Seafood, which Ms Romeo acknowledged needed to be recalculated.
4. Fair Seafood is to pay Ms Yang $10,457.75 for unpaid annual leave.

1. Ms Romeo provided the following detail in relation to Ms Yang's outstanding entitlement to superannuation:[7]

I have provided a breakdown of superannuation accrual in line with Guang's Exhibit A2.

01/05/2023 - 25/06/2023 $498.64 (Exhibit B5)

26/06/2023 - 09/07/2023 $142.77 (Exhibit B6)

10/07/2023 - 23/06/2024 $5,407.10 (Exhibit B7)

24/06/2024 - 07/07/2024 $297.00 (Exhibit B8)

Total 01/05/2023 - 07/07/2024 $6,345.51 (Exhibit B9)

Total 08/07/2024 - 13/04/2025 $6,463.00 (Exhibit B10)

We have undertaken a bottom up audit of all of our obligations and as such have been working closely with the Australian Taxation Office to bring all outstanding obligations up to date. Therefore, all totals from Exhibit B9 & B10 have been lodged with the Australian Taxation Office via a Superannuation Guarantee Charge Statement. This process includes an automatic calculation of the interest payable (Exhibit B11).

1. The total amount payable as calculated by Ms Romeo is $12,808.51. Ms Yang claims $13,089.29. As Fair Seafood has lodged documentation with the ATO and as the amount payable will include an up-to-date calculation of the amount of interest payable, the order will be that Fair Seafood is to pay Ms Yang $12,808.51 plus interest at the prescribed rate.

1. Ms Yang took two weeks of sick leave towards the end of her employment which she claimed totalled 80.8117 hours. She claimed that she was mentally unwell and unable to work or focus on her work by reason of continuing to not be paid despite frequently raising that issue with Ms Romeo. The absence was covered by a sickness certificate.
2. Ms Romeo did not challenge the genuineness of Ms Yang's absence from work. In her written submissions, Ms Romeo wrote that Ms Yang was a highly skilled team member for whose departure has not been able to be filled by any other person. Having seen the diligence Ms Yang devoted to presenting her case, the comment is not surprising.
3. Ms Yang submitted that her ordinary hours of work were 40 hours per week and the rate of pay was $35 per hour. Ms Romeo did not disagree. Those amounts appear in the written contract of employment. There will be an order that $2,800 is payable for outstanding sick leave.

1. The contraventions of a modern award under s 45 of the FW Act are:
   • A failure to pay all hours worked;
   • A failure to pay all annual leave;
   • A failure to pay annual leave loading; and
   • A failure to pay superannuation.
2. The contravention of the National Employment Standards under s 44 of the FW Act is a failure to pay accrued leave and leave loading upon the cessation of Ms Yang's employment.
3. In Trade Practices Commission v CSR Limited, French J listed a range of factors that assist to determine what a suitable penalty is. They are: the nature and extent of the conduct; the circumstances in which the conduct took place; the nature and extent of any loss or damage sustained; any similar previous conduct; whether contraventions are properly distinct or arose out of one course of conduct; the size of the business enterprise involved; whether or not the contraventions were deliberate; whether senior management was involved in the contraventions; whether the party committing the contraventions has exhibited contrition; whether the party committing the contraventions has taken corrective action; whether the party committing the contraventions has co-operated with the enforcement authorities; the need to ensure compliance with minimum standards by provision of an effective means for investigation and enforcement of employee entitlements; and the need for specific and general deterrence.[8]
4. Ms Romeo submitted the following in relation to pecuniary penalties:[9]

Finally, in relation to the pecuniary penalties sought under sections 44, 45, and 323 of the Fair Work Act 2009 (Cth), we respectfully ask your Honour to consider the circumstances outlined above. It has always been our genuine intention to fulfil all payment obligations to Guang once the required documentation was in place. Throughout this period, we were also in communication with the ATO to address a number of longstanding issues that have impacted our business over the past 12 months.

We acknowledge that this situation has not been ideal, but we have faced a range of extenuating circumstances and have learned important lessons as a result. Despite multiple attempts to make contact, matters unfortunately became overwhelming. Additionally, it is important to acknowledge the sudden and unexpected departure of a valued and respected staff member. In reflection, it was surprising how quickly the tone of our text communications shifted over the course of just a few days. Guang was a highly skilled team member, and even as I write this, we have yet to find someone who can adequately fill the gap left by her unexpected departure. Compounding these difficulties has been the impact of a significant algae bloom over the past five months, which has further disrupted our operations.

We respectfully ask that our commitment to our staff and our ongoing efforts to support the business be taken into account, and that Your Honour consider that the imposition of a penalty may not be warranted in these circumstances.

Thank you for your time, and I sincerely apologise for any inconvenience or delay caused throughout this process.

1. The circumstances of this matter are regrettable. Fair Seafood valued Ms Yang but underpaid her over a protracted period of time. Not surprisingly, Ms Yang reached a point where she was not willing to tolerate that treatment.
2. There is no evidence of prior similar conduct by Fair Seafood. The non-payment of annual leave and superannuation are continuing courses of conduct while the failure to pay sick leave is more accurately construed as a one-off breach. The scale of the employer's operation is small. There are extenuating circumstances. I accept that Fair Seafood received bad advice about its legal status and accounting processes and that contributed to the underpayment because the records were inaccurate. Ms Romeo's marriage broke down during the period in issue. Fair Seafood has acknowledged its failure to pay Ms Yang, has expressed contrition and has approached the ATO to remedy the situation.
3. There is no need for specific deterrence given the acknowledgement that Mr Yang has been underpaid and the steps taken to remedy that. The need for general deterrence remains. It is not appropriate to not impose any pecuniary penalties as submitted by Fair Seafood. Pecuniary penalties of $2,000 in relation to unpaid sick leave, $8,000 in relation to unpaid annual leave and $12,000 in relation to unpaid superannuation will be ordered. The total amount payable by Fresh Seafood to Ms Yang is therefore $48,066.26 plus the amount of interest payable on unpaid superannuation calculated by the ATO.
4. Ms Yang also sought payment for time she took off work to attend the Tribunal to pursue her claim. There is no basis for such an award in the FW Act and I decline to make one. I make the following orders:
   1. Within 21 days the respondent, Fair Seafood Pty Ltd, is to pay the applicant, Guang Yang, the following sums:

$12,808.51 plus interest at the rate prescribed by the Australian Taxation Office for unpaid superannuation;

$2,000 as a pecuniary penalty for unpaid sick-leave;

$8,000 as a pecuniary penalty for unpaid annual leave;

$12,000 as a pecuniary penalty for unpaid superannuation.

1. The parties have liberty to apply in relation to the amount of interest payable on the unpaid superannuation.

[3] Respondent's Submissions 28 August 2025, 3 (Respondent's submissions).

[8] [1990] FCA 762; [1991] 13 ATPR 41-076 [42].