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Boutique firm penalised for underpaying staff
A Bankstown law firm has been hit with pecuniary penalties after it failed to pay an employee the minimum wage.
Naomi Neilson
The Federal Circuit and Family Court of Australia (FCFCOA) ordered El Baba Lawyers and sole director Mona El Baba to pay a pecuniary penalty of $12,000 and $2,400, respectively, for failing to comply with a compliance notice issued by the Fair Work Commission (FWC).
The compliance notice was issued in March 2021 following the commission’s investigation into the wage paid to a full-time employee between 20 July 2020 and 8 February 2021.
The FWC had found the employee was paid an hourly rate of $20.51 for a role within the “legal, clerical and administrative” level.
According to its website, the current national minimum wage is $23.30 per hour or $882.80 per 38-hour week before tax.
The compliance notice required the firm to remedy the contravention by identifying the hours the employee worked and the amount paid to him during the contravention period and to make a full payment of the difference it then calculated was missing from his wage.
Despite a deadline of April 2021, El Baba Lawyers failed to make the payment to the employee until the following April 2022.
In submissions to the FCFCOA, the FWC said the firm’s disregard for the notice was “intentional and reflective of the unwillingness of the respondents to comply with their obligations”.
It added that its investigators took “multiple steps” to encourage the firm to comply with the compliance notice before the deadline.
Its director submitted the firm is a small business and lacked the dedicated human resources and payroll support to comply and that any contravention was “borne out of a misunderstanding”.
However, Judge Nicholas Manousaridis found El Baba Lawyers and its director did not meaningfully engage with the FWC.
The judgment specifically referred to communication between the firm director and an FWC investigator in which the solicitor claimed no underpayment of wages had occurred and the employee “may have, in fact, overpaid pursuant to the employment contract”.
“The FWC provided to Ms El Baba extensive information that was relevant to Ms El Baba – a lawyer – to identify what the FWC alleged constituted the contravention of the Fair Work Act.
“Ms El Baba, however, persisted in asserting that [the employee] had been paid his wages in full, and in any event, EBL was entitled to withhold four weeks of his wages because of his alleged failure to give notice; and Ms El Baba did so without explaining why she considered her position was correct, and the position of the FWO was incorrect,” Judge Manousaridis said.
While Judge Manousaridis said he was prepared to accept that the firm director had “genuinely” believed the firm owed no wages to the employee, he does not accept her relief was “reasonable”.
The contravention was therefore characterised as “wilful refusal” based on an “unreasonable and unreasoned belief”.
Naomi Neilson
Naomi Neilson is a senior journalist with a focus on court reporting for Lawyers Weekly.
You can email Naomi at:
