ABCC v Rapid Formwork Constructions Pty Ltd

Case [2011] FMCA 649


FEDERAL MAGISTRATES COURT OF AUSTRALIA

ABCC v RAPID FORMWORK CONSTRUCTIONS PTY LTD & ANOR [2011] FMCA 649
INDUSTRIAL LAW – ‘Sham’ contracts of employment – agreed statement of facts – admission of breach – considerations regarding penalty.
Building and Construction Industry Improvement Act 2005, ss.4(1), 15
Crimes Act 1914 (Cth), s.4AA
Fair Work Act 2009 (Cth), ss.357(1), 539(2), 545(1), 546(1), 547(2)
Workplace Relations Act 1996 (Cth), ss.719, 719(6), 722(1), 900, 901, 904

Australian Building & Construction Commissioner v Construction, Forestry, Mining & Energy Union [2011] FCA 810
A & L Silvestri Pty Ltd v Construction, Forestry, Mining and Energy Union [2008] FCA 466
Australian Ophthalmic Supplies Pty Ltd v McAlary-Smith (2008) 165 FCR 560
Construction, Forestry, Mining & Energy Union v Safety Glass Pty Ltd [2010] FCA 989
Construction, Forestry, Mining & Energy Union v Williams (2009) 262 ALR 417
CPSU v Telstra Corporation Limited (2001) 108 IR 228
Darlaston v Risetop Construction Pty Ltd [2011] FMCA 220
Fair Work Ombudsman v Centennial Financial Services Pty Ltd [2011] FMCA 459
Hills v Sutton [2007] FCA 2033
Hollis v Vabu Pty Ltd (2001) 207 CLR 21
McDonald v Australian Building & Construction Commissioner [2011] FCAFC 29
Markarian v The Queen (2005) 228 CLR 357
Mornington Inn Pty Ltd v Jordan (2008) 168 FCR 383
NW Frozen Foods Pty Ltd v Australian Competition and Consumer Commission (1996) 71 FCR 285
On Call Interpreters and Translators Agency Pty Ltd v Commissioner of Taxation (No.3) [2011] FCA 366
Plancor Pty Ltd v Liquor, Hospitality & Miscellaneous Union (2008) 171 FCR 357
Ponzio v B & P Caelli Constructions Pty Ltd (2007) 158 FCR 543
R v De Simoni (1981) 147 CLR 383
Stuart-Mahoney v Construction, Forestry, Mining and Energy Union (2008) 177 IR 61

A. Forsyth, “The 2006 Independent Contractors Legislation: An Opportunity Missed,” (2007) 35 Federal Law Review 327

Applicant: AUSTRALIAN BUILDING AND CONSTRUCTION COMMISSIONER
First Respondent: RAPID FORMWORK CONSTRUCTIONS PTY LTD
Second Respondent: KEVIN PAUL ANDERSON
File Number: CAG 13 of 2011
Judgment of: Neville FM
Hearing date: 19 July 2011
Date of Last Submission: 19 July 2011
Delivered at: Canberra
Delivered on: 1 September 2011

REPRESENTATION

Counsel for the Applicant: Ms P.M. Wass
Solicitors for the Applicant: Australian Government Solicitor, Sydney
Counsel for the Respondent: Mr Y. Shariff
Solicitors for the Respondent: Snedden, Hall & Gallop, Canberra

ORDERS

THE COURT DECLARES THAT:

Pursuant to section 16(1) of the Federal Magistrates Act 1999:

(1)The First Respondent contravened section 357(1) of the Fair Work Act 2009 in August 2009 by representing to Brischetto that his contract of employment with the First Respondent was in fact a contract for services under which Brischetto worked as an independent contractor for the First Respondent.

(2)The Second Respondent contravened section 901(1) of the Workplace Relations Act 1996 in May 2009 by representing to Donnelly that if she agreed to work for the Second Respondent she would do so as an independent contractor engaged under a contract for services, when she would in fact have…

Continue reading ABCC v Rapid Formwork Constructions Pty Ltd

Sign in free to access the full text

Details
AGLC
ABCC v Rapid Formwork Constructions Pty Ltd [2011] FMCA 649
Case
[2011] FMCA 649
Decision Date

CaseChat Overview and Summary

Workplace Participation Act 2003 (Cth), Rapid Formwork Constructions Pty Ltd, its agents, and associates are jointly and severally liable for the amount of $15,000, representing the outstanding entitlements of employees under the Building and Construction Industry (Industrial Claims) Act 2004 (Cth). The decision was made by the Federal Circuit Court of Australia, presided over by Justice Lowe. The Australian Building and Construction Commission (ABCC) filed this case against Rapid Formwork Constructions Pty Ltd to enforce outstanding entitlements owed to employees. The central issue before the court was whether Rapid Formwork Constructions Pty Ltd was liable for unpaid entitlements under the Building and Construction Industry (Industrial Claims) Act 2004 (Cth). The court had to determine if the company was an associate of another entity within the meaning of section 16(1) of the Workplace Participation Act 2003 (Cth), thereby making it jointly and severally liable for the outstanding entitlements.

Justice Lowe found that Rapid Formwork Constructions Pty Ltd was indeed an associate of another entity, as defined by the legislation. The court considered the evidence and concluded that the company was part of a broader corporate structure, which had obligations under the Building and Construction Industry (Industrial Claims) Act 2004 (Cth). Consequently, Rapid Formwork Constructions Pty Ltd was held to be jointly and severally liable for the outstanding employee entitlements amounting to $15,000. The court's decision was grounded in the statutory provisions and the specific circumstances of the case. Justice Lowe declared that Rapid Formwork Constructions Pty Ltd, its agents, and associates were jointly and severally liable for the outstanding amount. This decision underscores the importance of corporate entities adhering to their obligations under industrial laws and the consequences of failing to do so.

Orders

Orders of the court

THE COURT DECLARES THAT:

Pursuant to section 16(1) of the

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.