Alcantara & Anor v Buildpower Pty Ltd
[2010] FMCA 626
•30 August 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| ALCANTARA & ANOR v BUILDPOWER PTY LTD | [2010] FMCA 626 |
| INDUSTRIAL LAW – Alleged contravention of a requirement to produce employee records – whether prior production of employee records to Fair Work Ombudsman compliance with subsequent requests for production of same employee records by employees – power of Court to order production of employee records as part of relief. |
| PRACTICE AND PROCEDURE – Application by director of respondent company seeking leave to appear on behalf of respondent – principles relevant to grant of leave – proceedings not complex – objects and purposes of legislative provisions concerning representation – capability of director to conduct proceedings – effectiveness of representation by director – ability to obtain legal representation – whether leave to appear is opposed. |
| Corporations Act 2001 (Cth) Fair Work Act 2009 (Cth), ss.3(c), 12, 535(1) and (3), 545(1) and (2), 566, 682, 712 Fair Work (Registered Organisations) Act 2009 (Cth), s.353A(1) and (3)(a) Fair Work Regulations 2009 (Cth), reg.3.42 Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth), Sch.17, Item 20(1) Fair Work (Transitional Provisions & Consequential Amendments) Regulations 2009 (Cth), reg.2.03(2) Federal Magistrates Act 1999 (Cth), ss.10A, 44 Federal Magistrates Court Rules 2001 (Cth), r.9.04 Workplace Relations Act 1996 (Cth), ss.4, 836, 846 Workplace Relations Regulations 1996 (Cth), reg.19.4(1) and (2) |
| Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175; [2009] HCA 27 Australian Liangwei Enterprises Pty Ltd v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FMCA 289 Bankstown Handicapped Children’s Centre Association Inc & Anor v Hillman & Ors (2010) 182 FCR 483; [2010] FCAFC 11 Fair Work Ombudsman v Nerd Group Australia Pty Ltd & Anor [2010] FMCA 569 Groundwater v Territory Insurance Office (2004) 183 FLR 437; [2004] FMCA 381 Jarret v Westpac Banking Corporation [1999] FCA 425 R v Judges of the Federal Court of Australia; ex parte Western Australian National Football League (Inc) (1979) 143 CLR 190 Molnar Engineering Pty Ltd v Burns (1984) 3 FCR 68 Morien v Johnston [2006] FMCA 1918 Pittorino v Meynert & Ors [2001] WASC 245 Richardson v Leonard Cohen & Co [2007] FMCA 78 Sheahan & Le Poidevin Industries Pty Ltd v Northern Australian Land Agency Co Ltd & Ors (unreported, Supreme Court of South Australia, Perry J, 4 February 1993) Sheahan & Le Poidevin Industries Pty Ltd (in Liquidation) v Northern Australian Land and Agency Co Ltd & Ors (unreported, Full Court of Supreme Court of South Australia, 6 April 1994) Swevenings Pty Ltd v Ferguson Consolidated Holdings Pty Ltd & Anor (No. 2) [2008] FMCA 1582 Walker v Aztec Steel Pty Ltd [2010] FMCA 68 Welsh v Allblend Holdings Pty Ltd (No. 2) (2010) 239 FLR 234; [2010] FMCA 377 |
| Justice DA Ipp “Lawyers’ Duties to the Court” (1998) 114 LQR 63 |
| First Applicant: | FLORANTE ALCANTARA |
| Second Applicant: | THOMIE PACHO |
| Respondent: | BUILDPOWER PTY LTD |
| File Number: | PEG 64 of 2010 |
| Judgment of: | Lucev FM |
| Hearing date: | 17 August 2010 |
| Date of Last Submission: | 17 August 2010 |
| Delivered at: | Perth |
| Delivered on: | 30 August 2010 |
REPRESENTATION
| Counsel for the First and Second Applicants: | Mr J Nicholas |
| Solicitors for the First and Second Applicant: | Shannon Walker, CFMEU |
| For the Respondent: | Mr M Slabbert (by leave) |
ORDERS AND DECLARATIONS
Mr Michael Slabbert be granted leave under r.9.04 of the Federal Magistrates Court Rules, 2001 (Cth) to appear as a representative for the Respondent.
The Court declares that in relation to the First Applicant the Respondent contravened regulation 3.42(4) of the Fair Work Regulations 2009 (Cth) by failing to produce a legible copy of a requested employee record to the First Applicant as soon as practicable after receipt of a request dated 7 April 2010.
The Court declares that in relation to the Second Applicant the Respondent contravened regulation 3.42(4) of the Fair Work Regulations 2009 (Cth) by failing to produce a legible copy of a requested employee record to the Second Applicant as soon as practicable after receipt of a request dated 7 April 2010.
The Respondent provide to each Applicant legible copies of the employee records requested in each Applicant’s letter to the Respondent dated 7 April 2010, those records to be sent by registered post to the address provided by each Applicant in each Applicant’s letter to the Respondent dated 7 April 2010, and to be posted to each Applicant by 17 September 2010.
That there be a penalty hearing at 10.15am on 5 October 2010, and in relation thereto:
(a)the Applicants file and serve any further affidavits by 6 September 2010;
(b)the Respondent file and serve any further affidavits by 13 September 2010;
(c)the Applicants file and serve any further affidavits in reply by 20 September 2010;
(d)each party file and serve an outline of submissions by 27 September 2010; and
(e)that in the event of non-compliance with Order 4, the Applicants have leave to file a further affidavit concerning non-compliance by 4 October 2010.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PERTH |
PEG 64 of 2010
| FLORANTE ALCANTARA |
First Applicant
| THOMIE PACHO |
Second Applicant
And
| BUILDPOWER PTY LTD |
Respondent
REASONS FOR JUDGMENT
Introduction
The substantive Application is an application for orders under the Fair Work Act 2009 (Cth) with respect to an alleged contravention of a requirement to produce employee records to the two applicants, Mr Alcantara and Mr Pacho. There is also an Application in a Case by a director of the respondent company, Buildpower Pty Ltd,[1] Mr Michael Slabbert, to be granted leave to appear for Buildpower.
[1] “Buildpower”.
Facts
The bare facts of this matter are that:
a)the applicants each made a request on 7 April 2010 for Buildpower to provide them with certain employee records;
b)Buildpower did not provide the employee records in accordance with the applicants’ requests, and says that the employee records requested were previously provided to the Fair Work Ombudsman in response to a request made by the Fair Work Ombudsman for the same records in September 2009.
Application in a Case for leave to appear
The Application in a Case is for leave for Mr Slabbert to represent Buildpower in these proceedings.
Affidavit evidence
An affidavit was tendered in support of the Application in a Case.[2] Mr Slabbert’s August 2010 Affidavit attested to the following facts relevant to the Application in a Case:
a)that Buildpower had ceased trading;
b)that Buildpower has no revenue coming in;
c)that Buildpower has no money in its bank account;
d)that Mr Slabbert had approached a firm of solicitors, but they were not able to represent Buildpower because there was no guarantee of their being paid;
e)that as a director of Buildpower Mr Slabbert felt it would be irresponsible to go into debt when there was no means of paying the solicitors for their services;
f)that Mr Slabbert has been unable to get a job and is enrolled as a student; and
g)that Mr Slabbert is not in a position to loan Buildpower any money to afford legal representation.
[2] Affidavit of Michael Charles Slabbert, sworn 16 August 2010 (“Mr Slabbert’s August 2010 Affidavit”).
The Court notes that the assertions made are bare assertions, in respect of which there is no documentary corroborative evidence, such as bank accounts, profit and loss statements, lists of assets or mortgages in relation to any property. However, for present purposes, those facts were not disputed, because the applicants did not seek to cross-examine Mr Slabbert on Mr Slabbert’s August 2010 Affidavit in relation to the application for leave to appear, but reserved their rights to do so with respect to issues of liability and penalty.
Leave to appear not opposed
The applicants did not oppose Mr Slabbert being granted leave to appear, their Counsel explaining that they took the expedient view that the matter having been listed for hearing today it was the preference of the applicants to proceed with the hearing.
Legislative provisions concerning the right to appear
Section 44 of the Federal Magistrates Act 1999 (Cth)[3] provides as follows:
A party to a proceeding before the Federal Magistrates Court is not entitled to be represented by another person unless:
(a) under the Judiciary Act 1903, the other person is entitled to practise as a barrister or solicitor, or both, in a federal court; or
(b)under the regulations, the other person is taken to be an authorised representative; or
(c) another law of the Commonwealth authorises the other person to represent the party.
[3] “FM Act”.
Rule 9.04 of the Federal Magistrates Court Rules 2001 (Cth)[4] provides as follows:
Except as provided by or under an Act or regulations made under an Act, or with the leave of the Court, a corporation may not start or carry on a proceeding otherwise than by a lawyer.
[4] “FMC Rules”
Section 353A of the Fair Work (Registered Organisations) Act 2009 (Cth)[5] applies in relation to proceedings in the Fair Work Division of the Federal Magistrates Court. [6] This matter is such a proceeding.[7] Section 353A provides for certain rights of appearance in the Federal Magistrates Court by officers of organisations registered under the FW (RO) Act. [8] Mr Slabbert did not seek leave to appear under s.353A of the FW (RO) Act, and, in any event it was not contended, nor was there any evidence, that he was an officer of a registered organisation.
[5] “FW (RO) Act”.
[6] See FM Act, s.10A establishing General and Fair Work Divisions of this Court; FW Act, s.566; Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth), Sch.17, Item 20(1). As to the issue of whether proceedings are instituted and heard in the Fair Work Division or the General Division of this Court see also Welsh v Allblend Holdings Pty Ltd (No. 2) (2010) 239 FLR 234; [2010] FMCA 377.
[7] FW (RO) Act, s.353A(1)
[8] FW (RO) Act, s.353A(3)(a).
The purpose underlying restrictions on appearance
The purpose underlying legislative provisions that restrict appearances in federal courts, generally to legal practitioners, is to ensure that, in the interests of justice and the administration of justice,[9] the Court is assisted by those qualified and experienced in arguing legal disputes and who have ethical duties to clients and the courts. Legal practitioners may also be of considerable assistance to the Court in the proper assessment of fact.[10]
[9] Groundwater v Territory Insurance Office (2004) 183 FLR 437 at 445 per Brown FM; [2004] FMCA 381 at para.40 per Brown FM.
[10] Molnar Engineering Pty Ltd v Burns (1984) 3 FCR 68 at 74 per Smithers J (“Molnar Engineering”).
In determining whether to grant leave under r.9.04 of the FMC Rules, this Court has previously considered the applicability of a number of factors, including the following:
a)the relative complexity or simplicity of a matter;[11]
b)whether a non-lawyer appears, or has previously appeared, for any of the parties;[12]
c)the objects and purposes of the FM Act and FMC Rules, including the impact of those objects and purposes on case management considerations;[13]
d)whether a party can be effectively represented without a lawyer appearing, and whether prejudice will be suffered by any party by reason of the appearance or non-appearance of a lawyer for a party;[14] and
e)whether there has been appropriate opportunity to arrange legal representation.[15]
Obviously, the above is not a closed list of factors.
[11] Walker v Aztec Steel Pty Ltd [2010] FMCA 68 at para.9 per Lucev FM (“Aztec Steel”).
[12] Aztec Steel at para.9 per Lucev FM.
[13] Swevenings Pty Ltd v Ferguson Consolidated Holdings Pty Ltd & Anor (No. 2) [2008] FMCA 1582 at paras.64-65 per Lucev FM (“Swevenings (No. 2)”); Aztec Steel at para.9 per Lucev FM.
[14] Swevenings (No. 2) at para.48 per Lucev FM, citing Jarret v Westpac Banking Corporation [1999] FCA 425 at para.26 per Carr J.
[15] Australian Liangwei Enterprises Pty Ltd v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FMCA 289 at para.2 per Nicholls FM.
A discretion of the kind contained in r.9.04 of the FMC Rules must be exercised judicially and having regard to all relevant considerations.[16]
[16] MolnarEngineering at 73 per Smithers J.
Nature of the matter
The matter is a simple one. There is a straightforward question as to whether or not the applicants’ requests for employment records have been complied with. In relevant respects the facts are not complex, and many of the facts are not actually in dispute. There might be some difficulty occasioned by an advocate for the respondent in the hearing giving evidence, but for reasons set out below, the Court is of the view that that is not a concern in this matter.
The nature of the matter is therefore sufficiently simple to not require a lawyer to appear for Buildpower.
Whether a non-lawyer appears or has appeared previously for any of the parties
The applicants are represented, and have been represented throughout, by a solicitor appearing as Counsel on instructions from their solicitor, or their solicitor, both of whom are employed as Legal Officers with the Construction, Forestry, Mining and Energy Union.
Mr Slabbert was not granted leave to appear at the first directions hearing for Buildpower, but the matter was not then the subject of proper argument before, or considered reasons by, the Court, and Mr Slabbert now seeks leave to appear for Buildpower having filed the Application in a Case and supporting affidavit evidence.
This is not a factor which, on the above facts, tells for or against a lawyer appearing for Buildpower.
Objects of the FM Act, FMC Rules and case management considerations
In relation to the objects of the FM Act and the FMC Rules, in the context of case management considerations, this Court has recently observed that:
20. In exercising any discretion, the Court must take into account the objects of the FM Act in s.3, the mode of operation of the Court in s.42 of the FM Act, and the objects of the FMC Rules in r.1.03, which make it apparent that the Court is intended to operate in a manner:
a) as informal as possible in the exercise of judicial power;
b) which is not protracted in its proceedings;
c) which resolves proceedings justly, efficiently and economically;
d) which uses streamlined procedures; and
e) that avoids undue delay, expense and technicality.
21. This Court’s objects and purposes reflect much of the modern approach to case management, particularly of interim or procedural applications, especially recognising the need for proceedings to be resolved justly, whilst placing emphasis on the need for efficiency, economy and the avoidance of delay and expense, and are not inconsistent with the approach adopted by the High Court in Aon Risk Services Australia Limited v Australian National University[17] where it was said that in respect of procedural and case management issues, the following must be taken into account:
a) the paramount consideration of doing justice between the parties, but observing that a just resolution must have regard to any relevant legislative purpose or object;
b) modern principles of case management;
[17] Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175; [2009] HCA 27 (“Aon Risk Services”).
c) the avoidance of undue delay; and
d) the wastage of public resources.[18] [19]
[18] Aon Risk Services CLR at 192 per French CJ and 213-215 per Gummow, Hayne, Crennan, Kiefel and Bell JJ; HCA at para.30 per French CJ and paras.97-103 per Gummow, Hayne, Crennan, Kiefel and Bell JJ.
[19] Fair Work Ombudsman v Nerd Group Australia Pty Ltd & Anor [2010] FMCA 569 at paras.20-21 per Lucev FM. The two preceding footnotes are footnotes in the quoted judgment.
If Buildpower appears without a lawyer in these proceedings the Court does not consider that the interests of justice, the administration of justice or the just resolution of these proceedings will be affected. For reasons set out above the matter is not complex. It involves an application of a simple regulation to a simple set of facts, and it is evident from the submissions filed on behalf of the parties, that although they disagree as to the ultimate disposition of the matter, they appreciate generally the nature of issues. There are perhaps some irrelevant issues raised in the written submissions of Buildpower, which have been prepared and filed by Mr Slabbert, but they are not of such a magnitude that the Court cannot deal with them, especially if it has such assistance as can be gained from both parties in the course of a hearing.
To insist upon a lawyer appearing for Buildpower would also entail significant delay, especially in the context of a case which has been brought to hearing before this Court in under four months. For a lawyer to be found now would require an adjournment of the proceedings, and might require further delay if the lawyer perceives that Buildpower’s Response requires amendment, or that further evidence needed to be led. Such a course is likely to entail, contrary to the objects of the FM Act and FMC Rules, a delay and protraction of proceedings by at least three to four months.
It is assumed in what is said immediately above that a lawyer could be found to deal with the matter. On the evidence as it presently stands it is fair to conclude that Buildpower would have difficulty in finding a lawyer prepared to act on its behalf.
In the circumstances, and given the relative simplicity of the proceedings, there is very little utility in requiring a lawyer to appear for Buildpower.
Any difficulties that arise from Mr Slabbert’s lack of familiarity as a non-lawyer with procedure, or the introduction of irrelevant material, can and will have to be dealt with in the course of hearing. One obvious difficulty arises from the fact that Mr Slabbert is likely to be both advocate and witness. Counsel cannot be both advocate and witness because of the perceived lack of objectivity, and the requirement for independence arising from Counsel’s position as an officer of the Court.[20] Given that Mr Slabbert is a director of Buildpower, and not an officer of the Court, this colours his independence and objectivity in any event, and the Court will simply have to make appropriate allowance for that fact. The facts of the matter are such that Mr Slabbert’s involvement in relevant events is unlikely to cause significant difficulties in his being cross-examined, or more particularly, in his cross-examination of other witnesses. The facts are within a very limited compass and the Court considers that appropriate directions from it, if needed, can prevent cross-examination from descending into argument rather than question and answer.
[20] As to Counsel and solicitors not appearing as a witness in proceedings in which they seek to appear in those roles, see Richardson v Leonard Cohen & Co [2007] FMCA 78 at footnote 19 per Lucev FM where the Court said “The practice of solicitor also appearing as counsel in circumstances where the solicitor/counsel has sworn an affidavit, or is likely to have to give evidence, is not one to be encouraged. The difficulties that may arise are many, and ought to be manifest” and referred to Sheahan & Le Poidevin Industries Pty Ltd v Northern Australian Land Agency Co Ltd & Ors (unreported, Supreme Court of South Australia, Perry J, 4 February 1993) at paras.3-18 (“Sheahan No.1.”); Pittorino v Meynert & Ors [2001] WASC 245 at paras.7-10 per Bredemeyer M; Justice DA Ipp “Lawyers’ Duties to the Court” (1998) 114 LQR 63 at 92. See also Morien v Johnston [2006] FMCA 1918 at para.54 per Lucev FM; and Sheahan & Le Poidevin Industries Pty Ltd (in Liquidation) v Northern Australian Land and Agency Co Ltd & Ors (unreported, Full Court of Supreme Court of South Australia, 6 April 1994) at paras.36-43 per Olsson J, in which case the Full Court dismissed an appeal against the judgment in Sheahan No. 1.
It would therefore not be inconsistent with the objects and purposes of the FM Act, the FMC Rules and case management considerations for Mr Slabbert to represent Buildpower in these proceedings.
Effectiveness of representation and prejudice
Buildpower can, in the Court’s view, be sufficiently effectively represented by allowing Mr Slabbert to appear. Mr Slabbert appears to know and understand the facts, and to comprehend the competing contentions, and be able to articulate them sufficiently, as he has done in written submissions filed for Buildpower, to enable him to effectively represent Buildpower in this relatively simple case.
From a purely practical viewpoint it is likely, given Buildpower’s circumstances, that Mr Slabbert is the only person who can, or will, appear, and give evidence, on behalf of Buildpower. To deny Mr Slabbert the right to appear for Buildpower would be to deny Buildpower a right to appear, and even though Mr Slabbert could still give evidence if he was denied the right to appear, the denial of a right to appear in the circumstances would be a greater prejudice to Buildpower than allowing Mr Slabbert to appear. In the circumstances, to deny a right of appearance would be unfairly prejudicial and lack utility.
Therefore, having regard to the greater effectiveness of representation if Mr Slabbert appears, and the greater prejudice to Buildpower if Mr Slabbert does not appear, the Court considers that these factors favour Mr Slabbert being granted leave to represent Buildpower.
Opportunity to arrange legal representation
Buildpower has had the opportunity to, but has not been successful in, arranging legal representation. Although the efforts made to obtain legal representation have, on the evidence, been singular rather than extensive,[21] there is no reason to consider that more extensive efforts might have afforded a different outcome.
[21] Mr Slabbert’s August 2010 Affidavit, para.2.
Whether leave to appear is opposed
Representation of Buildpower by a non-lawyer is not opposed in this case by the applicants, with the expedience of having the matter disposed of being uppermost in the applicants’ minds.[22]
[22] Transcript at 2 and 4.
Whether leave to appear by a non-lawyer is opposed is a relevant consideration for the Court in determining whether to grant leave to a non-lawyer to appear in a matter. That consideration must be tempered by a further consideration: namely, vigilantly ensuring that any concession that a non-lawyer may appear is not made in the pursuit or hope of undue forensic advantage to the party making the concession, where that party is represented by a lawyer. It must be recognised that in the majority of cases there will be some forensic advantage to a party represented by a lawyer over a party not represented by a lawyer. The Court’s task is to ensure that any concession to a non-lawyer appearing does not give such a forensic advantage as to improperly prejudice the party represented by a non-lawyer.
In this case the nature of the matter is sufficiently simple, and Mr Slabbert is sufficiently well informed about the matter, for him to be able to represent Buildpower, of which he is a director, without his representation improperly prejudicing Buildpower.
Leave to represent – conclusion
For the above reasons, the Court decided on the day of the hearing that Mr Slabbert was to be granted leave under r.9.04 of the FMC Rules to appear as a representative of Buildpower.
The Application
The substantive Application seeks the following relief:
1.Declarations that the Respondent has breached Regulation 3.42(4) of the Fair Work Regulations 2009 in relation to the First and Second Applicant.
2.An order for pecuniary penalties for breach of a civil remedy provision under s546 of the Fair Work Act 2009.
3.An order under s545 the Fair Work Act 2009 for the production of legible employee records in relation to the First and Second Applicant.
The grounds of the Application are that Buildpower failed to provide as soon as practicable upon request legible employee records detailing the applicant’s time and wages records as required under reg.3.42(4) of the Fair Work Regulations 2009 (Cth).[23]
[23] “FW Regulations”.
Employee requests for employee records
Regulation 3.42 of the FW Regulations provides as follows:
(1) For subsection 535 (3) of the Act, an employer must make a copy of an employee record available for inspection and copying on request by the employee or former employee to whom the record relates.
Note Subregulation (1) is a civil remedy provision to which Part 4-1 of the Act applies. Division 4 of Part 4-1 of the Act deals with infringement notices relating to alleged contraventions of civil remedy provisions.
(2) The employer must make the copy available in a legible form to the employee or former employee for inspection and copying.
Note Subregulation (2) is a civil remedy provision to which Part 4-1 of the Act applies. Division 4 of Part 4-1 of the Act deals with infringement notices relating to alleged contraventions of civil remedy provisions.
(3) If the employee record is kept at the premises at which the employee works or the former employee worked, the employer must:
(a) make the copy available at the premises within 3 business days after receiving the request; or
(b) post a copy of the employee record to the employee or former employee within 14 days after receiving the request.
Note Subregulation (3) is a civil remedy provision to which Part 4-1 of the Act applies. Division 4 of Part 4-1 of the Act deals with infringement notices relating to alleged contraventions of civil remedy provisions.
(4) If the employee record is not kept at the premises at which the employee works or the former employee worked, the employer must, as soon as practicable after receiving the request.
(a)make the copy available at the premises; or
(b)post a copy of the employee record to the employee or former employee.
Note 1 Subregulation (4) is a civil remedy provision to which Part 4-1 of the Act applies. Division 4 of Part 4-1 of the Act deals with infringement notices relating to alleged contraventions of civil remedy provisions.
Note 2 Under the Act, an inspector is also permitted to inspect and copy an employee record for the purposes of the Act. The inspector may also require the production of the employee record.
Section 535 of the FW Act provides that:
a)an employer must make, and keep for 7 years, employee records of the kind prescribed by the FW Regulations in relation to each of an employer’s employees;[24] and
b)the FW Regulations may provide for inspection of employee records which employers are obliged to keep.[25]
[24] FW Act, s.535(1).
[25] FW Act, s.535(3).
Although the employee records which have been requested relate to a period which includes a period prior to the FW Act coming into operation, the relevant transitional provisions provide that reg.3.42 of the FW Regulations applies to the records, including those records which were required to be kept under the relevant provisions of the Workplace Relations Act 1996 (Cth)[26] and Workplace Relations Regulations 1996 (Cth).[27]
[26] “WR Act”.
[27] “WR Regulations”. WR Act, ss.836 and 846; WR Regulations, reg.19.4(1) and (2); Fair Work (Transitional Provisions & Consequential Amendments) Regulations 2009 (Cth), reg.2.03(2) (“FW (Transitional) Regulations”).
Agreed facts
Some facts were expressly agreed by the parties. A short Statement of Agreed Facts was tendered at hearing. The Statement of Agreed Facts provided as follows:
1.Buildpower Pty Ltd (Buildpower) is, and was at all material times a proprietary company limited by shares, registered under the Corporations Act 2001 (Cth).
2Buildpower engaged in trade between January 2007 and February 2009.
3.Buildpower employed Florante Alcantara (Alcantara) as a bricklayer between on or about 24 February 2007 and on or about 13 January 2009. Alcantara performed worked [sic] at multiple building sites.
4.Buildpower employed Thomie Pacho (Pacho) as a bricklayer between on or about February 2007 and on or about 15 February 2009. Pacho performed worked [sic] at multiple building sites.
5.Buildpower made records relating to Alcantara’s and Pacho’s employment, including records of the hourly rate of pay, the number of hours worked each week, the weekly gross and net pay and superannuation contributions. Buildpower did not keep any of Alcantara’s or Pacho’s employment records at the sites at which they worked.[28]
[28] “Statement of Agreed Facts”.
Each applicant requested employee records in separate letters dated 7 April 2010 addressed to Buildpower but which were in identical terms as follows:
Mr Michael Slabbert
C/ D Baker & Associates
Unit 14-10 Farrall Rd
Midvale WA 6056Dear Sir
AUTHORITY TO ACT & REQUEST FOR EMPLOYEE RECORDS
I hereby authorise the CFMEU to act as my Agent and Representative in relation to all matters pertaining to my current and/or previous employment with your company and to access and receive copies of all employee records, documents, reports or other information relating to my current and/or previous employment with your company
Please provide me all employee records relating to all periods of my employment with your company.
Part 3-6, Division 3, Subdivision 1 of the Fair Work Regulations 2009 sets out the kinds of records that must be made and kept for 7 years as required by Section 535 of the Fair Work Act 2009.
Regulation 3.42 of the Fair Work Regulations 2009 requires that copies of the requested employee records be provided within 14 days of receipt of this request. A copy of the relevant section of the Regulations is enclosed.
The requested employee records can be posted to my Agent and Representative as follows-
CFMEU
PO Box 6681
EAST PERTH WA 6892Attn: Shannon Walker
I reserve all my rights if the requested records are not provided within 14 days. Thank you for your attention to this matter.[29]
[29] Affidavit of Shannon Walker, sworn 28 April 2010 (“Ms Walker’s Affidavit”), paras.3 and 6 and Annexures SW1 and SW2 (“Employee Records Requests”).
The Employee Records Requests were sent by registered post on 7 April 2010, and received by the addressee on 9 April 2010.[30]
[30] Ms Walker’s Affidavit, paras.4 and 7 and Annexures SW1 and SW2.
No issue was taken in these proceedings with the fact that the addressee in the Employee Records Requests is “Mr Michael Slabbert” rather than “Buildpower”. Mr Slabbert considered the Employee Records Requests to be directed to Buildpower.[31]
[31] Transcript at 25.
Buildpower conceded that no issue was taken with the applicants’ authorisation of the CFMEU to act as agent and representative for each of them.[32]
[32] Transcript at 27.
The requested employee records were not kept at the premises at which the applicants worked for Buildpower, but rather at the premises of Buildpower’s bookkeeper in Rockingham, and were therefore not available to the applicants at the premises at which they worked for Buildpower.[33]
[33] Transcript at 26-29.
There was evidence that a period of 14 days was sufficient for Buildpower to obtain, copy and provide the employee records to the applicants.[34] Self-evidently therefore if the Employee Records Requests had not been met by the time the Application was filed on 29 April 2010, then the requested employee records were not provided “as soon as practicable” as required by reg.3.42(4) of the FW Regulations.
[34] Transcript at 27.
Buildpower does not dispute that the Employee Records Requests of 7 April 2010 were not complied with at any time after 7 April 2010.[35]
[35] Transcript at 26-27.
On the face of it, the applicants have established a breach of reg.3.42(4) of the FW Regulations by reason of the failure of Buildpower to provide to each of the applicants a copy of their employee record as soon as practicable after receiving the Employee Records Requests.
Buildpower’s contentions
Buildpower nevertheless contends that it has not breached reg.3.42 of the FW Regulations.
In summary, Buildpower’s contentions, as filed with the Court, are as follows:
3.1The Respondent is not at all relevant times engaged in trade.
3.2The employee records are not kept at the premises.
3.3The applicants have made no attempt to inspect the records.
3.4The records have been available and remain available for inspection by the Applicant’s [sic] and can be inspected at the premises by the Applicant’s [sic].
3.5The Respondent has provided the records to the CFMEU care of the Fair Work Ombudsman.
3.6The Respondent has requested the Applicants to provide a postal address so that the records can be mailed registered mail to them individually.
3.7The Applicant’s [sic] have refused to provide a mailing address.
3.8The Respondent has been unable to contact the Applicant’s [sic] in any manner except via the CFMEU and again states that it has provided the CFMEU with the records.
4. Conclusion
4.1The Respondent will make the records available for inspection by the Applicant’s [sic] at the former business premises within a reasonably agreed time frame.
4.2If the Applicant’s [sic] provide a postal address to the Respondent then the records will be sent registered mail to the address provided.
4.3The Respondent has not breached Regulation 3.42 of the FW Regulation.
Credibility
There are some conflicts between the evidence of Mr Slabbert and Ms Walker which necessitate the Court forming a view as to which witnesses’ evidence it prefers in the event of conflict.
Mr Slabbert had a tendency to be argumentative in his evidence, and there were significant inconsistencies or illogical difficulties with much of his evidence, brief as it was. For example, his insistence that Buildpower was willing to provide the employee records to the applicants at all times contrasts starkly with his refusal to provide them to the applicants at an address nominated by them care of the CFMEU. Further, his evidence that he believed that the Fair Work Ombudsman had obtained the documents for and on behalf of the CFMEU is, for reasons set out below, a view, upon which he insisted, but which requires a strained reading of Mr Chapple’s email. The Court has no doubt that Mr Slabbert believes what he said to the Court, but it is a belief which has the appearance of being borne of wanting to believe a version of events consistent with Buildpower’s argument in the matter. Mr Slabbert’s argumentativeness, and the inconsistencies pointed out above, meant that he was not as impressive a witness as Ms Walker. Ms Walker gave her evidence calmly. That evidence was consistent, and, in any event, when considered overall is more likely to be accurate, particularly having regard to the documentary evidence, but also in relation to what might be expected to be the normal course of events. For those reasons, the Court prefers the evidence of Ms Walker in the event of any conflict with the evidence of Mr Slabbert.
Constitutional corporation
The assertion by Buildpower that it was not engaged in trade at all relevant times, and the implication that follows, namely that it is not a constitutional corporation[36] for relevant purposes, has been superseded by the Statement of Agreed Facts in which Buildpower concedes that it:
a)engaged in trade between January 2007 and February 2009; and
b)was at all material times a proprietary company limited by shares, registered under the Corporations Act 2001 (Cth).[37]
[36] WR Act, s.4; FW Act, s.12.
[37] Statement of Agreed Facts, para.1.
Mr Slabbert also gave evidence that Buildpower was engaged in trade, namely building construction, during the period that the applicants were employed.[38] Although the evidence is general in nature, it is clear that Buildpower was a corporation engaged in activities of a commercial nature with a view to earning revenue, and that those commercial revenue-oriented activities were a significant or substantial part of its activities. They were trading activities, and Buildpower is therefore a trading corporation, and a constitutional corporation for relevant purposes.[39]
[38] Transcript at 17.
[39] Bankstown Handicapped Children’s Centre Association Inc & Anor v Hillman & Ors (2010) 182 FCR 483 at 509-512 per Moore, Mansfield and Perram JJ; [2010] FCAFC 11 at paras.48-53 per Moore, Mansfield and Perram JJ; R v Judges of the Federal Court of Australia; ex parte Western Australian National Football League (Inc) (1979) 143 CLR 190 at 233 and 235 per Mason J.
Inspection of records
With respect to the contention that the applicants have made no attempt to inspect the records, said to have been available and to remain available for inspection at the premises by the applicants, the evidence discloses the following:
a)that the applicants were employed on multiple building sites;[40]
b)that the employee records are not kept at any of the sites at which the applicants were employed;[41] and
c)that at no stage did Mr Slabbert tell the CFMEU, who were the authorised agents and representatives of the applicants from 7 April 2010, that the employee records were available at any premises controlled by Buildpower, but rather sought from the CFMEU, and in particular Ms Walker, the residential or work addresses of the applicants so that the employee records could be posted to those addresses, rather than the address provided by the applicants care of the CFMEU.[42]
[40] Statement of Agreed Facts, paras.3-4.
[41] Statement of Agreed Facts, para.5; Transcript at 16-17 and 27
[42] Transcript at 13 and 18-19.
It is therefore not the case that the records were made available for inspection by Buildpower at any premises at any time subsequent to the Employee Records Requests made on 7 April 2010. Therefore, reg.3.42(4)(a) of the FW Regulations has not been complied with insofar as it requires Buildpower to make a copy “available at the premises”, those premises being, in the context of the regulation, the premises at which the applicants “worked”. There is no evidence that the copies of the employee records requested were made available at any of the premises at which the applicants formerly worked for Buildpower. In that regard, the Court notes that there is no evidence that the applicants worked at the registered address of Buildpower, which appears to be the address of a firm in Midland (presumably an accounting firm) or at the principal place of business of Buildpower, being an address in Mosman Park,[43] which corresponds with the address given by Mr Slabbert in his evidence to the Court and which appears as his address as a director, company secretary and shareholder in the corporate records tendered in evidence in the proceedings.[44]
[43] Exhibit 2.
[44] Exhibit 2.
In the above circumstances, there is no evidence that reg.3.42(4)(a) of the FW Regulations has been complied with by Buildpower in relation to the employee requests of 7 April 2010.
Provision of records to the CFMEU care of the Fair Work Ombudsman
Buildpower’s primary argument was that the Employee Records Requests made on 7 April 2010 had been complied with by the provision of the relevant records to the Fair Work Ombudsman. It was argued that the Fair Work Ombudsman had obtained the records, for and on behalf of and at the behest of the CFMEU, in September 2009, some eight months before the Employee Records Requests were made
In this regard there was evidence from Mr Slabbert that:
a)the CFMEU have refused to give the addresses of the applicants so that the applicants can be provided with the records;
b)he believed the CFMEU engaged the Fair Work Ombudsman who requested the records;
c)the Fair Work Ombudsman was provided with, and acknowledged receipt of, the records; and
d)the Fair Work Ombudsman had relayed his satisfaction to Buildpower that Buildpower had complied in full with the Fair Work Ombudsman’s requests, and that he believed the records were passed on to the CFMEU and the applicants.[45]
[45] Affidavit of Michael Charles Slabbert, sworn 11 May 2010 (“Mr Slabbert’s May 2010 Affidavit”).
Mr Slabbert gave oral evidence to similar effect, asserting that in September 2009 he provided all of the relevant employee records to the Fair Work Ombudsman, and that he understood that the Fair Work Ombudsman was obtaining the records for and on behalf of the CFMEU, and had in fact passed the records on to the CFMEU.
Evidence was given by Ms Walker, a solicitor employed by the CFMEU with conduct of the matter within the CFMEU’s office, that the Fair Work Ombudsman had obtained employee records in relation to the applicants, and that that had been done after the CFMEU complained to the Fair Work Ombudsman about alleged underpayment of the applicants. Ms Walker did not dispute that the Fair Work Ombudsman had passed to the CFMEU those records provided to the Fair Work Ombudsman by Buildpower. She did however dispute that the actions undertaken by the Fair Work Ombudsman were done on behalf of the CFMEU.
Buildpower’s argument is based on an assertion by Mr Slabbert that he was told by Mr Ashley Chapple, a Senior Fair Work Inspector, that the Fair Work Ombudsman was acting at the request, or on behalf of, the CFMEU.
On 9 September 2009 Mr Slabbert received an email from Mr Chapple in the following terms:
Thankyou for previously providing the attached records for former Buildpower Pty Ltd employees Mr Florante Alcantara and Mr Thomie Pacho in accordance with the record-keeping requirements of the Workplace Relations Act 1996 and the Workplace Relations Regulations 2006. As indicated, the records were passed onto the CFMEU as they had sought access to these records on behalf of their members (Mr Alcantara and Mr Pacho).
The CFMEU have now contacted me back to advise that the records provided do not cover quite the entire employment period for both Mr Alcantara and Mr Pacho. Both Mr Alcantara and Mr Pacho are alleged to have commenced work in February 2007 with Buildpower Pty Ltd. Upon review of the records, I now see that the records previously provided (attached) only commence from 1 July 2008 onwards.
Could you please arrange for the same payroll report to be run for both Mr Alcantara and Mr Pacho for their earlier period of work (ie prior to 1 July 2008) and provided to me? This would mean running the report from 1 February 2007 until 30 June 2008, so that when it is combined with the previously provided report it would form a complete record for the entire employment period.
I am happy for you to just email the report through to me in PDF format as per the last report. If this is achievable in the next couple of days I am happy to do it without issuing any formal requests/requirements, but if it is to take longer I will issue a formal request on Monday morning (14 September 2009) in accordance with record-keeping regulations.[46]
[46] Mr Slabbert’s May 2010 Affidavit, Annexure C4.
Mr Slabbert provided records:
a)via his bookkeeping service, being a wages report for the financial year 2006 through to June 2008; and
b)separately, payroll advice from February 2007 to June 2008.[47]
[47] Mr Slabbert’s May 2010 Affidavit, Annexure C1, C2 and C3.
The evidence of Ms Walker in relation to the assertion by Buildpower that the Fair Work Ombudsman was acting for and on behalf of the CFMEU in obtaining the applicants’ employee records from Buildpower, and providing those records to the CFMEU, was that the Fair Work Ombudsman was not acting on behalf of the CFMEU.[48]
[48] Transcript at 13.
Based on Ms Walker’s evidence, which the Court prefers to that of Mr Slabbert, it cannot conclude that the Fair Work Ombudsman was acting for and on behalf of the CFMEU or the applicants in requesting the applicants’ employee records from Buildpower. Rather, what the Fair Work Ombudsman was doing was acting in pursuance of its statutory powers which provide that an inspector may require a person by notice to produce a record or document to the inspector, and which obliges a person served with a written notice to that effect to produce the records within a specified period of at least 14 days, although in this instance no notices were necessary because of Buildpower’s co-operation with written requests by the Fair Work Ombudsman.[49]
[49] FW Act, s.712.
To the extent that Buildpower’s case was based upon Mr Chapple’s email, that email does not, on an ordinary reading, indicate that the Fair Work Ombudsman was acting for and on behalf of the CFMEU or the applicants in requiring Buildpower to produce employee records to the Fair Work Ombudsman. The fact that:
a)the CFMEU “sought access” to the employee records produced by Buildpower to the Fair Work Ombudsman; and
b)the employee records were “passed on to the CFMEU”
is not indicative of those records having been produced to the Fair Work Ombudsman for and on behalf of the CFMEU.
Mr Chapple’s email indicates that:
a)the Fair Work Ombudsman requested Buildpower to produce employee records for the applicants;
b)the employee records for the applicants were produced; and
c)the Fair Work Ombudsman, at the request of the CFMEU passed on the employee records for the applicants to the CFMEU, who were acting on behalf of applicants in making the request that the employee records be provided to the CFMEU by the Fair Work Ombudsman, and not by Buildpower.
There is no basis in the evidence to indicate that the above actions were done other than on the basis of the Fair Work Ombudsman’s powers under the FW Act.
The fact that the Fair Work Ombudsman’s request to produce employee records for the applicants was made of Buildpower in response to a complaint from the CFMEU, and that the employee records were provided to the CFMEU on behalf of their members, the applicants, does not provide a basis for asserting that the Fair Work Ombudsman was acting for and on behalf of the CFMEU. In any event, under the FW Act the Fair Work Ombudsman can do no more than exercise the statutory powers of that office.
Ultimately, for the purposes of the Application, it is irrelevant that the employees’ records were produced to the Fair Work Ombudsman in response to the Fair Work Ombudsman’s request in September 2009. The powers of Fair Work Inspectors under s.712 of the FW Act are independent of the ability of an employee to make a request to an employer, or former employer, under reg.3.42 of the FW Regulations to produce the employee’s records to the employee. Section 535 of the FW Act and reg.3.42 of the FW Regulations provide employees with a separate power to request employee records, irrespective of:
a)whether or not the Fair Work Ombudsman has previously requested the same records; and
b)whether, as a consequence of the Fair Work Ombudsman’s request, those records have been passed on to:
i)the employees concerned; or
ii)a registered organisation on behalf of those employees.
For that reason, it was never open as a matter of law for Buildpower to assert that the Employee Records Requests in April 2010 had already been complied with by providing the employee records to the Fair Work Ombudsman in September 2009 as a result of a request by the Fair Work Ombudsman.
Contravention of regulation 3.42 – conclusion
For the reasons set out above, the Court has concluded that, in relation to each of the applicants, Buildpower has contravened reg.3.42(4) of the FW Regulations. There will be declarations to that effect.
Power to order production of records requested
The applicants have also requested that the Court make an order under s.545 of the FW Act that Buildpower produce legible employee records in relation to the applicants.
Section 545(1) and (2) of the FW Act provides as follows:
Orders that can be made by particular courts
Federal Court and Federal Magistrates Court
(1) The Federal Court or the Federal Magistrates Court may make any order the court considers appropriate if the court is satisfied that a person has contravened, or proposes to contravene, a civil remedy provision.
Note 1: For the court's power to make pecuniary penalty orders, see section 546.
Note 2: For limitations on orders in relation to costs, see section 570.
Note 3: The Federal Court and the Federal Magistrates Court may grant injunctions in relation to industrial action under subsections 417(3) and 421(3).
Note 4: There are limitations on orders that can be made in relation to contraventions of subsection 65(5), 76(4), 463(1) or 463(2) (which deal with reasonable business grounds and protected action ballot orders) (see subsections 44(2), 463(3) and 745(2)).
(2) Without limiting subsection (1), orders the Federal Court or Federal Magistrates Court may make include the following:
(a) an order granting an injunction, or interim injunction, to prevent, stop or remedy the effects of a contravention;
(b) an order awarding compensation for loss that a person has suffered because of the contravention;
(c) an order for reinstatement of a person.
Section 545(1) of the FW Act is a provision which has no predecessor in the WR Act. In its terms s.545(1) of the FW Act provides for remedial orders in wide terms. That is evident when the terms of s.545(2)(a) of the FW Act are considered: it provides for orders for both final and interim injunctive relief to be made to prevent, stop or remedy the effects of a contravention, but does so without limiting the terms of s.545(1) of the FW Act. So orders for injunctive relief under s.545(2)(a) of the FW Act may include orders remedying the contravention, and it is obviously intended that orders under s.545(1) of the FW Act be more far reaching than, or at least are not limited by, orders which may be made under s.545(2)(a) of the FW Act. It is therefore evident that orders under s.545(1) of the FW Act may extend at least as far as, and probably further than, orders remedying the effect of the contravention. There is therefore, in the Court’s view, nothing to prevent an order being made that Buildpower produce legible employee records in relation to the applicants. The only question is whether it is appropriate to make the requested order. On the face of it, it is appropriate to do so to remedy the effects of the contravention, and to thereby seek to ensure that the requested employee records are produced. Furthermore, given that the purpose underlying the Employee Records Requests was to assist in dealing with complaints concerning possible underpayment of the applicants,[50] it is appropriate to make the requested order as the production of the employee records may be of relevance to one of the objects of the FW Act, namely, ensuring that there is an enforceable guaranteed safety net of minimum terms and conditions of employment.[51] Finally, such an order is appropriate because it gives Buildpower the opportunity to exhibit some measure of co-operation and contrition prior to a penalty hearing.
[50] Transcript at 6.
[51] FW Act, s.3(c).
In the circumstances therefore the Court is of the view that it has the power to make an order that Buildpower provide to each applicant legible copies of the employee records requested in the Employee Records Requests, and that it is appropriate to do so. The evidence indicates that Buildpower is able to provide the copies of the employee records within 14 days (although 21 or 28 days is preferable). There will be an order for production of legible employee records, with that production to be by post by 17 September 2010.
Summary of conclusions
As set out above, the Court:
a)decided on the day of the hearing that Mr Slabbert was to be granted leave under r.9.04 of the FMC Rules to appear as a representative of Buildpower;
b)has concluded that, in relation to each of the applicants, Buildpower has contravened reg.3.42(4) of the FW Regulations by failing to produce a legible copy of a requested employee record to each of the applicants as soon as practicable after receipt of the Employee Records Requests from the applicants; and
c)has power under s.545 of the FW Act to make an order requiring Buildpower to produce legible copies of the employee records requested in the Employee Records Requests on 7 April 2010, and considers it appropriate to do so,
and there will be further declarations and orders to the effect of subparagraphs (b) and (c) above, an order having been made in terms of subparagraph (a) on the day of the hearing. There will also be orders in relation to a penalty hearing allowing for the filing of affidavits and outlines of submissions by both parties, and in the event that Buildpower does not comply with the order for production of legible employee records, for the filing of a further affidavit by the applicants in relation thereto.
The Court will hear the parties as to costs, if any.
I certify that the preceding seventy-six (76) paragraphs are a true copy of the reasons for judgment of Lucev FM
Associate:
Date: 30 August 2010
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