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) |
| 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… |
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Details
- Case
- [2010] FMCA 626
- Decision Date
CaseChat Overview and Summary
In the case of Alcantara & Anor v Buildpower Pty Ltd, the applicants sought an order for Buildpower to provide them with employee records. The dispute centred around Buildpower’s refusal to disclose these records and their contentions regarding their obligations under the Fair Work (Building Industry Inspectorate) Regulations 2008 (Cth). The applicants argued that Buildpower had failed to comply with the regulation that required the keeping and provision of employee records for inspection. The Federal Circuit Court of Australia was tasked with resolving the dispute.
The legal issues before the Court included whether Buildpower was engaged in trade and thus a constitutional corporation for relevant purposes, whether employee records were kept at the premises, whether the applicants had attempted to inspect the records, and whether Buildpower had breached Regulation 3.42 of the FW Regulation. The Court also had to consider the credibility of the witnesses and the documentary evidence provided by both parties. The central issue was whether Buildpower had adequately provided the requested records to the applicants.
The Court found that Buildpower had conceded it was engaged in trade and was a constitutional corporation, contrary to their initial contention. The Court preferred the evidence of Ms Walker over Mr Slabbert, finding her testimony to be more consistent and reliable. Buildpower's arguments were undermined by inconsistencies and a strained interpretation of the email evidence. The Court concluded that Buildpower had not breached Regulation 3.42 of the FW Regulation as the records were available for inspection at the premises and had been provided to the CFMEU.
The Court ordered that Buildpower would make the records available for inspection at the former business premises within a reasonably agreed time frame. Additionally, if the applicants provided a postal address, the records would be sent registered mail to the address provided. The Court found that Buildpower had not breached Regulation 3.42 of the FW Regulation.
The legal issues before the Court included whether Buildpower was engaged in trade and thus a constitutional corporation for relevant purposes, whether employee records were kept at the premises, whether the applicants had attempted to inspect the records, and whether Buildpower had breached Regulation 3.42 of the FW Regulation. The Court also had to consider the credibility of the witnesses and the documentary evidence provided by both parties. The central issue was whether Buildpower had adequately provided the requested records to the applicants.
The Court found that Buildpower had conceded it was engaged in trade and was a constitutional corporation, contrary to their initial contention. The Court preferred the evidence of Ms Walker over Mr Slabbert, finding her testimony to be more consistent and reliable. Buildpower's arguments were undermined by inconsistencies and a strained interpretation of the email evidence. The Court concluded that Buildpower had not breached Regulation 3.42 of the FW Regulation as the records were available for inspection at the premises and had been provided to the CFMEU.
The Court ordered that Buildpower would make the records available for inspection at the former business premises within a reasonably agreed time frame. Additionally, if the applicants provided a postal address, the records would be sent registered mail to the address provided. The Court found that Buildpower had not breached Regulation 3.42 of the FW Regulation.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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. Conclusion4.1The 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. 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. 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; andb)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.
Ratio Decidendi
Legal Principle Established
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