Director, Fair Work Building Industry Inspectorate v J Hutchinson Pty Ltd T/A Hutchinson Builders and Ors (No.2)

In *Director, Fair Work Building Industry Inspectorate v J Hutchinson Pty Ltd T/A Hutchinson Builders and Ors (No.2)*, the applicant alleged that the first respondent, J Hutchinson Pty Ltd (Hutchinson Builders), contravened section 474(1) of the *Fair Work Act 2009* (Cth) by making payments to employees who had engaged in industrial action that was not protected industrial action. The dispute centred on whether Hutchinson Builders was liable for paying wages to ten employees for 9 December 2013, when those employees had participated in industrial action on that day.

The primary legal issue before the court was whether the applicant was required to prove that the payments made by Hutchinson Builders were voluntary and not made by reason of mistake or accident to establish a breach of section 474(1) of the *Fair Work Act*. The court was also required to determine whether Hutchinson Builders had, in fact, contravened section 474(1)(b) by making payments to employees who had participated in unprotected industrial action.

Judge Jarrett rejected the first respondent's contention that the applicant needed to prove the payments were voluntary and not made by mistake or accident. The court found that the evidence established that Hutchinson Builders made payments to workers who had engaged in industrial action that was not protected industrial action, thereby contravening section 474(1) of the *Fair Work Act*. Even if voluntariness was a necessary element, the court was satisfied that the payments were made intentionally and were not the result of a mistake or accident. The court found the contraventions alleged against the first respondent proved.

The court declared that J Hutchinson Pty Ltd contravened section 474(1)(b) of the *Fair Work Act* on 12 December 2013, when it made payments to 10 of its employees who had participated in unprotected industrial action on 9 December 2013. The court did not impose a penalty, noting that the contravention was inadvertent, no harm had been done, the amount of wages involved was insignificant, and it was unlikely to occur again, drawing a parallel to the reasoning in *Pine v Seelite Windows* [2005] FCA 500.