Director of the Fair Work Building Industry Inspectorate v Buildpower Pty Ltd

[2013] FCCA 1037

FEDERAL CIRCUIT COURT OF AUSTRALIA

DIRECTOR OF THE FAIR WORK BUILDING INDUSTRY INSPECTORATE v BUILDPOWER PTY LTD & ANOR [2013] FCCA 1037

Catchwords:
INDUSTRIAL LAW – Application for declarations and penalties in relation to multiple breaches of sections of the Workplace Relations Act 1996 (Cth) and the Fair Work Act 2009 (Cth) – contraventions of sections 182(1) and 226(1) of the Workplace Relations Act 1996 (Cth) and section 712(3) of the Fair Work Act 2009 (Cth) – consideration of relevant factors.

Legislation:

Fair Work Act 2009 (Cth), s.712(3)
Workplace Relations Act 1996 (Cth), s.182(1), s.226(1)

Building Trades (Construction) Award 1987 (WA) AN160034

Applicant: DIRECTOR OF THE FAIR WORK BUILDING INDUSTRY INSPECTORATE

First Respondent: BUILDPOWER PTY LTD

Second Respondent: MICHAEL CHARLES SLABBERT

File Number: PEG 286 of 2012

Judgment of: Judge Whelan

Hearing date: 16 May 2013

Date of Last Submission: 22 May 2013

Delivered at: Melbourne

Delivered on: 9 August 2013

REPRESENTATION

Counsel for the Applicant: Mr S McDonald

Solicitors for the Applicant: Fair Work Building and Construction

For the First Respondent: Mr M Slabbert, Director

Solicitors for the Second Respondent: Second Respondent in person

ORDERS

THE COURT DECLARES:

1. That the First Respondent contravened s.182(1) of the Workplace Relations Act 1996 (Cth) by failing to pay the complainant,

   
   

   Mr Alcantara, the basic period rate of pay payable under the Australian Pay and Conditions Standard for his guaranteed hours in weeks where he worked less than 38 hours per week.

2. That the First Respondent contravened s.226(1) of the Workplace Relations Act 1996 (Cth) by requiring or requesting the complainant, Mr Alcantara, to work in excess of 38 hours per week where some of the additional hours worked were not reasonable additional hours.

3. That the First Respondent contravened s.712(3) of the Fair Work Act 2009 (Cth) by failing to produce to the Office of the Fair Work Building Industry Inspectorate by 4.00 p.m. on 7 September 2012, or at all, the records and documents which the Notice to Produce of

   
   

   23 August 2012 required to be produced.

4. That the Second Respondent was involved in the contravention of s.182(1) and s.226(1) within the meaning of s.728 of the Workplace Relations Act 1996 (Cth).

5. That the Second Respondent was involved in the contravention of s.712(3) of the Fair Work Act 2009 (Cth) within the meaning of s.550 of that Act.

THE COURT ORDERS:

1. That the First Respondent pay to the claimant, Mr Alcantara, the sum of $2,947.41.

2. That the Applicant file and serve submissions with respect to penalty within 14 days of the date of this order.

3. That the Respondents file and serve submissions with respect to penalty within 28 days of the date of this order.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT PERTH

PEG 286 of 2012

DIRECTOR OF THE FAIR WORK BUILDING INDUSTRY INSPECTORATE

Applicant

And

BUILDPOWER PTY LTD

First Respondent

MICHAEL CHARLES SLABBERT

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. This in an application by the Director of the Fair Work Building Industry Inspectorate for declarations that the First Respondent, BUILDPOWER PTY LTD (“the First Respondent”), has breached s.182(1) and s.226(1) of the Workplace Relations Act 1996 (Cth) (“WR Act”) and s.712(3) of the Fair Work Act 2009 (Cth) (“FW Act”) and that Mr MICHAEL CHARLES SLABBERT (“the Second Respondent”) was involved in the contraventions of s.182(1) and s.226(1) of the WR Act and s.712(3) of the FW Act. The Applicant seeks orders that the First Respondent pay the complainant, Mr FLORANTE ALCANTARA (“Mr Alcantara”), the sum of $2,947.41 and that penalties be imposed on both Respondents for the contraventions.

Background

1. The First Respondent, Buildpower, is a trading corporation which carried out work in the building and construction industry. It was first registered on 24 June 2004 as Allcast Pty Ltd (“Allcast”) and the name was changed to Buildpower in October 2006. The Second Respondent is the sole director and manager of Buildpower.

2. The complainant, Mr Alcantara, worked for Buildpower between

   
   

   24 February 2007 and 12 February 2009. The First Respondent and the complainant entered into a written employment contract in the Philippines prior to the complainant’s arrival in Australia.[1] In accordance with the terms of that contract Mr Alcantara was paid a flat rate of $21.17 per hour for all hours worked by him and he was paid only for the hours actually worked (with the exception of paid leave).

   [1] Affidavit of Florante Alcantara affirmed 26 March 2013, at Annexure FA-6.

3. Mr Alcantara was employed in laying ‘blocks’ on building sites. It would appear that some of the work he performed fell within the classification of ‘stonemason’ and other work within the classification of ‘bricklayer’. For the purpose of these proceedings the Applicant claims only the applicable rate for a bricklayer, the lower classification rate.

4. The only records of the hours worked by Mr Alcantara are the diary entries he made of his start and finish times and the First Respondent’s pay roll records. The latter do not provide details of hours worked on any particular day but only of hours worked per week. If Mr Alcantara worked less than 38 hours - in one week it was as little as 12 hours - he was paid only for the hours worked. If he worked in excess of 38 hours - in some weeks he worked in excess of 50 hours - he was paid the same rate for all hours worked.

5. The evidence before the Court was given by Mr ASHLEY CHAPPLE (“Mr Chapple”), a Fair Work Building Industry Inspector, and Mr Alcantara for the Applicant and by Mr Slabbert, the Second Respondent.

6. Mr Chapple’s evidence was that the Inspector principally involved with the matter, Ms SERENA OSCAR (“Ms Oscar”), was currently on maternity leave. He stated that he had assisted her with entitlement calculations and had undertaken a detailed review of the file.

   
   

   Mr Chapple’s affidavit outlined the history of the complaint and the investigation conducted by the Fair Work Ombudsman, the Australian Building and Construction Commissioner (“ABCC”), and later, the Fair Work Building Industry Inspectorate.[2] The records show that a Notice to Produce was originally served on Mr Slabbert on 24 January 2012.[3] Following Mr Slabbert’s request for an extension of time this was withdrawn and a new Notice to Produce issued on 7 February 2012.[4] While there was some response to this Notice to Produce, it was incomplete and Mr Slabbert was notified of this on 6 March 2012.[5]

   [2] Affidavit of Ashley Chapple affirmed 3 April 2013.

   [3] Ibid, at Annexure AC-3.

   [4] Ibid, at Annexure AC-5.

   [5] Ibid, at Annexure AC-6.

7. On 6 June 2012 Mr Slabbert was notified of the change of authority from the ABCC to the Fair Work Building Industry Inspectorate.[6] On 23 August 2012 a further Notice to Produce was faxed to Buildpower at its registered office.[7] On 7 September 2012 the Fair Work Building Industry Inspectorate received a letter from Buildpower’s accountants, on behalf of Buildpower, and a statutory declaration from Mr Slabbert.[8] Neither Buildpower nor Mr Slabbert produced any of the records of documents requested in the 23 August 2012 Notice to Produce.

   [6] Ibid, at Annexure AC-7.

   [7] Ibid, at Annexure AC-12.

   [8] Ibid, at Annexures AC-13 and AC-14.

8. Mr Alcantara’s evidence was that he is a stonemason and bricklayer with many years of experience. In 2006 he was approached by

   
   

   Yanwha Human Resource Group in the Philippines about obtaining work in Australia. He was interviewed by them for a position with Allcast. He was subsequently offered a four year employment contract by Mr Slabbert who described himself as managing director of Allcast. The employment was due to commence after the approval of

   
   

   Mr Alcantara’s subclass 457 visa. The employment agreement is dated 19 September 2006 but was signed in February 2007. In the interim Allcast had changed its name to Buildpower.

9. Mr Alcantara detailed the work he performed for Buildpower and his hours of work. Mr Alcantara denied that he had failed to attend work on a number of days without giving any reason. He denied working for anyone else during the time he was employed by Buildpower except when Mr Slabbert gave him to ‘Peter’ to work for 10 days. He denied attending for work without protective clothing supplied by

   
   

   Mr Slabbert.

10. Mr Slabbert’s evidence was that in the Philippines he had communicated with Mr Alcantara via an interpreter and in Australia,

    
    

    90 per cent of the communication was via Mr THOMMIE PACHO

    
    

    (“Mr Pacho”) who was Mr Alcantara’s co-worker and could speak his language. There were no other employees of Buildpower. Allcast had employed a number of people but this was in a foundry which made aluminium switch gear castings for switches for power stations. That business was not involved in building and construction and ceased to operate in September or October 2006 when Mr Slabbert sold the foundry.

11. Neither Buildpower nor Allcast acquired an existing construction company and Buildpower only commenced operating in the building and construction industry in February 2007 when Mr Alcantara and

    
    

    Mr Pacho commenced working for the business.

12. Mr Slabbert agreed that initially Mr Alcantara had worked a lot of hours. He did not employ a manager and kept no wages book.

    
    

    Mr Pacho would tell him what hours he and Mr Alcantara had worked and he would pass this on to the bookkeeper. Until Mr Pacho obtained a driver’s licence, Mr Slabbert would drive the two workers to and from the work sites. Mr Slabbert was aware what hours were worked and the terms under which the employees were paid. He agreed that there were times particularly in 2007/2008, when Mr Alcantara worked in excess of 38 hours in a week. There were occasions when he directed Mr Alcantara to work on Saturdays.

13. Mr Slabbert stated that initially he thought that Fair Work Building and Construction was a building and construction industry body and not part of the Government. He agreed that he had received a letter dated 29 June 2012 from Ms Oscar because he had responded to it. He agreed that documents were sent to Buildpower at the address of his accountants and that these were forwarded to him at his home address. He could recall discussing the content of these letters with

    
    

    Mr FARRELL MOSBACH (“Mr Mosbach”), from the accountants, and recalled having a conversation with him about the Notice to Produce of 23 August 2012, but was not sure if that document had been forwarded to him. He could recall what the Notice to Produce required him to produce but did not think that it was a reasonable request.

14. Mr Slabbert maintained that:

    ·the conditions of employment contained in the employment agreement had been approved by the Department of Immigration and Multicultural Affairs (“DIMA”);

    ·by agreement with Mr Alcantara, long periods of work were compensated by time off as unpaid leave; and

    ·Mr Alcantara chose not to work some days and was paid for fewer than 38 hours.

15. Mr Slabbert claimed that the additional hours worked by Mr Alcantara were not unreasonable by reference to contracts in the mining industry which stipulated that employees could work 11 hours a day for 13 days straight.

Conclusions

The contraventions of s.182(1) and s.226(1) of the Workplace Relations Act

1. Mr Alcantara commenced employment with the First Respondent in February 2007. His employment was subject to the provisions of the WR Act as amended by the Workplace Relations Amendment (Work Choices) Act 2005 (Cth). Under the provisions of s.182(1) of that Act, Mr Alcantara was entitled to be paid a basic period rate of pay for each of his guaranteed hours provided his employment was covered by an Australian Pay and Conditions Standard (“APCS”).

2. By virtue of s.204(1) and s.208(1) of the WR Act, Mr Alcantara’s employment was covered by an APCS derived from the provision of the Building Trades (Construction) Award 1987 (WA) AN160034. By virtue of s.172(2) of the WR Act, the APCS prevailed over the terms of the contract of employment.

3. Section 182(1) of the WR Act provides for the payment of the basic periodic rate of pay for each of the employees’ guaranteed hours. Section 183 of the WR Act provides the mechanism for how guaranteed hours are to be determined. By virtue of clause 6.1 of the contract of employment entered into by Mr Alcantara and the First Respondent the complainant was to work a minimum of 38 hours over 5 days in each week in accordance with Australian law, together with such additional hours and days as may be necessary for the proper performance of the employee’s duties. The effect of clause 6.1 is that Mr Alcantara was employed to work a specified number of hours per week, being 38 hours. The issue of ‘additional hours’ will be dealt with in considering the application of s.226 of the WR Act.

4. Subject to s.183(1)(b), s.183(4) and s.507 of the WR Act, Mr Alcantara was entitled to be paid the basis period rate of pay for 38 hours per week even if he did not work for that many hours in a particular week. I am satisfied that setting aside payments made for authorised leave, there were weeks in which Mr Alcantara did not work for 38 hours and was only paid for the actual hours worked. I do not accept that these deductions were for unauthorised absences or unpaid days in lieu for hours in excess of 38 worked in other weeks, or were otherwise subject to s.183(1)(b), s183(4) or s.507 of the WR Act.

5. There were weeks in which Mr Alcantara worked in excess of 50 hours per week. Clause 6.1 of the employment agreement states that the employee will work “such additional hours and days as may be necessary for the proper performance of the employee’s duties”.[9] It goes on to say that “The Company generally works 55 hours per week”.[10] The clause, in itself, cannot be taken to be an agreement on the part of Mr Alcantara to work 55 hours per week. The employment agreement makes no specific provision for employees’ hours to be averaged over any specified averaging period and no evidence of any other written agreement to this effect was produced. It must therefore be concluded that Mr Alcantara could only be required to work hours in excess of 38 hours per week if this constituted ‘reasonable additional hours’ within the meaning of s.226 of the WR Act.

   [9] Affidavit of Florante Alcantara affirmed 26 March 2013, at Annexure FA-6.

   [10] Ibid.

6. Section 226 of the WR Act provides:

   226.  The guarantee

   (1)An employee must not be required or requested by an employer to work more than:

   (a)  either:

   (i).38 hours per week; or

   (ii).subject to subsection (3), if the employee and the employer agree in writing that the employee’s hours of work are to be averaged over a specified averaging period that is no longer than 12 months—an average of 38 hours per week over that averaging period; and

   (b)  reasonable additional hours.

   Note 1: An employee and an employer may agree that the employee is to work less than 38 hours per week, or less than an average of 38 hours per week over the employee’s averaging period.

   Note 2: A requirement for an employee to work a particular number of hours may come, for example, from an award or a workplace agreement.

   (1A)An employer only contravenes subsection (1) if the employer requests or requires an employee to work more than the hours mentioned in subsection (1), and the employee works those hours.

   Calculating the number of hours worked

   (2)For the purposes of paragraph (1)(a), in calculating the number of hours that an employee has worked in a particular week, or the average number of hours that an employee has worked per week over an averaging period, the hours worked by the employee are taken to include any hours of authorised leave taken by the employee during the week, or during that period.

   Start of averaging period

   (3)For the purpose of subparagraph (1)(a)(ii), if an employee starts to work for an employer after the start of a particular averaging period that applies to the employee, that averaging period is taken, in relation to the employee, not to include the period before the employee started to work for the employer.

   Reasonable additional hours

   (4)For the purposes of paragraph (1)(b), in determining whether additional hours that an employee is required or requested by an employer to work are reasonable additional hours, all relevant factors must be taken into account. Those factors may include, but are not limited to, the following:

   (a)  any risk to the employee’s health and safety that might reasonably be expected to arise if the employee worked the additional hours;

   (b)  the employee’s personal circumstances (including family responsibilities);

   (c)  the operational requirements of the workplace, or enterprise, in relation to which the employee is required or requested to work the additional hours;

   (d)  any notice given by the employer of the requirement or request that the employee work the additional hours;

   (e)  any notice given by the employee of the employee’s intention to refuse to work the additional hours;

   (f)    whether any of the additional hours are on a public holiday;

   (g)  the employee’s hours of work over the 4 weeks ending immediately before the employee is required or requested to work the additional hours.

   Note: An employee and an employer may agree that the employee may take breaks during any additional hours worked by the employee.

   Definition

   (5)    In this section:

   public holiday means:

   (a)  a day declared by or under a law of a State or Territory to be observed generally within the State or Territory, or a region of that State or Territory, as a public holiday by people who work in that State, Territory or region, other than:

   (i).a union picnic day; or

   (ii).a day, or kind of day, that is excluded by regulations made for the purposes of this paragraph from counting as a public holiday; or

   (b)  a day that, under (or in accordance with a procedure under) a law of a State or Territory, or an award or workplace agreement, is substituted for a day referred to in paragraph (a).[11]

   [11] Workplace Relations Act 1996 (Cth), at s.226.

7. There is no fixed meaning of ‘reasonable additional hours’. The Applicant contended the following factors as pointing to a conclusion that at least some of the additional hours worked by Mr Alcantara were unreasonable:

   35.1.Mr Alcantara was typically required to work five nine-hour days per week. He was, additionally often required to work on weekends.

   35.2.Mr Alcantara’s hours varied considerably, and this no doubt reflected the work which clients of Buildpower required or expected it to complete. That is a relevant factor: s 226(4)(c).

   35.3.There is no evidence as to whether Mr Alcantara was given specific notice of additional hours. It appears that he was simply expected to work whatever hours he was directed to work. Section 226(4)(d) contemplates specific notice of additional hours. The general statement, in the Employment Contract, that Mr Alcantara could be required to work more than 38 hours is not notice of the kind contemplated by s 226(4)(d).

   35.4.Buildpower required Mr Alcantara to work on at least some public holidays (potentially relevant to

   
   

   s 226(4)(f)). Whether the particular hours worked on public holidays were “additional hours” or hours within the first 38 for the week would tend to depend on whether the particular public holiday fell towards the beginning or end of a week.

   35.5.The terms of s 226(4)(g) suggest that requiring an employee to work substantial additional hours may be less likely to be reasonable if the employee has also been required to work substantial additional hours in the four weeks immediately preceding the week in question. It is noteworthy that Mr Alcantara was required or requested to work additional hours (ie, more than 38 hours) in every one of the 20 consecutive weeks from 10 March 2007 to 14 July 2007.

   36.    Having regard to:

   36.1.The sheer number of additional hours worked (477 over the course of Mr Alcantara’s employment, and 348 in 2007 alone);

   36.2.The number of weeks in which Mr Alcantara worked hours in excess of 50 hours (10 separate weeks over the course of Mr Alcantara’s relatively short term of employment); and

   36.3.The number of consecutive weeks in which Mr Alcantara was required to work additional hours

   it should be concluded that at least some of the additional hours were not “reasonable additional hours” within the meaning of s 226(1).[12]

   [12] Applicant’s written submissions dated 15 May 2013, at sub-para.35.1 to para.36.

1. It is no response in my view to point to hours in the mining sector as indicative of what might have been reasonable additional hours for

   
   

   Mr Alcantara to have worked. Many of the places where hours cited by the Second Respondent as worked are ‘fly-in, fly-out’ locations where long hours are worked in concentrated periods followed by paid breaks. They are also generally subject to workplace agreements which are or have been made in compliance with the provisions of the relevant legislative instruments.

2. The fact that DIMA approved the granting of a s.457 visa to

   
   

   Mr Alcantara does not mean that the employment agreement entered into by the complainant and the First Respondent was ‘approved’ for the purposes of the WR Act. The WR Act, as operative in February 2007, made particular provision for workplace agreements, both collective and individual. The employment agreement between the complainant and the First Respondent did not comply with the statutory requirements for such an agreement to have statutory authority. The DIMA had no legislative authority to ‘approve’ employment agreements for the purposes of the WR Act.

3. I am satisfied that based on the number and frequency of the additional hours worked by Mr Alcantara, particularly in 2007, that at least some of the additional hours were not ‘reasonable additional hours’ within the meaning of s.226(1) of the WR Act. There was no evidence that on each occasion these additional hours were necessary to meet the operational requirements of the employer and there was no evidence of any specific notice given to him of the requirement to work those hours. In particular I note that Mr Alcantara was required to work additional hours for 20 consecutive weeks between March and July 2007.

Was the Second Respondent involved in the contraventions?

1. Section 728 of the WR Act provides:

   728Involvement in contravention treated in same way as actual contravention

   (1)A person who is involved in a contravention of a civil remedy provision is treated as having contravened that provision.

   (2)For this purpose, a person is involved in a contravention of a civil remedy provision if, and only if, the person:

   (a)  has aided, abetted, counselled or procured the contravention; or

   (b)  has induced the contravention, whether by threats or promises or otherwise; or

   (c)  has been in any way, by act or omission, directly or indirectly, knowingly concerned in or party to the contravention; or

   (d)  has conspired with others to effect the contravention.[13]

   [13] Workplace Relations Act 1996 (Cth), at s.728.

2. The Applicant contends that Mr Slabbert, the Second Respondent, was involved in the contraventions of s.182(1) and s.226(1) of the WR Act by the First Respondent by virtue of being “in any way, by act or omission, directly or indirectly, knowingly concerned in or party to the contravention”.[14]

   [14] Ibid, at s.728(2)(c).

3. The Applicant submits that this requires it to establish that Mr Slabbert participated in or assented to the company’s contraventions with actual knowledge of the elements constituting those contraventions, but that it is not necessary to establish that he knew that the facts constituted a contravention in terms of the language of the statute.

4. In other words, Mr Slabbert, in order to be involved in the contravention, needed to have knowingly participated in the activity which constituted the contravention. It is not necessary that in doing so he knew that he was contravening the WR Act.

5. It is clear that Mr Slabbert approved the payment of Mr Alcantara’s wages. He provided the bookkeeper with the information from which the wages were calculated and he determined the terms on which he was paid. Mr Slabbert directed the complainant and Mr Pacho as to the work to be performed and the hours of work. Initially he drove both employees to and from the work site.

6. Mr Slabbert was at all times the sole director and manager of Buildpower. The letter offering Mr Alcantara work was signed by Mr Slabbert. All written communication between the complainant and Buildpower was with Mr Slabbert. Mr Slabbert, on his own evidence, was aware that there were times when Mr Alcantara worked less than 38 hours in a week and was only paid for the hours he actually worked.

7. I am satisfied that the Second Respondent was knowingly involved in the contravention of s.182(1) of the WR Act.

8. With respect to the contravention of s.226(1) of the WR Act, I am satisfied that the Second Respondent knew that Mr Alcantara worked hours in excess of 38 in some weeks and was required and requested to do so. He authorised the payment of Mr Alcantara for those additional hours.

9. Having determined that some of those additional hours were not reasonable additional hours, I am satisfied that Mr Slabbert was knowingly involved in the requirement for Mr Alcantara to work those hours and was aware that he did work those hours.

The contravention of s.712(3) of the Fair Work Act

1. Section 712 of the FW Act provides:

   712.  Power to require persons to produce records or document

   (1)An inspector may require a person, by notice, to produce a record or document to the inspector.

   (2)    The notice must:

   (a)  be in writing; and

   (b)  be served on the person; and

   (c)  require the person to produce the record or document at a specified place within a specified period of at least 14 days.

   The notice may be served by sending the notice to the person’s fax number.

   (3)A person who is served with a notice to produce must not fail to comply with the notice.

   Note: This subsection is a civil remedy provision (see Part 4‑1).

   (4)Subsection (3) does not apply if the person has a reasonable excuse.

2. The evidence before the Court establishes that:

   The relevant notice in the present case was dated 23 August 2012 and was addressed to Buildpower. The terms of the notice required that records and documents be produced by 4.00 p.m. on 7 September 2012. It was sent by facsimile to Buildpower’s accountants, D Baker & Associates Pty Ltd, of Unit 1, 4 – 10 Farrell Road, Midvale, Western Australia. The accountants’ address is the registered address of Buildpower.[15]

   [15] Applicant’s written submissions dated 15 May 2013, at para.69.

3. I am satisfied that both Buildpower and Mr Slabbert were served with the Notice to Produce. Buildpower was served by virtue of the fact that the Notice to Produce was sent to the registered office of the company. On his own evidence, Mr Slabbert was made aware of the contents of the Notice to Produce by his accountant, who had clearly received the Notice to Produce and it is more probable than not that the Notice to Produce was actually given to him by his accountant.

4. Further, I am satisfied that both the letter sent to Ms Oscar, who had sent the Notice to Produce, by Mr Mosbach and the statutory declaration sent by Mr Slabbert, both dated 7 September 2012 were sent in response to the Notice to Produce.

5. Neither response provided the documents sought in the Notice to Produce.

6. Section 550 of the FW Act is virtually identical to the provisions of s.728 of the WR Act.

7. The essential elements of a contravention of s.712(3) of the FW Act are that:

   77.1.A notice under s 712 was issued by an Inspector (s712(1));

   77.2.     The notice was in writing (s 712(2)(a));

   77.3.The notice was served on the person (in this case, Buildpower) (s 712(2)(b));

   77.4.The notice required the person to produce the record or document at a specified place within a specified period of at least 14 days (s 712(2)(c)); and

   77.5.The person served with the notice failed to comply with the notice (s 712(3)).[16]

   [16] Ibid, at sub-paras.77.1 to 77.5.

8. The terms of the Notice to Produce indicate that it was issued by an Inspector and indicate what the requirements of the Notice to Produce were. The evidence before the Court clearly establishes that Ms Oscar was an Inspector for the purpose of s.712(1) of the FW Act. The Notice to Produce was served on Buildpower and I am satisfied that

   
   

   Mr Slabbert had knowledge of the requirements of the Notice to Produce and the failure by Buildpower to produce the records required by the Notice to Produce within the time specified. The statutory declaration made by Mr Slabbert was said to be “on behalf of Buildpower Pty Ltd”.[17] In this case, the contravention was constituted by the failure or omission to comply with the Notice to Produce.

   
   

   Mr Slabbert, by his own actions, took responsibility for responding to the Notice to Produce: in doing so his involvement amounts to being “knowingly concerned in” and also “a party to” the contravention.[18]

   [17] Affidavit of Ashley Chapple affirmed 3 April 2013, at Annexure AC-14.

   [18] Workplace Relations Act 1996 (Cth), at s.728(2)(c).

9. Mr Slabbert’s evidence was that he did not think it was a “reasonable request” for the Fair Work Building Industry Inspectorate to require him to produce the documents and records set out in the Notice to Produce.[19] Neither the letter sent by the First Respondent’s accountants, nor the statutory declaration made by Mr Slabbert, constitute in my view a reasonable excuse for failing to produce the documents required in the Notice to Produce. The matters contained in the letter and statutory declaration do not address matters which might be pertinent to the contraventions outlined in the letter of 29 June 2012, or the capacity of the Respondents to produce the documents specified.

   [19] Transcript of proceedings, 16 May 2013, page 36 at line 18.

10. For these reasons I am satisfied that the First Respondent contravened s.712(3) of the FW Act and that the Second Respondent was involved in that contravention.

11. The Applicant has calculated that the amount owing to the claimant arising from the contravention of s.182(1) of the WR Act is $2,947.41. The Respondents have not challenged that calculation.

12. The Applicant and Respondents have not specifically addressed the issue of penalties which should be payable by the Respondents with respect to each of the contraventions. In order to save additional cost to the parties and the Court, I intend to require the parties to address the issue of penalty with written submissions. I will also take into account the evidence given and general submissions made in the trial proceedings.

I certify that the preceding forty-seven (47) paragraphs are a true copy of the reasons for judgment of Judge Whelan

Associate:

Date: 9 August 2013