Director of the Fair Work Building Industry Inspectorate v Robko Construction Pty Ltd

[2014] FCCA 1017

FEDERAL CIRCUIT COURT OF AUSTRALIA

DIRECTOR OF THE FAIR WORK BUILDING INDUSTRY INSPECTORATE v ROBKO CONSTRUCTION PTY LTD & ANOR [2014] FCCA 1017

Catchwords:
INDUSTRIAL LAW – Awards – breach of award – whether applicant an employee of respondents and covered by the Building and Construction General On-site Award 2010 – where respondents acknowledge responsibility for underpayment under the Award – where respondents in default – judgment delivered pursuant to Rule 13.03B(2)(c) of the Federal Circuit Court Rules 2001 (Cth).

Legislation:  

Fair Work Act 2009 (Cth) ss.45, 545, 546 716
Federal Circuit Court Rules 2001 (Cth)

Applicant: DIRECTOR OF THE FAIR WORK BUILDING INDUSTRY INSPECTORATE

First Respondent: ROBKO CONSTRUCTION PTY LTD

Second Respondent: MR EVERETTE GALE ROBBINS

File Number: ADG 384 of 2013

Judgment of: Judge Raphael

Hearing date: 12 May 2014

Date of Last Submission: 12 May 2014

Delivered at: Adelaide

Delivered on: 12 May 2014

REPRESENTATION

Solicitors for the Applicant: Fair Work Building and Construction

For the Respondents: No appearance

ORDERS

1. Pursuant to subsection 545(1) of the Fair Work Act 2009 (FW Act), the Court declares that the First and Second Respondents have each contravened the following sections of the FW Act:

   1.1.Section 45 of the FW Act by contravening clause 31.4 of the Building and Construction General On-Site Award 2010 (the Award);

   1.2.Subsection 716(5) of the FW Act.

2. The Applicant shall file and serve written submissions on penalty and compensation by 6 June 2014.

3. The First and Second Respondents shall file and serve written submissions on penalty and compensation by 13 June 2014.

4. Proceedings to be heard on 17 June 2014 at 11.30a.m.

5. There shall be no order as to costs.

6. The parties have liberty to apply on 3 days’ notice to my associate in Sydney.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT ADELAIDE

ADG 384 of 2013

DIRECTOR OF THE FAIR WORK BUILDING INDUSTRY INSPECTORATE

Applicant

And

ROBKO CONSTRUCTION PTY LTD

First Respondent

MR EVERETTE GALE ROBBINS

Second Respondent

REASONS FOR JUDGMENT

1. On 20 December 2013 the Director of Fair Work Building Industry Inspector filed an application with this Court seeking declarations pursuant to s.545(1) of the Fair Work Act 2009 (Cth)[1] that the first and second respondent had contravened ss.45 and 716(5) of the FWA. The application also sought pecuniary penalties pursuant to s. 546(1) of the FWA for those contraventions and pursuant to s.545(1) and 545(2b) of the FWA, the applicant sought an order awarding compensation payable jointly and severally by the first and second respondents to a Mr Jason Pallack in the sum of $7,199.36 for the loss suffered by him as a result of the contravention of s.45 of the FWA and/or s. 716(5) of the FWA.

   [1] The ‘FWA’.

2. Mr Pallack was an employee of the first respondent, a company under the management and control of the second respondent.  The company is one that operates in the building industry, and Mr Pallack, if he was an employee of the company, was covered by the Building and Construction General On-site Award 2010.[2]  The company attempted to utilise the services of Mr Pallack as an independent contractor.  It required him to obtain an ABN and to submit invoices to it for the services that he carried out for it.

   [2] The ‘Modern Award’.

3. The Court is satisfied from the matters contained in the Statement of Claim and also in certain ways from the affidavit of Jeremy King, sworn on 14 April 2014, that, in fact, Mr Pallack was an employee of the company.  He having been subject to the directions of the company at all times, not having worked for any other company or business during the time that he worked for the company and because of the other matters referred to in paragraph 10 of the Statement of Claim.  That being the case, the Court is satisfied that Mr Pallack was subject to the Modern Award.  The calculations of the amount due to him under that Award, which are annexed to the Statement of Claim, satisfied the Court that the amount said to be owed by the company to him is truly owed.

4. The history of the proceedings is slightly unfortunate.  The applicant has made every effort to obtain these moneys from the respondents without the necessity of lengthy court proceedings.  But despite promises, the respondents have never made a payment to Mr Pallack.  The respondents have, however, acknowledged liability for the payments, and it is through those acknowledgments of liability, evidenced in the affidavit of Mr King, that the Court can be satisfied that the infringements have occurred, that a penalty should be paid and orders should be made that Mr Pallack should be reimbursed by the respondents.

5. In order to provide the respondents with procedural fairness, the Court required the applicant to inform them that at the hearing today the Court would be asked to enter judgment against them – pursuant to Rule 13.03B(2)(c) of the Federal Circuit Court Rules 2001 (Cth) – and that if the Court gave judgment thereunder, it would adjourn the matter for a short further period during which both the applicant and the respondents would have an opportunity to file submissions in relation to penalty. The Court believes that it is appropriate in a case such as this that any penalty hearing be heard in open court and not dealt with on the papers, and that the respondents have an opportunity to make submissions and appear should they so wish.

6. On this basis, and in the light of what has been said above concerning the Court’s satisfaction as to the responsibility for the infringements complained of, the Court will make orders in accordance with the proposed directions order amended in blue, initialled in brown and placed with the papers.  This will provide for declarations for the filing and serving of written submissions upon penalty and for the hearing upon penalty to take place at 11.30am on 17 June 2014. 

7. The applicant is required to serve copies of these orders with a letter explaining them to the respondents, as well as the Court so advising them when a copy of this judgment will also be provided.   

I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of Judge Raphael

Associate: 

Date:  20 May 2014