Fair Work Ombudsman v G.Q. Industries Pty Ltd
[2018] FCCA 1237
•11 May 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| FAIR WORK OMBUDSMAN v G.Q. INDUSTRIES PTY LTD & ANOR | [2018] FCCA 1237 |
| Catchwords: INDUSTRIAL LAW – Adverse action – admissions made in statement of agreed facts – contrary to evidence – application for withdrawal of admissions – application granted. |
| Legislation: Fair Work Act 2009 (Cth), ss.340(1)(a)(ii), 550 |
| Cases cited: Fair Work Ombudsman & Poisson Pty Ltd [2017] FCCA 2736 |
| Applicant: | FAIR WORK OMBUDSMAN |
| First Respondent: | G.Q. INDUSTRIES PTY LTD (ACN 115 434 010) |
| Second Respondent: | BRENDAN ANGUS |
| File Number: | BRG 921 of 2016 |
| Judgment of: | Judge Vasta |
| Hearing date: | 11 May 2018 |
| Date of Last Submission: | 11 May 2018 |
| Delivered at: | Brisbane |
| Delivered on: | 11 May 2018 |
REPRESENTATION
| Counsel for the Applicant: | Ms C. Hartigan |
| Solicitors for the Applicant: | Fair Work Ombudsman |
| Counsel for the Respondents: | Mr Merrell |
| Solicitors for the Respondents: | Australian Law Partners |
ORDERS
The admissions made in the Agreed Statement of Facts in paragraphs 2(c), 4, 37 to 46, and any other paragraph that admits to liability in relation to the adverse action claim are to be withdrawn.
The matter be adjourned for further directions to 9.30am on 15 June 2018 in the Federal Circuit Court of Australia sitting at Brisbane.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT BRISBANE |
BRG 921 of 2016
| FAIR WORK OMBUDSMAN |
Applicant
And
| G.Q. INDUSTRIES PTY LTD(ACN 115 434 010) |
First Respondent
| BRENDAN ANGUS |
Second Respondent
REASONS FOR JUDGMENT
As Corrected
(Ex tempore)
On 5 October 2016, the Fair Work Ombudsman launched proceedings in this Court seeking declarations against the First Respondent, GQ Industries Pty Ltd, and against the Second Respondent, Brendan Angus, who is the controlling mind of the First Respondent.
The Fair Work Ombudsman alleged that the company and Mr Angus had breached a number of provisions of the Fair Work Act 2009 (Cth) (“the FW Act”) regarding the payment of wages to two persons who are employed under an apprentice scheme.
The matter was to come before me for a first Court date on 14 November 2016. I did not list that matter. The parties had said that they wished to be referred directly to mediation and that mediation was to be advised by the Registrar and that the matter would come before me again by 6 March.
It did not come before me on 6 March; instead came before me on 3 April because there had been a difficulty having the mediation conclude by 6 March.
On 3 April, the Second Respondent appeared and there was no appearance on behalf of the First Respondent. The Second Respondent asked for leave to represent the First Respondent for the purposes of making a statement of agreed facts and a hearing on a penalty.
I enquired, at that stage, whether Mr Angus knew exactly what he was doing and he assured me that he did. I made directions on that day for materials to be filed, including submissions on the issue of penalty, by Mr Angus by certain dates and set the matter down for a penalty hearing on 15 August 2017.
The parties did comply with the orders that I had made and made their submissions.
On 15 August 2017, Mr Angus appeared for both himself and the company. At annexure BPA1 of Mr Angus’ affidavit of 4 December 2017, a transcript appears of the proceedings that were before me.
It became very clear to me, in looking at the material, that Mr Angus was “in over his head” and that many of the things that were in the agreed statement of facts were not actually agreed.
As can be seen from the transcript, there was an admission by Mr Angus, in the statement of agreed facts, that he had been guilty of adverse action against Mr Melit. On the material he had submitted before me, it was quite obvious that he was contesting that fact.
On 15 August 2015, at page 14, he said these words at line 33:
“I agree with the underpayment I mentioned before, say we were on the wrong award. That’s how the underpayment comes. So we admitted that. We can get fined for that. No problem there. We stuffed up. We admitted to it. The personal leave – he took two sick days. Yes, we admitted to that. I don’t agree with it because we proved he was out partying all weekend and it cost the company money and it cost him a place on the team and it cost us basically losing our contract with the company after that. The adverse action – well, that was all the result of it. The fares and travel – anything under that. We’ve stuffed up so we admit to that. Absence on a public holiday I mention.”
And he goes on and then said words to the effect that the only part he did not agree with “was the adverse action aspect”.
I adjourned the matter because of those submissions and withdrew the permission for Mr Angus to act for the company.
In looking at the material that was before the Court, there was an affidavit of Mr Melit. In that affidavit, from about paragraph 38, Mr Melit goes through the series of events as he recalled them.
In effect, he said that he had gone to the doctor and was given a medical certificate showing that he was not fit for work for two days.
He texted the second respondent at 4.57 am according to paragraph 70 and there was a response at paragraph 71. Another response 12 minutes later is recorded at paragraph 72.
Those texts indicate that there was a cancellation of the work given to Mr Melit for two weeks because of the company being unable to plan and schedule:
“And due to you experiencing such a serious illness very unexpectedly we can’t risk you infecting others with such a serious illness.”
I make no comment as to that particular aspect, at this point. The text then says:
“I doubt your services will be required back on Aspect sites.”
The text 12 minutes later spoke of the contractors, Aspect, having found replacements and filled the position due to the hectic schedule and targets they need to meet.
When looking at those text messages, it seems to me that, whilst it may be said that the taking of two days sick leave, which is a workplace right, is part of the cause for Mr Melit not working for the next two weeks, that may not be the only reason and, notwithstanding that, it may simply be because of the way the building sites work that, if a person leaves, the person may need to be replaced for the whole of that particular aspect of the site to maintain the continuity.
That seems to be a fairly open inference from what was said and it does seem to correlate with what Mr Angus said in his submissions.
After those two weeks had occurred, Mr Melit texted the Second Respondent and asked if he was back at work tomorrow and the response was:
“Not necessarily. I’m not impressed you were loaded up with Creatine but can’t keep yourself healthy. Your focus is spending a fortune looking pretty (pretending) rather than staying healthy and loading up on healthy substances. Bender (Aspect site) doesn’t want you back as advised. We are not busy currently. When we ramp up I will advise.”
The evidence is that Mr Melit did not work from that day, 25 February, until 4 May, after having not worked the two weeks previously.
The statement of agreed facts has this at paragraph 39:
“On 11/12 February 2015 Mr Melit exercised his workplace right to take personal leave.”
Paragraph 40:
“The first respondent took adverse action against Mr Melit in that the first respondent failed or refused to provide Mr Melit with 38 hours work per week between 13 February 2015 and 4 May 2015 in accordance with the Melit training contract.”
Paragraph 41:
“The first respondent took adverse action set out in paragraph 40 above because Mr Melit exercised a workplace right as set out in paragraph 39 above.”
It seems to me that such a statement of agreed facts has tortured the evidence to a very great deal. What is alleged in those three paragraphs, to my mind, could not have been borne out at all by the evidence that I have referred to in Mr Melit’s affidavit.
At most, it may lead to an inference that the taking of two days sick leave could have been a factor in Mr Melit not working between 13 February and 25 February 2015, but it could not be at all said that the taking of the two days leave has been any factor in Mr Melit not working from 25 February through to 4 May 2015.
Notwithstanding that the statement of agreed facts states this as fact, there is no evidence, that I can see, that would allow such an inference to be drawn and it is not surprising that Mr Angus’ submissions, that were filed in July 2017, takes great issue with this aspect.
What is alleged by Mr Angus is that he made those admissions because of a number of factors. He came to the Court without a solicitor because he did not want to pay for one, realistically. There were three representatives from the Fair Work Ombudsman at the mediation and his understanding, after the mediation, was that he would be fined, regardless of the outcome of proceedings before my Court, and that he felt that he and the company had no option other than to agree to all the matters in the statement of agreed facts.
For those reasons, he now is asking this Court to allow him to withdraw those admissions.
The problem is that, whilst that was always the reason for which I adjourned the matter on 15 August, the interlocutory application that was then filed in December of last year was that the Second Respondent have leave to withdraw all the admissions that were made in the statement of agreed facts; in effect, all of the admissions made, for those same reasons.
That interlocutory application goes far beyond what had been adumbrated at the hearing in August 2017, albeit, whilst Mr Angus was representing himself.
I have been taken to a decision of the Fair Work Ombudsman & Poisson Pty Ltd [2017] FCCA 2736. It was a judgment delivered by His Honour Judge Jarrett on 10 November 2017. That was an application, as well, to withdraw admissions that were made in pleadings. His Honour, in that case, went through an extremely thorough dissertation of the principles that are applicable here.
What is clear is that this Court does have a very wide and unfettered discretion to allow such admissions to be withdrawn, but there, really, has to be some extremely good reason as to why a judge should disturb what was previously common ground, or what was previously conceded by a particular party.
In this case, I have great difficulty finding that I should accede to any application to withdraw most of the admissions that have been made.
The admissions that have been made, really, for the bulk of them – and I will go to a summary – are not affected by the aspect of adverse action that I have already alluded to.
The admissions are at paragraph 2(a) that there was:
“A failure to pay personal leave and a failure to pay employees for their absences on a public holiday.
(b)A failure to pay Mr Melit weekly.
A failure to pay the minimum rate of pay.
A failure to pay the fares and travel patterns allowance.
A failure to pay overtime.
A failure to pay Saturday penalty rates.
A failure to pay Mr Van Heusen annual leave and a failure to pay Mr Van Heusen annual leave loading.”
At paragraph 2(d):
“A failure to keep for seven years records of the kind described in the Fair Work Regulations.”
And at paragraph 2(e):
“A failure to provide Mr Melit with payslips as required.”
It seems to me that nothing that has been said really affects any of those admissions that were made in paragraph 2(a), (b), (d) and (e), nor paragraph 3, which is that the second respondent admits that he was involved in these admitted contraventions.
What has been raised now is that, according to the employment agreements that were signed when these two apprentices started working, those agreements have that the employer is Mr Angus and not the company.
However, it is quite clear, on the evidence, that it was company work that these two apprentices were completing and they were being paid by the company, notwithstanding that they were under direction of Mr Angus, who was the controlling mind of the company.
It is said by the Respondents now that such an argument can be made that the admission that the trainees were employed by the company was false on the facts and, therefore, it should be withdrawn.
To me, the evidence does not disclose that such an admission is actually false on the facts. Notwithstanding that the name of the employer on the employment contract was different to the company, it is clear that the trainees, or apprentices, were doing the work of the company, as I have already indicated. It seems to me that the preponderance of evidence is that they were truly employed by the company.
In any event, even if there were a question and a serious question to be tried as to that, it seems to me to be, really, an academic exercise, given the way in which the company and Mr Angus interacted; even if Mr Angus were the actual employer, there would be no question that, pursuant to s.550, the company would be accessorily liable in the same way that had been admitted the other way.
I cannot see that such an argument is sufficient for me to exercise the discretion to allow the admissions to be withdrawn on that basis.
However, the admission at paragraph 2(c), that the Respondents have breached s.340(1)(a)(ii) of the FW Act by taking adverse action against Mr Melit because Mr Melit exercised a workplace right, namely, taking personal leave; and the admission at paragraph 4 that the First Respondent admits that it failed to provide Mr Melit’s safety net contractual entitlement to be paid ordinary wages for ordinary hours in the period from 13 February 2015 to 4 May 2015, are admissions that, on the face of it, can be seen to be contrary to the evidence that is here.
In looking at all the principles in the cases that have been given to me, notwithstanding that it may not have been as clearly articulated as the Fair Work Ombudsman submits it should be, nevertheless, it seems to me that I should allow the application, to this extent: that the admissions in paragraph 2(c) and paragraph 4 and paragraphs 37 to 46 of the agreed statement of facts.
So, if I have missed any other paragraph in the statement of agreed facts that relates to the admission of liability for the adverse action claim, then I also allow that paragraph to be withdrawn.
I certify that the preceding forty-four (44) paragraphs are a true copy of the reasons for judgment of Judge Vasta
Date: 23 May 2018
CORRECTIONS:
To correct Order 1 to reflect the amended Order made on 13 August 2018 which removed the reference to paragraph 84.
To correct paragraph 43 by removing reference to paragraph 84.
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