The Director of the Fair Work Building Industry Inspectorate v Linkhill Pty Ltd (No.6)

The Director of the Fair Work Building Industry Inspectorate (the Director) brought proceedings against Linkhill Pty Ltd (Linkhill) in the Federal Court of Australia. The dispute concerned alleged contraventions of the *Building and Construction Industry (Improving Productivity) Act 2013* (Cth) (the Act) and the *Fair Work Act 2009* (Cth) (the FW Act), specifically relating to the conduct of an official of the Construction, Forestry, Mining and Energy Union (CFMMEU) at a Linkhill worksite. The Director sought declarations and pecuniary penalties against Linkhill for alleged breaches of the general protections provisions under the FW Act, and for alleged contraventions of the Act concerning the right of entry of an industrial officer.

The primary legal issues before the Court were whether Linkhill had contravened section 535 of the FW Act by failing to keep and retain records, and whether Linkhill had contravened section 536 of the FW Act by failing to provide records to the Director upon request. Additionally, the Court considered whether Linkhill had contravened section 537 of the FW Act by providing false or misleading information to the Director. The Court also had to determine whether Linkhill had contravened section 538 of the FW Act by failing to comply with a notice to produce documents.

Judge O’Sullivan found that Linkhill had contravened section 535 of the FW Act by failing to keep and retain records relating to payments made to employees and contractors. The Court reasoned that the evidence established a systemic failure by Linkhill to maintain adequate records, which was a breach of its statutory obligations. Regarding the alleged contraventions of sections 536, 537, and 538, the Court found that the Director had not discharged the onus of proof to establish these contraventions on the balance of probabilities. The Court noted that while there were deficiencies in Linkhill's record-keeping, the evidence did not support findings of deliberate falsification or misleading conduct, nor a failure to comply with a notice to produce documents in the manner alleged.

The Court made declarations that Linkhill had contravened section 535 of the FW Act on multiple occasions. Pecuniary penalties were ordered against Linkhill in respect of these contraventions. The Director's claims for contraventions of sections 536, 537, and 538 of the FW Act were dismissed.