The Director of the Fair Work Building Industry Inspectorate v Linkhill Pty Ltd (No.8)
[2014] FCCA 225
•12 February 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| THE DIRECTOR OF THE FAIR WORK BUILDING INDUSTRY INSPECTORATE v LINKHILL PTY LTD (No.8) | [2014] FCCA 225 |
| Catchwords: INDUSTRIAL LAW – Oral application for adjournment made by respondent – application refused – proceedings adjourned for penalty hearing. |
| Legislation: Workplace Relations Act 2006 (Cth) ss.719, 722, 900 |
| The Director of the Fair Work Building Industry Inspectorate v Linkhill Pty Ltd (No.1) [2013] FMCA163 |
| Applicant: | THE DIRECTOR OF THE FAIR WORK BUILDING INDUSTRY INSPECTORATE |
| Respondent: | LINKHILL PTY LTD |
| File Number: | MLG 1514 of 2011 |
| Judgment of: | Judge O’Sullivan |
| Hearing date: | 12 February 2014 |
| Date of Last Submission: | 12 February 2014 |
| Delivered at: | Melbourne |
| Delivered on: | 12 February 2014 |
REPRESENTATION
| Counsel for the Applicant: | Mr S. Moore |
| Solicitors for the Applicant: | Clayton Utz |
| Counsel for the Respondent: | Mr R. O’Neill |
| Solicitors for the Respondent: | At Work Law |
ORDERS
THE COURT ORDERS THAT:
The Respondent’s oral application for an adjournment be refused.
THE COURT DECLARES THAT:
From 29 May 2008 until 30 June 2009, the Respondent contravened s.900(1) of the Workplace Relations Act 1996 (Cth) (“the WR Act”) by representing to Alex Najdoski (“Najdoski”) that the contract to which he was a party with the Respondent was a contract for services under which Najdoski performed, or was to perform, work for the Respondent as an independent contractor in circumstances where, as a matter of fact and law, the contract as in force at the time of the representations, was a contract of employment under which the Respondent was the employer of Najdoski, rather than a contract for services under which he performed work as an independent contractor.
From 1 July 2009 until 15 July 2010, the Respondent contravened s.357 of the Fair Work Act 2009 (Cth) (“the FW Act”) by representing to Najdoski that the contract of employment under which Najdoski was employed by the Respondent was a contract for services under which Najdoski performed work as an independent contractor.
From 29 May 2008 until 31 December 2009, the Respondent contravened the following provisions of the National Building and Construction Industry Award 2000 (2000 Award) in respect of its employment of Najdoski:
(a)clause 24.9.1, by failing to pay Najdoski meal allowances;
(b)clause 26, by failing to make superannuation contributions on Najdoski's behalf;
(c)clause 29, by failing to pay Najdoski overtime rates;
(d)clause 31, by failing to pay Najdoski penalty rates for work performed on weekends;
(e)clause 31.7, by failing to pay Najdoski crib time;
(f)clause 38, by failing to pay Najdoski a fare and travel patterns allowance; and
(g)clause 32.7.2, by failing to pay Najdoski annual leave loading.
From 29 May 2008 until 31 December 2009, the Respondent contravened the following provisions of the WR Act in respect of its employment of Najdoski:
(a)ss.232(2) and 234(2), by failing to accrue and credit paid annual leave in respect of Najdoski; and
(b)ss.246(2) and 246(4), by failing to accrue and credit paid personal leave in respect of Najdoski.
From 1 January 2010 until 15 July 2010, the Respondent contravened s.45 of the FW Act in respect of its employment of Najdoski by:
(a)failing to pay Najdoski a meal allowance as required by clause 20.2 of the Building and Construction General On-Site Award 2010 (“the 2010 Award”);
(b)failing to make superannuation contributions on Najdoski's behalf as required by clause 32 of the 2010 Award;
(c)failing to pay Najdoski overtime rates as required by clause 36.2 of the 2010 Award;
(d)failing to pay Najdoski penalty rates for work performed on weekends as required by clause 37 of the 2010 Award;
(e)failing to pay Najdoski crib time as required by clause 37.7 of the 2010 Award;
(f)failing to pay Najdoski a fare and travel patterns allowance as required by clause 25 of the 2010 Award; and
(g)failing to pay Najdoski annual leave loading as required by clause 38.2 of the 2010 Award.
From 1 January 2010 until 15 July 2010, the Respondent contravened the following provisions of the FW Act in respect of its employment of Najdoski:
(a)ss.87(2) and 90(2), by failing to accrue and credit paid annual leave in respect of Najdoski;
(b)s.96, by failing to accrue and credit paid personal leave in respect of Najdoski; and
(c)s.535 and Regulation 3.36 of the Fair Work Regulations 2009 (“the FW Regulations”) by failing to keep a record of Najdoski's leave entitlements.
In addition to any other outstanding entitlements to annual leave accrued since 15 July 2010, as an employee of the Respondent Najdoski is entitled to 164.75 hours annual leave in respect of his employment with the Respondent between 29 May 2008 and 15 July 2010.
In addition to any other outstanding entitlements to personal leave accrued since 15 July 2010, as an employee of the Respondent Najdoski is entitled to 82.26 hours personal leave in respect of his employment with the Respondent between 29 May 2008 and 15 July 2010.
From 18 March 2010 until 28 July 2010, the Respondent contravened s.357 of the FW Act by representing to Julio Cabrera (“Cabrera”) that the contract of employment under which Cabrera was employed by the Respondent was a contract for services under which Cabrera performed work as an independent contractor.
From 18 March 2010 until 28 July 2010, the Respondent contravened s.45 of the FW Act in respect of its employment of Cabrera by:
(a)failing to pay Cabrera a meal allowance as required by clause 20.2 of the 2010 Award;
(b)failing to make superannuation contributions on Cabrera's behalf as required by clause 32 of the 2010 Award;
(c)failing to pay Cabrera overtime rates as required by clause 36.2 of the 2010 Award;
(d)failing to pay Cabrera penalty rates for work performed on weekends as required by clause 37 of the 2010 Award;
(e)failing to pay Cabrera a fare and travel patterns allowance as required by clause 25 of the 2010 Award;
(f)failing to pay Cabrera redundancy/severance pay upon termination of his employment as required by clause 17 of the 2010 Award;
(g)failing to pay Cabrera annual leave loading upon termination of his employment as required by clause 38.2 of the 2010 Award; and
(h)failing to pay Cabrera his accrued but untaken annual leave upon termination of his employment as required by clause 38.2 of the 2010 Award.
From 18 March 2010 until 28 July 2010, the Respondent contravened the following provisions of the FW Act in respect of its employment of Cabrera:
(a)ss.87(2) and 90(2) by failing to accrue annual leave in respect of Cabrera and pay Cabrera his accrued but untaken annual leave upon termination of his employment; and
(b)s.535 and Regulation 3.36 of the FW Regulations by failing to keep a record of Cabrera's leave entitlements.
From 12 July 2007 until 30 June 2009, the Respondent contravened s.900(1) of the WR Act by representing to Nathan Lovell (“Lovell”) that the contract to which he was a party with the Respondent was a contract for services under which Lovell performed, or was to perform, work for the Respondent as an independent contractor in circumstances where, as a matter of fact and law, the contract as in force at the time of the representations, was a contract of employment under which the Respondent was the employer of Lovell, rather than a contract for services under which he performed work as an independent contractor.
From 1 July 2009 until 29 July 2010, the Respondent contravened s.357 of the FW Act by representing to Lovell that the contract of employment under which Lovell was employed by the Respondent was a contract for services under which Lovell performed work as an independent contractor.
From 12 July 2007 until 31 December 2009, the Respondent contravened the following provisions of the 2000 Award in respect of its employment of Lovell:
(a)clause 24.9.1, by failing to pay Lovell meal allowances;
(b)clause 26, by failing to make superannuation contributions on Lovell's behalf;
(c)clause 29, by failing to pay Lovell overtime rates;
(d)clause 31, by failing to pay Lovell penalty rates for work performed on weekends;
(e)clause 31.7, by failing to pay Lovell crib time;
(f)clause 38, by failing to pay Lovell a fare and travel patterns allowance; and
(g)clause 32.7.2, by failing to pay Lovell annual leave loading.
From 12 July 2007 until 31 December 2009, the Respondent contravened ss.232(2) and 234(2) of the WR Act by failing to accrue and credit paid annual leave in respect of its employment of Lovell.
From 1 January 2010 until 23 July 2010, the Respondent contravened s.45 of the FW Act in respect of its employment of Lovell by:
(a)failing to pay Lovell a meal allowance as required by clause 20.2 of the 2010 Award;
(b)failing to make superannuation contributions on Lovell's behalf as required by clause 32 of the 2010 Award;
(c)failing to pay Lovell overtime rates as required by clause 36.2 of the 2010 Award;
(d)failing to pay Lovell penalty rates for work performed on weekends as required by clause 37 of the 2010 Award;
(e)failing to pay Lovell crib time as required by clause 37.7 of the 2010 Award;
(f)failing to pay Lovell a fare and travel patterns allowance as required by clause 25 of the 2010 Award;
(g)failing to pay Lovell redundancy/severance pay upon termination of his employment as required by clause 17 of the 2010 Award; and
(h)failing to pay Lovell his accrued but untaken annual leave and annual leave loading upon termination of his employment as required by clause 38.2 of the 2010 Award.
From 1 January 2010 until 23 July 2010, the Respondent contravened the following provisions of the FW Act in respect of its employment of Lovell:
(a)ss. 87(2) and 90(2) by failing to accrue and credit annual leave in respect of Lovell and to pay Lovell his accrued but untaken annual leave upon termination of his employment; and
(b)s.535 and Regulation 3.36 of the FW Regulations by failing to keep a record of Lovell's leave entitlements.
From 7 January 2010 until 15 July 2010, the Respondent contravened s.357 of the FW Act by representing to Matthew Walker (“Walker”) that the contract of employment under which Walker was employed by the Respondent was a contract for services under which Walker performed work as an independent contractor.
From 7 January 2010 until 15 July 2010, the Respondent contravened s.45 of the FW Act in respect of its employment of Walker by:
(a)failing to pay Walker a meal allowance as required by clause 20.2 of the 2010 Award;
(b)failing to make superannuation contributions on Walker's behalf as required by clause 32 of the 2010 Award;
(c)failing to pay Walker overtime rates as required by clause 36.2 of the 2010 Award;
(d)failing to pay Walker penalty rates for work performed on weekends as required by clause 37 of the 2010 Award;
(e)failing to pay Walker crib time as required by clause 37.7 of the 2010 Award;
(f)failing to pay Walker a fare and travel patterns allowance as required by clause 25 of the 2010 Award;
(g)failing to pay Walker redundancy/severance pay upon termination of his employment as required by clause 17 of the 2010 Award; and
(h)failing to pay Walker his accrued but untaken annual leave and annual leave loading upon termination of his employment as required by clause 38.2 of the 2010 Award.
From 7 January 2010 until 15 July 2010, the Respondent contravened the following provisions of the FW Act in respect of its employment of Walker:
(a)ss.87(2) and 90(2) by failing to accrue and credit annual leave in respect of Walker and to pay Walker his accrued but untaken annual leave upon termination of his employment; and
(b)s.535 and Regulation 3.36 of the FW Regulations by failing to keep a record of Walker's leave entitlements.
From 12 February 2009 until 30 June 2009, the Respondent contravened s.900(1) of the WR Act by representing to Stephen Etheredge (“Etheredge”) that the contract to which he was a party with the Respondent was a contract for services under which Etheredge performed, or was to perform, work for the Respondent as an independent contractor in circumstances where, as a matter of fact and law, the contract as in force at the time of the representations, was a contract of employment under which the Respondent was the employer of Etheredge, rather than a contract for services under which he performed work as an independent contractor.
From 1 July 2009 until 15 July 2010, the Respondent contravened s.357 of the FW Act by representing to Etheredge that the contract of employment under which Etheredge was employed by the Respondent was a contract for services under which Etheredge performed work as an independent contractor.
From 12 February 2009 until 31 December 2009, the Respondent contravened the following provisions of the 2000 Award in respect of its employment of Etheredge:
(a)clause 24.9.1, by failing to pay Etheredge meal allowances;
(b)clause 26, by failing to make superannuation contributions on Etheredge's behalf;
(c)clause 29, by failing to pay Etheredge overtime rates;
(d)clause 31, by failing to pay Etheredge penalty rates for work performed on weekends;
(e)clause 31.7, by failing to pay Etheredge crib time;
(f)clause 38, by failing to pay Etheredge a fare and travel patterns allowance; and
(g)clause 32.7.2, by failing to pay Etheredge annual leave loading.
From 12 February 2009 until 31 December 2009, the Respondent contravened ss. 232(2) and 234(2) of the WR Act by failing to accrue and credit paid annual leave in respect of its employment of Etheredge.
From 1 January 2010 until 15 July 2010, the Respondent contravened s.45 of the FW Act in respect of its employment of Etheredge by:
(a)failing to pay Etheredge a meal allowance as required by clause 20.2 of the 2010 Award;
(b)failing to make superannuation contributions on Etheredge's behalf as required by clause 32 of the 2010 Award;
(c)failing to pay Etheredge overtime rates as required by clause 36.2 of the 2010 Award;
(d)failing to pay Etheredge penalty rates for work performed on weekends as required by clause 37 of the 2010 Award;
(e)failing to pay Etheredge crib time as required by clause 37.7 of the 2010 Award;
(f)failing to pay Etheredge a fare and travel patterns allowance as required by clause 25 of the 2010 Award;
(g)failing to pay Etheredge redundancy/severance pay upon termination of his employment as required by clause 17 of the 2010 Award; and
(h)failing to pay Etheredge his accrued but untaken annual leave and annual leave loading upon termination of his employment as required by clause 38.2 of the 2010 Award.
From 1 January 2010 until 15 July 2010, the Respondent contravened the following provisions of the FW Act in respect of its employment of Etheredge:
(a)ss.87(2) and 90(2) by failing to accrue and credit paid annual leave in respect of Etheredge and to pay Etheredge his accrued but untaken annual leave upon termination of his employment; and
(b)s.535 and Regulation 3.36 of the FW Regulations by failing to keep a record of Etheredge's leave entitlements.
From 12 February 2009 until 30 June 2009, the Respondent contravened s.900(1) of the WR Act by representing to Joel Elliott (“Elliott”) that the contract to which he was a party with the Respondent was a contract for services under which Elliott performed, or was to perform, work for the Respondent as an independent contractor in circumstances where, as a matter of fact and law, the contract as in force at the time of the representations, was a contract of employment under which the Respondent was the employer of Elliott, rather than a contract for services under which he performed work as an independent contractor.
From 1 July 2009 until 15 July 2010, the Respondent contravened s.357 of the FW Act by representing to Elliott that the contract of employment under which Elliott was employed by the Respondent was a contract for services under which Elliott performed work as an independent contractor.
From 12 February 2009 until 31 December 2009, the Respondent contravened the following provisions of the 2000 Award in respect of its employment of Elliott:
(a)clause 24.9.1, by failing to pay Elliott meal allowances;
(b)clause 26, by failing to make superannuation contributions on Elliott's behalf;
(c)clause 29, by failing to pay Elliott's overtime rates;
(d)clause 31, by failing to pay Elliott penalty rates for work performed on weekends;
(e)clause 31.7, by failing to pay Elliott crib time;
(f)clause 38, by failing to pay Elliott a fare and travel patterns allowance; and
(g)clause 32.7.2, by failing to pay Elliott annual leave loading.
From 12 February 2009 until 31 December 2009, the Respondent contravened ss.32(2) and 234(2) of the WR Act by failing to accrue and credit paid annual leave in respect of its employment of Elliott.
From 1 January 2010 until 15 July 2010, the Respondent contravened s.45 of the FW Act in respect of its employment of Elliott by:
(a)failing to pay Elliott a meal allowance as required by clause 20.2 of the 2010 Award;
(b)failing to make superannuation contributions on Elliott's behalf as required by clause 32 of the 2010 Award;
(c)failing to pay Elliott overtime rates as required by clause 36.2 of the 2010 Award;
(d)failing to pay Elliott penalty rates for work performed on weekends as required by clause 37 of the 2010 Award;
(e)failing to pay Elliott crib time as required by clause 37.7 of the 2010 Award;
(f)failing to pay Elliott a fare and travel patterns allowance as required by clause 25 of the 2010 Award;
(g)failing to pay Elliott redundancy/severance pay upon termination of his employment as required by clause 17 of the 2010 Award; and
(h)failing to pay Elliott his accrued but untaken annual leave and annual leave loading upon termination of his employment as required by clause 38.2 of the 2010 Award.
From 1 January 2010 until 15 July 2010, the Respondent contravened the following provisions of the FW Act in respect of its employment of Elliott:
(a)ss.87(2) and 90(2) by failing to accrue and credit paid annual leave in respect of Elliott and to pay Elliott his accrued but untaken annual leave upon termination of his employment; and
(b)s.535 and Regulation 3.36 of the FW Regulations by failing to keep a record of Elliott's leave entitlements.
From 5 April 2007 until 30 June 2009, the Respondent contravened s.900(1) of the WR Act by representing to Ryan Lowery (“Lowery”) that the contract to which he was a party with the Respondent was a contract for services under which Lowery performed, or was to perform, work for the Respondent as an independent contractor in circumstances where, as a matter of fact and law, the contract as in force at the time of the representations, was a contract of employment under which the Respondent was the employer of Lowery, rather than a contract for services under which he performed work as an independent contractor.
From 1 July 2009 until 15 July 2010, the Respondent contravened s.357 of the FW Act by representing to Lowery that the contract of employment under which Lowery was employed by the Respondent was a contract for services under which Lowery performed work as an independent contractor.
From 5 April 2007 until 3 January 2008, the Respondent contravened the following provisions of the 2000 Award in respect of its employment of Lowery:
(a)clause 24.9.1, by failing to pay Lowery meal allowances;
(b)clause 26, by failing to make superannuation contributions on Lowery's behalf;
(c)clause 29, by failing to pay Lowery overtime rates;
(d)clause 31, by failing to pay Lowery penalty rates for work performed on weekends;
(e)clause 31.7, by failing to pay Lowery crib time;
(f)clause 38, by failing to pay Lowery a fare and travel patterns allowance; and
(g)clause 32.7.2, by failing to pay Lowery annual leave loading.
From 4 January 2008 until 31 December 2010, the Respondent contravened the following provisions of the WR Act in respect of its employment of Lowery:
(a)ss.232(2) and 234(2) by failing to accrue and credit paid annual leave in respect of Lowery; and
(b)ss.246(2) and 246(4) by failing to accrue and credit paid personal leave in respect of Lowery.
From 1 January 2010 until 15 July 2010, the Respondent contravened the following provisions of the FW Act in respect of its employment of Lowery:
(a)ss.87(2) and 90(2) by failing to accrue and credit paid annual leave in respect of Lowery;
(b)s.96 by failing to accrue and credit paid personal leave in respect of Lowery; and
(c)s.535 and Regulation 3.36 of the FW Regulations by failing to keep a record of Lowery's leave entitlements.
In addition to any other outstanding entitlements to annual leave accrued since 15 July 2010, as an employee of the Respondent Lowery is entitled to 452.19 hours annual leave in respect of his employment with the Respondent between 5 April 2007 and 15 July 2010.
In addition to any other outstanding entitlements to personal leave accrued since 15 July 2010, as an employee of the Respondent Lowery is entitled to 225.82 hours personal leave in respect of his employment with the Respondent between 5 April 2007 and 15 July 2010.
From 15 July 2007 until 30 June 2009, the Respondent contravened s.900(1) of the WR Act by representing to Robert Hunter (“Hunter”) that the contract to which he was a party with the Respondent was a contract for services under which Hunter performed, or was to perform, work for the Respondent as an independent contractor in circumstances where, as a matter of fact and law, the contract as in force at the time of the representations, was a contract of employment under which the Respondent was the employer of Hunter, rather than a contract for services under which he performed work as an independent contractor.
From 1 July 2009 until 1 April 2010, the Respondent contravened s.357 of the FW Act by representing to Hunter that the contract of employment under which Hunter was employed by the Respondent was a contract for services under which Hunter performed work as an independent contractor.
From 15 July 2007 until 31 December 2009, the Respondent contravened:
(a)clause 7.1.4 of the Metal, Engineering and Associated Industries Award 1998 (“the 1998 Award”) by failing to pay Hunter annual leave loading; and
(b)ss.232(2) and 234(2) of the WR Act by failing to accrue and credit paid annual leave in respect of Hunter.
From 1 January 2010 until 1 April 2010 in respect of its employment of Hunter the Respondent contravened:
(a)s.45 of the FW Act failing to pay Hunter his accrued but untaken annual leave and annual leave loading upon termination of his employment as required by clause 41 of the Manufacturing and Associated Industries and Occupations Award 2010 (“the Manufacturing Award”);
(b)ss.87(2) and 90(2) of the FW Act by failing to accrue and credit paid annual leave in respect of Hunter and to pay Hunter his accrued but untaken annual leave upon termination of his employment; and
(c)s.535 of the FW Act and Regulation 3.36 of the FW Regulations by failing to keep a record of Hunter's leave entitlements.
From 5 April 2007 until 21 August 2008, the Respondent contravened s.900(1) of the WR Act by representing to Paul Gillen (“Gillen”) that the contract to which he was a party with the Respondent was a contract for services under which Gillen performed, or was to perform, work for the Respondent as an independent contractor in circumstances where, as a matter of fact and law, the contract as in force at the time of the representations, was a contract of employment under which the Respondent was the employer of Gillen, rather than a contract for services under which he performed work as an independent contractor.
From 5 April 2007 until 21 August 2008, the Respondent contravened the following provisions of the 2000 Award in respect of its employment of Gillen:
(a)clause 24.9.1, by failing to pay Gillen meal allowances;
(b)clause 26, by failing to make superannuation contributions on Gillen's behalf;
(c)clause 29, by failing to pay Gillen overtime rates;
(d)clause 31, by failing to pay Gillen penalty rates for work performed on weekends;
(e)clause 31.7, by failing to pay Gillen crib time;
(f)clause 38, by failing to pay Gillen a fare and travel patterns allowance;
(g)clause 16, by failing to pay Gillen redundancy/severance pay upon termination of his employment; and
(h)clause 32.7, by failing to pay Gillen his accrued but untaken annual leave and annual leave loading upon termination of his employment.
From 5 April 2007 until 21 August 2008, the Respondent contravened ss.232(2) and 234(2) of the WR Act in respect of its employment of Gillen by failing to accrue and credit paid annual leave in respect of Gillen.
From 5 July 2007 until 30 June 2009, the Respondent contravened s.900(1) of the WR Act by representing to Cyrille Darrigrand (“Darrigrand”) that the contract to which he was a party with the Respondent was a contract for services under which Darrigrand performed, or was to perform, work for the Respondent as an independent contractor in circumstances where, as a matter of fact and law, the contract as in force at the time of the representations, was a contract of employment under which the Respondent was the employer of Darrigrand, rather than a contract for services under which he performed work as an independent contractor.
From 1 July 2009 until 12 August 2010, the Respondent contravened s.357 of the FW Act by representing to Darrigrand that the contract of employment under which Darrigrand was employed by the Respondent was a contract for services under which Darrigrand performed work as an independent contractor.
From 5 July 2007 until 31 December 2009, the Respondent contravened ss.232(2) and 234(2) of the WR Act by failing to accrue and credit paid annual leave in respect of its employment of Darrigrand.
From 1 January 2010 until 12 August 2010, the Respondent contravened the following provisions of the FW Act in respect of its employment of Darrigrand:
(a)ss.87(2) and 90(2) by failing to accrue and credit paid annual leave in respect of Darrigrand and to pay Darrigrand his accrued but untaken annual leave upon termination of his employment; and
(b)s.535 and Regulation 3.36 of the FW Regulations by failing to keep a record of Darrigrand's leave entitlements.
THE COURT ORDERS THAT:
Pursuant to s.719(6) of the WR Act and s.545(1) of the FW Act, the Respondent pay Najdoski the amount of $9,042.8 comprised of:
(a)$3,146.74 in respect of unpaid overtime and weekend penalty rates under the 2000 Award and the 2010 Award;
(b)$647.90 in respect of unpaid meal allowances under the 2000 Award and the 2010 Award;
(c)$221.17 in respect of unpaid crib time under the 2000 Award and the 2010 Award; and
(d)$5,027.00 in respect of unpaid fares and travel patterns allowances under the 2000 Award and the 2010 Award.
Pursuant to s.545(1) of the FW Act, the Respondent pay Cabrera the amount of $2,573.17 comprised of:
(a)$6.71 in respect of unpaid overtime and weekend penalty rates under the 2010 Award;
(b)$130.90 in respect of unpaid meal allowances under the 2010 Award;
(c)$1,171.50 in respect of unpaid fares and travel patterns allowances under the 2010 Award;
(d)$421.77 in respect of unpaid redundancy/severance pay under the 2010 Award ;
(e)$703.36 in respect of unpaid accrued annual leave under the 2010 Award and the FW Act ; and
(f)$138.93 in respect of unpaid annual leave loading under the 2010 Award.
Pursuant to s.719(6) of the WR Act and s.545(1) of the FW Act, the Respondent pay Lovell the amount of $37,806.29 comprised of:
(a)$7,423.52 in respect of unpaid overtime and weekend penalty rates under the 2000 Award and the 2010 Award;
(b)$3,683.30 in respect of unpaid meal allowances under the 2000 Award and the 2010 Award; and
(c)$489.73 in respect of unpaid crib time under the 2000 Award and the 2010 Award;
(d)$12,009.80 in respect of unpaid fares and travel patterns allowances under the 2000 Award and the 2010 Award;
(e)$4,740.57 in respect of unpaid redundancy/severance pay under the 2010 Award;
a.$7,919.34 in respect of unpaid accrued annual leave under the 2010 Award and the FW Act; and
b.$1,540.03 in respect of unpaid annual leave loading under the 2010 Award.
Pursuant to s.545(1) of the FW Act, the Respondent pay Walker the amount of $4,482.05 comprised of:
(a)$171.29 in respect of unpaid overtime and weekend penalty rates under the 2010 Award;
(b)$142.80 in respect of unpaid meal allowances under the 2010 Award; and
(c)$28.12 in respect of unpaid crib time under the 2000 Award and the 2010 Award;
(d)$1,963.50 in respect of unpaid fares and travel patterns allowances under the 2010 Award;
(e)$726.47 in respect of unpaid redundancy/severance pay under the 2010 Award;
(f)$1,211.51 in respect of unpaid accrued annual leave under the 2010 Award and the FW Act; and
(g)$238.36 in respect of unpaid annual leave loading under the 2010 Award.
Pursuant to s.719(6) of the WR Act and s.545(1) of the FW Act, the Respondent pay Etheredge the amount of $16,648.07 comprised of:
(a)$3,048.56 in respect of unpaid overtime and weekend penalty rates under the 2000 Award and the 2010 Award;
(b)$654.50 in respect of unpaid meal allowances under the 2000 Award and the 2010 Award; and
(c)$214.94 in respect of unpaid crib time under the 2000 Award and the 2010 Award;
(d)$5,907.00 in respect of unpaid fares and travel patterns allowances under the 2000 Award and the 2010 Award;
(e)$2,279.37 in respect of unpaid redundancy/severance pay under the 2010 Award;
(f)$3,803.97 in respect of unpaid accrued annual leave under the 2010 Award and the FW Act; and
(g)$739.73 in respect of unpaid annual leave loading under the 2010 Award.
Pursuant to s.719(6) of the WR Act and s.545(1) of the FW Act, the Respondent pay Elliott the amount of $11,820.26 comprised of:
(a)$177.29 in respect of unpaid overtime and weekend penalty rates under the 2000 Award and the 2010 Award;
(b)$511.70 in respect of unpaid meal allowances under the 2000 Award and the 2010 Award; and
(c)$33.74 in respect of unpaid crib time under the 2010 Award;
(d)$5,247.00 in respect of unpaid fares and travel patterns allowances under the 2000 Award and the 2010 Award;
(e)$1,952.14 in respect of unpaid redundancy/severance pay under the 2010 Award;
(f)$3,257.99 in respect of unpaid accrued annual leave under the 2010 Award and the FW Act; and
(g)$640.40 in respect of unpaid annual leave loading under the 2010 Award.
Pursuant to s.719(6) of the WR Act, the Respondent pay Lowery the amount of $3,222.85 comprised of:
(a)$308.40 in respect of unpaid meal allowances under the 2000 Award;
(b)$65.45 in respect of unpaid crib time under the 2000 Award; and
(c)$2,849.00 in respect of unpaid fares and travel patterns allowances under the 2000 Award.
Pursuant to s.545(1) of the FW Act, the Respondent pay Hunter the amount of $8,162.39 comprised of:
(a)$6,946.79 in respect of unpaid accrued annual leave under the Manufacturing Award and the FW Act; and
(b)$1,215.60 in respect of unpaid annual leave loading under the Manufacturing Award.
Pursuant to s.719(6) of the WR Act, the Respondent pay Gillen the amount of $11,143.06 comprised of:
(a)$534.12 in respect of unpaid overtime and weekend penalty rates under the 2000 Award;
(b)$372.90 in respect of unpaid meal allowances under the 2000 Award;
(c)$103.05 in respect of unpaid crib time under the 2000 Award;
(d)$5,005.00 in respect of unpaid fares and travel patterns allowances under the 2000 Award;
(e)$1,699.98 in respect of unpaid redundancy/severance pay under the 2000 Award;
(f)$2,839.35 in respect of unpaid accrued annual leave under the 2000 Award and the WR Act; and
(g)$588.66 in respect of unpaid annual leave loading under the 2000 Award.
Pursuant to s.545(1) of the FW Act, the Respondent pay Darrigrand the amount of $12,576.69 representing unpaid accrued annual leave under the FW Act.
Pursuant to s.722 of the WR Act and s.547 of the FW Act, the Respondent pay interest on the amounts payable pursuant to Orders 52 to 61 above (calculated at the rate prescribed by s.51A of the Federal Court of Australia Act 1976 and Practice Note CM 16 for the calculation of pre-judgment interest from the date of commencement of the proceedings (being 20 October 2011) until the date of the Reasons for Judgment (being 20 December 2013)) in the following amounts:
(a)$1,473.39 to Najdoski;
(b)$419.26 to Cabrera;
(c)$6,159.97 to Lovell;
(d)$730.28 to Walker;
(e)$2,712.55 to Etheredge;
(f)$1,925.93 to Elliott;
(g)$525.12 to Lowery;
(h)$1,329.94 to Hunter;
(i)$1,815.59 to Gillen; and
(j)$2,049.18 to Darrigrand.
Pursuant to s.719(7) of the WR Act and s.545(1) of the FW Act, the Respondent make superannuation contributions on behalf of each of the following persons to their respective nominated superannuation funds in the amounts identified:
(a)$6,989.13 in respect of Najdoski;
(b)$1,453.17 in respect of Cabrera;
(c)$1,517.41 in respect of Lovell;
(d)$2,453.71 in respect of Walker;
(e)$7,455.04 in respect of Etheredge;
(f)$6,746.06 in respect of Elliott;
(g)$4,328.81 in respect of Lowery; and
(h)$4,444.24 in respect of Gillen.
All of the payments referred to in Orders 52 to 62 are to be paid to each person identified therein within 28 days of the date of this Order.
All of the payments referred to in Order 63 are to be paid on behalf of each person identified therein within 28 days of the date of this Order.
In the event that the Respondent is unable to locate any person(s) referred to in Orders 52 to 63, pursuant to s.725(1) of the WR Act and s.559(1) of the FW Act, the Respondent shall pay any monies owing to any such person(s) to the Commonwealth.
Any amounts payable to the Commonwealth pursuant to Order 66 will be paid within 30 days of the date of this Order and will be by way of cheque made out to the "Collector of Public Monies".
Pursuant to section 545(1) of the FW Act, within 7 days of the date of this Order the Respondent, as Najdoski’s employer, shall:
(a)credit Najdoski's annual leave account with 164.75 hours in respect of annual leave accruals; and
(b)credit Najdoski's personal leave account with 82.26 hours in respect of personal leave accruals.
Pursuant to section 545(1) of the FW Act, within 7 days of the date of this Order the Respondent, as Lowery’s employer, shall:
(a)credit Lowery's annual leave account with 452.19 hours in respect of annual leave accruals; and
(b)credit Lowery's personal leave account with 225.82 hours in respect of personal leave accruals.
The Applicant file and serve an outline of submissions and any affidavits with respect to penalty by 12 March 2014.
The Respondent file and serve an outline of submissions and any affidavits with respect to penalty by 16 April 2014.
The Applicant file and serve any affidavits in reply with respect to penalty by 7 May 2014.
The matter is listed for a penalty hearing commencing on 15 May 2014 at the Federal Circuit Court of Australia at Melbourne commencing at 10.00 am for an estimated duration of two (2) days.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 1514 of 2011
| THE DIRECTOR OF THE FAIR WORK BUILDING INDUSTRY INSPECTORATE |
Applicant
And
| LINKHILL PTY LTD |
Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
(As Corrected)
Introduction
In these proceedings the Director of the Fair Work Building Industry Inspectorate (“the applicant”) alleged Linkhill Pty Ltd (“the respondent”) engaged in sham contracting in relation to 10 workers engaged over different periods between 2007 and 2010, thereby contravening the Workplace Relations Act 2006 (“the WR Act”) and the Fair Work Act 2009 (“the FW Act”). The applicant also alleged that the respondent failed to comply with its obligations under both the WR Act and the FW Act and owed a total of $178,941.92 in unpaid wages and entitlements to the workers.
Background to the proceedings
The background to this matter is set out in a number of decisions of the Court reported as The Director of the Fair Work Building Industry Inspectorate v Linkhill Pty Ltd (No.1) [2013] FMCA163; The Director of the Fair Work Building Industry Inspectorate v Linkhill Pty Ltd (No.2) [2013] FMCA164; The Director of the Fair Work Building Industry Inspectorate v Linkhill Pty Ltd (No.3) [2013] FMCA165; The Director of the Fair Work Building Industry Inspectorate v Linkhill Pty Ltd (No.4) (2013) FMCA182; The Director of the Fair Work Building Industry Inspectorate v Linkhill Pty Ltd (No.5) [2013] FCCA 476 and The Director of the Fair Work Building Industry Inspectorate v Linkhill Pty Ltd (No.6) [2013] FCCA477.
On 20 December 2013, for the reasons published as The Director of the Fair Work Building Industry Inspectorate v Linkhill Pty Ltd (No.7) [2013] FCCA1097 (“Linkhill (No.7)”), the Court made the following orders:
“THE COURT ORDERS THAT:
1.The applicant is to bring in minutes of orders to give effect to these reasons for decision within 28 days.
2.The remainder of the proceedings be adjourned to
12 February 2014 to program the further conduct of the proceedings in relation to the penalty, if any, that should be imposed on the respondent for breaches of the Workplace Relations Act, the Fair Work Act and the industrial instruments referred to in the accompanying reasons for decision.”
By agreement between the parties, the time for the applicant to bring a minute of orders was extended by a week. On 24 January 2014 the applicant filed and served a minute of the proposed orders.
In Linkhill (No.7), the Court concluded that the 10 workers engaged by the respondent were employees of the respondent and that the respondent had contravened s.900 of the WR Act and s.357 of the FW Act. For the reasons set out in Linkhill (No.7), the Court also concluded that the respondent had underpaid the workers, who were owed wages and other entitlements pursuant to the WR Act, the FW Act and/or the applicable industrial instruments.
As was noted in Linkhill (No.7), the parties agreed the penalty hearing should occur following the Court’s determination of liability.
In Linkhill (No.7) the Court directed the applicant to bring in a minute of proposed orders to give effect to those reasons. As yet no final orders have been made consequent upon the findings made for the reasons for judgment referred to as Linkhill (No.7).
Today, 12 February 2014, Mr Moore of Counsel has appeared on behalf of the applicant. Mr O’Neill of Counsel has appeared on behalf of the respondent. The proceedings had been stood over for the purposes of making orders to give effect to the reasons for decision in Linkhill (No.7) and for making directions for a penalty hearing.
Respondent’s oral application for an adjournment
This morning Counsel for the respondent sought to make an oral application for an adjournment. The application was opposed by the applicant. I have heard submissions from both parties. The oral application was an application that the matter be adjourned for two weeks.
Mr O’Neill traversed during the course of submissions the instructions he had received and the raison d’être for the oral application he sought to make. Mr O’Neill did not cavil with Mr Moore’s submissions to the Court that his client had not had notice of this application. There is no proper application before the Court and there is no material been filed in support of it.
Mr O’Neill did dispute that his client had the reasons in Linkhill (No.7) since 20 December 2013 and had been given the proposed minutes on
24 January 2014 and has had an opportunity to make submissions on same.The basis for the adjournment application, as I understood the submission made, was that the respondent has changed Counsel and has only done so recently. The new Counsel was not in Melbourne until the end of January 2014. On that basis Counsel for the respondent submitted there were matters of law that needed to be explored which warranted the Court considering adjourning this matter.
The approach to the application for an adjournment before the Court is as follows. It has been made clear Courts are entitled to manage their procedures so that the interests of justice can be served by the speedy resolution of cases at the minimum expense (see Aon Risk Services Australia Limited v Australian National University [2009] HCA 27 (Aon)). In Aon their Honours made a number of points, which included that:
a)
the conduct of litigation is not merely a matter for the parties.
The need to avoid disruptions in the Court’s lists, with consequent inconvenience to the Court and prejudice to the interests of other litigants waiting to be heard, is a relevant matter (at [93]);
b)when considering an application such as this the Court should take account of other litigants, not just the parties to the litigation in question (at [94]-[95]);
c)costs are not always a sufficient compensation for the vacation of a hearing date (at [99]-[100]);
d)there may be cases where it may properly be concluded that a party has had sufficient opportunity to make their case and that it is too late for an adjournment application, having regard to the other party and the other litigants awaiting trial dates (at [102]);
e)the fact that an explanation has been offered for the delay in raising the issue is relevant, together with whatever explanation may be given (at [103]); and
f)whilst all matters relevant to the exercise of the power should be considered substantial delay, wasted costs and the concerns of case management are important (at [111]).
In the context of the statements in Aon, the role and mode of operation of this Court are also relevant. They are as set out in the Federal Circuit Court of Australia Act 1999 (Cth)[1] and the Federal Circuit Court Rules 2001 (Cth),[2] as prescribed by the objects of the FCCA Act[3] and the objects of the FCC Rules,[4] provide for the Court to operate in a manner:
a)as informal as possible in the exercise of judicial power;
b)which is not protracted in its proceedings;
c)which resolves proceedings justly, efficiently and economically;
d)which uses streamlined procedures; and
e)that avoids undue delay, expense and technicality.
[1] “FCCA Act”.
[2] “FCC Rules”.
[3] FCCA Act, ss.3 and 42.
[4] FCC Rules, r.1.03.
The raison d’être for the adjournment as it was referred to during the course of the submissions by Mr O’Neill was to consider whether submissions should be made as to matters of law against the background of the reasons in Linkhill (No.7). These were in relation to the principles which emerge from cases such as Ray v Radano[5] and Poletti v Ecob.[6] Mr O’Neill submitted that the Court should allow the adjournment so the new Counsel could explore whether there should be submissions made on those principles. There has been no notice to the Court prior to the proceedings being mentioned today, no proper application filed and no affidavit material filed in support.
[5] [1967] AR (NSW) 471
[6] (No.2) [1989] 91 ALR 381
The respondent’s oral application for an adjournment raises issues, such as case management considerations and timeframes associated with litigation. The oral application was made after the Court has published detailed reasons for decision in Linkhill (No.7) and after the matter was listed today pursuant to orders made on
20 December 2013.
The Court is mindful that in between the last Court date on
20 December 2013 and today there has been the Christmas and New Year break. However even allowing for that, the oral application made today is, to say the least, unusual.
It is not unusual that timeframes set by a Court may sometimes be extended to enable a party to prepare its case fully and properly. However against the history of this matter, a history that could only be described as elongated and where the Court has published reasons for decision in Linkhill (No.7) in December 2013 any adjournment for the reasons requested is not just a matter for the parties. Case management considerations and prejudice also affect the Court’s consideration or the exercise of the discretion in this matter.
The Court and the community at large share a legitimate interest in the effective resolution of disputes, which may transcend the interests of parties themselves where proceedings have been and this is the situation in this case, elongated. The respondent has been before the Court since late 2011 and has been accorded, pursuant to directions made in the context of the substantive proceedings, every conceivable opportunity to put material before the Court and make submissions including given the issues canvassed in Linkhill (No.7) on the issues raised today by Mr O’Neill. In relation to the matters of law raised by Mr O’Neill the decision of Textile, Clothing and Footwear Union of Australia v Givoni Pty Ltd[7] sets out the proper approach to those issues and there is no evidence those matters were not or could not have already been put before the Court.
[7] (2002) FCA 1406 at paras.[53]-[66]
Mr Moore, in opposing the respondent’s adjournment application, has in my view, correctly described the adjournment application for what it is. I am not convinced there is a proper reason for an adjournment and it is all too late in the piece. When I look at the prejudice to both parties and weigh all of those matters, including case management considerations, I refuse the respondent’s oral application for an adjournment.
Declarations and orders to give effect to the reasons in Linkhill (No.7)
In relation to the substantive proceedings the applicant brought in a draft minute of proposed orders to give effect to the reasons for decision in Linkhill (No.7). The proposed minutes were subsequently amended by the applicant to include proposed directions for a penalty hearing. The proposed minutes of orders prepared by the applicant provided as follows:
“THE COURT DECLARES THAT:
1.From 29 May 2008 until 30 June 2009, the Respondent contravened s. 900(1) of the Workplace Relations Act 1996 (Cth) (the WR Act) by representing to Alex Najdoski (Najdoski) that the contract to which he was a party with the Respondent was a contract for services under which Najdoski performed, or was to perform, work for the Respondent as an independent contractor in circumstances where, as a matter of fact and law, the contract as in force at the time of the representations, was a contract of employment under which the Respondent was the employer of Najdoski, rather than a contract for services under which he performed work as an independent contractor.
2.From 1 July 2009 until 15 July 2010, the Respondent contravened s. 357 of the Fair Work Act 2009 (Cth) (the FW Act) by representing to Najdoski that the contract of employment under which Najdoski was employed by the Respondent was a contract for services under which Najdoski performed work as an independent contractor.
3.From 29 May 2008 until 31 December 2009, the Respondent contravened the following provisions of the National Building and Construction Industry Award 2000 (2000 Award) in respect of its employment of Najdoski:
(a)clause 24.9.1, by failing to pay Najdoski meal allowances;
(b)clause 26, by failing to make superannuation contributions on Najdoski's behalf;
(c)clause 29, by failing to pay Najdoski overtime rates;
(d)clause 31, by failing to pay Najdoski penalty rates for work performed on weekends;
(e)clause 31.7, by failing to pay Najdoski crib time;
(f)clause 38, by failing to pay Najdoski a fare and travel patterns allowance; and
(g)clause 32.7.2, by failing to pay Najdoski annual leave loading.
4.From 29 May 2008 until 31 December 2009, the Respondent contravened the following provisions of the WR Act in respect of its employment of Najdoski:
(a)ss. 232(2) and 234(2), by failing to accrue and credit paid annual leave in respect of Najdoski; and
(b)ss. 246(2) and 246(4), by failing to accrue and credit paid personal leave in respect of Najdoski.
5.From 1 January 2010 until 15 July 2010, the Respondent contravened s.45 of the FW Act in respect of its employment of Najdoski by:
(a)failing to pay Najdoski a meal allowance as required by clause 20.2 of the Building and Construction General On-Site Award 2010 (the 2010 Award);
(b)failing to make superannuation contributions on Najdoski's behalf as required by clause 32 of the 2010 Award;
(c)failing to pay Najdoski overtime rates as required by clause 36.2 of the 2010 Award;
(d)failing to pay Najdoski penalty rates for work performed on weekends as required by clause 37 of the 2010 Award;
(e)failing to pay Najdoski crib time as required by clause 37.7 of the 2010 Award;
(f)failing to pay Najdoski a fare and travel patterns allowance as required by clause 25 of the 2010 Award; and
(g)failing to pay Najdoski annual leave loading as required by clause 38.2 of the 2010 Award.
6.From 1 January 2010 until 15 July 2010, the Respondent contravened the following provisions of the FW Act in respect of its employment of Najdoski:
(a)ss. 87(2) and 90(2), by failing to accrue and credit paid annual leave in respect of Najdoski;
(b)s. 96, by failing to accrue and credit paid personal leave in respect of Najdoski; and
(c)s.535 and Regulation 3.36 of the Fair Work Regulations 2009 (the FW Regulations) by failing to keep a record of Najdoski's leave entitlements.
7.In addition to any other outstanding entitlements to annual leave accrued since 15 July 2010, as an employee of the Respondent Najdoski is entitled to 164.75 hours annual leave in respect of his employment with the Respondent between 29 May 2008 and 15 July 2010.
8.In addition to any other outstanding entitlements to personal leave accrued since 15 July 2010, as an employee of the Respondent Najdoski is entitled to 82.26 hours personal leave in respect of his employment with the Respondent between 29 May 2008 and 15 July 2010.
9.From 18 March 2010 until 28 July 2010, the Respondent contravened s. 357 of the FW Act by representing to Julio Cabrera (Cabrera) that the contract of employment under which Cabrera was employed by the Respondent was a contract for services under which Cabrera performed work as an independent contractor.
10.From 18 March 2010 until 28 July 2010, the Respondent contravened s. 45 of the FW Act in respect of its employment of Cabrera by:
(a)failing to pay Cabrera a meal allowance as required by clause 20.2 of the 2010 Award;
(b)failing to make superannuation contributions on Cabrera's behalf as required by clause 32 of the 2010 Award;
(c)failing to pay Cabrera overtime rates as required by clause 36.2 of the 2010 Award;
(d)failing to pay Cabrera penalty rates for work performed on weekends as required by clause 37 of the 2010 Award;
(e)failing to pay Cabrera a fare and travel patterns allowance as required by clause 25 of the 2010 Award;
(f)failing to pay Cabrera redundancy/severance pay upon termination of his employment as required by clause 17 of the 2010 Award;
(g)failing to pay Cabrera annual leave loading upon termination of his employment as required by clause 38.2 of the 2010 Award; and
(h)failing to pay Cabrera his accrued but untaken annual leave upon termination of his employment as required by clause 38.2 of the 2010 Award.
11.From 18 March 2010 until 28 July 2010, the Respondent contravened the following provisions of the FW Act in respect of its employment of Cabrera:
(a)ss. 87(2) and 90(2) by failing to accrue annual leave in respect of Cabrera and pay Cabrera his accrued but untaken annual leave upon termination of his employment; and
(b)s.535 and Regulation 3.36 of the FW Regulations by failing to keep a record of Cabrera's leave entitlements.
12.From 12 July 2007 until 30 June 2009, the Respondent contravened s. 900(1) of the WR Act by representing to Nathan Lovell (Lovell) that the contract to which he was a party with the Respondent was a contract for services under which Lovell performed, or was to perform, work for the Respondent as an independent contractor in circumstances where, as a matter of fact and law, the contract as in force at the time of the representations, was a contract of employment under which the Respondent was the employer of Lovell, rather than a contract for services under which he performed work as an independent contractor.
13.From 1 July 2009 until 29 July 2010, the Respondent contravened s. 357 of the FW Act by representing to Lovell that the contract of employment under which Lovell was employed by the Respondent was a contract for services under which Lovell performed work as an independent contractor.
14.From 12 July 2007 until 31 December 2009, the Respondent contravened the following provisions of the 2000 Award in respect of its employment of Lovell:
(a)clause 24.9.1, by failing to pay Lovell meal allowances;
(b)clause 26, by failing to make superannuation contributions on Lovell's behalf;
(c)clause 29, by failing to pay Lovell overtime rates;
(d)clause 31, by failing to pay Lovell penalty rates for work performed on weekends;
(e)clause 31.7, by failing to pay Lovell crib time;
(f)clause 38, by failing to pay Lovell a fare and travel patterns allowance; and
(g)clause 32.7.2, by failing to pay Lovell annual leave loading.
15.From 12 July 2007 until 31 December 2009, the Respondent contravened ss 232(2) and 234(2) of the WR Act by failing to accrue and credit paid annual leave in respect of its employment of Lovell.
16.From 1 January 2010 until 23 July 2010, the Respondent contravened s. 45 of the FW Act in respect of its employment of Lovell by:
(a)failing to pay Lovell a meal allowance as required by clause 20.2 of the 2010 Award;
(b)failing to make superannuation contributions on Lovell's behalf as required by clause 32 of the 2010 Award;
(c)failing to pay Lovell overtime rates as required by clause 36.2 of the 2010 Award;
(d)failing to pay Lovell penalty rates for work performed on weekends as required by clause 37 of the 2010 Award;
(e)failing to pay Lovell crib time as required by clause 37.7 of the 2010 Award;
(f)failing to pay Lovell a fare and travel patterns allowance as required by clause 25 of the 2010 Award;
(g)failing to pay Lovell redundancy/severance pay upon termination of his employment as required by clause 17 of the 2010 Award; and
(h)failing to pay Lovell his accrued but untaken annual leave and annual leave loading upon termination of his employment as required by clause 38.2 of the 2010 Award.
17.From 1 January 2010 until 23 July 2010, the Respondent contravened the following provisions of the FW Act in respect of its employment of Lovell:
(a)ss. 87(2) and 90(2) by failing to accrue and credit annual leave in respect of Lovell and to pay Lovell his accrued but untaken annual leave upon termination of his employment; and
(b)s.535 and Regulation 3.36 of the FW Regulations by failing to keep a record of Lovell's leave entitlements.
18.From 7 January 2010 until 15 July 2010, the Respondent contravened s. 357 of the FW Act by representing to Matthew Walker (Walker) that the contract of employment under which Walker was employed by the Respondent was a contract for services under which Walker performed work as an independent contractor.
19.From 7 January 2010 until 15 July 2010, the Respondent contravened s. 45 of the FW Act in respect of its employment of Walker by:
(a)failing to pay Walker a meal allowance as required by clause 20.2 of the 2010 Award;
(b)failing to make superannuation contributions on Walker's behalf as required by clause 32 of the 2010 Award;
(c)failing to pay Walker overtime rates as required by clause 36.2 of the 2010 Award;
(d)failing to pay Walker penalty rates for work performed on weekends as required by clause 37 of the 2010 Award;
(e)failing to pay Walker crib time as required by clause 37.7 of the 2010 Award;
(f)failing to pay Walker a fare and travel patterns allowance as required by clause 25 of the 2010 Award;
(g)failing to pay Walker redundancy/severance pay upon termination of his employment as required by clause 17 of the 2010 Award; and
(h)failing to pay Walker his accrued but untaken annual leave and annual leave loading upon termination of his employment as required by clause 38.2 of the 2010 Award.
20.From 7 January 2010 until 15 July 2010, the Respondent contravened the following provisions of the FW Act in respect of its employment of Walker:
(a)ss. 87(2) and 90(2) by failing to accrue and credit annual leave in respect of Walker and to pay Walker his accrued but untaken annual leave upon termination of his employment; and
(b)s.535 and Regulation 3.36 of the FW Regulations by failing to keep a record of Walker's leave entitlements.
21.From 12 February 2009 until 30 June 2009, the Respondent contravened s. 900(1) of the WR Act by representing to Stephen Etheredge (Etheredge) that the contract to which he was a party with the Respondent was a contract for services under which Etheredge performed, or was to perform, work for the Respondent as an independent contractor in circumstances where, as a matter of fact and law, the contract as in force at the time of the representations, was a contract of employment under which the Respondent was the employer of Etheredge, rather than a contract for services under which he performed work as an independent contractor.
22.From 1 July 2009 until 15 July 2010, the Respondent contravened s. 357 of the FW Act by representing to Etheredge that the contract of employment under which Etheredge was employed by the Respondent was a contract for services under which Etheredge performed work as an independent contractor.
23.From 12 February 2009 until 31 December 2009, the Respondent contravened the following provisions of the 2000 Award in respect of its employment of Etheredge:
(a)clause 24.9.1, by failing to pay Etheredge meal allowances;
(b)clause 26, by failing to make superannuation contributions on Etheredge's behalf;
(c)clause 29, by failing to pay Etheredge overtime rates;
(d)clause 31, by failing to pay Etheredge penalty rates for work performed on weekends;
(e)clause 31.7, by failing to pay Etheredge crib time;
(f)clause 38, by failing to pay Etheredge a fare and travel patterns allowance; and
(g)clause 32.7.2, by failing to pay Etheredge annual leave loading.
24.From 12 February 2009 until 31 December 2009, the Respondent contravened ss. 232(2) and 234(2) of the WR Act by failing to accrue and credit paid annual leave in respect of its employment of Etheredge.
25.From 1 January 2010 until 15 July 2010, the Respondent contravened s. 45 of the FW Act in respect of its employment of Etheredge by:
(a)failing to pay Etheredge a meal allowance as required by clause 20.2 of the 2010 Award;
(b)failing to make superannuation contributions on Etheredge's behalf as required by clause 32 of the 2010 Award;
(c)failing to pay Etheredge overtime rates as required by clause 36.2 of the 2010 Award;
(d)failing to pay Etheredge penalty rates for work performed on weekends as required by clause 37 of the 2010 Award;
(e)failing to pay Etheredge crib time as required by clause 37.7 of the 2010 Award;
(f)failing to pay Etheredge a fare and travel patterns allowance as required by clause 25 of the 2010 Award;
(g)failing to pay Etheredge redundancy/severance pay upon termination of his employment as required by clause 17 of the 2010 Award; and
(h)failing to pay Etheredge his accrued but untaken annual leave and annual leave loading upon termination of his employment as required by clause 38.2 of the 2010 Award.
26.From 1 January 2010 until 15 July 2010, the Respondent contravened the following provisions of the FW Act in respect of its employment of Etheredge:
(a)ss. 87(2) and 90(2) by failing to accrue and credit paid annual leave in respect of Etheredge and to pay Etheredge his accrued but untaken annual leave upon termination of his employment; and
(b)s.535 and Regulation 3.36 of the FW Regulations by failing to keep a record of Etheredge's leave entitlements.
27.From 12 February 2009 until 30 June 2009, the Respondent contravened s. 900(1) of the WR Act by representing to Joel Elliott (Elliott) that the contract to which he was a party with the Respondent was a contract for services under which Elliott performed, or was to perform, work for the Respondent as an independent contractor in circumstances where, as a matter of fact and law, the contract as in force at the time of the representations, was a contract of employment under which the Respondent was the employer of Elliott, rather than a contract for services under which he performed work as an independent contractor.
28.From 1 July 2009 until 15 July 2010, the Respondent contravened s. 357 of the FW Act by representing to Elliott that the contract of employment under which Elliott was employed by the Respondent was a contract for services under which Elliott performed work as an independent contractor.
29.From 12 February 2009 until 31 December 2009, the Respondent contravened the following provisions of the 2000 Award in respect of its employment of Elliott:
(a)clause 24.9.1, by failing to pay Elliott meal allowances;
(b)clause 26, by failing to make superannuation contributions on Elliott's behalf;
(c)clause 29, by failing to pay Elliott's overtime rates;
(d)clause 31, by failing to pay Elliott penalty rates for work performed on weekends;
(e)clause 31.7, by failing to pay Elliott crib time;
(f)clause 38, by failing to pay Elliott a fare and travel patterns allowance; and
(g)clause 32.7.2, by failing to pay Elliott annual leave loading.
30.From 12 February 2009 until 31 December 2009, the Respondent contravened ss. 232(2) and 234(2) of the WR Act by failing to accrue and credit paid annual leave in respect of its employment of Elliott.
31.From 1 January 2010 until 15 July 2010, the Respondent contravened s. 45 of the FW Act in respect of its employment of Elliott by:
(a)failing to pay Elliott a meal allowance as required by clause 20.2 of the 2010 Award;
(b)failing to make superannuation contributions on Elliott's behalf as required by clause 32 of the 2010 Award;
(c)failing to pay Elliott overtime rates as required by clause 36.2 of the 2010 Award;
(d)failing to pay Elliott penalty rates for work performed on weekends as required by clause 37 of the 2010 Award;
(e)failing to pay Elliott crib time as required by clause 37.7 of the 2010 Award;
(f)failing to pay Elliott a fare and travel patterns allowance as required by clause 25 of the 2010 Award;
(g)failing to pay Elliott redundancy/severance pay upon termination of his employment as required by clause 17 of the 2010 Award; and
(h)failing to pay Elliott his accrued but untaken annual leave and annual leave loading upon termination of his employment as required by clause 38.2 of the 2010 Award.
32.From 1 January 2010 until 15 July 2010, the Respondent contravened the following provisions of the FW Act in respect of its employment of Elliott:
(a)ss. 87(2) and 90(2) by failing to accrue and credit paid annual leave in respect of Elliott and to pay Elliott his accrued but untaken annual leave upon termination of his employment; and
(b)s.535 and Regulation 3.36 of the FW Regulations by failing to keep a record of Elliott's leave entitlements.
33.From 5 April 2007 until 30 June 2009, the Respondent contravened s. 900(1) of the WR Act by representing to Ryan Lowery (Lowery) that the contract to which he was a party with the Respondent was a contract for services under which Lowery performed, or was to perform, work for the Respondent as an independent contractor in circumstances where, as a matter of fact and law, the contract as in force at the time of the representations, was a contract of employment under which the Respondent was the employer of Lowery, rather than a contract for services under which he performed work as an independent contractor.
34.From 1 July 2009 until 15 July 2010, the Respondent contravened s. 357 of the FW Act by representing to Lowery that the contract of employment under which Lowery was employed by the Respondent was a contract for services under which Lowery performed work as an independent contractor.
35.From 5 April 2007 until 3 January 2008, the Respondent contravened the following provisions of the 2000 Award in respect of its employment of Lowery:
(a)clause 24.9.1, by failing to pay Lowery meal allowances;
(b)clause 26, by failing to make superannuation contributions on Lowery's behalf;
(c)clause 29, by failing to pay Lowery overtime rates;
(d)clause 31, by failing to pay Lowery penalty rates for work performed on weekends;
(e)clause 31.7, by failing to pay Lowery crib time;
(f)clause 38, by failing to pay Lowery a fare and travel patterns allowance; and
(g)clause 32.7.2, by failing to pay Lowery annual leave loading.
36.From 4 January 2008 until 31 December 2010, the Respondent contravened the following provisions of the WR Act in respect of its employment of Lowery:
(a)ss. 232(2) and 234(2) by failing to accrue and credit paid annual leave in respect of Lowery; and
(b)ss. 246(2) and 246(4) by failing to accrue and credit paid personal leave in respect of Lowery.
37.From 1 January 2010 until 15 July 2010, the Respondent contravened the following provisions of the FW Act in respect of its employment of Lowery:
(a)ss. 87(2) and 90(2) by failing to accrue and credit paid annual leave in respect of Lowery;
(b)s. 96 by failing to accrue and credit paid personal leave in respect of Lowery; and
(c)s.535 and Regulation 3.36 of the FW Regulations by failing to keep a record of Lowery's leave entitlements.
38.In addition to any other outstanding entitlements to annual leave accrued since 15 July 2010, as an employee of the Respondent Lowery is entitled to 452.19 hours annual leave in respect of his employment with the Respondent between 5 April 2007 and 15 July 2010.
39.In addition to any other outstanding entitlements to personal leave accrued since 15 July 2010, as an employee of the Respondent Lowery is entitled to 225.82 hours personal leave in respect of his employment with the Respondent between 5 April 2007 and 15 July 2010.
40.From 15 July 2007 until 30 June 2009, the Respondent contravened s. 900(1) of the WR Act by representing to Robert Hunter (Hunter) that the contract to which he was a party with the Respondent was a contract for services under which Hunter performed, or was to perform, work for the Respondent as an independent contractor in circumstances where, as a matter of fact and law, the contract as in force at the time of the representations, was a contract of employment under which the Respondent was the employer of Hunter, rather than a contract for services under which he performed work as an independent contractor.
41.From 1 July 2009 until 1 April 2010, the Respondent contravened s. 357 of the FW Act by representing to Hunter that the contract of employment under which Hunter was employed by the Respondent was a contract for services under which Hunter performed work as an independent contractor.
42.From 15 July 2007 until 31 December 2009, the Respondent contravened:
(a)clause 7.1.4 of the Metal, Engineering and Associated Industries Award 1998 (the 1998 Award) by failing to pay Hunter annual leave loading; and
(b)ss. 232(2) and 234(2) of the WR Act by failing to accrue and credit paid annual leave in respect of Hunter.
43.From 1 January 2010 until 1 April 2010 in respect of its employment of Hunter the Respondent contravened:
(a)s. 45 of the FW Act failing to pay Hunter his accrued but untaken annual leave and annual leave loading upon termination of his employment as required by clause 41 of the Manufacturing and Associated Industries and Occupations Award 2010 (the Manufacturing Award);
(b)ss. 87(2) and 90(2) of the FW Act by failing to accrue and credit paid annual leave in respect of Hunter and to pay Hunter his accrued but untaken annual leave upon termination of his employment; and
(c)s. 535 of the FW Act and Regulation 3.36 of the FW Regulations by failing to keep a record of Hunter's leave entitlements.
44.From 5 April 2007 until 21 August 2008, the Respondent contravened s. 900(1) of the WR Act by representing to Paul Gillen (Gillen) that the contract to which he was a party with the Respondent was a contract for services under which Gillen performed, or was to perform, work for the Respondent as an independent contractor in circumstances where, as a matter of fact and law, the contract as in force at the time of the representations, was a contract of employment under which the Respondent was the employer of Gillen, rather than a contract for services under which he performed work as an independent contractor.
45.From 5 April 2007 until 21 August 2008, the Respondent contravened the following provisions of the 2000 Award in respect of its employment of Gillen:
(a)clause 24.9.1, by failing to pay Gillen meal allowances;
(b)clause 26, by failing to make superannuation contributions on Gillen's behalf;
(c)clause 29, by failing to pay Gillen overtime rates;
(d)clause 31, by failing to pay Gillen penalty rates for work performed on weekends;
(e)clause 31.7, by failing to pay Gillen crib time;
(f)clause 38, by failing to pay Gillen a fare and travel patterns allowance;
(g)clause 16, by failing to pay Gillen redundancy/severance pay upon termination of his employment; and
(h)clause 32.7, by failing to pay Gillen his accrued but untaken annual leave and annual leave loading upon termination of his employment.
46.From 5 April 2007 until 21 August 2008, the Respondent contravened ss. 232(2) and 234(2) of the WR Act in respect of its employment of Gillen by failing to accrue and credit paid annual leave in respect of Gillen.
47.From 5 July 2007 until 30 June 2009, the Respondent contravened s. 900(1) of the WR Act by representing to Cyrille Darrigrand (Darrigrand) that the contract to which he was a party with the Respondent was a contract for services under which Darrigrand performed, or was to perform, work for the Respondent as an independent contractor in circumstances where, as a matter of fact and law, the contract as in force at the time of the representations, was a contract of employment under which the Respondent was the employer of Darrigrand, rather than a contract for services under which he performed work as an independent contractor.
48.From 1 July 2009 until 12 August 2010, the Respondent contravened s. 357 of the FW Act by representing to Darrigrand that the contract of employment under which Darrigrand was employed by the Respondent was a contract for services under which Darrigrand performed work as an independent contractor.
49.From 5 July 2007 until 31 December 2009, the Respondent contravened ss. 232(2) and 234(2) of the WR Act by failing to accrue and credit paid annual leave in respect of its employment of Darrigrand.
50.From 1 January 2010 until 12 August 2010, the Respondent contravened the following provisions of the FW Act in respect of its employment of Darrigrand:
(a)ss. 87(2) and 90(2) by failing to accrue and credit paid annual leave in respect of Darrigrand and to pay Darrigrand his accrued but untaken annual leave upon termination of his employment; and
(b)s. 535 and Regulation 3.36 of the FW Regulations by failing to keep a record of Darrigrand's leave entitlements.
THE COURT ORDERS THAT:
1.Pursuant to s 719(6) of the WR Act and s 545(1) of the FW Act, the Respondent pay Najdoski the amount of $9,042.8 comprised of:
(a)$3,146.74 in respect of unpaid overtime and weekend penalty rates under the 2000 Award and the 2010 Award;
(b)$647.90 in respect of unpaid meal allowances under the 2000 Award and the 2010 Award;
(c)$221.17 in respect of unpaid crib time under the 2000 Award and the 2010 Award; and
(d)$5,027.00 in respect of unpaid fares and travel patterns allowances under the 2000 Award and the 2010 Award.
2.Pursuant to s. 545(1) of the FW Act, the Respondent pay Cabrera the amount of $2,573.17 comprised of:
(a)$6.71 in respect of unpaid overtime and weekend penalty rates under the 2010 Award;
(b)$130.90 in respect of unpaid meal allowances under the 2010 Award;
(c)$1,171.50 in respect of unpaid fares and travel patterns allowances under the 2010 Award;
(d)$421.77 in respect of unpaid redundancy/severance pay under the 2010 Award;
(e)$703.36 in respect of unpaid accrued annual leave under the 2010 Award and the FW Act ; and
(f)$138.93 in respect of unpaid annual leave loading under the 2010 Award.
3.Pursuant to s. 719(6) of the WR Act and s. 545(1) of the FW Act, the Respondent pay Lovell the amount of $37,806.29 comprised of:
(a)$7,423.52 in respect of unpaid overtime and weekend penalty rates under the 2000 Award and the 2010 Award;
(b)$3,683.30 in respect of unpaid meal allowances under the 2000 Award and the 2010 Award; and
(c)$489.73 in respect of unpaid crib time under the 2000 Award and the 2010 Award;
(d)$12,009.80 in respect of unpaid fares and travel patterns allowances under the 2000 Award and the 2010 Award;
(e)$4,740.57 in respect of unpaid redundancy/severance pay under the 2010 Award;
(f)$7,919.34 in respect of unpaid accrued annual leave under the 2010 Award and the FW Act; and
(g)$1,540.03 in respect of unpaid annual leave loading under the 2010 Award.
4.Pursuant to s. 545(1) of the FW Act, the Respondent pay Walker the amount of $4,482.05 comprised of:
(a)$171.29 in respect of unpaid overtime and weekend penalty rates under the 2010 Award;
(b)$142.80 in respect of unpaid meal allowances under the 2010 Award; and
(c)$28.12 in respect of unpaid crib time under the 2000 Award and the 2010 Award;
(d)$1,963.50 in respect of unpaid fares and travel patterns allowances under the 2010 Award;
(e)$726.47 in respect of unpaid redundancy/severance pay under the 2010 Award;
(f)$1,211.51 in respect of unpaid accrued annual leave under the 2010 Award and the FW Act; and
(g)$238.36 in respect of unpaid annual leave loading under the 2010 Award.
5.Pursuant to s. 719(6) of the WR Act and s. 545(1) of the FW Act, the Respondent pay Etheredge the amount of $16,648.07 comprised of:
(a)$3,048.56 in respect of unpaid overtime and weekend penalty rates under the 2000 Award and the 2010 Award;
(b)$654.50 in respect of unpaid meal allowances under the 2000 Award and the 2010 Award; and
(c)$214.94 in respect of unpaid crib time under the 2000 Award and the 2010 Award;
(d)$5,907.00 in respect of unpaid fares and travel patterns allowances under the 2000 Award and the 2010 Award;
(e)$2,279.37 in respect of unpaid redundancy/severance pay under the 2010 Award;
(f)$3,803.97 in respect of unpaid accrued annual leave under the 2010 Award and the FW Act; and
(g)$739.73 in respect of unpaid annual leave loading under the 2010 Award.
6.Pursuant to s. 719(6) of the WR Act and s. 545(1) of the FW Act, the Respondent pay Elliott the amount of $11,820.26 comprised of:
(a)$177.29 in respect of unpaid overtime and weekend penalty rates under the 2000 Award and the 2010 Award;
(b)$511.70 in respect of unpaid meal allowances under the 2000 Award and the 2010 Award; and
(c)$33.74 in respect of unpaid crib time under the 2010 Award;
(d)$5,247.00 in respect of unpaid fares and travel patterns allowances under the 2000 Award and the 2010 Award;
(e)$1,952.14 in respect of unpaid redundancy/severance pay under the 2010 Award;
(f)$3,257.99 in respect of unpaid accrued annual leave under the 2010 Award and the FW Act; and
(g)$640.40 in respect of unpaid annual leave loading under the 2010 Award.
7.Pursuant to s. 719(6) of the WR Act, the Respondent pay Lowery the amount of $3,222.85 comprised of:
(a)$308.40 in respect of unpaid meal allowances under the 2000 Award;
(b)$65.45 in respect of unpaid crib time under the 2000 Award; and
(c)$2,849.00 in respect of unpaid fares and travel patterns allowances under the 2000 Award.
8.Pursuant to s. 545(1) of the FW Act, the Respondent pay Hunter the amount of $8,162.39 comprised of:
(a)$6,946.79 in respect of unpaid accrued annual leave under the Manufacturing Award and the FW Act; and
(b)$1,215.60 in respect of unpaid annual leave loading under the Manufacturing Award.
9.Pursuant to s. 719(6) of the WR Act, the Respondent pay Gillen the amount of $11,143.06 comprised of:
(a)$534.12 in respect of unpaid overtime and weekend penalty rates under the 2000 Award;
(b)$372.90 in respect of unpaid meal allowances under the 2000 Award;
(c)$103.05 in respect of unpaid crib time under the 2000 Award;
(d)$5,005.00 in respect of unpaid fares and travel patterns allowances under the 2000 Award;
(e)$1,699.98 in respect of unpaid redundancy/severance pay under the 2000 Award;
(f)$2,839.35 in respect of unpaid accrued annual leave under the 2000 Award and the WR Act; and
(g)$588.66 in respect of unpaid annual leave loading under the 2000 Award.
10.Pursuant to s. 545(1) of the FW Act, the Respondent pay Darrigrand the amount of $12,576.69 representing unpaid accrued annual leave under the FW Act.
11.Pursuant to s. 722 of the WR Act and s. 547 of the FW Act, the Respondent pay interest on the amounts payable pursuant to Orders 1 to 10 above (calculated at the rate prescribed by s. 51A of the Federal Court of Australia Act 1976 and Practice Note CM 16 for the calculation of pre-judgment interest from the date of commencement of the proceedings (being 20 October 2011) until the date of the Reasons for Judgment (being 20 December 2013)) in the following amounts:
(a)$1,473.39 to Najdoski;
(b)$419.26 to Cabrera;
(c)$6,159.97 to Lovell;
(d)$730.28 to Walker;
(e)$2,712.55 to Etheredge;
(f)$1,925.93 to Elliott;
(g)$525.12 to Lowery;
(h)$1,329.94 to Hunter;
(i)$1,815.59 to Gillen; and
(j)$2,049.18 to Darrigrand.
12.Pursuant to s. 719(7) of the WR Act and section 545(1) of the FW Act, the Respondent make superannuation contributions on behalf of each of the following persons to their respective nominated superannuation funds in the amounts identified:
(a) $6,989.13 in respect of Najdoski;
(b) $1,453.17 in respect of Cabrera;
(c) $1,517.41 in respect of Lovell;
(d)$2,453.71 in respect of Walker;
(e)$7,455.04 in respect of Etheredge;
(f)$6,746.06 in respect of Elliott;
(g)$4,328.81 in respect of Lowery; and
(h)$4,444.24 in respect of Gillen.
13.All of the payments referred to in Orders 1 to 11 are to be paid to each person identified therein within 28 days of the date of this Order.
14.All of the payments referred to in Order 12 are to be paid on behalf of each person identified therein within 28 days of the date of this Order.
15.In the event that the Respondent is unable to locate any person(s) referred to in Orders 1 to 12, pursuant to s. 725(1) of the WR Act and s. 559(1) of the FW Act, the Respondent shall pay any monies owing to any such person(s) to the Commonwealth.
16.Any amounts payable to the Commonwealth pursuant to Order 15 will be paid within 30 days of the date of this Order and will be by way of cheque made out to the "Collector of Public Monies".
17.Pursuant to section 545(1) of the FW Act, within 7 days of the date of this Order the Respondent, as Najdoski’s employer, shall:
(a)credit Najdoski's annual leave account with 164.75 hours in respect of annual leave accruals; and
(b)credit Najdoski's personal leave account with 82.26 hours in respect of personal leave accruals.
18.Pursuant to section 545(1) of the FW Act, within 7 days of the date of this Order the Respondent, as Lowery’s employer, shall:
(a)credit Lowery's annual leave account with 452.19 hours in respect of annual leave accruals; and
(b)credit Lowery's personal leave account with 225.82 hours in respect of personal leave accruals.
19.The Applicant file and serve an outline of submissions and any affidavits with respect to penalty by 12 March 2014.
20.The Respondent file and serve an outline of submissions and any affidavits with respect to penalty by 9 April 2014.
21.The Applicant file and serve any affidavits in reply with respect to penalty by 23 April 2014.
22.The matter is listed for a hearing on penalty for one (1) day on a date to be fixed by the Court.
23.The parties have liberty to apply.”
The proposed minutes provide, as has been described by Counsel for the applicant, for the Court to make a number of declarations to give effect to the reasons for decision published as Linkhill (No.7) and provides for orders consequential upon the making of those declarations and the findings made in Linkhill (No.7). Counsel for the applicant submitted the minute accurately reflects the findings made in Linkhill (No.7).
The Court has been told by Counsel for the applicant today (and Counsel for the respondent has not demurred from this) that the respondent has had the opportunity to comment on and time to make submissions in relation to the minutes. The respondent has not done so and there has been nothing raised today to contradict this.
In the context of the substantive proceedings, and in light of the reasons for decision published as Linkhill (No.7) there is no dispute as to the power of this Court to grant the declaratory relief referred to in the minute.
As is made clear by Full Court decisions such as Stuart v Construction, Forestry, Mining and Energy Union[8] such declaratory relief should reflect with certainty and precision the final outcome of the proceedings:
“Although the making of a declaration and the terms in which it should be framed are in the Court’s discretion (see Forster v Jododex Australia Pty Ltd (1972) 127 CLR 421 at 437–9 per Gibbs J; and Ainsworth v Criminal Justice Commission[1992] HCA 10;(1992) 175 CLR 564 at 581–2 and 596–7; AWB Ltd v Cole (No 6) (2006) 235 ALR 307 at [5]), any declaration made by the Court should reflect the final outcome of the case with certainty and precision: see also Minister for Immigration and Ethnic Affairs v Guo Wei Rong(1997) 191 CLR 559 (at 579) citing University of New South Wales v Moorhouse[1975] HCA 26;(1975) 133 CLR 1;Bass v Permanent Trustee Company Limited[1999] HCA 9;(1999) 198 CLR 334 at [49];Australian Competition and Consumer Commission v Danoz Direct Pty Ltd(2003) 60 IPR 296 at [260] and K Dharmananda and A Papamatheos (eds),Perspectives on Declaratory Relief (2009) at 101.”
[8] [2010] FCAFC 65 at para.[89]
There is also a decision in the Fair Work Ombudsman v Kentwood Industries Pty Ltd (No.2)[9] where McKerracher J observed that:
“There may be a public interest in the granting of declaratory relief in regulatory proceedings to record the contraventions’ seriousness and to explain the basis for the imposition of pecuniary penalties and other relief…”
[9] (2010) 201 IR 234 at para.[210]
His Honour went on to note that a declaration can be made to indicate the importance of compliance with statutory standards. In my view, in light of the reasons in Linkhill (No.7) those considerations apply in this case.
In Linkhill (No.7)[10] the Court made reference to the decision of His Honour, Bromberg J in Construction, Forestry, Mining and Energy Union v McCorkell Constructions Pty Ltd (No.2)[11] which warrants repetition as follows:
“It does not matter for current purposes whether the trend to self-employment was the consequence of employers seeking to escape obligations imposed by the law in relation to the employment of employees, or whether the trend was the result of genuine decisions made by individuals to provide their labour as self-employed persons. The fact is that the trend became the subject of industrial concern which was ultimately, to some extent, reflected in industrial laws.”
[10] At para.[2]
[11] [2013] FCA 446 at para.101
As is clear from the reasons in Linkhill (No.7), the trial of the various issues in this case aired fully the dispute between the parties. In the reasons for decision published in Linkhill (No.7) there were very clear conclusions on what the outcome of that dispute should be.
In the context of the substantive proceedings and in light of the findings made in Linkhill (No.7) I accept that compliance with statutory standards is important. I also accept that there is some public interest in this matter, given the public importance attached in enforcement of protections such as those provided for in the WR Act and the FW Act.
Having regard to the findings contained in Linkhill (No.7)[12] the Court will make the declarations as contained in the minute of proposed orders regarding the ‘sham contracting’ declarations in relation to each of the 10 workers.[13]
[12] At paras.[289]-[330]
[13] At paras.[1]-[2], [9], [12]-[13], [18], [21]-[22], [27]-[28], [33]-[34], [40]-[41], [44], [47]-[48]
The remainder of the declarations set out in the proposed minute are necessary to record the findings of contravention by the respondent in respect of the WR Act, the FW Act or the applicable industrial instruments in relation to each of the 10 workers. The Court in Linkhill (No.7)[14] noted the agreed periods in relation the claims for the workers were as follows:
[14] At para.[5]
Name
Relevant period of claim
Mr Stephen Etheredge
12 February 2009 – 15 July 2010
Mr Paul Gillen
5 April 2007 – 21 August 2008
Mr Joel Elliott
12 February 2009 – 15 July 2010
Mr Nathan Lovell
12 July 2007 – 29 July 2010
Mr Matthew Walker
7 January 2010 – 15 July 2010
Mr Alex Najdoski
29 May 2008 – 15 July 2010
Mr Robert Hunter
15 July 2007 – 1 April 2010
Mr Cyrille Darrigrand
5 July 2007 – 12 August 2010
Mr Ryan Lowery
5 April 2007 – 15 July 2010
Mr Julio Cabrera
18 March 2010 – 28 July 2010
The Court’s findings in Linkhill (No.7) record the findings in relation to each of those workers. Counsel for the applicant submitted and I am satisfied that the minute sets out with precision a set of proposed declarations and orders and appropriately gave effect to the findings made for the reasons set out in Linkhill (No.7).
Counsel for the respondent did not cavil with his client having had Linkhill (No.7) and the reasons contained therein since 20 December 2013, as well as the minute of proposed orders since at least 24 January 2014. Counsel for the Respondent made no submissions as to the proposed minutes save in relation to the timetable for the penalty hearing.
In Linkhill (No.7) there were detailed findings made in light of the dispute between the parties in relation to what was referred to in Linkhill (No.7) as the fourth issue and the underpayments due to the workers. The findings made by the Court in that regard are set out at paragraphs [331]-[375] of Linkhill (No.7). Those findings were made on the basis of the evidence before the Court[15] and the submissions made by the parties.
[15] At paras.[35]-[227]
I note there has been no dispute that the Court has the power to make declarations and orders pursuant to either s.719 of the WR Act and/or s.545 of the FW Act to give effect to the findings made in Linkhill (No.7) in relation to the underpayment claims for each of the
10 workers.
Accordingly for the reasons set out in Linkhill (No.7), the Court will make the remainder of the declarations and the orders set out at paragraphs [1]-[12] and [17] of the minute of proposed orders.
There is also an order, as was averted to in Linkhill (No.7) pursuant to s.722 of the WR Act and s.547 of the FW Act for interest to be payable on the underpayments for the workers. In the event that those workers cannot be located those monies are to be payable to the Commonwealth to be held on behalf of each of the workers. Those matters were, as I understood it today, not controversial.
There are also the directions contained in the proposed minute in relation to the programming of the matter for a penalty hearing.
There have been some amendments made during the course of submissions today to that timeline. I will make directions for that purpose. On that basis, the matter will be adjourned to the penalty hearing on 15 & 16 May 2014.
I certify that the preceding thirty-eight (38) paragraphs are a true copy of the reasons for judgment of Judge O’Sullivan
Date: 12 February 2014
CORRECTIONS
In paragraph 18 of the Reasons for Judgment from lines 8 to 10 which stated: “However against the history of this matter, a history that could only be described as elongated and where the Court has published reasons for decision in” has been deleted.
In paragraph 23 of the Reasons for Judgment from lines 2 to 3 which states “The proposed minute also” has been deleted and replaced with “there”.
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