100315802

WESTERN AUSTRALIAN INDUSTRIAL MAGISTRATE’S COURT

PARTIES THE AUSTRALIAN LIQUOR, HOSPITALITY AND MISCELLANEOUS WORKERS UNION, MISCELLANEOUS WORKERS DIVISION, WESTERN AUSTRALIAN BRANCH

COMPLAINANT

 -v-

 OLTEN PTY LTD

DEFENDANT

CORAM MAGISTRATE G CICCHINI IM

DATE THURSDAY, 14 DECEMBER 2000

COMPLAINT NO CP 235 OF 1999

CITATION NO. 2003 WAIRC 07849

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Representation

Complainant  Mr DH Schapper of counsel

Defendant Mr D Clarke as agent and with him Mr CS Fayle as agent

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Reasons for Decision

(Given extemporaneously at the conclusion of the hearing, extracted from the transcript of proceedings and edited by His Worship)

1         HIS WORSHIP:  I am dealing with one complaint which alleges 52 particularised breaches, that between 12 January 1997 and 27 December 1998 the defendant failed to keep proper time and wages records relating to the employment of Vincent Dautopulos for the weekly pay periods within the dates mentioned.  If the court finds that the breaches occurred, then for the purposes of the imposition of any penalty the breaches are to be taken to constitute a single breach by virtue of the provisions of section 178(2) of the Workplace Relations Act, 1996 (the Act).

2         The complainant, of course, bears the onus of satisfying this Court on the balance of probabilities that the complaint alleging the 52 breaches is made out.  The complainant relies on the documentary evidence tendered by it, without objection, together with admissions made by Mr John Dennison, the defendant's director, particularly when cross-examined.  By it’s pleadings the defendant denies that it is a respondent to the Security Officers (Western Australia) Interim Award 1996.  It also says that clause 20(a) of the award, under which the complaint is made in respect of the particular breaches, does not require it, and did not require it at the material time, to record the start and finish times for the days worked.  It says all the defendant was required to do was record the number of hours worked by the particular employee.

3         Furthermore, the defendant says the complainant has not established that it failed to keep a record, as required under clause 20(a), in that the defendant does have such a record and that the complainant, by its inaction, has failed to discover the existence of such a record.  The last of the grounds of defence referred to was not one that was pleaded prior to the hearing but was raised during the course of the hearing.

4         There are three issues requiring determination, and they are, firstly, whether the defendant is a respondent to the award by virtue of the application of section 149(1)(d) of the Act;  secondly, whether clause 20(a) of the award required the defendant to record start and finish times for the days worked by Mr Dautopulos during the period in question and thirdly, whether, as a matter of fact, such a record was kept.

5         I now turn to consider the first issue, being that of respondency.  The Security Officers (Western Australia) Interim Award 1996 names as a respondent MSA Guards & Patrols.  The award came into operation on 17 May 1996.  At that time the business was owned and operated by Banbridge Holdings Pty Ltd.  On 30 December 1996 Banbridge Holdings Pty Ltd transferred that business and others, including MSA Security, to Olten Pty Ltd, the defendant in these proceedings.  The evidence supports a finding that from and after that date Olten Pty Ltd continued to operate the business MSA Guards & Patrols and also the business MSA Security.  It is also clear that there are other businesses that it operates.

6         As from 30 December 1996 Olten Pty Ltd has been the proprietor and operator of those particular businesses.  The evidence supports a finding that Mr Dautopulos worked for the defendant whilst it operated the businesses under those particular names.  The question, of course, is whether Olten Pty Ltd is a respondent to the award by virtue of the provisions of section 149(1)(d) of the Act.  In that regard it is clear to me that in naming the business MSA Guards & Patrols, the Australian Industrial Relations Commission was referring to the body which owned the business.  It was, in effect, a reference to Banbridge Holdings Pty Ltd.  If that were not so it would render the naming of any business as a respondent to the award as nugatory and inconsistent with the aims of the award.

7         Accordingly, it is quite clear to me that Banbridge Holdings Pty Ltd was a party to the award, and that fact is not open to challenge.  Section 150 of the Act does in fact prohibit such a challenge, and I agree with Mr Schapper in that regard.  The evidence, both documentary and from Mr Dennison clearly establishes that there was a transmission of the business to Olten Pty Ltd.  Accordingly, as from 30 December 1996 Olten Pty Ltd was bound by the award by virtue of the provisions of section 149(1)(d) of the Act.  Clearly the defendant operated upon that basis, that is, that it was bound by that particular award.  Indeed it conceded so in this jurisdiction in matter number CP261 of 1999 (Australian Liquor, Hospitality and Miscellaneous Worker’s Union v. Olten Pty Ltd 80 WAIG 4383).  There was no mistake on it’s part in relation to that issue.  The admission made in that matter reflects the true position, and in my view that is a position that it cannot now resile from.  Clearly, on the evidence before me, the question of respondency is overwhelmingly proved.

8         Before I leave this issue I need to refer to the High Court decision to which I was referred which is the decision of PP Consultants Pty Limited v Finance Sector Union (2000 HCA 59).  Having read that decision, I find that there is simply no application of that particular decision to this case.  It is clearly distinguishable on its facts, and I accept Mr Schapper's argument in that regard.

9         I now move to consider the proper construction of clause 20(a).  It is true that at first blush the provision appears to be ambiguous.  However, a closer and proper consideration of the provision makes it clear, in my view, that the provision can only be read in the manner suggested by the complainant.  The provision must be read in conjunction with other provisions of the award, and must be construed in the light of the mischief at which it is aimed.  In that regard it is obvious that what the clause is aimed at is a need to record the details, not the total hours worked on any given day, but rather the specific details of what hours were actually worked on any given day.  Therefore there must be a delineation of start and finish times.

10     The aim of the clause is that which would enable an inspector, a union, or for that matter, the employee him or herself an opportunity to consider which hours were actually worked and calculate, based on the applicable rates, the amount of wages to be paid for the times actually worked and so on.  To give it the meaning suggested by the defendant would render that provision next to useless.  I have no doubt that the provision is to be interpreted in the manner suggested by the complainant, and I will simply leave it at that point.

11     Finally, I turn to consider whether, as a matter of fact, it can be established that on the evidence the defendant has failed to comply with clause 20(a) over the material period.  In effect, I have already held that the record in the form of exhibit 11, which on it’s second page contains the total of hours worked, does not constitute a record, or the type of record required to be kept.  By virtue of the correspondence passing between the parties in July 1999 and I particularly refer to exhibits 8, 9, and 7: (I put them in that order because that is the order of the dates which appear on the face of the documents), it is clear that the complainant sought time and wages records relating to Mr Dautopulos.  His records were indeed provided for the period 1996 through to April 1999.

12     Obviously if records existed that complied with clause 20(a) then there can be no doubt that such records would have been provided.  I say that because of the fact that the records provided appear to be in a comprehensive form.  However records that complied with clause 20(a) were not provided.  By exhibit 7 the defendant purported to supply a compendious record hat maintained by the defendant relating to its employee, Mr Dautopulos.  It appears that exhibit 7 was produced to constitute the defendant's entire record as required to be kept and made available to the complainant for inspection.  Had there been a record of start and finish times then one would have thought that such would have been produced, and clearly it was not.

13     There was some suggestion made on the part of Mr Dennison, and I found that the suggestion was in quite a nebulous form, that there are other records that exist which may comply with the requirements of clause 20(a) of the award.  Mr Dennison's evidence in that regard lacks specificity.  If such records existed one wonders why they were simply not produced today.  Indeed, they were not produced today and an inference can be drawn that they simply do not exist.  Clearly any reference to rosters by Mr Dennison is also not useful.  It is obvious that rosters do not constitute the type of records required to be kept for the purposes of clause 20(a).  Again I accept Mr Schapper's argument on this issue.

14     On balance I find that the defendant has failed to keep proper time and wages records for each of the 52 periods particularised in the complaint for the material period as stated in the complaint.  I find that the complaint is proved.

15     Before dealing with the imposition of a penalty I need to resolve the issue of what is the maximum penalty.  In that regard the complainant says that the maximum penalty available to me is $10,000. The defendant says that it is $5000.  The defendant reads section 178(4)(a) as providing for a penalty of $5000 where there is a breach taken to have been committed under a provision included in an award, but in my view, with all due respect, that is not the approach to be taken.  The provision in 178(4)(a)(i) is to be read as a provision with reference to an award or order under paragraph 111(1)(e) of the Act.  That is the way it must be read, and to that extent I agree and concur with Mr Schapper.

16     It follows that I find that the appropriate maximum penalty that I should consider is that of $10,000.  Having arrived at that conclusion, the question becomes what is the appropriate penalty to be handed down in this particular situation.  Mr Clarke says that the defendant committed the breach not by wilful intent or wilful act on its part, but rather by an omission.  I accept that it occurred by omission.  The situation, though, is that notwithstanding that the breach occurred by omission, it does not render the omission such that it would fail to attract a penalty.  I say that because it is important that the provisions of the award be complied with, with respect to the keeping of records, so those who are employees of the defendant are able to check the records to ascertain that proper wages are being paid, and where the record is not properly kept that possibility is simply removed. To that extent the conduct, albeit not wilful, is serious.

17     Having said that, I recognise in this instance that the defendant, through Mr Dennison, was given certain advice or an indication by an inspector, and to that extent may have relied upon such advice or indication.  That significantly mitigates the conduct of the defendant, and I accept that that is the case.

18     The position with respect to the imposition of civil penalties is akin to the imposition of penalties generally in criminal proceedings.  The same sorts of considerations are apposite.  Having regard to those factors, it has been long held that the appropriate penalty for a first offence, without significant mitigation, is that of one-fifth of the maximum penalty available.  However, having said that, I note the influence upon the defendant derived from the inspector, and accept that as a significant mitigatory factor in respect of the conduct of the defendant, particularly in the recent past.  The extent that the defendant's conduct was affected by such advice is a significant mitigatory factor, and accordingly I conclude that the appropriate disposition of this matter is to impose a penalty of $1000, which equates to one-tenth of the maximum penalty which is available.

19     I impose upon the defendant a penalty, which is in effect a civil penalty, in the sum of $1000.  It is appropriate also that the defendant pay to the complainant the disbursements incurred, which total $72.20.  Both the fines and the costs are to be paid by the defendant to the complainant.

G Cicchini

Industrial Magistrate