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Fair Work Ombudsman v  Pulis Plumbing  Pty Ltd & Anor [2017] FCCA 3013 (8 December 2017)

Last Updated: 11 December 2017

FEDERAL CIRCUIT COURT OF AUSTRALIA

FAIR WORK OMBUDSMAN v  PULIS PLUMBING  PTY LTD & ANOR

[2017] FCCA 3013

First Respondent:

PULIS PLUMBING  PTY LTD

REPRESENTATION

THE COURT DECLARES, BY CONSENT, THAT:

(1) The First Respondent contravened the following civil remedy provisions:

• (a) Section 50 of the Fair Work Act 2009 (“the FW Act”) by failing to pay Mr Anthony Ottaviani-Giammarco (“the Employee”) the ordinary hourly rate in accordance with cl. 23.1 of the Pulis Professional Plumbing Pty Ltd and CEPU – Plumbing Division (Vic) Enterprise Agreement 2011-2015 (“the Agreement”).
• (b) Section 50 of the FW Act by failing to pay the Employee overtime rates in accordance with cl.33.2 of the Agreement;
• (c) Section 50 of the FW Act by failing to pay the Employee for ordinary hours on a public holiday not worked in accordance with cl.37.1 of the Agreement;
• (d) Section 50 of the FW Act by failing to pay the Employee the meal allowance in accordance with cl.33.11 of the Agreement;
• (e) Section 50 of the FW Act by failing to pay the Employee personal leave in accordance with cl.38.4 of the Agreement;
• (f) Section 50 of the FW Act by failing to pay the Employee annual leave on the termination of his employment in accordance with cl.41.7(a) of the Agreement;
• (g) Section 50 of the FW Act by failing to pay the Employee annual leave loading on the termination on his employment in accordance with cl.47.7(b) of the Agreement;
• (h) Section 50 of the FW Act by failing to pay the Employee travel allowance in accordance with cl.A7.3(e) of the Agreement;
• (i) Section 712(3) of the FW Act by failing to comply with a notice to produce documents or records;
• (j) Section 536(2) of the FW Act by failing to provide payslips in the form prescribed by reg.3.46 of the Fair Work Regulations 2009 (Cth) (“the FW Regulations”); and
• (k) Section 535(1) of the FW Act by failing to make and keep records as prescribed by reg.3.40 of the FW Regulations.

(2) The Second Respondent was involved in each of the contraventions committed by the First Respondent as identified in paragraphs 1(a) to 1(k) herein.
(3) By reason of the First Respondent’s contraventions of s.50 of the FW Act, the Employee suffered a loss of wages in the total underpayment amount of $26,882.73 (that has now been rectified).

THE COURT ORDERS THAT:

(4) Pursuant to s.546(1) of the FW Act, the First Respondent pay a penalty of $100,000.00 in respect of the Contraventions of the FW Act as set out at paragraph 1 herein.
(5) Pursuant to s.546(1) of the FW Act, the Second Respondent pay a penalty of $21,500.00 in respect of the Contraventions of the FW Act as set out at paragraph 1 herein.
(6) Pursuant to 546(3)(a) of the FW Act, all pecuniary penalties imposed on the First and Second Respondents pursuant to these Orders be paid to the Commonwealth within 90 days.
(7) Liberty be granted to the FWO to apply to the Court on seven days’ notice in the event that any of the preceding Orders are not complied with.

MLG 1782 of 2016

Applicant

And

PULIS PLUMBING  PTY LTD

First Respondent

Second Respondent

REASONS FOR JUDGMENT

1. In August 2014, a young man who would turn 20 in the middle of that month found an advertisement for an apprenticeship with the first respondent. The young man had already completed the first year of a plumbing apprenticeship and was attracted by the nature of the work said to be carried out by the first respondent and the professional appearance of the advertisement. The second respondent told him that he was seeking someone “for a trial” and that the young man should “come in and we’ll see how you go”. The young man started as an employee with the first respondent (cancelling another job interview that he had obtained).
2. On 17 September 2014, an employee of the first respondent sent the employee a letter welcoming him to the business and stating, “I understand that you have commenced as a second year apprentice plumber with us”. The letter went on to request all the usual documents incidental to commencement of employment of this type. The employee commenced work on 12 September 2014.
3. The employee was paid second year apprentice’s wages for ordinary time, totalling $6,333.60 (before tax) for the 3 month period of his employment. The employee thought that his job was going well, having received compliments from the second respondent such as, “You’re doing a good job” and “Go hard, go quick”. The employee was never counselled about his attitude or his work practices.
4. Whilst he was being paid wages for standard hours, he was working 10 to 12 hours a day. The employee explained that he had trouble saying “no”, which one would expect from a young apprentice working in this type of employment. The employee knew he was on a trial and did not wish to jeopardise the prospect of formalising his apprenticeship. Fortunately, the employee did keep a record of his own hours as a result of good advice he had received from his uncle and friends.
5. The employee used these records to fill in his timesheets that were provided to the first respondent. The employee would hand the timesheets in to the office lady every Tuesday. He was told by the second respondent “I’ll pay you overtime separately” and on two occasions he was paid a cash sum, once $300, and on the second occasion $600. From time to time, he asked about his overtime payments and was told, “I’ll fix you up next week”.
6. On 10 December 2014, shortly before Christmas, the second respondent sent the employee a letter noting that the three month probationary period would be completed on 12 December 2014, and stating “We’ve come to the conclusion that your skills and attitude are not to second year standard. At times you display a pretty high and acceptable standard, whereas other times you do not”. The letter went on to offer a further three month trial or, alternatively, a reference if the employee chose to terminate his position.
7. The employee undertook 201 hours of overtime, for which he was paid only $1,831.77. That is an average of around $9.11 per hour for overtime, less than the rate that he was paid for ordinary hours of only $12.18 per hour.
8. He was paid on the basis that he was engaged as an apprentice and not a labourer. However, at no time did the second respondent complete the registration requirements for the employee to become an apprentice and, therefore, the weeks that he worked with the first respondent did not count towards his apprenticeship.
9. After his employment was terminated, the employee contacted the second respondent a number of times by text message politely requesting payment of his outstanding wages. At that point, the employee was still under the impression that he was only entitled to wages as an apprentice and it appears he would have been satisfied with payment at those rates had payment been made.
10. The response that he received from the second respondent was, to put it mildly, remarkable. On 22 December 2014 when texting to ask when he could come by to pick up his money, he received a response text: “I’ll put it in your account”. At this point, Christmas is only days away. On Christmas Eve, the employee again texted the second respondent: “Hey, mate, when are you putting the money in my acc?”, to which he received the cryptic response, “Stop doing my head in”. The employee responded to this, “Pardon? When are you going to pay me what you owe me?”, which evoked the response, “Seriously, fuck off. When I’m ready”.
11. The employee passed the Christmas break without receiving his entitlements, having lived off the net pay of around $590 per week for 10 weeks, and having been without pay since early December 2014.
12. The labouring rates in this case were set in an enterprise agreement registered by the respondent with Fair Work Australia. The employee was underpaid $26,882.73 in the 3 month period: in effect he was paid one fifth of his entitlements.
13. As it transpires, the second respondent never signed the apprenticeship documentation and the employee never received the time credited against his apprenticeship training requirements. The fundamental reason for apprenticeship wages being far lower than ordinary labouring wages is to reflect the training to be provided to an apprenticeship within the framework of the apprenticeship training and trade qualification system. As he was not employed as an apprentice, he was required to be paid labouring rates. Not only would this be obvious as a matter of ordinary reasoning, but in this case the second respondent had been told over the Fair Work advice line before he hired the employee that the employee had to be hired either as a labourer or signed on formally as an apprentice.
14. I do not accept that the employee’s work and conduct would be reasonably open to criticism in circumstances where the second respondent had requested that he undertake 201 hours of overtime over a 10 week period. It is simply not credible to suggest that an employer would request an employee to undertake such a large amount of overtime if the employee was not carrying out his duties in an appropriate fashion.
15. The conduct of the respondents in this case was an outrageous exploitation of a young person. The conduct is worse than simply underpaying an employee who has had difficulty obtaining work elsewhere, as the respondents also held out the lure of an apprenticeship to this young man: a particularly significant career and life goal for a young person who is not academically inclined. The amount of the underpayment, in comparison to the payments actually made, is significant.
16. After the Fair Work Ombudsman’s Office (“the FWO”) became involved, the respondents ultimately rectified the underpayments, which is a factor that must weigh heavily in their favour.
17. There is no apology or statement of regret in this case, despite the egregious nature of the conduct in this case. The lack of acknowledgement and real regret for the conduct weighs against the respondents.
18. The second respondent did ultimately admit the contraventions, saving the FWO a considerable period of time and expense in prosecuting the matter. Although, having regard to the circumstances, it is difficult to see that any arguable defence was available to the respondents and, therefore, the admissions have also saved the respondents considerable expense.
19. Whilst the admissions were made, the timesheets were never produced to the Court or the FWO, leaving the office to rely upon the employee’s records of the hours worked. I note that it is not an uncommon occurrence for employers to not produce timesheets or records for employees, which appears to create impediments to the investigation of these matters and the calculation of the proper entitlements of the employees. Given the statutory requirements upon employers with respect to record-keeping, it appears to me that, ordinarily, a Court would accept even the most slight and generalised evidence of an employee as to the hours of employment in circumstances where an employer does not produce appropriate records. More recently, the FW Act has been amended to ensure that an employer who does not keep records required by the Act in ss.535 and 536, then the employer has the burden of disproving the allegations about those matters: see s.557C. In short, in future if the employer fails to keep time sheets and provide payslips the employer has the burden of disproving an employee’s claim about hours worked and payments made.
20. In a case such as this, I would have been prepared to accept even generalised estimates from the employee as to his hours. In the circumstances of this case, his diary entries amount to good evidence which I have no hesitation in accepting. I also note that the FWO has recently released an application for smart phones called ‘Record My Hours’ to assist employees in a practical way to keep records from which they may verify their payslips are correct: see https://www.fairwork.gov.au/how-we-will-help/how-we-help-you/record-my-hours-app.
21. The second respondent, who is the director of the first respondent, is the director of six separate entities with a number of real properties and operates a small business employing two or three plumbers. I am not persuaded that the underpayment, in this case, can in any sense be linked to financial incapacity or financial pressure on the part of the respondents. It appears that the conduct in question was nothing short of avarice on the part of the respondents.

Contraventions

22. As a result of the complex nature of the workplace agreement and the statutory scheme, the conduct results in a number of specific contraventions as follows:

Contravention	Proposed Grouping		Maximum Penalty
			Pulis Plumbing	Michael Pulis
1.Section 50 – ordinary hours		1. Ordinary hours	$51,000	$10,200
2.Section 50 – overtime		2. Overtime	$51,000	$10,200
3.Section 50 – ordinary hours for a public holiday not worked		3.Ordinary hours for a public holiday not worked	$51,000	$10,200
4.Section 50 – meal allowance		4. meal allowance	$51,000	$10,200
5.Section 50 – personal leave		5. personal leave	$51,000	$10,200
6.Section 50 – annual leave on termination		6. Annual leave entitlements	$51,000	$10,200
7.Section 50– annual leave loading on termination
8.Section 50 – travel allowance		7. Travel allowance	$51,000	$10,200
9.Section 712(3) – failure to comply with a notice to produce		8. Failure to comply with notice to produce	$51,000	$10,200
10.Section 536(2) – payslip contravention		9. Pay slip contravention	$25,500	$5,100
11.Section 535(1) – failure to make and keep records		10. Failure to make and keep records	$25,500	$5,100
TOTAL			$459,000	$91,800

23. I accept the submissions with respect to the grouping of penalties by the applicant (that is, to group the annual leave and annual leave loading contraventions together as one). The practical reality of this case was that no annual leave was paid, making it one act that resulted in the two contraventions.
24. The purpose of imposing penalties under the Fair Work Act 2009 provisions was discussed by the High Court in Commonwealth of Australia v Director, Fair Work Building Industry Inspectorate; Construction, Forestry, Mining and Energy Union v Director, Fair Work Building Industry Inspectorate [2015] HCA 46 at [55] when the court said:
    • 55. whereas criminal penalties import notions of retribution [FN: Gapes [1979] FCA 62; (1979) 27 ALR 87 at 90 per Smithers J; cf Ingleby [2013] VSCA 49; (2013) 39 VR 554 at 565 [44] per Weinberg JA] and rehabilitation, the purpose of a civil penalty, as French J explained in Trade Practices Commission v CSR Ltd, is primarily if not wholly protective in promoting the public interest in compliance [FN: [1990] FCA 521; (1991) ATPR 41-076 at 52,152; cf FWBII v CFMEU (2015) 229 FCR 331 at 357-358 [65]-[67]:
      • “Punishment for breaches of the criminal law traditionally involves three elements: deterrence, both general and individual, retribution and rehabilitation. Neither retribution nor rehabilitation, within the sense of the Old and New Testament moralities that imbue much of our criminal law, have any part to play in economic regulation of the kind contemplated by Pt IV [of the Trade Practices Act]. ... The principal, and I think probably the only, object of the penalties imposed by s 76 is to attempt to put a price on contravention that is sufficiently high to deter repetition by the contravenor and by others who might be tempted to contravene the Act.”
25. In this case the conduct is such as to arouse much emotion and I have carefully borne in mind that retribution is not a relevant factor in setting the penalty.
26. It is important to ensure that one has regard to all of the relevant facts and circumstances of a particular case before striking a penalty figure. In this regard, the list of factors that are set out in Mason v Harrington Corporation Pty Ltd [2007] FMCA 7 is a useful guide (although by no means an exclusive list).
27. The nature and extent of the conduct that led to the breaches is discussed above. Whilst there are numerous contraventions involved, the underlying circumstances of the case are relatively straightforward. The employee was paid ordinary time as an apprentice without any of the various loadings provided for him by the workplace agreement, without leave payments, and at a rate that was suitable for an apprentice when he had not been engaged formally as an apprentice and should therefore have been paid as a labourer.
28. The last three offences relate to the failure of the employer to comply with notices to produce documents and failure to keep records as demonstrated by the failure to comply with the notice. The contravention with respect to the payslip is that the respondents failed to provide an appropriate payslip properly reflecting the work undertaken by the employee.
29. Payslips have real and practical importance of payslips in the scheme of industrial law. As I said in FWO v Taj Palace Tandoori Indian Restaurant Pty Ltd & Anor [2012] FMCA 258 at [67]:
    • Whilst the record keeping obligation with respect to pay slips only appears in the Regulations, its central importance in industrial matters cannot be underestimated. Proper pay slips allow employees to understand how their pay is calculated and therefore easily obtain advice. Pay slips provide the most practical check on false record keeping and underpayments, and allow for genuine mistakes or misunderstandings to quickly be identified. Without proper pay slips employees are significantly disempowered, creating a structure within which breaches of the industrial laws can easily be perpetrated
30. In this case, the failure of the second respondent to sign the relevant documents relating to the apprenticeship within two weeks meant that the employer was not officially recognised as an apprentice: see Education and Training Reform Act (2006) (Vic), s.5.5.12(1). The respondents made a conscious decision not to enter into these arrangements with the employee. Notably, the second respondent had previously been an apprentice and had engaged apprentices prior to employing the employee in this case. Remarkably, five of his previous apprentices were employed for less than 100 days.
31. In this case, the employee was not academically gifted and had been searching for a second year apprenticeship for some time. An apprenticeship is a training arrangement where the apprentice ought to be able to rely upon the employer for mentoring and training. In this sense, the employer is in a position of trust with respect to the apprentice. A further loss on the part of the employee in this case is that the time working for the respondents cannot be counted against his apprenticeship because of the failure to sign and lodge the appropriate documentation.
32. The respondents have now paid the applicant and conceded liability, thus avoiding the costs of a hearing, however it was only after protracted dealings with the FWO. As indicated above, I do not accept that there is any credible expression of regret, and therefore I accept the discount should be less than would be given in a case where genuine remorse or regret is expressed.
33. In considering the size and financial circumstances of the business, I note the comments of Tracey J in Kelly v Fitzpatrick [2007] FCA 1080, where his Honour said at [28]:
    • “No less than large corporate employers, small businesses have an obligation to meet minimum employment standards and their employees, rightly, have an expectation that this will occur. When it does not it will, normally, be necessary to mark the failure by imposing an appropriate monetary sanction. Such a sanction "must be imposed at a meaningful level": see Australian Competition and Consumer Commission v ABB Transmission and Distribution Ltd [2001] FCA 383; [2001] ATPR 41-815 at [13]”
34. Whilst I accept that the first respondent is a small business and did not have any human resources section or sophisticated human resources advices available to it, in this case the evidence is that the first respondent, through the second respondent, had sought specific advice from the Fair Work Info Line and was advised that labourer rates must be paid if the apprentice has not been signed up with an apprenticeship arrangement. Thus, it is not a case where ignorance of the correct arrangements can be said to form any basis for an excuse.
35. Whilst there is not significant financial evidence before the court, I accept that this is not a large corporation. However, the evidence does indicate that the second respondent is involved in the number of entities and has a number of real properties.
36. General deterrence is always important, for the reasons set out by Marshall J in Fair Work Ombudsman v Maclean Bay Pty Ltd (No. 2) [2012] FCA 557 where his Honour said:
    • 29. ...It is important to ensure that the protections provided by the Act to employees are real and effective and properly enforced. The need for general deterrence cannot be understated. Rights are a mere shell unless they are respected.... Specific deterrence is also relevant. Given the blatant breaches of the Act engaged in by the respondents, the need for such conduct not to be repeated by them must be strongly emphasised.
37. The FWO points to statistics showing that the construction industry represents 9 per cent of Australian workers, and 10 to 12 per cent of complaints received by the FWO. In the absence of more specific statistics, or more specific statistical correlations, I am not persuaded that these simple statistics indicate a greater need for deterrence than the average case. The difference between 9 per cent and 10 per cent is slight, and could well be a result of numerous other factors.
38. With respect to the production of records, I have regard to the statements of Emmett J in Fair Work Ombudsman v Kleen Group Pty Ltd & Anor [2016] FCCA 278, where her Honour said at [9]:
    • ...It is clear that, subject to any reasonable excuse, Parliament intended that the FW Ombudsman be able to require a person, particularly an employer, to produce documents and records, for without them the FW Ombudsman may not be able to properly fulfil the statutory remit to ensure compliance with guaranteed minimum standards by means of inquiry, investigation and the commencing of court proceedings. It is, therefore, abundantly clear that the requirement to produce records or documents is critical to the effectiveness of the means
39. Similarly, I have regards to comments that I have previously made with respect to payslips.
40. Having regard to all of the circumstances of this case, I would impose penalties as follows:

Contravention	Proposed Grouping	Penalty
		Pulis Plumbing	Michael Pulis
1. Section 50 – ordinary hours	1. Ordinary hours	$20,000	$5,000
2. Section 50 – overtime	2. Overtime	$20,000	$5,000
3. Section 50 – ordinary hours for a public holiday not worked	3.Ordinary hours for a public holiday not worked	$5,000	$1,000
4. Section 50 – meal allowance	4. Meal allowance	$5,000	$1,000
5. Section 50 – personal leave	5. Personal leave	$5,000	$1,000
6. Section 50 – annual leave on termination	6. Annual leave entitlements	$10,000	$2,000
7. Section 50– annual leave loading on termination
8. Section 50 – travel allowance	7. Travel allowance	$5,000	$1,000
9. Section 712(3) – failure to comply with a notice to produce	8. Failure to comply with notice to produce	$10,000	$2,000
10. Section 536(2) – payslip contravention	9. Pay slip contravention	$15,000	$2,500
11.Section 535(1) – failure to make and keep records	10. Failure to make and keep records	$5,000	$1,000
TOTAL		$100,000	$21,500

41. Counsel for the respondents argues that the respondents should not be subject of separate penalties, or alternatively that a minor penalty be imposed on the second respondent on the basis that the first respondent is operated and controlled by the second respondent. This is an issue upon which I have ruled previously in Fair Work Ombudsman v Openica Logistics Pty Ltd & Anor [2016] FCCA 159, where I said:
    • 34. At law the Company is a separate legal personality, and responsible for its actions and liabilities separately from the Second Respondent. This brings benefits such as limited liability. The legislature has legislated to impose penalties on companies and those personally involved in the breach by the Company. The mere fact that the profits of the Company ultimately flow to the Second Respondent does not show, on its face, that the Company should not receive a penalty separate from that of the Second Respondent, nor that the Second Respondent’s penalty should be suspended.
    • 35. In almost all of the cases of breaches of the Act the relevant manager will be the agent of the company and the penalties apply to the company and its agent. If one accepted that only one penalty should be imposed simply because the Second Respondent holds all of the shares and is the only Director how does one answer the argument that would arise where the company had agreed to indemnify the agent for the agent’s penalty under the Act? The argument is the same - one legal person is bearing the cost of all penalties.
    • 36. A better reading of the Act recognises that firstly the company is a separate legal person and that the company’s duties are such that the Act imposes liability regardless of the fact that its agent or ultimate owner carries out the relevant acts. Secondly, the law imposes a separate personal liability upon the relevant real person.
    • 37. Similarly, one can imagine the argument where a Husband and Wife have a business that the Wife owns, and the Husband manages, where all of the profits are used by them as joint matrimonial property: should the penalties for one be suspended? The answer is clearly no.
    • 38. I conclude that as a matter of principle there should be two penalties. Ordinarily neither should be suspended as they are an incidence (albeit negative) of the separate legal identity of the company. Avoidance of this negative incidence of corporate identity is simple: one can operate as a sole trader with the disadvantages that may bring. The Second Respondent has chosen to establish a Company, a second legal entity, and this entity’s conduct is the subject of sanction, just as the real person involved in the conduct.
    • 39. The practical reality is that the company, as a separate legal entity has independent obligations regardless of its ownership. Simply because profits ultimately come back to one person doesn’t alter the fact the two ‘legal persons’ have breached the Act.
    • 40. Whilst, as a matter of general principle there ought be two penalties in cases involving companies, even where the individual is both the sole director and shareholder, it is not the entire answer. The fact that as a matter of principle there will ordinarily be two penalties imposed does not foreclose the sentencing discretion which must necessarily be grounded on the particular facts and circumstances of individual cases.
42. As argued by counsel for the FWO, such an approach is consistent with the approach of the High Court in Hamilton v Whitehead [1988] HCA 65; (1988) 166 CLR 121 when the High Court said:
    • There is nothing conceptually wrong in such a course, since “it is a logical consequence of the decision in Salomon’s case [FN: [1896] UKHL 1; (1897) AC 22] that one person may function in dual capacities.
43. The principle from Hamilton has been applied in Fair Work cases by the Federal Court in Fair Work Ombudsman v Kentwood Industries Pty Ltd (No.2) [2010] FCA 1156, where the court said:
    • 199. In Hamilton v Whitehead [1988] HCA 65; (1988) 166 CLR 121 Mason CJ, Wilson and Toohey JJ observed (at 128);
      • Indeed, the fundamental purpose of the ... legislation – to ensure the protection of the public – would be seriously undermined if the hands and brains of a company were not answerable personally for breaches of the Code which they themselves have perpetrated.
44. In the circumstances of this case it is clear that the second respondent has a number of corporate entities. There are various advantages of operating businesses through corporations, including taxation and limited liability of shareholders. Companies, as separate legal entities, have their own obligations at law. The circumstances do not warrant only one penalty for each of the respondent and second respondent or a significant discount of one or the other’s penalty. I therefore reject this submission.
45. As a result I make the relevant declaratory orders by consent and impose penalties as set out above. Given the sums involved, I allow 90 days for payment so that the respondents can make appropriate financial accommodations in an orderly fashion.

I certify that the preceding forty-five (45) paragraphs are a true copy of the reasons for judgment of Judge Riethmuller

Date: 8 December 2017