Borghero v Smeaton [2009] ICQ 10

CITATION: Victor Borghero AND Nigel Smeaton (C/2009/44) - Decision <http://www.qirc.qld.gov.au> INDUSTRIAL COURT OF QUEENSLAND Industrial Relations Act 1999 - s. 341(2) - appeal against decision of industrial magistrate Victor Borghero AND Nigel Smeaton (C/2009/44) PRESIDENT HALL 23 December 2009 DECISION [1] The Respondent was accused of underpaying his apprentice over a four year period. Four separate complaints were made. One complaint alleged a breach of s. 666 of the Industrial Relations Act 1999 (the Act), by way of underpayment of wages in the sum of $3,754.31. A second complaint of a breach of s. 666 of the Act was about underpayment of annual leave in the sum of $2,477.27. A third complaint alleged a breach of s. 406 of the Act by way of failing to make any superannuation payments at all to the approved superannuation fund. The fourth complaint was about a breach of s. 138 of the Act by way of failure to provide tools to the value prescribed by an Order made under that section. [2] When the matters came before an Industrial Magistrate at Ipswich on 7 September 2009, there was no appearance for the defendant. The complainant in each matter was given leave to proceed ex parte pursuant to s. 142A of the Justices Act 1886. After hearing the complaint, the Industrial Magistrate said: "All right. Then, well taking all of that into account, and noting that there's no prior history alleged, and bearing in mind the amounts that are to be paid by way of wages and other allowances, I'll impose on penalty in respect of these, so I'll - in respect of all of the matters, be convicted and fined $500. Ordered to pay $286.40 costs of Court, in default of seven days. I'll separately order that the defendant pay wages in the sum of $3,754.31; $2,477.27; for holiday pay; $600 for the tool allowance; and $7,578.94 being superannuation contribution; in default of levy in distress in respect of this latter matter be allowed six months to pay that.". [3] For reasons developed in Whitson v Golinski1 and which I do not now repeat, I am satisfied that the order about the unpaid superannuation contributions should have required the contributions to be paid to the approved fund viz., Aust [Q], Account No. 9044716 and I allow the Appeal against that order. [4] No complaint is made about the Industrial Magistrate's decision to impose one fine on all maters. The Appellant does Appeal against the quantum of the fine. The decision to Appeal is unsurprising. The total available maximum was $48,000. [The offences were continuing offences and the 2009 amendment to the value of a penalty point operates, contrast s. 180(1) of the Penalties and Sentences Act 1992.] Had the complainant elected to issue infringement notices instead of initiating a prosecution, the Respondent's liability (in total) would have been $4,800 (see Schedule 5 of State Penalties Enforcement Regulation 2000). Failure to pay award wages (including annual leave) is a serious matter, see McGurren v Gibbons2 and Whitson v Halysdan3. Failure to make award superannuation contributions is also a serious matter, see Whitson v Golinski4. The circumstance that the underpaid worker was an apprentice makes the underpayment more serious still. Failure to honour the tool entitlements of apprentices under s. 138 of the Act are no less serious. Had the Act limited remedies to civil recovery, recalcitrant employers brought to book would pay only the money which should have been paid to begin with. The only mitigating factor was that the Respondent was a first offender. In my view, a fine in the sum of $500 was manifestly inadequate. [5] This is not a case in which the Court should withhold relief because an error was contributed to by the conduct of the complaint at first instance. The Industrial Inspector who appeared at first instance did point to the amounts outstanding; the length of time over which the debits had accrued; the failed attempt to negotiate payment by instalments; and the circumstance that an apprentice had been underpaid. There are no true comparators. [6] There has been some argument about whether the Court should allow the Appeal and amend the Industrial Magistrate's Orders or should remit the matter to the Industrial Magistrate at Ipswich. Although the Respondent failed to appear at first instance, he had appeared at two earlier mentions. Counsel for the Respondent seeks to 1 Whitson v Golinski (2009) 191 QGIG 370 2 McGurren v Gibbons (2005) 179 QGIG 189 3 Whitson v Halysdan (2006) 182 QGIG 201 4 Whitson v Golinski (2009) 191 QGIG 370 -- 1 of 2 -- 2 make submissions in mitigation. There may be a need for evidence. It is better that the matter be dealt with at first instance so that there is an adequate appeal if all goes wrong. [7] I set aside the fine of $500 imposed by the Industrial Magistrate. I remit the matter of the fine to the Industrial Magistrate at Ipswich in order that it may be heard and determined according to law. [8] I set aside the Industrial Magistrate's Order about superannuation contributions and in lieu thereof, I order the Respondent pay the sum of $7,578.94 to Aust[Q], Account No. 9044716 by way of superannuation contributions for Steven Charles Donges. I otherwise confirm the Orders of the Industrial Magistrate. Dated 23 December 2009. D.R. HALL, President. Released: 23 December 2009 Appearances: Ms J. Cameron, Legal & Prosecution Services Unit, Department of Justice and Attorney-General for the Appellant. Mr J. Merrell, instructed by Carne Reidy Herd for the Respondent. -- 2 of 2 --