Clarke v Lobley [2008] ICQ 12 (2008) 187 QGIG 137

[Extract from Queensland Government Industrial Gazette, Dated 4 April 2008, Vol. 187, No. 12, pages 137-139] INDUSTRIAL COURT OF QUEENSLAND Industrial Relations Act 1999 - s. 341(2) - appeal against decision of industrial magistrate Raymond Patrick Clarke AND Wayne John Lobley (C/2007/68) PRESIDENT HALL 25 March 2008 DECISION On 20 April 2007, Wayne John Lobley, a Public Officer within the meaning of the Justices Act 1886 and an Inspector duly appointed under the provisions of the Industrial Relations Act 1999, made two Complaints about Raymond Patrick Clarke before a Justice of the Peace. The first Complaint was that Mr Clarke, carrying on business under the registered business name of Ray Clarke Roofing and being an employer within the meaning of the Industrial Relations Act 1999 (the Act), committed an offence under the said Act in that he failed to keep a time and wages record as required by s. 366 of that Act. The second Complaint about Mr Clarke also related to the conduct of the business of Ray Clarke Roofing. The Complaint was that being an employer within the meaning of the Act, Mr Clarke committed an offence under the said Act in that he failed to pay wages for a rate agreed between the employer and the employee, namely David Bruce Thurgood, employed by him as a roof plumber, the rate for such work being fixed by an industrial instrument, namely the Building Construction Industry Award - State 2003, such rate being less than the agreed rate. Each of the Complaints was heard by an Acting Industrial Magistrate at Redcliffe on 9 August 2007. Mr Clarke, who pleaded not guilty to each of the Complaints, appeared for himself. As a matter of convenience the matters were heard together. On 23 October 2007, the Acting Industrial Magistrate published reasons dealing with both matters. The Acting Industrial Magistrate convicted Mr Clarke on each of the Complaints. Mr Clarke has appealed against each of the two convictions. Because the Appeals were out of time, it was necessary for Mr Clarke to seek an extension of time pursuant to s. 346 of the Act. Mr Clarke was successful on each Application for an Extension of Time, see 187 QGIG 73, and the Appeals were listed for hearing on 18 March 2008. Mr Lobley, I should add, was himself an appellant. In the case of each of the prosecutions, Mr Lobley brought an appeal against the omission of the Acting Industrial Magistrate to fix a time for the payment of the fine imposed. In the case of the s. 666 prosecution, Mr Lobley also appealed about the omission of the Acting Industrial Magistrate to fix a time by which Mr Clarke was to pay the amount of wages which the Acting Industrial Magistrate had found to be outstanding, and which the Acting Industrial Magistrate had ordered Mr Clarke to pay. For convenience, that Appeal (Matter No. C/2008/6) was mentioned at the time fixed for hearing Mr Clarke's Appeals (Matter No. C/2007/68). By an open letter dated 14 February 2008, a copy of which was made available to the Court, it was conceded for the Respondent that the conviction on the Complaint for breach of s. 666 could not stand. The concession was properly made. At the commencement of the proceedings before the Acting Industrial Magistrate on 9 August 2007, the Complaint was amended. The original allegation that Mr Clarke had "failed to pay wages, for a rate agreed between the employer and the employee namely David Bruce Thurgood employed by him as a roof plumber the rate for such work being fixed by an Industrial Instrument namely the Building Construction Industry Award - State 2003 such rate being less than the agreed rate", was varied by the deletion of the words to which I have taken the liberty of giving emphasis. All that remained was a Complaint that Mr Clarke had "failed to pay wages". Such an offence is not known to the law. The Appeal against the conviction must be allowed. I do allow the Appeal against the conviction of Mr Clarke for the offence against s. 666 of the Act and I quash the decision and the orders of the Acting Industrial Magistrate. It is contended for the Respondent that this Court should exercise its power at s. 341(3)(b) to substitute another decision for the decision of the Acting Industrial Magistrate. The outcome sought is an order pursuant to s. 666(6)(b) which authorises an industrial magistrate who does not find a defendant guilty of an offence against s. 666 to order the defendant to pay the employee the amount the industrial magistrate finds, on the balance of probabilities, to be payable to the employee. In my opinion, the power vested by s. 666(6)(b) was not available to the Acting Industrial Magistrate and is not available to this Court. The power is available only where an industrial magistrate hears and decides "a complaint for an offence" against s. 666 and does not find the defendant guilty. The Acting Industrial Magistrate did not hear and decide "a complaint for an offence" against s. 666. The Acting Industrial Magistrate heard and decided a complaint that Mr Clarke had "failed to pay wages". Such a complaint is not a complaint that s. 666 has been breached. It seems to me that, for each of two reasons, Mr Clarke's Appeal against his conviction for breach of s. 366 must also succeed. First, s. 366 of the Act imposes an obligation to keep a time and wages record for "each industrial instrument employee", compare s. 366(1). There is a definition of "industrial instrument employee" at s. 366(6). Materially, an industrial instrument employee is a person who is employed by the employer said to carry the obligation to keep a time and wages record and who "works under an industrial instrument". Here, the industrial instrument nominated on behalf of the Complainant was the Building Industry Award - State 2003, for the period 1 January 2002 to 4 January 2004 and the Building and Construction Award 2003, for the period 27 December 2004 to 20 February 2006. Each of those -- 1 of 2 -- 2 Awards applies to employers engaging persons in certain defined classifications on construction work and (of course) to such employees. The Acting Industrial Magistrate's conclusion that Mr Clarke employed persons, (including Mr Thurgood), on construction work seems to me to be quite unexceptional. The finding that Mr Thurgood fell within one of the classifications in the Awards was quite a different matter. In the case of each Award, the classification nominated for the Complainant was "roof plumber". There is, of course, no such classification within either Award. However, each Award contains a classification of "plumber". If the evidence supported a conclusion that Mr Thurgood fell within the generic term "plumber", it would seem to me to matter not at all that the Complainant had nominated a species within the genus. The difficulty is that there was very little evidence. An Inspector Palk, who gave evidence for the Complainant, swore to the fact in issue and said that Mr Thurgood was a "roof plumber". Mr Thurgood gave evidence that he was employed as a "roof plumber", that there was "no such trade as a roof plumber until the last few years when they brought in a trade for it", that he did "re-roofing", that he "removed old gutters, put new gutters on houses" and that he also did "downpipes and anything to do with a roof". On the basis of that evidence the Acting Industrial Magistrate concluded: "Mr Thurgood is obviously a person over the age of 21 years. It is not clear whether his duties would cover general plumbing but do possibly cover house plumbing. Mr Polk's evidence is that he believed that Mr Thurgood came within this definition and I accept that evidence. It may well be that Mr Thurgood comes within the definition of plumber, but it also may be that he comes within the definition of roof tiler, slater, shingle, ridger or roof fixer in clause 1.6.34. I am therefore satisfied, notwithstanding the defendant's argument to the contrary, that the type of business operated by the defendant is covered by the Building Construction Industry Award State. As such, both Mr Thurgood and Mr Clark are covered and bound by the provisions of this award, whether they like it or not.". [Emphasis added] In my view Mr Palk's opinion evidence going to the fact in issue was inadmissible. Section 320(2) has no application to proceedings for an offence against the Act. In any event, even taking that evidence into account, it is plain from His Honour's language that the Acting Industrial Magistrate - who had earlier correctly identified the appropriate test as proof beyond reasonable doubt - did not find that it was established beyond reasonable doubt that Mr Thurgood was a "plumber". Given the paucity of the evidence before the Acting Industrial Magistrate, such an outcome is hardly surprising. The Acting Industrial Magistrate should, in my view, have been given the benefit of evidence about the work of a plumber and taken to materials about the ordinary meaning of the noun "plumber". Put aside that the question whether Mr Thurgood might have been classified as a "builder's labourer" was not agitated at first instance, the evidence would not support a finding beyond reasonable doubt that Mr Thurgood was engaged on labouring tasks. There was simply no particularity about what Mr Thurgood "did" to roofs, downpipes and gutters etc. Second, the offence against s. 366 was made out in reliance upon s. 371(4) and (5). In short form, the case made was that an inspector had by notice, required Mr Clarke to produce the time and wages record and that because Mr Clarke had not produced the record as required by the notice, he was "...taken to have failed to keep the record, unless he ... [had] a reasonable excuse.". Given the limited argument, this is not an occasion to dwell upon whether a notice under s. 371(4) is analogous to a search warrant or to a subpoena. It is sufficient to record that the notice issued in this case refers to the period of Mr Thurgood's employment as being June/July 2000 to 20 March 2006, asserts that his employment was governed by the Building Construction Industry Award - State 2003 (which was in force for only part of the period) and required the production of "all time and wages records in respect of Mr Thurgood" (who had also been "employed" by Mr Clarke at an earlier time, possibly as a subcontractor). Given that non-compliance with the notice would lead to the recipient being deemed to have committed an offence, it seems to me that Mr Clarke was entitled to very much more precision. I accept that Mr Clarke may well have been able to work out what it was that he was being asked to produce. That is probably true of most litigants who are given the benefit of particulars. I quash the decision of the Acting Industrial Magistrate convicting Mr Clarke of a breach of s. 366 and quash all orders made in consequence of the conviction. As a matter of first impression, it seems to me that the success of Mr Clarke's Appeals has reduced Mr Lobley's Appeal to a debate about a hypothetical question. However, I refrain from dismissing that Appeal without hearing the Parties. Dated 25 March 2008. D.R. HALL, President. Released: 25 March 2008 Appearances: Mr R.I. Cameron, instructed by Gleeson Klein Solicitors for the Appellant. Ms J. Cameron of Legal and Prosecutions Services, Department of Employment and Industrial Relations, for the Respondent. Government Printer, Queensland The State of Queensland 2008. -- 2 of 2 --