Bullock v Australian Security Company Pty Ltd; Australian Security Company Pty Ltd v Bullock [2006] ICQ 12 (2006) 181 QGIG 626

[Extract from Queensland Government Industrial Gazette, dated 13 April, 2006, Vol. 181, No .15, page 626-629] INDUSTRIAL COURT OF QUEENSLAND Industrial Relations Act 1999 - s. 341(2) - appeal against decision of industrial magistrate Gary John Bullock AND Australian Security Company Pty Ltd (C/2005/43) and Gary John Bullock AND Australian Security Company Pty Ltd (C/2005/44) and Australian Security Company Pty Ltd AND Gary John Bullock (C/2005/45) and Australian Security Company Pty Ltd AND Gary John Bullock (C/2005/46) and Australian Security Company Pty Ltd AND Gary John Bullock (C/2005/47) PRESIDENT HALL 31 March 2006 DECISION By a decision dated 23 January 2006, now reported at 181 QGIG 138, this Court allowed an appeal against three decisions of an Industrial Magistrate convicting Australian Security Company Pty Ltd of each of three breaches of s. 666 of the Industrial Relations Act 1999. Importantly (at 141), after setting the convictions aside, the Court concluded: "There is an issue about whether, on any of the complaints, the untested provision which is s. 666(6)(b) of the Industrial Relations Act 1999 may be availed of by Mr Bullock on each of the complaints either in this Court or on remitter to the Industrial Magistrates Court. The argument upon those matters has yet to be developed. I reserve my decision on those matters. My associate will arrange a mention in order that the hearing of the argument, on each of the complaints, may be programmed. There was an appeal by Mr Bullock about the calculation of the amount owing to each of Messrs Kidd and Easton. I adjourn each of those appeals. It seems to me that the Court should not enter upon the matter of calculation until it is determined that there is something to calculate.". Definitions omitted, s. 666 provides: "666 Non-payment of wages (1) An employer must pay an employee's wages payable under a relevant industrial instrument or permit - (a) to the employee; or (b) in accordance with the employee's written direction. Maximum penalty - 200 penalty units. (2) An offence under subsection (1) may consist of - (a) a single failure to pay wages due on a particular day; or (b) a failure to pay wages due over a period of time. (3) The offence starts on the day of the failure and continues until the wages are paid. (4) A complaint or a series of complaints may be made for any period over which the offence continues (5) However, a complaint may only relate to offences that started within 6 years before the complaint is made. (6) A magistrate may hear and decide a complaint for an offence under this section, and in addition to any penalty that the magistrate may impose - (a) if the magistrate finds the defendant guilty - must order the defendant to pay the employee the amount the magistrate finds to be payable to the employee; or (b) if the magistrate does not find the defendant guilty - may order the defendant to pay the employee the amount the magistrate finds, on the balance of probabilities, to be payable to the employee. (7) A magistrate may make the order - (a) despite an express or implied provision of an agreement to the contrary; and (b) on the terms the magistrate considers appropriate. Argument about the further conduct of the various appeals was heard on 27 March 2006. -- 1 of 3 -- 2 There is no authority upon the construction and/or operation of s. 666(b), but the sub-section had predecessors. Comparable provision was made by each of s. 445(6) of the Workplace Relation Act 1997 and s. 461(8) (subsequently renumbered as s. 595) of the Industrial Relations Act 1990. Its origin is to be found in the Report of the Inquiry into the Industrial Relations Act 1961-1987. Materially (at 421 to 423, footnotes omitted) the Committee recorded: "Discussion Let us at the outset clarify the aim of the exercise. The primary aim must be to devise a system whereby an employee who is underpaid can as speedily as possible recover the amount of underpaid wages or other entitlement. No one would quarrel with such a proposition. The secondary aim must be to deter employers from deliberately exploiting employees by breaching awards. A breach of an award or industrial agreement is made an offence by Section 113 of the Act. Jurisdiction is then vested in Industrial Magistrates to deal with offences under Section 24 and Section 116 of the Act. Since the proceedings are by way of prosecution for an offence, the exculpatory provisions of Chapter 5 of the Criminal Code of Queensland apply, thus making an employer not responsible where his employee acts without his knowledge or contrary to his instructions. A mistaken belief that a man was a casual and not a permanent employee has been held to be a mistake of fact giving rise to a defence within Section 24 of the Criminal Code. No one would dispute that the provisions of Section 23 and Section 24 of the Criminal Code and the other provisions of Chapter 5 should apply in relation to offences, however those provisions exculpate a person from criminal responsibility. That really has very little to do with the employee who isn't paid his wages. It is cold comfort for an employee to be told that the Department has failed to prove beyond a reasonable doubt that the employer did not honestly and reasonably believe that a man was a casual and not a permanent employee, and that therefore he won't get his underpaid wages. Obviously, to attempt to recover unpaid wages by way of criminal proceedings is totally inappropriate. Wages should normally be recovered in civil proceedings. Section 97(2) of the Act provides that an employee or, on behalf of that employee, an industrial union of which that employee is a member may apply to an Industrial Magistrate for an order for payment of money payable to that employee under an industrial award or industrial agreement. That section is all that is necessary to enable the employee to recover his wages. It does not, however, appear to give the Department of Industrial Affairs the right to take up the employee's case for him and to sue on his behalf to recover wages. Such a provision would be desirable in view of the fact that wages complaints are normally handled by Industrial Inspectors employed by the Department. That can be easily rectified by adding words "or an Industrial Inspector" to Section 97(2). That would then provide a simple procedure whereby monies could be recovered by the Department for the underpaid employee by a simple action for debt brought before he Industrial Magistrate. One wonders whether it really should be the function of the department to be involved in actions for the recovery of wages. That involves the expenditure of public money to pursue a civil remedy when the employer, even though he wins, is not financially aided in such a matter. It may well be that if civil proceedings rather than quasi criminal proceedings are to be taken, the Department should not become involved. That however; is a matter of policy for the Government of the day, and we make no further comment on it. None of the above is intended to suggest that certain matters involving non-payment of wages should not be the subject of quasi criminal proceedings rather than civil proceedings. Obviously there are flagrant breaches of awards by employers which should be the subject of prosecution. The Department must exercise its discretion, just as police must exercise discretion in deciding whether a matter is civil or quasi criminal, and proceed accordingly. However, if the proceedings are quasi criminal, there should be an added power in the Magistrate not simply to order the payment of wages upon a conviction but also to order such payment upon the acquittal if he is satisfied upon the balance of probabilities that such amount is due. We recommend accordingly. That means that - (a) Wages etc can be recovered in a simple civil action. (b) A Breach of an award in respect of the payment of wages can be prosecuted as a quasi criminal matter and (i) upon conviction the Magistrate shall order the payment of monies found to be due; (ii) upon acquittal the Magistrate may still order the payment of monies found to be due upon the civil standard of proof.". It is plain that the cure went beyond the malady of the Chapter Five acquittal. But one must have regard to the passage: -- 2 of 3 -- 3 "However, if the proceedings are quasi criminal, there should be an added power in the magistrate not simply to order the payment of wages upon a conviction but also to order such payment upon acquittal if he is satisfied upon the balance of probabilities that such an amount is due we recommend accordingly.". It is plain that the extension of relief beyond what was required to ensure that on a Chapter Five acquittal the evidence about breach was tested on the civil rather than the criminal standard (which had initially attached to the complaint) was a step deliberately and intentionally taken. It is equally plain that in the event of an acquittal the Industrial Magistrate is to have a discretion. Doubtless, there will be cases in which it will be proper to treat the acquittal as terminating proceedings, e.g. where prosecution comes to a shuddering halt because on the complainant's evidence as opened one of the Chapter Five exculpations could not be ousted. Doubtless, there will be other cases in which the evidence about breach has been fully heard in which an Industrial Magistrate with power to visit the issue of outstanding wages would be under a duty to do so. However, the principles governing the exercise of discretion do not matter here. The discretion arises upon the fact of an acquittal. The Industrial Magistrate did not acquit. The Industrial Magistrate found the Respondent to be guilty though, properly, His Honour refrained from recording a conviction. Section 666(6)(b) does not touch that situation. The section does not touch that situation for the very good reason that a finding adverse to the Respondent on the civil standard is implicit in the finding of guilt on the higher standard of beyond reasonable doubt. Further, because s. 666(6)(i) requires an Industrial Magistrate to order the payment of outstanding sums, there is no scope for any discretion to do so. With respect to the careful argument of counsel for Mr Bullock it seems to me that on the appeal one is fundamentally not concerned with s. 666(6)(b) but with the discretion at s. 341(3)(d), ie the choice between dealing with the matter of civil liability on the record or remitting the matter so that the Industrial Magistrate may discharge the function at s. 666(6)(b). In my view the discretionary factors weigh heavily against the latter course. The inconsistency which lead to the appeals against conviction being upheld referred to it 181 QGIG 138 at 140 will again be an issue on a rehearing on the record. An Industrial Magistrate burdened with an earlier formation of an opinion that the three complaints had been made out beyond reasonable doubt, notwithstanding that inconsistency, will inevitably face some professional embarrassment in revisiting that issue. The Industrial Magistrate has long since lost the advantage which flowed from seeing and hearing the witnesses and observing the case develop. The trial was a lengthy one. It took nine days for evidence and submissions. It finished in December 2004. There were almost a thousand pages of transcript and ninety exhibits (many involving business records). The appeals involve only three of the original five complaints. The Industrial Magistrate published the decision on each of the complaints in July of 2005. If remitted to the Industrial Magistrate each of the matters might well return here because of the outstanding, and presently hypothetical, appeals by Mr Bullock on the question of quantum. In all the circumstances, it seems to be that the proper course is not to remit the matter to the Industrial Magistrate to be heard and determined according to law but to complete the hearing of the outstanding issues about s. 666(6)(4) by way of a hearing on the record. I reserve all questions as to costs. My associate will make arrangements with counsel for the future programming of the matter. Dated 31 March 2006. D. R. HALL, President Released: 31 March 2006 Appearances: Mr A. Horneman-Wren instructed by Livingstones (Australia), for Australian Security company Pty Ltd in all matters. Mr M. Plunkett instructed by Hall Payne, for Gary John Bullock in all matters. Government Printer, Queensland The State of Queensland 2006. -- 3 of 3 --