Department of Employment, Training and Industrial Relations v Hunter Security Services Pty Ltd [2000] QIRC 67 (2000) 164 QGIG 299

21 July, 2000 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 299 ########################################################################################################################### QUEENSLAND INDUSTRIAL RELATIONS COMMISSION Industrial Relations Act 1999 – s. 278 – unpaid wages Department of Employment, Training and Industrial Relations AND Hunter Security Services Pty Ltd (Nos. W48, W49, W50 and W51 of 2000) COMMISSIONER BLOOMFIELD 3 July 2000 Unpaid Wages – Security Industry – Witness evidence from Industrial Inspectors – Admissibility of Evidence – Alleged failure to warn Respondent that it could refuse to produce wages records if it had a lawful excuse – No obligation to warn Respondent – Evidence admitted – Arbitrated Matter – Applicant failed to establish that the Security Industry (Contractors) Award–State applied to Respondent and that the employees were performing work which is covered by that Award – Applications dismissed. REPORT ON DECISION (as edited) The matters before the Commission were applications by Mr Cary Owen O’Brien, of the Department of Employment, Training and Industrial Relations for Orders under s. 278 of the Act that Hunter Security Services Pty Ltd pay unpaid wages to Andrew Tattis (W48 of 2000), Richard Tyzack (W49 of 2000), Rocco Masci (W50 of 2000) and Chris Fletcher (W51 of 2000). A “Response to Application” for all four applications was filed by Freehill Hollingdale & Page on behalf of the Respondent on 27 June 2000 and stated inter alia:– “Take notice that I, Michael Coonan of Freehill Hollingdale & Page being authorised to represent Hunter Security Services Pty Ltd states that: 1. The Respondent reiterates its position before Commissioner Fisher that the onus is on the applicant to prove each element of its case. 2. The Respondent will not call any witness evidence. The Respondent will put the applicant to proof on each element of the claim. 3. The Respondent states that the Statements and evidence upon which the Applicant intends to rely are not admissible as they were improperly obtained due to the failure of the Inspectors to comply with Section 351(1)(c) of the Act including the obligation to inform the Respondent of his rights under Sections 354(5) and 356(4) of the Act.”. At the hearing before Commissioner Bloomfield on 3 July 2000 Mr C. O’Brien appeared for the Department of Employment, Training and Industrial Relations and Mr M. Coonan, of Freehill Hollingdale & Page, appeared with Mr A. Hunter for Hunter Security Services Pty Ltd. Evidence was taken from Mr Colin John O’Neill and Mr Gary Krishna, Industrial Inspectors from the Department of Employment, Training and Industrial Relations. After the evidence was taken Mr Coonan applied for the evidence of both Mr O’Neill and Mr Krishna to be struck out on the basis that the evidence established that the inspectors had not warned Mr Hunter that he could decline to provide time and wages records if he had a lawful excuse. In giving his decision from the Bench in relation to that matter Commissioner Bloomfield said:– “The applications before the Commission today are made pursuant to s. 278 of the Industrial Relations Act 1999 by Mr Carey Owen O’Brien. It is clear under that section, particularly s. 278(3)(e) that, as an inspector, Mr O’Brien is entitled to bring the applications. It is also clear from s. 278(8) that on hearing the application the Commission must act in accordance with section 320. It is clear, on a combined reading of s. 320(1) and (2) that the Commission is not bound by technicalities, legal forms or rule of evidence when dealing with s. 278 applications. That is not to say that the Rules of Evidence or natural justice are simply thrown out. The rules would continue to be relevant – particularly those dealing with rights of natural justice. It is also clear from s. 320(5) that, in making any decision, the Commission must, at all times, be aware of the objects of the Act. It is clear that the Act requires employers to pay its employees in accordance with the provisions of any applicable industrial instrument that might cover those employees. It is also clear, in order to ensure that that obligation can be policed, that employers are required to keep a series of records pursuant to s. 366 of the Act. It is equally clear that s. 371 of the Act allows inspectors to inspect the time and wages records which the employer is required to keep pursuant to the earlier section. Having regard to the issues that have been aired during the course of today by Mr Coonan, it is particularly relevant that the provisions of s. 371 do not contain any requirement for the inspector to warn an employer about the potential consequences of a failure to produce a record if the inspector requires the employer to produce that record. In that regard, the provisions of s. 371 should be compared, for example, to the provisions of s. 356, in particular subsection (2). -- 1 of 3 -- 300 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 21 July, 2000 Mr Coonan, on behalf of his client, has complained that the material obtained by Mr O’Neill should not be admitted because the respondent, in this case, was not warned that he need not produce the material which was required if he had a reasonable excuse not to produce it. I have considered the submissions of Mr Coonan in light of the evidence which has been produced and in light of the provisions of the Act. I propose to rule to allow the material that has been advanced to be admitted and I propose to rule to allow the evidence which has been given to stand. On my reading of the Act, s. 351 is a general provision setting out the general powers and obligations of an inspector. Sections 353 and 354, on my hearing of the evidence, are not applicable. Section 355 is obviously relevant. It clearly states that an inspector may require a person to produce for inspection at a reasonable time and place nominated by the inspector a document relating to employees, including, for example, a time sheet or pay sheet. Having regard to the arguments advanced by Mr Coonan, it is particularly relevant that there is no qualification to that provision. The inspector may require the production of, for example, a time sheet or pay sheet without indicating to the employer that the employer may refuse to produce that record if the employer has a reasonable excuse. It is also noteworthy, in my view, that s. 355 is very comparable to the provisions of s. 371. However, s. 356 is a different provision. It indicates that an inspector may ‘(1)(b) require the employer or person to give the inspector information to help the inspector ascertain whether (the) Act, or a relevant industrial instrument, permit or order are being, have been or will be complied with, or should be given operation in relation to the calling.’. If s. 351(1)(c) had the meaning contended for by Mr Coonan there would be no need for a provision such as that which appears at s. 356(2). I have had occasion to look at the explanatory notes which were produced by the Minister at the time that the Industrial Relations Bill was introduced and they say in relation to clause 356: ‘Clause 356 preserves section 384 of the Workplace Relations Act 1997 and provides the matters about which an inspector is allowed to question an employer or other person. It specifies that an inspector must warn the employer or other person that it is an offence to fail to answer such questions without reasonable excuse . . . .’. In my view, the reference to ‘information’, mentioned in the first line of s. 356(1)(b) is suggestive of something which is different, for example, to a document or a time sheet or something similar. It suggests to me that in going about his or her function the inspector is permitted to ask questions of either an employer or employee(s). If the question is relevant to the inquiries which are being made, the inspector is required to advise the employer or the employee(s) of the consequences of their failure to provide the answer to the question. The evidence does not suggest that anything like that has occurred here. The evidence suggests that the disclosure of the material was voluntary, albeit that it may have followed a discussion in which Mr O’Neill might have mentioned his ‘requirements’. But it seems to me that to adopt the interpretation argued for by Mr Coonan would be to put too much fine emphasis on some obscure, unintended, technicality and thereby defeat the entire purposes of the Act. If the inspectorate was required to warn every employer prior to an inspection that the employer could refuse to provide the time and wages records required to be kept by the Act if they had a justifiable reason, then we would find that no employer might necessarily be prepared to take the risk by providing their records. It would be an absurd outcome if that could occur, given that the Act places an obligation on employers to keep time and wages records and permits those time and wages records to be inspected by an inspector. It would also seem to be at odds with the clear wording of s. 355 and s. 371 of the Act. In the circumstances, Mr Coonan, I repeat, I propose to allow the material which has been advanced to remain. I also propose to allow the evidence which has been given to stand.”. Following the Commission’s decision on that point Mr Coonan made a submission that the respondent had no case to answer. After hearing from Mr O’Brien Commissioner Bloomfield said:– “Whether I be right or wrong in my interpretation about the relevance of s. 320 in s. 278 proceedings it is nonetheless clear that even in a ‘balance of probabilities’ case it is an accepted position that an applicant must prove its case. In this case the applicant is inviting the Commission to make two fundamental assumptions. The first assumption is that Hunter Security Services Pty Ltd is engaged in the type of work that the Security Industry (Contractors) Award – State covers. The second assumption is that each of Mr Tattis, Mr Tyzack, Mr Masci and Mr Fletcher is performing work that is covered by that Award. Whilst there is a strong inference, from mention of the classification ‘security officer’ in the wages records produced, that each of the four persons is performing work which may be covered by the Security Industry (Contractors) Award – State there is no evidence before the Commission to support that position. There is also no evidence before the Commission to support the contention that Hunter Security Services Pty Ltd, in respect of its engagement of these four persons, is covered by the Security Industry (Contractors) Award – State. In the circumstances, I am left with no alternative other than to dismiss each of the four applications on the basis that the applicant has failed to establish, as is required, that the Security Industry (Contractors) Award – State applied to Hunter Security Services Pty Ltd and that the employees were performing work which is covered by that Award. That having been said, it would seem from the nature of the employer’s records which have been made available to the Commission that at least some of the employees may be covered by a QWA. If they are covered by a QWA then it would be necessary to look at the terms of the QWA to see whether or not there has been an underpayment. -- 2 of 3 -- 21 July, 2000 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 301 If a QWA does not apply then it would seem that the employer may be in breach of s. 366 of the Act because the employer has failed to keep a wages record which includes (as required by s. 366(1)(c)(ii)) the name of the industrial instrument or permit under which the employee is working. I note that failure to maintain such a record leaves the employer open to a penalty of a maximum of 40 penalty points. I think that the inspectorate needs to go away and consider the decision that has been issued as to proof. But it is clear on the material that has been presented to the Commission today that I could not find in favour of the applicant for the reasons I have outlined. With that I formally dismiss each of the four applications and adjourn the Commission.”. Dated this third day of July, 2000. By the Commission, [L.S.] E. EWALD, Industrial Registrar. Released: 11 July 2000 Appearances:– Mr C. O’Brien for the Department of Employment, Training and Industrial Relations. Mr M. Coonan, of Freehill Hollingdale and Page, with Mr A. Hunter for Hunter Security Services Pty Ltd. -- 3 of 3 --