100319287

WESTERN AUSTRALIAN INDUSTRIAL MAGISTRATES’ COURT

PARTIES AUSTRALIAN LIQUOR, HOSPITALITY AND MISCELLANEOUS WORKERS UNION, WESTERN AUSTRALIAN BRANCH

CLAIMANT

 -v-

 NEATCLEAN PTY LTD

RESPONDENT

CORAM MAGISTRATE RK BLACK IM

DATE TUESDAY, 2 SEPTEMBER 2003

CLAIM NO/S M 82 OF 2003

CITATION NO. 2003 WAIRC 09563

_______________________________________________________________________________ 

Representation

Claimant  Ms S Northcott

Respondent Ms J Auerbach

_______________________________________________________________________________

Reasons for Decision

1         The claim by the Claimant is that the Respondent has contravened the provisions of section 49M(2) of the Industrial Relations Act 1979 (“the Act”).  The statement of claim sets out that the Respondent, after being notified of an intention on the part of the Claimant to conduct a time and wage record inspection under section 49I of the Act, refused to allow that inspection to occur and thereby hindered or obstructed an authorized representative of the Claimant.  The Claimant seeks several orders including that the Respondent pay a penalty for the breach which is alleged to have occurred.

The Act

2         Section 49I of the Act relevantly provides as follows:-

“49I.    Right of entry to investigate breaches

(1) An authorised representative of an organisation may enter, during working hours, any premises where relevant employees work, for the purpose of investigating any suspected breach of this Act, … or an award, order, industrial agreement or employer-employee agreement that applies to any such employee.”

(2)   For the purpose of investigating any such suspected breach, the authorised representative may —

(a)  subject to subsections (3) and (6), require the employer to produce for the representative’s inspection, during working hours at the employer’s premises or at any mutually convenient time and place, any employment records of employees or other documents, other than workplace agreements, kept by the employer that are related to the suspected breach;

(b)   make copies of the entries in the employment records or documents related to the suspected breach; and

…

(6)   An authorised representative is not entitled to require the production of employment records or other documents unless, before exercising the power, the authorised representative has given the employer concerned —

(a)  if the records or other documents are kept on the employer’s premises, at least 24 hours’ written notice; or

(b)   if the records or other documents are kept elsewhere, at least 48 hours’ written notice.”

3         Section 49G provides:-

“49G.    Interpretation

In this Division —

“authorised representative” means a person who holds an authority in force under this Division;

“relevant employee”, when used in connection with the exercise of a power by an authorised representative of an organisation, means an employee who is a member of the organisation or who is eligible to become a member of the organisation.”

4         Though not set out in full, the provisions of section 49D of the Act provide that during the time when an industrial instrument applies to the employment of an employee, an employer is required to record various details in relation to that employee in accordance with regulations made by the Governor.  An industrial instrument is defined in section 49D(4) to include, inter alia, an award.  Section 83E of the Act sets out that if a person contravenes a civil penalty provision, which section 49M of the Act apparently is, an order imposing a particular penalty may be made.  By subsection (8) of that section the standard of proof to be applied when determining if a contravention of a civil penalty provision has occurred is the standard observed in civil proceedings, namely, on the balance of probability.

Evidence

5         There are a large number of factual matters not in dispute.  It is not in dispute that by a facsimile letter dated 2 May 2003 an organiser for the Claimant, Mr Andrew Richard Lee (“Lee”), notified the Respondent in writing that officials of the Claimant intended to conduct a time and wage inspection at the Respondent’s office in Carlisle at 10.00 am on 8 May 2003.  On the same date an e-mail was forwarded under the name of Pieter Willers, the manager of the Respondent, advising Lee that as at that date the Respondent did not have any relevant employees working for it and that there were no time and wages records to be inspected.  On 5 May 2003, at 10.57 am, an e-mail was forwarded by Lee to the Respondent acknowledging receipt of the e-mail of 2 May 2003 and confirming that it was intended to conduct the inspection at the time previously indicated notwithstanding any information received as to relevant employees and time and wage records.  It is not in dispute that subsequent to this there was a telephone discussion between Lee and Mr Pieter Willers (“Willers”) wherein Willers confirmed his previous advice as to the position with relevant employees on 2 May 2003, advised that as at 5 May 2003 there were a number of relevant employees who had commenced work on that day, that there was not at that time, and would not be on 8 May 2003, time and wage records in existence due to the first pay period not falling for a period of approximately a fortnight. Willers offered to fax a list of names and addresses of the relevant employees who had commenced employment on 5 May 2003.  It was suggested that it would be more appropriate to conduct any inspection of time and wage records subsequent to the completion of the first pay period when such records would be in existence.  A discussion occurred between Lee and the assistant secretary of the Claimant, as a result of which, at 4.33 pm on 5 May 2003, a further e-mail was forwarded by Lee to Willers.  The documents referred to, commencing with the notice by the Claimant of 2 May 2003 are in evidence as exhibits A, B, C and D.  The last of the documents referred to, the e-mail of 4.33 pm on 5 May 2003, is in the following terms:-

“Dear Pieter, after we spoke today I informed our assistant secretary, Sue Lines, of your offer to fax a printout of employee names/addresses etc, rather than have us visit your office this week.

We would like to thank you for this offer, but advise that we will be conducting the inspection at the Neatclean office on Thursday, 8 May, 10.00 am.

You made the point that there are no “wages records”, as the staff only started today and no-one has yet been paid.  While we accept that the first pay day is still a couple of weeks away, we require nevertheless to see evidence of how the company intends to pay each employee i.e. the hourly rate, any penalties and allowances etc.

Yours sincerely Andrew Lee.”

6         It is to be noted that this email seeks evidence of how the respondent “… intends to pay each employee…” not the inspection of records or documents.  On 8 May 2003 Lee and a Mr Jack Nicholas arrived at the Respondent’s office in Carlisle a short time after 10.00 am.  They were admitted into the office by Ms Burn, the administration manager for the respondent.  Ms Burn produced to Lee a list of the names and addresses of twelve employees then employed by the Respondent.  This is in evidence as exhibit E.  There was further discussion between Lee and Ms Burn as to any other documents and it is not in dispute that Lee was advised that there were no other documents or records but that he was advised in the course of that discussion that each of the employees of the company were believed by Ms Burn to be getting paid at the rate of $13.10 per hour.  There was then some discussion as to contact with Willers.  The exact terms of that discussion are in dispute and will be referred to later in these reasons.  It is not in dispute that as a result of what occurred the Claimant issued the proceedings presently before the Court.

Andrew Richard Lee

7         Apart from matters not in dispute, Lee said that he became aware shortly before 2 May 2003 that the Respondent had obtained a number of contracts in relation to the cleaning of schools.  As a result of information he had as to the competitive nature of contracts of this nature he said that he suspected that the Respondent could pay its employees less than the award rate.  He said that he had been an organiser with the Claimant, dealing with contract cleaning, for approximately twelve months.  He said that during that time he had become aware that other entities involved in this industry had breached awards.  It was on this basis only that he came to the belief that there were relevant employees employed by the Respondent and suspected that a breach of the award existed.  On the basis of this suspicion the notice of 2 May 2003 was forwarded to the Respondent.  After receiving the list of employees from Ms Burn on his attendance at the Respondent’s office he said that he asked whether the other records about how employees were being paid were to be made available.  He said that in reply to this Ms Burn said:-

“No, Pieter Willers had given that to me (referring to the list of names) and I am under instruction to offer nothing else.”

8         He asked then to see Willers and was advised by Ms Burn that Willers was away on leave and that she could not contact him.  After some further discussion about the availability of other records he indicated that he required to see records indicating how the Respondent proposed to pay its employees.  After some further discussion Ms Burn advised him that she believed employees would be paid at the rate of $13.10 per hour.  Ms Burn advised him that there were no other records.  He again asked for information as to how to contact Willers and whether Ms Burn would do so and said that she replied that she did have a telephone number for Willers but was under instructions not to contact him.  He said that he then advised Ms Burn that he thought the Respondent was hindering the time and wage inspection which may lead to a prosecution.  He then left.  During the course of cross-examination Lee was questioned about his suspicion that a breach of an award had occurred.  He agreed that he did not know at the time of the issue of the notice whether or not there were any relevant employees but accepted that as at 2 May 2003 the Respondent did not employ any relevant employee.   He said in effect that his suspicion was that at some time in the future there may be a breach of the award.  He agreed he did not know whether any breach had occurred at the time of the issue of the notice     He said that he did not believe as at 8 May 2003 that there were no time and wages records in existence, other than the list of employees he had been given.  He agreed that if the employees were the subject of Australian Workplace Agreements that he was not entitled to see those agreements.  He reiterated his evidence that when first asked, Ms Burns said that she did not have any telephone number to contact Willers but later said that whilst she did have a contact number she was under instructions not to call him.

Jack Nicholas

9         The evidence of Mr Nicholas was substantially consistent with the evidence of Lee as to what occurred.  In relation to what was initially said by Ms Burn when asked by Lee if she could contact Willers his evidence was that she said that there was no way of contacting him as he was on holidays.  After Ms Burns was pressed he said that she said that she was able to contact Willers but would not do so.  He conceded that Ms Burn did say that Willers would contact her from time to time but she was not able to contact him except in emergencies.

Pieter Devilliers Willers

10     Willers evidence was that he was manager of the Respondent company.  His evidence was that prior to 5 May 2003 that company had not employed any cleaners.  As at 5 May 2003 his evidence was that cleaners were employed and each of those persons had signed Australian Workplace Agreements on or prior to that date.  As at 2 May 2003 there were no relevant employees of the Respondent.  Due to the fact that there was some haste in employing cleaners pursuant to a contract awarded by the Education Department as at 8 May 2003, when the inspection occurred, there were no records in relation to time and wages other than the pay structure set out in the Australian Workplace Agreements.  He said that from 5 May 2003 the employees were required to complete time sheets which would be forwarded by the employee to the Respondent before the expiration of the initial pay period in order that time and wage records could then be compiled for the first pay period.  This had not occurred as at 8 May 2003.  In relation to any rosters, there had initially been oral directions and no documents were in existence in relation to this matter by 8 May 2003.  In particular, no employee time sheets had been submitted at that point by any of the employees.  He confirmed that he had suggested to Lee that if Lee attended the Respondent’s office on 8 May 2003 then the only documents in relation to time and wages were the list of employees.  He said that on 8 May 2003 he was holidaying in Mauritius and that Ms Burn did not have any contact telephone number for him at that time, though it would have been possible for him to be contacted if that was necessary.  He said that he did telephone her on 8 May 2003 after the time that the inspection had been due to take place and had been told what occurred.  He said that it was not his intention, at any time, to obstruct or hinder the Claimant, indeed he attempted to cooperate with them, however, as at 8 May 2003 there were no other documents in existence for inspection other than the document given to Lee.

11     In the course of cross-examination Willers agreed that a certificate in relation to the Australian Workplace Agreements had been received by the Respondent on 16 May 2003.  He agreed that it may be the case that those Workplace Agreements were not binding until such time as that certificate was received.  He confirmed, however, that as from 5 May 2003 employees had been employed pursuant to those agreements.  He conceded that he was aware that he was required pursuant to the Act to keep records in relation to employees.  He agreed that it was likely that at various sites where employees were working, that is schools where they were cleaning, there may be time sheets for the days from 5 May 2003 that had been completed by employees.  He agreed that as at 5 May 2003 the Respondent had in place software on a computer system for the purpose of payments to employees.  He named that software as “Powerpay”.  As at 8 May 2003 he confirmed that the only information on that software was the name and address and other information set out on the document given to Lee, being exhibit E.  He said that he had advised Ms Burn to provide whatever information she had to the Claimant, except the Australian Workplace Agreements.  He did instruct Ms Burn that exhibit E was the only information in existence at that time.  He gave Ms Burn no instruction as to whether or not the computer software could be seen.  As far as he was concerned, his evidence was that had a request been made to see that, it would have been shown.  In relation to the question of time sheets referred to during prior evidence, his evidence was that as at 8 May 2003 those time sheets were not kept by the Respondent but were kept by the employees and would be faxed, or otherwise provided, to the Respondent before the expiration of the pay period, however, that had not occurred as at 8 May 2003.

Susan Mary Burn

12     Ms Burn gave evidence that she was the administration manager of the Respondent at the material times.  Her evidence in relation to the date of employment of cleaners was that they were employed as of 5 May 2003.  She said that when Lee and Mr Nicholas arrived at the Respondent’s office at shortly after 10.00 am on 8 May 2003 the only record that she had was the names and addresses of the then employees as of 5 May 2003.  She obtained this information from the payroll software on a computer.  There was no other information on or within the computer system in relation to time or wages.  She advised Lee that there was no document in relation to any rosters, it being three days only since the contract started and during which employees had been employed.  She said that Lee asked how the employees were going to be paid and after questioning Lee as to what he meant she advised that as far as she was aware the employees were going to be paid at the rate of $13.10 per hour.  When she was asked for something in writing in relation to this she said she did not have any documents in respect of that.  She said that she did not have any time sheets, that she had not paid anybody and there were no other records in existence.  Her evidence was that she was asked to contact Willers after being told by Lee that the failure to provide documents could lead to a fine being imposed.  She said that she advised Lee that she could not contact Willers at that time.  She knew that he was then in Mauritius.  During the course of cross-examination she confirmed that she was aware of a document in relation to a time and wage inspection and was of the view that Lee could see whatever time and wage records were then  in existence.  That is what she provided.  She was not aware if there were time sheets at the various sites as she did not know when employees actually completed those time sheets.  She would only get them prior to the end of the pay period and would then transpose information to the payroll system.  She said she did not recall Lee asking anything in relation to whether and what system there was for the purpose of paying employees.  She said that she was not sure whether or not she said anything to Lee about being able to contact Willers as was alleged by him.  She could not recall.  She confirmed that her instruction from Willers was to give the Claimant what was available.  In relation to her ability to contact Willers her evidence in re-examination was that at that time she did not have a telephone number where she could contact him directly whilst he was overseas.

13     That then is the evidence before me.  On the basis of this evidence I find as facts that on 2 May 2003 Lee notified the Respondent in writing of an intention to conduct a time and wage inspection at 10.00 am on 8 May 2003.  His reason for so doing was a belief that at some time in the future the Respondent may breach an award that applied to the respondent.  As at 2 May 2003 there was nothing before him whereby he held a suspicion that as at that time the Respondent had breached any award.  Indeed as at that time he was not aware whether the Respondent employed any relevant employees.  As at that date the Respondent did not employ any relevant employees.  As the result of e-mails and telephone discussions between Lee and Willers, by e-mail at 4.33 pm on 5 May 2003, Lee advised Willers that he intended to conduct the inspection at the Respondent’s office on 8 May 2003 at 10.00 am for the purpose of seeing “… evidence of how the company intends to pay each employee …”.  This document does not, on its face; purport to be a notice seeking to inspect any employee records of relevant employees, rather a notice that seeks the production of evidence of how the Respondent intended to do something in the future.  On 8 May 2003 at approximately 10.00 am Lee and Mr Nicholas attended the office of the Respondent.  Provided to them by Ms Burn was the list of employees, being exhibit E.  On the evidence before me I find that there were then no other records in existence.  Though employees of the Respondent at that time apparently had time sheets which they were required to complete and forward to the Respondent, I find that as at 8 May 2003 none of these documents were in the possession of the Respondent.  Accordingly Lee left the office of the Respondent with the only document in relation to relevant employees that was then in existence.

14     In my view, for the Claimant’s case to be proved it must be shown to the necessary standard, that is on the balance of probability, that:-

 1. An authorised representative of an organisation,

 2. where there were relevant employees,

 3. suspected that a breach, inter alia, of an award had occurred, and

 4. gave notice to an employer of a requirement to produce for inspection employment records and other documents for the purpose of investigating that suspected breach, and

 5. required the production of those records or other documents kept by that employer that were related to the suspected breach, and

 6. the employer intentionally and unduly hindered or obstructed the authorised representative from exercising the power to investigate the suspected breach.

15     In relation to these matters there is no dispute that Lee is an authorised representative of the Claimant.  It is accepted by Lee, and found by me as a fact, that as at 2 May 2003 the Respondent did not employ any relevant employees.  It was not until 5 May 2003 that any relevant employees were so employed.  Accordingly as at 2 May 2003 there was not an  award that applied to an employee of the Respondent for the purpose of section 49I(1) of the Act.  Apart from the question of whether or not there were relevant employees as at 2 May 2003 there must be evidence upon which it can be concluded to the necessary degree, that there was at that time a suspected breach of, in this case, an award that applied.  In relation to the question of suspicion, in my view, the suspicion must relate to an existing breach of an award.  It is not sufficient to believe that at some time in the future there may be such a breach.  In any event a suspicion, in my view, must be based upon some objective examination of the facts then known to the person who is said to hold the suspicion.  That is, on the evidence, that it can be concluded that there were facts or matters that then existed that could ground a reasonable suspicion.  It must relate to a suspected breach of an award by the particular employer, in this instance the Respondent.  It is not sufficient to ground such a suspicion on a belief that other employers within a particular industry may or may not have committed breaches of awards.  It must, as indicated, relate specifically to a particular employer.  On the facts as found, when viewed objectively, it is clear that there were no facts known to Lee as at 2 May 2003 which could reasonably ground any suspicion that the Respondent had committed a breach of an award at that time.

16     If an authorised representative requires the production of employment records or other documents there must be given to an employer notice pursuant to section 49I(6) of the Act.  The notice given in this particular instance was the notice dated 2 May 2003.  For the reasons set out previously that notice is not a notice given in accordance with section 49I of the Act.  It is submitted that even if this is the case the e-mail sent at 4.33 pm on 5 May 2003 is a valid notice, it having been given more than 24, or indeed 48, hours before the date of the inspection.  As previously set out that notice, accepting for the moment that it could be a notice for the purposes of section 49I(6) of the Act, does not require the production of employment records or other documents.  It purports to require the Respondent to produce evidence as to how it intended to act in the future.  In my view it is not, in fact, a notice pursuant to section 49I(6).  Indeed it simply purports to make some clarification of the notice given on 2 May 2003 which advised that an inspection would commence on 8 May 2003 at 10.00 am.  On the basis set out the conditions required to exist pursuant to section 49I(1) have not been proved to have existed at the material time, that is 2 May 2003.  No later notice was given.  In addition to that, for the reasons outlined, there could be, and was, no reasonable suspicion of a then existing breach of an award.  The conduct proscribed by section 49M of the Act is based upon there being an entitlement pursuant to either section 49H or section 49I of the Act.  Section 49H is not relevant in this instance.  For the reasons indicated there was at the material time no entitlement on the part of the Claimant pursuant to section 49I of the Act.

17     Though it is not necessary, for completeness, it could not be said on the evidence that any requirement made by the Claimant, if there was such a proper requirement, related to employment records or other documents kept by the Respondent that were related to a suspected breach.  As there was objectively no suspected breach that existed as at 2 May 2003, when it is said to have arisen, there could be no documents related to that suspected breach.  It is also the case that pursuant to section 49M(2) of the Act, the provision upon which the Claimant relies, there must be evidence to prove, on the balance of probability, that a Respondent “… intentionally and unduly …” hindered or obstructed an authorised representative.  This clearly raises the question of intent.  It would not be sufficient to show that an authorised representative was, as a matter of  fact, hindered or obstructed in the exercise of that person’s powers under Division 2G of Part II of the Act.  It must be proved that such hindrance or obstruction was intentional and was undue.  The onus is on a person alleging that there was intentional and undue hindrance or obstruction, in this instance the Claimant, to prove that to the necessary degree.  A hindrance or obstruction could be, for instance, inadvertent or as the result of some negligent act.  If so it may not be able to be said that such hindrance was intentional and undue.  In any event the Claimant has not proved in this instance, even if all other necessary elements had been proved, that any hindrance or obstruction was intentional and undue.

18     For the reasons outlined the claim cannot and does not succeed.

RK Black

Industrial Magistrate