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Federal Court of Australia |
COURT
IN THE FEDERAL COURT OF AUSTRALIACATCHWORDS
Industrial Law - award - breach - whether continuing right to proceed in respect of breach committed while repealed Act in force - use of incorrect name in award - whether respondent bound - whether outworker an employee - engaging outworker without being registered - failing to make records available for inspection by official of registered organisation - failing to pay outworker at specified times - failing to cause all work to be delivered to and picked up from outworker.Industrial Relations Act 1988 s.178.
Conciliation and Arbitration Act 1904 s.119.
Industrial Relations (Consequential Provisions) Act 1988 s.3, s.7, s.5.
Federal Court of Australia Act 1976 s.47.
Acts Interpretation Act 1901 s.8.
Federal Court Rules O.20 r.1, O.33 r.1.
Clothing Trades Award 1982 cl. 26, cl. 27, cl.27A, cl. 29.
HEARING
MELBOURNECounsel for the applicant: M. Bromberg
Solicitors for the applicant: Slater and Gordon
Counsel for the respondent: No appearance
Solicitors for the respondent: No appearance
ORDER
The respondent pay to the applicant:(a) a penalty in the sum of $800.00 for breach(Note: Settlement and entry of orders is dealt with by O.36 of the Federal Court Rules.)
of clause 27(B)(i) of the Clothing Trades
Award 1982 in and between August and
October 1989;
(b) a penalty in the sum of $500.00 for breach
of clause 29(a) of the Clothing Trades
Award 1982 on or about 3rd February
1989;
(c) a penalty in the sum of $500.00 for breach
of clause 27(B)(xiii) of the Clothing Trades
Award 1982 on or about 9th February
1989;
(d) a penalty in the sum of $250.00 for breach
of clause 27(B)(xv) of the Clothing Trades
Award 1982 in and between August and
October 1989; and
(e) a penalty in the sum of $250.00 for breach of
clause 27(B)(xviii) of the Clothing Trades
Award 1982 in and between August and
October 1989.Otherwise the amended application is dismissed.
DECISION
In this proceeding, the applicant makes a number of claims for penalties for breaches of the Clothing Trades Award 1982 ("the Award"). The respondent did not enter an appearance, and the matter was listed for trial as an undefended case. The applicant could have availed itself of the provisions for summary trial, found in O.20 r.1 of the Federal Court Rules. Had it done so, the whole of the evidence would have been received on affidavit as a matter of course. As it was, at the trial leave was granted for some of the evidence to be received on affidavit, in the exercise of the power given by s.47(3) of the Federal Court of Australia Act 1976 and O.33 r.1 of the Federal Court Rules.2. The Award was made and varied from time to time under the Conciliation and Arbitration Act 1904 ("the C. and A. Act") On 1st March 1989, the C. and A. Act was repealed by s.3 of the Industrial Relations (Consequential Provisions) Act 1988 ("the Consequential Provisions Act"). It was replaced by the Industrial Relations Act 1988 ("the Industrial Relations Act"). By s.7(1) of the Consequential Provisions Act, an award in force under the C. and A. Act continues in force as if it were an award made under the Industrial Relations Act.
3. The proceeding has been beset by problems in its interlocutory stages. The original application, filed on 30th October 1989, sought a penalty for the alleged failure of the respondents to permit an authorised person to inspect records which are required by the Award to be kept and to be available for inspection. The breach was alleged to have occurred in April 1989, after the Industrial Relations Act had come into operation.
4. The proceeding was listed for hearing on 10th April 1990. At the applicant's request, it was adjourned to 2nd May. On that date, leave was granted to amend the application, to include an allegation that the respondent had since February 1989 failed or refused to allow inspection of the relevant records. A further adjournment was necessary to enable notice of the amendments to be given to the respondent; even though it had not entered an appearance, the respondent was entitled to notice of the new claim made against it. On 2nd May, there was some discussion with counsel for the applicant about the fact that the amendment raised an allegation of a breach prior to the coming into operation of the Industrial Relations Act.
5. The matter came on for hearing again on 4th June 1990. In the intervening period, the applicant had served on the respondent at its registered office an amended application and an amended statement of claim, expanding as to time, number and nature the breaches of the Award alleged. It had also served a letter giving the respondent notice that leave to amend would be sought in the form of the documents served. Leave was granted to amend in that form. The amended application alleges breaches of the Award both before and after 1st March 1989.
6. Prior to that date, s.119 of the C. and A. Act provided, so far as is
relevant, as follows:
"119(1) Where any organization or person bound by anSection 120 provided, so far as is relevant, as follows:
order or award has committed a breach or non-observance
of a term of the order or award, a penalty may be imposed by
the Court...
(1A) ... where a Court finds that 2 or more breaches
by the same organization or person of a term of an
order or award have been committed and those
breaches appear to that Court to have arisen out of a
course of conduct by that organization or person,
those breaches shall, for the purposes of this section,
be treated as constituting a single breach of that
term.
...
(1D) The maximum penalty that may be imposed
under sub-section (1) in respect of a breach of a
term of an order or award is -
(a) Where the penalty is imposed by the Court
(i) in a case to which sub-paragraph (ii) does
not apply - $1,000; ...
(2) any such penalty may be sued for and
recovered by -
...
(d) any party to the award or order
...
(4) proceedings under this section in respect of
a breach of a term of an order or award may
be commenced at any time within 6 years
after the commission of the breach."
"120 Where any Court imposes a penalty in pursuance of7. Since 1st March 1989, s.178 of the Industrial Relations Act has provided, and still provides so far as is relevant as follows:
section 119...it may order that the penalty, or any part
thereof, be paid into the Consolidated Revenue Fund, or to
such organization or person as is specified in the order."
"178(1) ... where an organisation or person bound by an(4) The maximum penalty that may be imposed
award or an order of the Commission breaches a term of the
award or order, a penalty may be imposed by the Court...
(2) ... where:
(a) 2 or more breaches of a term of an
award or order are committed by
the same organisation or person; and
(b) the breaches arose out of a course
of conduct by the organisation or
person;
the breaches shall, for the purposes of this section, be taken
to constitute a single breach of the term.
...
under subsection (1) for a breach of a term(5) A penalty for a breach of a term of an award or
of an award or order is:
(a) where the penalty is imposed by
the Court:
...
(ii) in any other case - $1,000;
...
order may be sued for and recovered by:(8) A proceeding under this section in relation to a
...
(b) a party to the award or order
...
breach of a term of an award or order shall8. The first problem which arose at the trial is that no express provision appears in the Industrial Relations Act or the Consequential Provisions Act for a proceeding to be brought after 1st March 1989, in respect of a breach of award occurring before that date. The absence of such an express provision does not mean that no such proceeding can be brought. In Australian Bank Employees Union v. Australia and New Zealand Banking Group Limited (Federal Court of Australia, 12th September 1989, not yet reported), von Doussa J. held that s.8(c) of the Acts Interpretation Act 1901 preserves any right which accrued prior to 1st March 1989, under the C. and A. Act, to proceed in respect of such a breach. See also Poletti v. Ecob (Federal Court of Australia, Gray J., 8th June 1989, not yet reported).
be commenced not later than 6 years after
the commission of the breach."
9. The second problem which arose was whether the respondent was a person bound by the Award. The respondent is a company incorporated in Victoria on 7th November 1977. It was originally called Calla Helena Pty. Ltd., but on 16th November 1977 changed its name to J. and J. Saggio Pty. Ltd. On 13th June 1979 it changed its name again, to the name in which it is now sued, J. and J. Saggio Clothing Manufacturers Pty. Ltd.
10. By a variation to the Award, dated 16th March 1982 (found in the Australian Conciliation and Arbitration Commission's print no. E9021), there was added to the Award a list of further employer respondents. Included in that list was, "Saggio, JJ. Clothing Pty. Ltd., 18 Earl Street, Airport West, 3042". It will be seen that that name differs from the name of the respondent, even allowing for a desire to list respondents with a "surname" first. No conjunction appears between the two letters "J" and the word "Manufacturers" does not appear.
11. It is well established that, provided that the intention of a maker of an award is clear as to the entity which is to be bound, failure to use the precise name of that entity is not fatal. In Australian Commonwealth Shipping Board v. Federated Seamen's Union of Australasia [1925] HCA 3; (1925) 35 CLR 462, the expression "Commonwealth Government Line of Steamers" in an award was held to be sufficient to bind a statutory body named "Australian Commonwealth Shipping Board". In Nicol v. Parr (1985) 11 IR 141, the inclusion of the name of a natural person in a column intended for names of respondent employers, with the name of a company in the column intended for addresses, was held to be sufficient to bind the company.
12. Care must be taken when a company name is involved, to ensure that the award maker has not intended to bind another company of a similar name. In the present case, there is evidence of the records kept in the office of the Commissioner for Corporate Affairs. No company exists with the precise name shown in the Award, or with any name similar. Given that the respondent carried on business as a clothing manufacturer at the precise address given in the Award, there is no difficulty in concluding that the maker of the Award intended to bind the respondent. I therefore hold that the respondent was bound by the Award at all relevant times.
13. It was established that the applicant was an organisation, registered pursuant to the C. and A. Act. By s.5 of the Consequential Provisions Act, it is taken to be registered pursuant to the Industrial Relations Act. Clause 5(a) of the Award provides that the Award shall be binding upon the applicant. The applicant is therefore a party to the Award, within the meaning of s.119(2)(d) of the C. and A. Act and s.178(5)(b) of the Industrial Relations Act.
14. Before going to the evidence of the alleged breaches, it is necessary to
set out certain provisions of the Award. The relevant
parts of clause 26(c)
of the Award are as follows:
"26(c)(i) For the purpose of this subclause "work" means
hand or machine sewing in the construction(iii) (1) A respondent bound by this Award, contracting with a
of a garment or part thereof being work
performed other than in a factory or
workshop.
(ii) A respondent bound by this Award shall:
(1) not contract with any person
pursuant to this subclause unless
that respondent is registered
pursuant to clause 27A.
(2) when desirous of contracting with
any person pursuant to this
subclause make application for
registration in accordance with
clause 27A of this Award to the
Board of Reference.
person who alone will perform work, shall contract to15. The relevant parts of clause 27 of the Award are as follows:
provide and shall provide terms and conditions no less
favourable than those prescribed by this Award for
persons engaged under a contract of service pursuant
to clause 27 of this Award.
(2) A respondent bound by this Award, contracting with a
person who alone will perform work, shall make a
record in writing of the following details:
(A) The name of the respondent bound by this Award and
the registration number of the Respondent.
(B) The address of the Respondent bound by this Award.
(C) The name of the person to whom the work is given.
(D) The address where the work is to be performed.
(E) The date of giving out the work.
(F) A description of the nature of the work to be
performed (e.g. overlocking).
(G) A description of the garments or articles of each
description being given out to the person.
(H) The number of garments or articles of each
description being given out to the person.
(I) The price to be paid for each garment or article.
(J) The working time allowed for the work to be done.
(K) The total amount to be paid to the person
calculated in accordance with sub-subparagraphs
(H), (I) and (J) hereof.
(3) A copy of this record shall be given to the person doing the
work and the respondent's copy shall be available for
inspection by a person duly authorised in accordance with
clause 29 of this Award, as if a record described in clause 30
of this Award.
(iv) (1)....
(2) Any respondent to this Award who enters a contract pursuant
to subparagraph (c)(iii)(1) hereof or pursuant to subparagraph
(c)(iv)(1) hereof shall notify the Industrial Registrar or
his/her Deputy in each State or Territory, and the appropriate
State Branch of the Union, within seven days of the last
working day of February, May, August and November of each
year of the existence of such contract and the names and
addresses of the persons who enter the contract."
"(A) For the purpose of this clause:(D) In any proceedings commenced concerning
"Employer" means an employer bound by this Award.
"Ordinary working week" means the hours and days
occurring between midnight on Sunday night and
midnight on Friday night in any week.
"Outworker" means a person who performs work as
herein defined for an employer outside the
employer's workshop or factory under a contract of
service.
"Work" means hand or machine sewing in the
construction of a garment or part thereof being work
performed other than in a factory or workshop.
(B) A respondent bound by this Award shall:
(i) Not employ any person to perform work
covered by this Award under a contract of
service outside the employer's workshop or
factory unless that respondent employer is a
registered employer of outworkers,
pursuant to clause 27A of this Award.
(ii) When desirous of employing outworkers
make application for registration in
accordance with clause 27A of this Award to
the Board of Reference.
...
(xiii) At the time of delivery of any work to a
outworker provide full details of the
following matters and shall keep true and
correct records thereof in writing.
(a) the name of the employer bound by
this Award and the registration
number of the employer;
(b) the address of the employer bound
by this Award;
(c) the name of the person to whom the
work is given;
(d) the address where the work is to be
done;
(e) the date of delivery of the work;
(f) the description of the garments or
articles upon which work is to be
done (e.g. skirts, dresses, jeans);
(g) a description of the nature of the
work to be performed (e.g.
overlocking);
(h) the number of garments or articles
of each description being given out
to the person;
(j) full details of the appropriate time
standard in accordance with
paragraph (B)(v) which when
considered with the minute rate set
out in paragraph (B)(vi) will enable
the price to be paid for each
garment or article to be calculated;
(k) the number of working hours that
will therefore be necessary to be
worked to complete the said
garments or articles; and accordingly
(l) the number of days that will
therefore be needed to perform
the work with such calculation
being undertaken (consistent with
paragraph (x) above) on the basis
of 7.6 hours worth of work being
performed each day; and
(m) the appropriate time and date for
the work to be picked up from the
outworker. The pickup time and
date shall be set on the basis that no
work will need to be performed on
any Saturday, Sunday or award
holiday which may occur between
delivery and pickup unless there is
prior agreement between the
employer and the outworker that
work will be performed on any or
all of such days. If there is such
agreement the written record
referred to in this subclause must
specify the actual date of any
Saturday, Sunday or award holiday
on which it has been agreed that
work will be performed and the
number of hours to be worked on
any such day. In the absence of
any specification as to the number
of hours to be worked on a
Saturday, Sunday or award holiday
on which work has been authorised
pursuant to this paragraph the
outworker shall be deemed to have
worked and shall be entitled to
payment in respect of any such day
at the rate specified in paragraph
(vii) hereof;
(n) the total amount to be paid to the
person calculated in accordance
with (B)(xiii)(h), (j) and (k) above.
Provided that a copy of this record shall be
given to the person doing the work and the
employer's copy shall be available for
inspection at the employer's premises by a
person duly authorised in accordance with
clause 29 of this Award as if it was a record
described in clause 30 of this Award.
(xv) Pay all wages due not later than two
working days following the end of the
working week, at a time and by a method
mutually agreed between the outworker
and employer.
On or before the payday, the employer
shall provide to the outworker in writing,
details of the wage payment to which the
outworker is entitled, the amount of each
deduction made therefrom and the net
amount being paid to the outworker.
...
(xviii) Cause all work to be delivered to and collected
from an outworker free of charges.
...
work performed pursuant to this clause it lies upon16. Sub-clause (a) of clause 27A of the Award provides:
any person alleging that the person performing such
work was not an employee to prove that this was the
case."
respondent bound by this Award having or proposing toThe only other relevant provision of the Award is clause 29(a):
have work performed away from his/her own factory or
workshop pursuant to clauses 26 and 27 of this Award shall
make application for registration to the Board of Reference."
"29(a) Any person or persons, not to exceed two, duly17. The breaches alleged in the amended application may be summarised as follows:
authorised by the Industrial Registrar or Deputy Industrial
Registrar in writing (such authorisation shall be terminable at
the will of the Industrial Registrar or Deputy Industrial
Registrar) shall be allowed to enter the factory or workshop
during working hours. The employer shall in person, or by
representatives on his or her behalf, be entitled to
accompany the authorised person or persons during an
inspection. Access shall be granted to the wages book or
time sheets or records covering all employees, including
outdoor workers, in the employ of that employer. The
employers shall be advised on all occasions when entry is
sought.
Wages books or time sheets or records, or a true copy
thereof, must be kept on the premises at which employees
are working and be made available for inspection on
demand. Any failure on the part of an employer in this
respect shall constitute a breach of the award.
Authorised officials shall not be denied entry to an
establishment on the ground that the employer or a
nominated representative is not available to grant access at
the time entry is sought.
The work and duties of all employees in the establishment
and the business of the employer shall be interfered with as
little as possible by the authorised person or persons."
(a) Breaches of clause 26(c)(ii) both in or about February 198918. The evidence enables the following facts to be found. Richard Albert John Broomfield is the assistant secretary of the Victorian branch of the applicant, and has held that position since 1986. Prior to that, he was an organiser with the branch for approximately eleven years. During the last four or five years, he has had specific responsibility for policing outwork. He has attended at the respondent's premises on approximately five occasions. The premises are a factory in which clothing, being mainly women's outwear, with some t-shirts and nightwear, was made up. Making up usually involves cutting, sewing and finishing garments from materials supplied by the clothing warehouse which engages the particular employer.
and in and between August and October 1989, by contracting
with a person or persons pursuant to clause 26(c) whilst not
registered pursuant to clause 27A of the Award.
(b) Breaches of clause 26(c)(iii)(1) in and between August and
October 1989 by failing to provide terms and conditions no
less favourable than those prescribed by clause 27 when
contracting with a person pursuant to clause 26.
(c) Breaches of clause 26(c)(iii)(3) from February 1989 and
continuing by failing to make available for inspection to a
persons duly authorised a copy of the record or records
required by clause 26(c).
(d) Breaches of clause 26(c)(iv)(2) both in or about February
1989 and in and since August 1989 by failing to notify the
Victorian branch of the applicant of contracts entered into
pursuant to clause 26(c)(iii)(1) of the Award and details
relating thereto.
(e) Breaches of clause 27(B)(i), both in or about February 1989
and in and between August and October 1989 by employing
a person or persons to perform work covered by the Award
under a contract of service outside the respondent's
workshop or factory whilst not being a registered employer
of outdoor workers pursuant to clause 27A.
(f) Breaches of clause 27(B)(xviii)(n) since February 1989 by
failing to make available for inspection to a duly authorised
person the record or records required by clause
27(B)(xviii).
(g) Breaches of clause 27(B)(xv) in and between August and
October 1989 by failing to pay all wages due to an outworker
not later than two working days following the end of the
working week.
(h) Breaches of clause 27(B)(xviii) in and between August and
October 1989 by failing to cause all work to be delivered to
and collected from an outworker.
(i) Breaches of clause 27A both since February 1989 and since
August 1989 in failing to make application for registration
whilst having or proposing to have work performed away
from its factory or workshop pursuant to clauses 26 and 27 of
the Award.
(j) Breaches of clause 27A both since February 1989 and since
August 1989 in failing to make application for registration
whilst having or proposing to have work performed away
from its factory or workshop pursuant to clauses 26 and 27 of
the Award.
(k) Breaches of clause 29(a) since February 1989 by failing to
give access to records covering employees, including
outdoor workers, to a person duly authorised to inspect such
records.
19. In October 1988, Mr Broomfield telephoned the respondent's premises and spoke to Mr Joseph Saggio, one of the directors of the respondent. Mr Broomfield asked for inspection of the respondent's wages books, and for a list of outworkers. Mr Saggio replied that the respondent was closing down within a week or so and that there would be no need for such an inspection or such a list. He did not deny that the respondent had outworkers. On 9th November 1988, Mr Broomfield visited the premises. While he was there, he saw a woman carrying cut work from the factory and loading it into the boot of a motor car. She made at least two trips while Mr Broomfield was there, and then closed the boot and drove off.
20. Mr Broomfield again visited the respondent's premises on or about 3rd February 1989. He inquired whether he could see Joseph Saggio, but was told that he was not available. He spoke to Tony Saggio, whom he knew to be the brother of Joseph, and who described himself as production manager of the respondent. Mr Broomfield asked for wages books and for a list of outworkers. Tony Saggio answered that he did not have authority to produce those items, but would relay the message to Joseph Saggio and ask him to contact Mr Broomfield or an industrial officer of the applicant, who was also present, as soon as possible. Mr Broomfield indicated to Tony Saggio that he knew that the respondent had outworkers, and Tony Saggio did not deny that.
21. On 9th February 1989, Mr Broomfield again went to the respondent's premises and saw Tony Saggio. Tony Saggio again said that Joseph Saggio was not there, and claimed to have passed on the message to him. Mr Broomfield again asked for a list of names and addresses of outworkers.
22. From his experience, Mr Broomfield judged that the number of people he saw working at the respondent's premises, on the occasions when he visited them, was insufficient to cope with the amounts of work he saw there.
23. On 24th February 1989, Mr Broomfield spoke by telephone to Mr Joseph Saggio, requesting a list of the names and addresses of all outworkers of the respondent. Mr Saggio promised to send such a list and did not deny that the respondent had outworkers.
24. No list of names and addresses of outworkers was sent to the applicant's office. Because of the responsibilities allocated within the office, and the systems that are in place, in all probability Mr Broomfield would have been aware of such list if it had been received in the office. After a suitable interval, the applicant instructed its solicitors, Messrs Slater and Gordon, to write to the respondent. This was done by letter dated 10th April 1989, addressed by mistake to "J. and J. Saggia Pty. Ltd." at the respondent's premises at 18 Earl Street, Airport West. The letter drew attention to clause 29(a) of the Award and alleged that the respondent had failed to allow Mr Broomfield the required access on a number of occasions. It also drew attention to provisions of clauses 26 and 27 relating to outworkers, and alleged breaches of those clauses. It made a demand for inspection of the records showing the name and work addresses of each sub-contractor and/or outworker, stating that it would be sufficient for the respondent to forward the list to Mr Broomfield. Finally, the letter threatened proceedings in this Court. No response was received.
25. Since 26th July 1983, Mr Broomfield has held an authorisation from Martin John Boland, a Deputy Industrial Registrar, pursuant to clause 29(a) of the Award.
26. In August 1989, Lina Schiavo owned an overlocking machine, which was situated in her home. She had formerly worked at home on an outwork basis. She applied to the respondent at its premises for work. She spoke to Joseph Saggio, who agreed to give her work overlocking women's nightdresses. She was supplied with work immediately in bundles of cut pieces, together with the cotton required to complete the garments. She was told that the price per completed nightdress would be 33 cents.
27. Thereafter, Ms Schiavo continued to perform work at her home for the respondent. Generally, she picked up work each Tuesday and Friday and delivered the work she had completed. She kept her own record in a receipt book at home. She was paid when she attended at the factory to pick up the work. She was paid by cheque which was marked as payable to "cash". No taxation was deducted from the amount paid to her. She experienced difficulties in obtaining payment. On the day on which she was first engaged, Joseph Saggio told her that he could not pay her until the third week. In the third week she received only $50 and was told that she would have to wait for the balance until the following week. She was eventually paid for the initial period, but continued to experience difficulties with late payments. On occasions she was paid by cheques which were dishonoured.
28. Ms Schiavo was provided with enough work for a full time working week of thirty-eight hours or more.
29. In October 1989, she decided not to continue with the respondent because of the history of late payments. One Friday she went to the respondent's premises with the work performed by her in that week and was not paid. This occurred again in the following week and again the week after. On that occasion, Ms Schiavo loaded up her car with work and took it home and completed it. She then rang Joseph Saggio and said that she would not return the completed work until he paid the amount she was owed, which was around $600. That was the last work which Ms Schiavo performed for the respondent. Over the next few weeks, Joseph Saggio telephoned her at home and asked if he could pick up the work she had completed. She told him that he could not until she was paid the amount owed. In late November 1989, she received a phone call from another person who said that a cheque was available for her. She loaded the completed work into her car and went to the respondent's premises to pick up the cheque. She refused to return the completed work until she went to a bank to confirm that the cheque would be cleared. The bank gave this confirmation and Ms Schiavo returned the completed work to the respondent. She did not thereafter perform any other work for the respondent.
30. At no time has the respondent ever made application for registration pursuant to clause 27A of the Award.
31. Clauses 26, 27 and 27A of the Award, extracts of which have already been set out, were not inserted in the Award in their present form at the same time. Nevertheless, they appear to be intended to operate in harmony. Clause 27 deals with outworkers who are employees; the definition of "outworker" in sub-clause (A) refers specifically to a contract of service. Although it is not explicit, the intention of clause 26 appears to be to deal with independent contractors, who perform work outside the premises of a clothing manufacturer. There are various references in clause 26(c) to "contract" and "contracting", which at first sight would appear to be broad enough to cover both employees and non-employee contractors. Such a construction would mean that the Award contained two sets of provisions covering employee outworkers. The intention of clause 26 to cover non-employees is made clearer when reference is made to sub-clause (c)(iii)(1), which requires terms and conditions no less favourable than those prescribed for a person engaged under a contract of service. The two clauses should therefore be construed as covering the separate areas of non-employees and employees respectively.
32. Counsel who appeared for the applicant urged that I should find that the respondent had work done outside its premises by persons who were not employees, and were therefore covered by clause 26. I am satisfied on the evidence of Mr. Broomfield that it is probable that in February 1989 the respondent had work performed outside its premises. The evidence does not indicate whether that work was done by employees or by non-employees. It is clear that, in and between August and October 1989, Ms. Schiavo performed work for the respondent outside its premises. Counsel for the applicant argued that I should find that Ms. Schiavo was not an employee, on the basis that she was paid in cash, without deduction of tax. It should be noted that in her evidence, which was given by affidavit, Ms Schiavo described herself as having been "employed" by the respondent and of Joseph Saggio having "agreed to give me a job". She also referred to her period of "employment".
33. Recent authorities have made clear that the process of determining whether a person who performs work for another is an employee or not is a complex one, involving the balancing of many factors. See the analysis in Re Application by Porter for an Inquiry into an election in the Transport Workers' Union of Australia (Federal Court of Australia, Gray J., 23rd June 1989, not yet reported) at pp 5-18. With respect to the persons who performed work for the respondent outside its premises in February 1989, nothing at all is known as to the factors which would need to be balanced. Even with respect to Ms Schiavo, the evidence is very slight. As was pointed out in Porter's case, at pp 14-15, the manner in which the remuneration of a worker is treated for taxation purposes does not carry great weight as a factor, because it begs the question whether the parties themselves have characterised their relationship correctly in choosing whether or not income tax instalments should be deducted.
34. One factor present in this case, but not in others, is the onus of proof clause, found in clause 27(D) of the Award. It is true that this clause might have been worded more appropriately than it is. It is possible to argue that it cannot be known whether a particular proceeding concerns work performed pursuant to clause 27 of the Award unless it is first known whether that work was performed by an employee or not. Sub-clause (D) must be given some rational meaning, however. It is clearly designed to assist in the determination whether a particular person performing work is an employee or not, for the purposes of the scheme laid down in the Award. Applying the sub-clause in this way, there being no evidence to the contrary with respect to the persons performing work in February 1989, and very little with respect to Ms. Schiavo, the only proper conclusion is that all were employees. It follows that clause 26 was altogether inapplicable to their work, and none of the breaches of clause 26 alleged can be found to have been proved. The claims made in respect of paragraphs (a), (b), (c) and (d) of the amended application must be dismissed.
35. The remaining breaches alleged fall into three groups. The first relates to the non-registration of the respondent. It is clear that the respondent was not registered when it employed outworkers in February 1989, nor when it employed Ms Schiavo. It is also clear that the respondent had failed to apply for registration in respect of each of those periods. The positive act of employing an outworker without being registered is a breach of clause 27(B)(i). The omission to apply for registration is a breach of clause 27A(a). Although breaches of separate terms of the Award are involved, the fundamental nature of the allegation is that of omission to apply for and secure registration. It would be inappropriate to penalise the respondent twice for the separate breaches. Further, each breach is of a continuing nature. Insofar as there may be a separate breach on each day on which an outworker is employed without registration being applied or effected, those breaches would arise out of a course of conduct within the meaning of s.119(1A) of the C. and A. Act and s.178(2) of the Industrial Relations Act. Under each of those provisions, only one penalty can be imposed where breaches arise out of a course of conduct. Although it would be possible technically to impose one penalty for such a breach under the C. and A. Act, and a separate penalty under the Industrial Relations Act, that would be destructive of the legislative intention that only one penalty should be imposed for a series of breaches arising out of a course of conduct. For those reasons, a single penalty should be imposed for breach of clause 27(B)(i) of the Award, and no penalty should be imposed for breach of clause 27A(a). The penalty should reflect the seriousness of the breach. In an industry in which the use of outworkers offers plenty of opportunity for exploitation of workers, failure to participate in a scheme designed to prevent such exploitation is a serious matter. The respondent was in breach over a period of about nine months, a substantial time. The appropriate penalty for this breach is $800.
36. The second group of alleged breaches relates to the respondent's failure to make records available for inspection. Again, separate breaches are alleged of clause 27(B)(xiii)(n), in relation to the records relating to outworkers, and clause 29(a), relating to employees generally, including outdoor workers. Again, separate penalties are claimed under the C. and A. Act and the Industrial Relations Act. What is described as clause 27(B)(xiii)(n) is in fact a proviso to clause 27(B)(xiii) itself. The obligation which it imposes to make records available for inspection is narrower than, but included within, the obligation in clause 29(a). In the course of his first visit to the respondent's premises on 3rd February 1989, Mr Broomfield asked to see both the wages records and the list of names and addresses of outworkers. On his subsequent visit on 9th February, his request was only for a list of names and addresses of outworkers. The same was true of the telephone request on 24th February and the letter of Slater and Gordon dated 10th April. There was, therefore, a request pursuant to clause 29(a) on 3rd February, but the other requests should be taken as confined to the proviso to clause 27(B)(xiii). There was a failure to comply with this proviso, arising out of the request for inspection made by Mr Broomfield on his visit of 9th February. The subsequent requests, one by telephone on 24th February, and the other in the letter of Slater and Gordon dated 10th April, may not have given rise to breaches. Nothing in the proviso to clause 27(B)(xiii) requires that an authorised person be given a copy of any record required to be kept under clause 27(B)(xiii). No attempt was made, either in the telephone conversation or the letter, to appoint a specific time at which inspection of the required records would be sought. Nor was there any refusal to make available any record for inspection. Compare Meneling Station Pty. Ltd. v. Australasian Meat Industry Employees' Union (1987) 18 FCR 51, especially at pp 63-66. There was simply a failure to provide a list. Accordingly, it would not be appropriate to impose any penalty in respect of either the telephone request of 24th February or the letter of 10th April. Clause 30(c) of the Award does permit an authorised person making an inspection to take copies of entries relating to any suspected breach of the Award, but no allegation of any breach of that provision is made in this proceeding. With respect to the failure to make available for inspection the records sought on 3rd and 9th February, there is no evidence that the respondent complied with the Award by keeping the necessary records. In such a case, it is appropriate to apply the presumption that the respondent has acted with due regularity and in compliance with the law. Failure to keep records would itself be a breach of the Award, and the respondent's position cannot be improved by taking into account the possibility that it may have committed such a breach.
37. I therefore find that the respondent committed a breach or non-observance of clause 29(a) of the Award on 3rd February 1989, and a breach or non-observance of clause 27(B)(xiii) of the Award on 9th February 1989. As the breaches were of separate terms of the Award, no question can arise of whether they arose out of a course of conduct for the purposes of s.119(1A) of the C. and A. Act. Again, the breaches were of a serious nature. Access to the records held by employers is necessary in order to ensure compliance with the Award. In my view, the appropriate penalty for each breach is $500.00.
38. The third group of breaches alleged relates to Ms Schiavo. It consists of the allegation of breach of clause 27(B)(xv) by failing to pay all wages due to Ms Schiavo not later than two working days following the end of the working week, and breach of clause 27(B)(viii) by failing to cause all work to be delivered to and collected from an outworker. I am satisfied as to each of these breaches. In truth, there is more than one breach involved in each of them, but the multiple breaches in each case would have arisen out of a course of conduct. The gravity of the breaches is lessened by the fact that they related to one employee only. The appropriate penalty in the case of each breach is $250.00.
39. In respect of the breaches which occurred while the C. and A. Act was in operation, a decision needs to be made under s.120 of that Act whether the penalties should be paid into the consolidated revenue fund, or to some other organization or person. The applicant, having brought the proceeding for the purpose of enforcing the Award, should be the recipient of the penalty. See Seymour v. Stawell Timber Industries Pty. Ltd. [1985] FCA 236; (1985) 9 FCR 241, at pp 245-246 in the judgment of Northrop J. In respect of the breaches the subject of the Industrial Relations Act, no such issue arises. Section 178(5) provides that a penalty may be sued for and recovered by any of the persons listed in the sub-section. As a matter of course, an order will be made that any penalty under the Industrial Relations Act is paid to the person applying for it.
40. For these reasons, the respondent will be ordered to pay to the
applicant:
(a) A penalty in the sum of $800.00 for breach of clause 27(B)(i)
of the Award in and between August and October 1989;
(b) a penalty in the sum of $500.00 for breach of clause 29(a) of
the Award on or about 3rd February 1989;
(c) a penalty in the sum of $500.00 for breach of clause
27(B)(xiii) of the Award on or about 9th February 1989;
(d) a penalty in the sum of $250.00 for breach of clause 27(B)(xv)
of the Award in and between August and October 1989; and
(e) a penalty in the sum of $250.00 for breach of clause
27(B)(xviii) of the Award in and between August and
October 1989.
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