Australian Building and Construction Commissioner v Professional Gyprock Solution Pty Ltd [2011] FCA 1393

Australian Building and Construction Commissioner v Professional Gyprock Solution Pty Ltd [2011] FCA 1393

The agreed penalties were appropriate because the respondents admitted negligent contraventions involving false or misleading records, failure to keep pay records and failure to provide payslips; the conduct created a significant risk of detriment to employees, some from non-English speaking backgrounds, and required penalties sufficient for general and specific deterrence. Taking into account the separate courses of conduct, absence of prior contraventions, early admissions, cooperation, corrective steps, the first respondent's small size, and proportionality, penalties of $16,000 against the first respondent and $3,000 against the second respondent were within the permissible range.

Jurisdiction
Australia
Judgment Date
09 December 2011
Procedural Posture
Industrial Law Pecuniary Penalty Proceeding for Contraventions of Employer Record Keeping Provisions / Penalty Hearing After Admitted Contraventions and Agreed Penalties
Outcome
Declarations made and agreed pecuniary penalties imposed on the respondents.
Legal Topics
['fair Work Act Employer Record Keeping Obligations' 'false or Misleading Employee Records' 'failure to Keep Pay Records' 'failure to Provide Payslips' 'agreed Civil Penalty' 'specific and General Deterrence']
['industrial Law' 'employment Law' 'civil Penalties'] ['fair Work Act Employer Record Keeping Obligations' 'false or Misleading Employee Records' 'failure to Keep Pay Records' 'failure to Provide Payslips' 'agreed Civil Penalty' 'specific and General Deterrence']

Case Brief

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Procedural Posture

Industrial Law Pecuniary Penalty Proceeding for Contraventions of Employer Record Keeping Provisions / Penalty Hearing After Admitted Contraventions and Agreed Penalties

Legal Issues

  1. 1 ['Whether the agreed total penalties of $16,000 for the first respondent and $3,000 for the second respondent were appropriate for admitted contraventions of the Fair Work Act 2009 (Cth) and Fair Work Regulations 2009 (Cth).' 'How the admitted contraventions should be grouped for penalty purposes, including whether they arose from separate courses of conduct.' 'What mitigating and aggravating factors were relevant to assessing penalties, including negligence, vulnerability of employees, cooperation, absence of prior contraventions, size of the business, and deterrence.']

Ratio Decidendi

The agreed penalties were appropriate because the respondents admitted negligent contraventions involving false or misleading records, failure to keep pay records and failure to provide payslips; the conduct created a significant risk of detriment to employees, some from non-English speaking backgrounds, and required penalties sufficient for general and specific deterrence. Taking into account the separate courses of conduct, absence of prior contraventions, early admissions, cooperation, corrective steps, the first respondent's small size, and proportionality, penalties of $16,000 against the first respondent and $3,000 against the second respondent were within the permissible range.

Court Disposition

Declarations made and agreed pecuniary penalties imposed on the respondents.

Orders

  • ['The first respondent, by keeping false and misleading employee records during each of the two periods March 2010 to mid-April 2010, and mid-April 2010 to May 2010, committed two contraventions of sub regulation 3.44(1) of the Fair Work Regulations 2009 (Cth).' 'The first respondent, by failing to keep pay records...