Australian Building and Construction Commissioner v Linkhill Pty Ltd
Background
Allegations as outlined in the ABCC’s statement of claim filed on Thursday 20 October 2011. The allegations may change during the course of the proceeding.
1. The ABCC alleges Linkhill Pty Ltd engaged in sham contracting, thereby contravening the Workplace Relations Act 2006 (WR Act) and subsequently the Fair Work Act 2009 (FW Act).
2. Linkhill engaged ten employees between June 2007 and August 2010. The employees were paid between $22 and $35 per hour.
3. At the beginning of their employment contract, each employee was told they were required to provide Linkhill with an ABN.
4. During their various periods of employment each of the ten employees were regularly required to complete a standard invoice form, inserting their name, ABN and hours worked.
5. Linkhill did not accrue or pay annual leave or annual leave loading for any of the employees.
6. Linkhill did not make superannuation contributions to the relevant superannuation fund on behalf of any of the employees.
Alleged Contraventions
7. The ABCC alleges Linkhill contravened:
- s.900 of the WR Act and s.357 of the FW Act, by representing to ten employees that the contract of employment under which they were employed was a contract for services, under which the employees were to perform work as independent contractors.
- s.232(2) and s.234(2) of the WR Act and the Building and Construction General On-Site Award 2010 by failing accrue or credit an amount of paid annual leave for any of the ten employees.
- s.535 of the FW Act by failing to keep proper employment records.
- In respect of six of the employees Linkhill contravened the National Building and Construction Industry Award 2000 and the Building and Construction General On-Site Award 2010 by failing to make superannuation contributions to the relevant superannuation fund and failing to accrue or pay annual leave loading.
- In respect of one of the employees Linkhill contravened the National Building and Construction Industry Award 2000 and the Building and Construction General On-Site Award 2010 by failing to pay the employee wages and allowances in accordance with award rates.
8. The ABCC alleges Linkhill owes:
- annual leave entitlements totalling $79,954 to the ten employees.
- annual leave loading entitlements totalling $3205 to six employees.
- superannuation entitlements totalling $37,284 to six employees.
- Wages and entitlements totalling $10,917 to one employee.
ABCC Prosecution
9. The ABCC filed a statement of claim in the Federal Magistrates Court at Melbourne on 20 October 2011.
10. A first directions hearing is scheduled for 10.00 am on 10 November 2011.
Penalties
11. The maximum penalties for a contravention of the WR Act are $6600 for an individual and $33,000 for an organisation.