Allegations as outlined in the ABCC’s statement of claim filed on 15 November 2011. The allegations may change during the course of the proceeding.
The ABCC will allege that Robko Construction Pty Ltd and its sole director, Everette Robbins, contravened sections 358 and 44 of the Fair Work Act 2009 (FW Act) by failing to give appropriate notice or pay in lieu of notice when dismissing an employee in order to engage the employee as an independent contractor performing the same work.
Background
1. Everette Gale Eber Robbins was at all material times the sole director of Robko Construction Pty Ltd (Robko).
2. Mr Robbins was responsible for managing and overseeing the company’s daily operations including recruitment and management of Robko workers and contractors.
3. Around late October or early November 2010, Mr Robbins employed a person to work as an excavator operator for Robko.
4. The contract was made verbally for full time work at a rate of $30 per hour for a 38-hour week, plus penalty rates.
5. The Excavator Operator commenced employment for Robko in early November 2010.
6. Around December 2010, Mr Robbins engaged another person on a twelve-month contract as a business & development manager (Business Manager) for Robko Industries. The Business Manager was engaged as a contractor and directed to assist Mr Robbins with the daily operations of Robko.
7. Around 10 February 2011, Robko placed an advertisement in the Adelaide Advertiser seeking an excavator operator on an ABN. The work proposed was the same, or substantially the same, as had been performed by the Excavator Operator.
8. The advertisement appeared in the Adelaide Advertiser on 12 February 2011.
9. Around 12 February 2011, Robko placed a similar advertisement in the Adelaide Advertiser seeking an excavator operator on an ABN.
10. The advertisement appeared in the Adelaide Advertiser on four occasions throughout February and March 2011.
11. Around 22 February 2011, Mr Robbins, on behalf of Robko, instructed the Business Manager to attempt to convert the Excavator Operator’s status from that of an employee to that of an independent contractor.
12. The Business Manager met with the Excavator Operator and explained both verbally and in writing that Robko was unable to continue the Excavator Operator’s employment on a full time basis but was willing to engage the Excavator Operator as an independent contractor using an ABN.
13. The proposed work was the same, or substantially the same, as had been performed by the Excavator Operator as an employee of Robko.
14. The Excavator Operator refused the offer, and the Business Manager relayed the response to Mr Robbins.
15. Robko terminated the Excavator Operator’s employment.
16. On 23 February 2011, Robko again tried to convert the Excavator Operator’s employment status from that of an employee to that of an independent contractor.
17. On 24 February 2011, Mr Robbins and the Business Manager visited the Excavator Operator’s home and again tried to convert the Excavator Operator’s employment status from that of an employee to that of an independent contractor. The Excavator Operator again refused to return to work for Robko on an ABN.
18. Having given one day’s notice of termination to the Excavator Operator on 22 February 2011, Robko terminated the Excavator Operator’s employment with effect from 23 February 2011 and paid wages to the Excavator Operator until 23 February inclusive. No payment was made in lieu of additional notice despite the Excavator Operator being entitled to a minimum period of one week’s notice – equal to $1140.
Alleged Contraventions
19. The ABCC alleges that each of the respondents contravened section 358 of the FW Act by dismissing an employee in order to engage them as an independent contractor to perform the same, or substantially the same, work under a contract for services.
20. The ABCC alleges that each of the respondents contravened section 44 of the FW Act by failing to give appropriate notice of termination or payment in lieu of notice.
ABCC Prosecution
21. The ABCC filed a statement of claim in the Federal Magistrates Court at Adelaide on 15 November 2011.
22. A first directions hearing is scheduled for 31 January 2012.
Penalties
23. The maximum penalties for a contravention of the FW Act are $6600 for an individual and $33,000 for an organisation.