Background
Allegations as outlined in the ABCC’s statement of claim filed on 28 March 2011. The allegations may change during the course of the proceeding.
1. Rapid Formwork Constructions Pty Ltd (Rapid Formwork) was registered as a company on 14 July 2009 and is a contractor within the building and construction industry.
2. Kevin Paul Anderson (Anderson) is a sole trader operating under the name of Kev’s Steelfixing (KSF). Since 14 July 2009 Anderson has been a director of Rapid Formwork.
3. During 2009 Anderson hired two formworkers to carry out work for either KSF or Rapid Formwork in the Australian Capital Territory.
4. Shortly after both commenced work for Anderson, he asked them to obtain an Australian Business Number (ABN) and provide it to him.
5. Neither of the workers had relevant experience or qualifications in this type of work prior to commencing with Anderson.
6. Both were directed in the work they performed, their hours of work and break-times, and who they should report to by Anderson
7. Both were supervised by Anderson’s father, Barry Anderson, who also performed work for KSF or Rapid Formwork.
8. Both worked between 35-40 hours per week and were provided with clothing or personal protective equipment; some tools, and work materials by KSF or Rapid Formwork.
9. Neither formworker conducted a business on their own behalf during the period they worked for Anderson.
10. The ABCC alleges that in fact and in law both formworkers were employees of KSF or Rapid Formwork during the relevant periods of time they performed work for the respective companies.
Alleged contraventions:
11. The ABCC alleges that in respect of both formworkers Rapid Formwork and Anderson contravened s357(1) of the Fair Work Act 2009 by misrepresenting the terms and conditions of employment under which they were employed
12. The ABCC also alleges that in respect of the second formworker, Anderson contravened:
a. s901(1) of the Workplace Relations Act 1996 (WR Act); or alternatively,
b. s900(1) of the WR Act
by misrepresenting the terms and conditions of employment under which the worker was employed.
13. The ABCC further alleges that by failing to pay the second formworker her correct entitlements under these awards:
a. Anderson and Rapid Formwork contravened the Building and Construction Industry (ACT) Award 2002 for the work performed during the period May 2009 to 31 December 2010 for work performed in the Australian Capital Territory; and
b. Rapid Formwork contravened the Building and Construction General On-Site Award 2010 (Modern Award) for the work performed during the period 1 January 2010 to 19 March 2010.
ABCC Prosecution:
14. The ABCC filed a statement of claim in the Fair Work Division of the Federal Magistrate’s Court of Australia at Canberra on 28 March 2011.
15. A first directions hearing is scheduled for 9 May 2011.
Penalties
16. The maximum penalties for a contravention of the FW Act are $6,600 for an individual and $33,000 for an organisation.
17. The maximum penalties for a contravention of the WR Act are $6,600 for an individual and $33,000 for an organisation.