Mr Chivell was found to have underpaid the former employee, a full-time labourer and operator, almost $10,000 in wages and entitlements.
The ABCC commenced its investigation after the former employee lodged a complaint with the agency.
The Federal Circuit and Family Court found:
- On 1 June 2021, the ABCC issued Mr Chivell with a Notice to Produce documents under the Building and Construction Industry (Improving Productivity) Act 2016 (BCIIP Act) relating to the former employee’s employment.
- Mr Chivell failed to comply with the Notice to Produce.
- On 17 January 2022, the ABCC issued Mr Chivell with a Compliance Notice under the BCIIP Act requiring him to pay the former employee $9,619.76 in unpaid wages and entitlements.
- Mr Chivell failed to make any payments to the former employee as required by the Compliance Notice.
The Court penalised Mr Chivell for failing to comply with the statutory notices and made orders compelling him to pay back the former employee with interest.
In its reasons, the Court found that:
[t]he Respondent did not ensure compliance with the Notice to Produce and did not comply with the Compliance Notice, nor actively cooperate or engage with the Applicant in an effort to comply or to rectify the underlying underpayments…
This is a case where there is a need for specific deterrence, particularly in circumstances where the Respondent has failed to participate in the proceeding. It is also necessary given the complete lack of contrition and failure to make any attempt to rectify the underpayments to the former employee which remain outstanding… There is also a need for general deterrence, to emphasise the importance of the maintenance of a building industry that abides by the rule of law, ensuring that building industry participants are accountable for their unlawful conduct and protecting the integrity of the BCIIP Act and its enforcement process which is designed to promote early resolution of such matters without recourse to litigation.
ABCC Commissioner Stephen McBurney welcomed the decision stating:
Mr Chivell has failed to comply with statutory notices, refused to engage with the regulator, failed to pay his worker their full entitlements and ignored the court processes. Importantly, the Court has ordered Mr Chivell to pay the worker his outstanding wages and entitlements.
Employers need to be aware that failing to act in response to notices issued by a regulator can result in court-imposed penalties on top of having to repay wages and entitlements to underpaid workers.
The maximum available penalty for each contravention of the BCIIP Act in this case was $4,440.
Last financial year the ABCC recovered $2,569,852 for 4,330 employees.
From 10 November 2022, the ABCC’s role enforcing the Fair Work Act 2009 in the commercial building and construction industry will transfer to the Fair Work Ombudsman. This includes any wages and entitlements matters.
Employers and employees can visit www.fairwork.gov.au or call the Fair Work Infoline on 13 13 94 for free advice and assistance about their rights and obligations in the workplace. An interpreter service is available on 13 14 50.
