Fair Work Ombudsman v Pulis Plumbing [2017] FCCA 3013: Business Fined for Underpaying Employee

Tuesday 20 February 2018 @ 10.29 a.m. | Industrial Law | Legal Research

In the case of Fair Work Ombudsman v Pulis Plumbing Pty Ltd [2017] FCCA 3013 (8 December 2017), the Federal Circuit Court (the Court) has penalised a business $100,000 and fined the business operator $21,500 for underpaying a worker thousands of dollars after incorrectly classifying his employment status.

In the action (which was brought by the Fair Work Ombudsman and decided in December 2017), Riethmuller J found Pulis Plumbing Pty Ltd paid the worker as a second-year apprentice, even though they had not formally signed up the worker under apprenticeship payment conditions.

Background

His Honour noted [at para 1] that the 20-year-old worker started his employment with the business in September 2014 under the impression he was a second-year apprentice. The Court heard the worker was paid an apprentice rate of $12.18 per hour, when the applicable hourly wage under the business’ enterprise agreement was $37.08 for ordinary hours or up to $74.16 for overtime hours.

The employee claimed he regularly worked 10- to 12-hour days and had accumulated more than 200 hours’ worth of overtime, for which he was paid $1,831.77 or $9.11 per hour on average, which was even less than his hourly rate of $12.18 per hour. On multiple occasions, the business was found to have failed to pay the worker sufficient rates.

It transpires at [para 13], that the second respondent never signed the apprenticeship documentation and the employee never received the time credited against his apprenticeship training requirements.

The Employee's Termination

The employee received positive comments about his work and was never counselled about his attitude or his work practices, but on 10 December 2014 the second respondent sent the employee a letter, noting that the three month probationary period would be completed on 12 December 2014, and stating:

“We’ve come to the conclusion that your skills and attitude are not to second year standard. At times you display a pretty high and acceptable standard, whereas other times you do not.”

The letter went on to offer a further three month trial or, alternatively, a reference if the employee chose to terminate his position. After the worker’s employment was terminated, the worker attempted to follow up about outstanding wages that were owed. The employer replied via text, saying [at para 10]:

“… stop doing my head in …”

When the worker further contacted the employer about the outstanding wages, the employer replied by saying:

“… seriously, f*** off. When I’m ready.”

The employee passed the Christmas holiday break without receiving his entitlements, having lived off the net pay of around $590 per week for 10 weeks, and having been without pay since early December 2014.

Comment from the Court

In handing down his judgment, His Honour described the case [at para 15] as one involving:

“… an outrageous exploitation of a young person. The conduct is worse than simply underpaying an employee who has had difficulty obtaining work elsewhere, as the respondents also held out the lure of an apprenticeship to this young man: a particularly significant career and life goal for a young person who is not academically inclined. The amount of the underpayment, in comparison to the payments actually made, is significant.”

And at [para 17] of the judgment, His Honour noted:

“There is no apology or statement of regret in this case, despite the egregious nature of the conduct in this case. The lack of acknowledgement and real regret for the conduct weighs against the respondents.”

Ultimately, the business and its owner were fined for underpaying the worker $26,882.73 over the three-month employment period, including by not providing leave and termination entitlements and meal and travel allowances and all underpayments have since been rectified.

TimeBase is an independent, privately owned Australian legal publisher specialising in the online delivery of accurate, comprehensive and innovative legislation research tools including LawOne and unique Point-in-Time Products. Nothing on this website should be construed as legal advice and does not substitute for the advice of competent legal counsel.

Sources:

Fair Work Ombudsman v Pulis Plumbing Pty Ltd & Anor [2017] FCCA 3013 (8 December 2017)

Plumbing business fined $121,000 for underpaying worker wrongly considered an apprentice –smartcompany.com.au

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