Shearer says the fine will fail to be of deterrent value because of the unique nature of the case
The South Australian Road Transport Association (SARTA) has taken the Fair Work Ombudsman’s (FWO) office to task over its approach in the Atkins Freight Services case.
SARTA insists the nub of the issue is “an obscure legal argument about which Award applied” rather than wages underpayment and therefore the fine and repayments a South Australian industrial magistrate has ordered will fail to be of deterrent value.
This is in part because “the unique circumstances of this case simply can not occur again under the Modern Award system that we have had since 2010”.
The industry body notes that the FWO has recently been subject to judicial criticism for failing to live up to the Commonwealth’s ‘model litigant’ policy, in the Kia Silverbrook case.
Federal Circuit Court judge Alexander Street called the FWO’s actions related to an unintentional underpayment on Silverbrook’s part and the deliberate treatment of his lawyer as “outrageous and baseless”, “inappropriate”, “troubling” and “improper”, in depriving him of her services.
SARTA charges that the FWO objected to its executive director, Steve Shearer, being an expert witness, “despite the FWO having used him as an expert for advice on the transport awards for years since the FWO and its predecessor were established, until about the time this case started “.
It points out that both a Fair Work Commission deputy president and the Transport Workers Union had signed off on the fuel transport work Atkins Freight Services engages in as properly coming under the Transport Workers (Long Distance Drivers) Award, as it was at the time, rather than the Oil Distribution Award that related to the original spun-off company.
SARTA’s comments support speculation that an Australian Company Number/Australian Business Number (ABN/ACN) issue, though it was eventually withdrawn as a defence, is high in the minds of both it and Atkins.
It states that “if the new business had been started with a new ABN this case and the employee’s claim would not have amounted to so much as a puff of smoke”.
It accuses the FWO of reneging on the positions that it does not involve itself with inadvertent technical breaches or family disputes.
The FWO says it is “limiting our public comments on this matter to the media release we have issued”.