Cummings, R.S. v Worbey, K. J. [1988] FCA 187

JUQCMINT Bo. \S1 / SR

ie) US' IA

) ) D STRY ) T. No. 2 of 1988 ) INDUSTRIAL DIVISION ) BETWEEN: OY St. UMMINGS Applicant and WORB. Respondent

COURT: NORTHROP J. DATE : 31 MARCH 1988 PLACE: HOBART

EX TEMPORE REASONS FOR JUDGMENT

The applicant brings these proceedings against the

respondent claiming the imposition of a penalty under 5.119

of the Conciliation and Arbitration Act 1904 alleging a breach of an award by the respondent. The respondent,

Kathleen Jenny Worbey, carries on business under the name Southern Cartage and Excavators and has carried on that

business under that name since 1981.

Southern Cartage and Excavators is named as an employer bound by the Australian Workers Union (Construction

and Maintenance) Consolidated Award 1987. That business is

2.

carried on in the State of Tasmania. That award, by clause 3, is binding on the employer, in this case, Kathleen Jenny Worbey, in respect of the employment of all her employees, whether members of the Australian Workers Union or not, in work done in or in connection with a listed number of differant types of work, including construction of roads, freeways, general engineering and civil engineering works. The respondent is engaged in works of that kind and does employ persons in connection with that work. Accordingly,

the award applies to the respondent with respect to those

employees.

Clause 49 of the award provides for the keeping of

records and I read the subclause (a):

"The employer shall keep a record of the

names of the employees of such employer

and in respect of each employee a_ record

fortnightly of the periods times and

class of work done and the rate of wages

and amount of wages paid and shall obtain

fortnightly the signature of such

employee to such record."

In the present case I am satisfied, from the evidence of the applicant, Roy Stanley Cummings, who is an inspector within the meaning of the Conciliation and Arbitration Act, that on 22 December 1987 he interviewed the