Transport Workers' Union of Australia, New South Wales Branch v TNT Australia Ltd trading as TNT Express

Transport Workers' Union of Australia, New South Wales Branch v TNT Australia Ltd trading as TNT Express - [2000] NSWIRComm 105 - NSWIRComm 2000 case summary — Zoe

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1 This judgment deals with four summonses issued by the prosecutor the Transport Workers' Union of Australia, New South Wales Branch against the defendant Australian Document Exchange Pty Ltd trading as Grace Couriers alleging breaches of s 129 and s 301 of the Industrial Relations Act 1996 ("the Act"). 2 I set out hereunder each of the charges and the particulars of the charge as contained in each of the summons: 1928 of 1999 That on 5 March 1999 the defendant did, without lawful excuse, fail to comply with a requirement of authorised industrial officers under Part 7 of the Industrial Relations Act, 1996 (as applied by sections 343 and 344 of that Act) in contravention of section 301(3) of that Act, in that the defendant did fail to produce records relating to suspected breaches of the Transport Industry-Courier and Taxi Truck Contract Determination when required to do so by authorised industrial officers. The particulars of the charge are:

The defendant was at all relevant times a company capable of being prosecuted in and by its corporate name and style.
At all relevant times the defendant has operated a courier business in the state of New South Wales.
At all relevant times the defendant has as a principal contractor engaged carriers pursuant to contracts of carriage for the purpose of carrying on its business.
The defendant was by letter dated 23 February 1999 given 48 hours notice by the prosecutor of an inspection of the defendant's contract carrier remuneration records, on the basis of suspected breaches of the Transport Industry-Courier and Taxi Truck Contract Determination, including suspected breaches of the requirements of schedule I of the said contract determination.
On 5 March 1999, Ms Monique Driver and Mr Wayne Forno, who were at all relevant times authorised industrial officers, did pursuant to section 298 of the Industrial Relations Act, 1996, (as applied by ss 343 and 344 of that Act), for the purpose of investigating suspected breaches of the Transport Industry-Courier and Taxi Truck Contract Determination require the defendant to produce for the officers' inspection, records relating to the requirements of schedule I of the said contract determination.
The defendant did, without lawful excuse, fail to comply with the request of the said Monique Driver and Wayne Forno to so produce records relating to the requirements of schedule I of the said contract determination. 1929 of 1999 That on 5 March1999 the defendant did deliberately hinder or obstruct authorised industrial officers in the exercise of their powers conferred by Part 7 of the Industrial Relations Act, 1996 (as applied by sections 343 and 344 of that Act), in contravention of section 301(2) of that Act, in that the defendant did not permit authorised industrial officers to make copies of records relating to suspected breaches of the Transport Industry-Courier and Taxi Truck Contract Determination that the defendant had produced. The particulars of the charge are:
The defendant was at all relevant times and is a company capable of being prosecuted in and by its corporate name and style.
At all relevant times the defendant has operated a courier business in the state of New South Wales.
At all relevant times the defendant has as a principal contractor engaged carriers pursuant to contracts of carriage for the purpose of carrying on its business.
The defendant was by letter dated 23 February 1999 given 48 hours notice by the prosecutor of an inspection of the defendant's contract carrier remuneration records, on the basis of suspected breaches of the Transport Industry-Courier and Taxi Truck Contract Determination, including suspected breaches of the requirements of schedule II of the said contract determination.
On 5 March 1999, Ms Monique Driver and Mr Wayne Forno, who were at all relevant times authorised industrial officers, did pursuant to section 298 of the Industrial Relations Act, 1996, (as applied by ss 343 and 344 of that Act), for the purpose of investigating suspected breaches of the Transport Industry-Courier and Taxi Truck Contract Determination inform the defendant of their intention to make copies of records relating to suspected breaches of the requirements of schedule II of the said contract determination that had been produced by the defendant.
The defendant did, without lawful excuse, fail to permit the said Monique Driver and Wayne Forno to make copies of records relating to the requirements of schedule II of the said contract determination, and so deliberately obstructed or hindered them in the exercise of their powers under Part 7 of the Industrial Relations Act, 1996 (as applied by ss 343 and 344 of that Act). 1030 of 1999 That from 1 August 1998 up to but not including 1 November 1998 the defendant failed to ensure that daily records of remuneration paid and hours worked by its carriers were kept contrary to section 129(1)(a) of the Industrial Relations Act 1996, (as applied by sections 343 and 344 of that Act).
The defendant was at all relevant times and is a company capable of being prosecuted in and by its corporate name and style.
At all relevant times the defendant has operated a courier business in the state of New South Wales.
At all relevant times the defendant has as a principal contractor engaged carriers pursuant to contracts of carriage for the purpose of carrying on its business.
Under section 129(1)(a) of the Industrial Relations Act, 1996, (as applied by sections 343 and 344 of that Act), in the defendant's capacity as a principal contractor, the defendant must ensure that daily records are kept in relation to both remuneration paid and hours worked by the defendant's carriers.
Contrary to section 129(1)(a) the defendant did fail to keep such records, in particular records of hours worked engaged by the defendant with respect to the period 1 August 1998 up to but not including 2 November 1998.

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1931 of 1999 That from 1 August 1998 up to but not including 1 November 1998 the defendant failed to ensure that prescribed records relating to conditions of engagement under contracts of carriage set by an industrial instrument, namely the Transport Industry-Courier and Taxi Truck Contract Determination, were kept contrary to section 129(1)(b) of the Industrial Relations Act 1996, (as applied by sections 343 and 344 of that Act).

The defendant was at all relevant times and is a company capable of being prosecuted in and by its corporate name and style.
At all relevant times the defendant has operated a courier business in the state of New South Wales.
At all relevant times the defendant has as a principal contractor engaged carriers pursuant to contracts of carriage for the purpose of carrying on its business.
Under section 129(1)(b) of the Industrial Relations Act, 1996, (as applied by sections 343 and 344 of that Act), in the defendant's capacity as a principal contractor, the defendant must ensure that prescribed records set by an industrial instrument are kept.
The Transport Industry-Courier and Taxi Truck Contract Determination is an industrial instrument which at all relevant times has regulated the conditions of engagement under contract of carriage of carriers engaged by the defendant.
Clause 6(10) of the said contract determination at all relevant times has required the defendant to maintain proper records and accounts, including details as required by subclause (1)(b) of clause 11 of the said contract determination.
Contrary to section 129(1)(b), as applied by sections 343 and 344, the defendant did fail to keep such records, in particular details as required by subclause (1)(b) of clause 11 of the said contract determination, in respect of the period from 1 August 1998 up to not including 1 November 1998. 3 The hearing of each of the summonses was conducted concurrently with evidence in one being, to the extent relevant, evidence in each of the others. 4 The defendant pleaded not guilty to each of the charges. 5 The defendant made admissions with respect to two areas. The first is in connection with matters 1928 and 1929 where the defendant admitted that by letter 23 February 1999 it was given 48 hours' notice of a proposed inspection of its records, such notice based on allegations of suspected breaches of the relevant legislative provisions. Such admission was made without concession that there was any bona fide belief that the suspected breaches had occurred. The second admission was that for all relevant purposes Monique Driver and Wayne Forno were authorised industrial officers of the prosecutor under s 298 of the Act.

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THE STATUTORY MATRIX 6 The prosecutor is an industrial organisation of employees. The defendant operates a courier business utilising the services of approximately 240 contract carriers. At all times relevant to these proceedings the engagement of those carriers by the defendant was subject to and regulated by the Transport Industry - Courier and Taxi Truck Contract Determination published in its original form in Vol 270 NSW IG 11. There were a number of variations made to that contact determination, but the only one of relevance to these proceedings was a variation made on 27 October 1992 published in Vol 275 NSW IG 275. I shall refer to the relevant provisions of the contract determination later in these reasons for judgment. 7 Contract determinations are described in general terms in Pt 2 of Ch 6 of the Act. Chapter 6 is entitled "Public Vehicles and Carriers" and creates a regime for the making of contract determinations which cover contracts of carriage between principal contractors and contract carriers. The evidence in these proceedings enables me to conclude that the defendant as a principal contractor engaged contract carriers to carry out contracts of carriage within the provisions of Ch 6 of the Act and that the contact determination to which I have referred relevantly applied at all material times. 8 By Pt 6 of Ch 6 certain provisions of the Act, called "the applied provisions" applied for the purpose of Ch 6 including, relevantly for the purpose of these proceedings Pt 7 of Ch 5 of the Act dealing with entry and inspection by officers of industrial organisations and Pt 10 of Ch 2 of the Act, which contains s 129 requiring records to be kept by employers concerning employees. 9 Section 344 complements the provisions of s 343 and is in the following terms: 344 Interpretation of applied provisions For the purposes of the application of the applied provisions: (a) a reference to employment is to be read as a reference to engagement under a contract of bailment or carriage, and (b) a reference to an employer is to be read as a reference to a bailor of public vehicles or principal contractor, and (c) a reference to employees is to be read as a reference to bailees of public vehicles or carriers, and (d) a reference to remuneration of an employee (however expressed) is to be read as a reference to amounts payable to a bailee under the contract of bailment or amounts payable to a carrier under the contract of carriage, and (e) a reference to an award is to be read as a reference to a contract determination, and (f) a reference to an enterprise agreement is to be read as a reference to a contract agreement, and (g) a reference to an industrial organisation is to be read as a reference to an association of employing contractors, an association of contract drivers or an association of contract carriers, and (h) a reference to an industrial organisation of employers is to be read as a reference to an association of employing contractors, and (i) a reference to an industrial organisation of employees is to be read as a reference to an association of contract drivers or an association of contract carriers, and (j) a reference (in Part 7 of Chapter 5) to relevant employees in relation to an organisation is to be read as a reference to persons who are or are eligible to be members of an association.

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THE FACTUAL BACKGROUND 11 The evidence in these proceedings was given principally by way of affidavit evidence supplemented by oral evidence. 12 Monique Driver is an organiser and officer of the prosecutor. She said that as part of the prosecutor's enforcement of the rights of couriers it became involved in attempts in conducting wage inspections at the business known as Grace Couriers. She said this was "due to the suspicion held by the TWU that this company has been underpaying its drivers" in breach of the relevant contract determination. 13 A business names extract from records conducted by the Department of Fair Trading indicated that the defendant carried on the business of Grace Couriers, and that its principal place of business was Unit 36, 38-46 South Street Rydalmere. 14 By letter dated 23 February 1999 addressed to the defendant at its address at Rydalmere Mr Tony Sheldon who stated that he was State Secretary of the prosecutor gave the defendant 48 hours' notice of the prosecutor's intention to inspect "your company's contract carrier remuneration records." The letter said in part that an official representative of the union, Ms Monique Driver would be contacting the defendant to arrange for a mutually convenient time and date for the inspection to occur. The letter further said "the union suspects that your company is in breach of the Transport Industry (Courier and Taxi Truck) Contract Determination" in two areas namely clause 11, Remuneration and Schedules I and II as to rates. 15 The letter concluded: We will require access to and will take copies of the following:- (1) All Driver invoices and pay sheets, including any pay sheets allowing for, and relating to, discount rates to particular customers; (2) All Run Sheets corresponding and relating to such pay sheets; (3) All summary sheet documents IN FULL for the wage inspection period covered below. Note that we need such documents for all contract carriers engaged by your business. Such records are to cover the following periods:- (a) For Schedule I records, pursuant to cl 11 (1)(b) of the Determination, from 1 August 1998, up to but not including 1 November 1998. (b) For Schedule II records, pursuant to cl 11 (1)(a) of the Determination, all records noted above pertaining to remuneration paid in the first complete pay period in October 1998. Ms Driver and Mr Forno, who are both authorised industrial officers under s299 of the Industrial Relations Act will attend upon the company's premises with a portable photocopier to make copies of such records. Note that pursuant to s298(2)(b) of the Act, the Union can and will make copies of any such records or other documents related to any such SUSPECTED breach. I remind you that it is an offence punishable by fines under the Industrial Relations Act not to keep the required records or to deliberately hinder or obstruct an authorised industrial officer, or to fail to comply without lawful excuse, with a requirement of an authorised industrial officer. Failure to comply with the requirements specified in this notice will result in the immediate commencement of prosecution proceedings. 16 Ms Driver had a telephone conversation with Mr Mark Hill the General Manager of the defendant and a subsequent telephone conversation with Mr Maurice Baroni the Chief Industrial Officer for the New South Wales Road Transport Association. As a result, and by arrangement, Ms Driver arrived at the business premises of the defendant at Rydalmere together with Mr Wayne Forno another organiser with the prosecutor at about 9.05am on 5 March 1999. 17 Ms Driver deposed in one of the affidavits sworn by her which became evidence in these proceedings that she suspected breaches of the relevant contract determination on the following grounds: a. Various concerns raised by my examination of the Courier Systems manual for contract carriers including a rate structure that was apparently inconsistent with the requirements of the determination. Courier Systems was the company that owned the Grace Couriers business before Australian Document Exchange Pty Ltd purchased the business in 1998. b. A statement made by Mr Hill during an inspection on 27 January 1999 that the company did not keep Schedule I records. c. Earlier inspections of 8 July 1997, 8 October 1998 and 28 November 1998 had been frustrated. The company made available only Schedule II records at the inspection of 8 July. At the inspection of 8 October 1998, the company requested more time to get records together. At the inspection of 28 November 1998, Mr Hill refused to allow me to make copies of suspected breaches. d. I was aware of statutory declarations sworn by carriers or former carriers of the company that had lodged underpayment claims in the Chief Industrial Magistrates Court against Grace Couriers. The claims were based on allegations that the company had breached the Transport Industry - Courier and Taxi Truck Contract Determination published 12 June 1992 (270 I.G. 11), as varied, by paying incorrect job rates. The essence of those declarations was that the company had settled the matters by paying to the carriers a sum well in excess of that claimed. 18 Before dealing further with the events which occurred on 5 March 1999 it is necessary to make reference to some of the provisions of the contract determination, because they are relevant to what was sought by Ms Driver and Mr Forno and to the allegations made by the prosecution concerning the respective breaches on the part of the defendant. 19 Clause 6 is entitled "Responsibilities of the Principal Contractor": The principal contractor shall undertake to observe all applicable obligations contained in this determination. 20 Clause 6 (10) is in the following terms: Maintain proper accounts and records. A contract carrier may at all reasonable times inspect such accounts and records as relate directly to work performed by him. As a minimum requirement such proper records shall include, but shall not be limited to, full details for each and every contract of carriage undertaken by the contract carrier on behalf of the principal contractor - (i) details of pick-ups and deliveries listed by the names of the from and to suburbs; (ii) full details of the kilometres of separation between the point of commencement, all additional calls and the point of completion. Such kilometres as published by Transit Distribution Systems only; (iii) the remuneration payable by the principal contractor to the contract carrier; (iv) details of additional factors applicable including weight, excess times, service types and job numbers; (v) details of all deductions made in accordance with subclause (5) of clause 11; (vi) details as required by subclause (1)(b) of clause 11, Remuneration.

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(1)(b) During each of the following periods in each year the contract carrier shall not receive less remuneration than the hourly rate provided for in Schedule I applicable to the class of vehicle for all actual time spent on undertaking contracts of carriage, calculated in segments of 5 minutes:- (i) from 1 November up to but not including 1 February; (ii) from 1 February up to but not including 1 May; (iii) from 1 May up to but not including 1 August; (iv) from 1 August up to but not including 1 November. 22 It will be seen that there are two bases upon which contract carriers are remunerated under cl 11. 23 Clause 11(1)(a) is expressed to be subject to (1)(b). Clause 11(1)(a) provides, in summary form for payment by reference to the number of items carried by contract carriers and the rate varies according to Schedule II depending upon the weight of each item. There is also provision for payment by reference to a flag fall, additional calls and excess time. The rate paid with respect to each unit is substantially a rate per kilometre travelled. 24 In contrast cl 11(1)(b) sets a minimum payment of remuneration by reference to an hourly rate which is provided for in Schedule I calculated in segments of 5 minutes, that hourly rate being expressed to apply "for all actual time spent on undertaking contracts of carriage." 25 "Contract of Carriage" is defined in cl 1 in terms which are not presently relevant. However the definition concludes: "Each contract of carriage is limited as to time as being the contract time, and as to distance being the contract distance." "Contract time" is also defined in cl 1 to mean the time during which a contract carrier "has necessarily been engaged performing the contract of carriage between the point of commencement and the point of completion, such time not to include time lost because of breakdowns, accidents, meal breaks or any other interruption, or time spent in performing other contracts of carriage." "Point of commencement" and "point of completion" are also defined in cl 1 to mean, in effect, the point of pick up and the point of delivery of goods intended to be or carried under each contract of carriage. 26 The letter of Mr Sheldon dated 23 February 1999 to which I have referred asserted a suspicion that the defendant was in breach of cl 11 and Schedules I and II, a suspicion repeated by Ms Driver in her affidavit evidence, which I have set out verbatim. 27 When Ms Driver and Mr Forno arrived at the defendant's premises, they met with Mr Mark Hill the defendant's General Manager and with Mr Maurice Baroni. The account given by each of the four persons present, all of whom gave evidence differed to some extent as to what occurred. Ms Driver said that Mr Hill produced five bundles of papers. The dates of the documents on the top of each bundle were 10 November 1998, 13 October 1998, 8 September 1998, 22 September 1998 and 29 September 1998. She asked Mr Hill whether he had all the records referred to in the union letter of 23 February. She said that Mr Hill told her that the pay-sheets and run-sheets were not available because they contained confidential information concerning the names of the defendant's customers. She asked to see the drivers' invoices and pay-sheets and was told that the drivers did not invoice the company. She was also told that the run-sheets were confidential. She then asked to see the Schedule I records and Mr Hill is alleged to have said that the contract determination was not clear as to what records had to be kept and that the company kept its own type of records to monitor the situation under that Schedule. He told her that she and Mr Forno could look at the pay-sheets. Mr Forno reminded Mr Hill that he had said on an earlier occasion that the company did not have records showing amounts payable under Schedule 1 and Mr Hill is alleged to have said that the company had a monitoring process. 28 Mr Baroni is alleged by Ms Driver to have said that she and Mr Forno could only copy the entry on a particular sheet which showed a suspected breach. He is alleged to have said: "That's what the Act entitles you to do. You can only copy bona fide breaches." Ms Driver and Mr Forno left to obtain a photocopier machine from their vehicle and on their return Mr Baroni is alleged to have said that they could only copy particular lines by reference to particular suspected breaches. 29 In the course of further discussion between the parties, particularly with respect to the calculation of hours worked by carriers for the purpose of calculating entitlement under Schedule I of the contact determination Mr Hill is alleged to have said that the company used a "Transit Distribution Grid", a software programme which shows the kilometre distances travelled between various locations. Mr Forno said to Mr Hill and to Mr Baroni that he suspected the accuracy of some of the kilometre distances shown on the Transit Distribution Grid and therefore the accuracy of the amounts paid. Ms Driver and Mr Forno were told that they could only examine one page of the documents which were available to be produced at a time and they were only entitled to make copies of those documents which revealed a suspected breach. It was at that stage Ms Driver said that she and Mr Forno left the premises. 30 In general terms the evidence of Mr Forno supported that of Ms Driver. 31 Mr Hill said, in relation to the meeting on 9 March that he acted on advice given to him by Mr Baroni. It was on that basis that the company put forward the position that Ms Driver and Mr Forno would only be permitted to copy breaches which they had identified on a line by line basis, and copies of documents would only be allowed if they suspected a breach with respect to any particular part of that document. It was on that basis also that the company refused to allow Ms Driver and Mr Forno to copy all of the documents that were produced. 32 Mr Hill conceded that it was his understanding that Ms Driver and Mr Forno were suspicious that the defendant had been in breach of his obligations under Schedules I and II of the contract determination. He further conceded that Mr Forno said that he thought that the kilometre distances produced by the Transit Grid were incorrect. Mr Hill said that he had suggested that Ms Driver and Mr Forno take away with them a pay-sheet at random for testing purposes but they declined. He further said that he declined to allow the records to be taken away because Mr Forno had expressed the opinion that all of the kilometre distances under which the defendant had been working were incorrect. 33 Mr Hill also produced as an annexure to an affidavit an example of the documentation which had been prepared in five bundles and was produced at the meeting on 5 March. This documentation showed on various dates each of the pick-up and deliveries of goods undertaken by each contract carrier. It also nominated the type of service in accordance with the defendant's level of service, the amount paid, and the kilometres travelled. The documentation did not include any reference to the hours of work undertaken by the contract carrier. 34 Mr Hill said that hours of work could only be ascertained from driver job reports, an example of which was also annexed to one of his affidavits. A driver job report is generated from the defendant's computer system and in order for such generation to occur it is necessary for a computer terminal to be installed in the driver's vehicle. That computer terminal enables the generation of a driver job report setting out each of the jobs undertaken by each driver each day showing the time that the job was booked by the customer of the defendant, the time it was assigned to the driver and the time of pick-up and delivery. Such a record would enable, by reference to pick-up and delivery times, the hours worked by contract carriers to be ascertained for the purpose of Schedule I of the contract determination. However in 1998 Mr Hill said that only about one third of drivers had computer terminals installed in their vehicles. The only other way information of this kind could be ascertained was if pick-up and delivery times were advised by the driver to the operations section of the defendant by telephone and this happened infrequently. Accordingly, for about two thirds of the contract drivers during the 1998 calendar year there was no record of hours worked. Even with respect to those drivers whose vehicles had computer terminals installed, the daily driver job reports were not kept for more than one day after they were produced. That is, they were produced daily, reviewed and destroyed usually on the next day. However the source material was stored electronically which would allow for production in hard copy form provided that the defendant prepared a computer programme enabling the information to be down-loaded and produced in printed form. As at 29 March 2000 that computer programme had not yet been written. 35 Mr Hill said that the defendant generally monitored the hours worked by carriers on a regular basis but not from any particular documentation. It was by using this method that the defendant endeavoured to comply with the safety net created by Schedule I. 36 It is also necessary to refer to some additional evidence given by Ms Driver and Mr Hill. Mr Hill was the Manager and principal owner of Grace Couriers and sold it to the present defendant in May 1998 when he continued as General Manager. After the acquisition of the business by the defendant Mr Hill continued to manage the business at the same premises at Rydalmere and made no changes to the payment system for couriers, no changes to the record keeping systems of the business and the business continued to be conducted in the same manner. 37 Both Ms Driver and Mr Hill gave evidence concerning some of the matters to which Ms Driver attested as creating the suspicion concerning the breaches which I have previously set out. In particular these related to claims made by former carriers and the settlement of a particular matter, all of which are referred to in par (d) which I have previously extracted. Ms Driver gave evidence that her suspicions were based in part on a memorandum issued by Mr Hill on December 17 1997 in the name of Grace Couriers addressed to "Enterprise Arrangement Contractors". That memorandum which became an exhibit in the proceedings referred to rates payable to contract carriers which were two percent below "the Determination". The memorandum proposed that in February 1998 payment to contract carriers would be simplified by increasing the rates "below the Determination" by two percent to equate with the Determination and to increase a salary sacrifice of three percent to offset the rate increase. Although Mr Hill gave evidence in the proceedings to explain the memorandum that explanation was not, of course, relevant to the proceedings in the sense that the memorandum formed one basis for the holding of the suspicions about which Ms Driver gave evidence.

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WERE THE PROCEEDINGS CRIMINAL OR CIVIL? 38 A preliminary point was argued by the parties as to whether these were proceedings for a civil penalty or as to whether each of the charges constituted a criminal offence with the criminal standard of proof and criminal law procedures applying. 39 The defendant submitted that these were criminal proceedings. At first the prosecutor submitted that they were proceedings for a civil penalty but the prosecutor was content to seek to prove each of the offences on the basis that the criminal standard of proof applied. Subsequently, after I had heard submissions from Mr Temby QC who appeared for the defendant to make submissions with respect to this issue, counsel for the prosecutor said that he was content to regard the proceedings as being criminal proceedings. 40 The resolution of this issue involves the interpretation of the relevant provisions of the Act. However before undertaking that task, I shall have regard to principles which may be deduced from a number of authorities. As Murphy J observed in the High Court of Australia in Li Chia Hsing v Rankin (1978) 141 CLR 182: The concept of civil offences is well entrenched in the law (see Bradlaugh v Clarke (1883) 8 App.Cas.354; Attorney-General v Bradlaugh (1885) 14 QB 667; Brown v Allweather Mechanical Grouting Co Ltd [1954] 2 QB 443; R v Justices of the Appeals Committee of the County of London Quarter Sessions [1946] KB 176). Civil offences are common in statutes dealing with industrial relations, health and safety, customs, income tax and other revenue, and trade practices (see Dwyer v Craig-Williams Pty Ltd [1959] AR (NSW) 407; Newstead Wharves & Stevedoring Co. Pty Ltd v Chamberlain; Ex parte Chamberlain [1954] St.R Qd. 331; Gaal v Wilson (1956) 96 CLR 522 and Reg v Malas (1978) 21 ALR 225. The legislation creates "…. public misdemeanour, imposing a penalty as a punishment" (Lord Fitzgerald, Bradlaugh v Clarke (1883) 8 App. Cas at p 385). Statutory description of proceedings as prosecutions which if successful result in convictions is a familiar feature of civil offences (see Income Tax Assessment Act 1936, Pt VII, Penal Provisions and Prosecutions; Customs Act 1901, Pt XIV, Customs Prosecutions). (at 201). 41 Mahoney JA (as his Honour then was) in the New South Wales Court of Appeal in Evans v Button (1988) 81 ALR 61 discussed the categorisation process as follows: The principle that the incidents of particular contraventions of the law are to be determined by classifying such contraventions as criminal or civil, or the proceedings as criminal or civil proceedings, and then allocating the incidents of the criminal law or the civil law to the particular breach, has long been recognised: see Halsbury's Laws of England, 1st ed, 1909, vol 9, paras 499-500; 4th ed. 1967, vol 11, paras 1-2. But such a principle has difficulties, both in the expression of it and its application. Thus, the distinction is conventionally based upon the view that: "Civil proceedings have for their object the recovery of money or other property or the enforcement of a right or advantage on behalf of the plaintiff; criminal proceedings have for their object the punishment of a person who has committed a crime": Halsbury, supra, 1st ed, para 499(c); 4th ed, para 2. But, in the case at least of a penalty of the present kind, it might be thought that the object of the penalty, and so of proceedings to recover it, is the punishment of the person who has contravened the relevant statute or rule of law. Further, in practice, words such as "offence" and "criminal" are apt to be misleading for they are applied both to contraventions which are criminal in nature and also to contraventions which give rise only to civil remedies: when used for the purpose of determining, for example, incidents of a particular breach, a particular proceedings, or an appeal in respect of them: see, for example, the observations of Latham CJ and Dixon J in Mallan v Lee (1949) 80 CLR 198 at 206-7 and 217. See generally Li Chia Hsing v Rankin (1978) 41 CLR 182 at 201; 23 ALR 151 at 164-5; R v Justices of Appeals Committee of County of London Quarter Sessions [1946] 1 KB 176 at 182-5. (at 76-7) 42 In Mallan v Lee (1949) 80 CLR 198, Latham CJ in the High Court of Australia said: The word "criminal" is sometimes said to be properly applied only to offences against what are called public laws. I should have thought that taxation laws were public laws in every sense, though English cases exhibit a marked reluctance to regard a smuggler or other person who defrauds the Government in matters of revenue as a criminal. Sometimes the possibility of imprisonment upon conviction has been taken as the test. Imposition of a pecuniary penalty as a fine, as distinguished from recovery of a penalty as compensation, equally clearly shows that the Legislature intended to punish an act as being criminal. (at 208).

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44 Baron Platt reached the same conclusion. His Lordship said: It was urged that this information was a criminal proceeding, or, at all events, that it was a proceeding for an offence punishable on summary conviction. Now let us see what the cause of this proceeding was; because every information by the Attorney-General is not a criminal proceeding. He may proceed by way of information, and, in fact, prosecute a claim against a defendant in trover, in debt, in ejectment, in short, in every other species of action. This information is merely an action for the purpose of recovering penalties. What then is a "civil proceeding" as contra-distinguished from a "criminal proceeding?" It seems to me that the true test is this, if the subject matter be of a personal character, that is, if either money or goods are sought to be recovered by means of the proceeding - that is a civil proceeding; but, if the proceeding is one which may affect the defendant at once, by the imprisonment of his body, in the event of a verdict of guilty, so that he is liable as a public offender - that I consider a criminal proceeding. Undoubtedly, informations by the Attorney-General for smuggling have not been deemed criminal proceedings, but rather in the nature of civil proceedings, precisely like the old actions for recovering penalties under the Game Laws, which were civil actions. Now let us see what is the object of this information. Is it for the purpose of, immediately on conviction, taking the body, and punishing for the offence the party who is found guilty? No; the object is to recover money - to recover that which by the law is made a debt; for, by the 82nd section of the 8 & 9 Vict. C. 87, (the Act under which the penalty was sought to be recovered), there is this enactment: - "And be it enacted, that all penalties and forfeitures incurred or imposed by this or any Act relating to the Customs, or to trade or navigation, shall and may be sued for, prosecuted, and recovered by action of debt, bill, plaint, or information in any of her Majesty's Courts of record." Then the statute goes on to provide that the penalty may be recovered by summary conviction. Would any lawyer contend for a moment that this action of debt would be a criminal proceeding? And yet here is the same person, who may be assailed in an action of debt, in which case he would be a competent witness under this Act of Parliament, but, if an information is filed, he is not competent. Nothing can be more absurd. It seems to me, I own, that this is not a criminal proceeding. (at 373).

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45 On the other hand, Baron Parke concluded that an information for an offence against the revenue laws was a criminal proceeding: …. it is a proceeding instituted by the Crown for the punishment of a crime - for it is a crime and an injury to the public to disobey statute revenue law; and accordingly the old form of proclamation, made before the trial of informations for such offences, styles these offences "misdemeanors"." (at 374). 46 Pollock CB was also of the opinion that the proceeding involved a criminal offence: I think it is a very grave offence against the public. I cannot distinguish, either in morals or law, between cheating the state and cheating a private individual. I cannot distinguish between endeavouring by concealment and fraud to prevent that from being paid which is necessary for the public service, and by similar concealment and fraud depriving one of her Majesty's subjects of that which is his lawful right and due. I am of opinion, therefore, that it is a criminal offence. It is very true that it is not punishable in the ordinary way by indictment; but it is punishable by fine, and the fine may be imposed on summary conviction. (at 376). 47 Accordingly, there was an equal division of opinion between the four judges in those proceedings. The decision of the English Court of Appeal in Attorney-General v Bradlaugh (1885) XIV QBD 667 concerned an information at the suit of the Attorney-General brought against a member of the House of Commons. The defendant was charged with having voted without having taken the oath of allegiance as required by the Parliamentary Oaths Act. The relevant statute provided for the imposition of a penalty for breach. One of the issues to be determined by the Court of Appeal was whether or not the proceedings against the defendant were criminal proceedings. 48 In determining this issue Sir William Brett, Master of the Rolls observed that the obligation imposed on a member of Parliament by the statute was a new obligation not found at common law. His Lordship looked to the penalty for breach which was imposed by the statute which was a monetary penalty. Such a penalty if it was the only consequence of breach "does not make the prohibited act a crime. If it did, it seems to me that that distinction which has been well known and established in law for many years between a penal statute and a criminal enactment, would fall to the ground, for every penal statute would involve a crime, and would be a criminal enactment." (at 687). I assume that the reference to a penal statute made by Brett MR is a reference to what is now referred to as a civil penalty. In determining this issue Brett MR proceeded to review the means by which proceedings for breach were instituted and the manner by which the payment of a penalty could be enforced. In his Lordship's view the proceedings for enforcement were to be characterised as civil proceedings rather than criminal proceedings because the action could be taken "in one of her Majesty's superior courts at Westminster." His Lordship then observed that some of the superior courts of Westminster did not have criminal jurisdiction. 49 The more recent reported cases indicate that the greatest degree of controversy has occurred in proceedings concerning customs laws, taxation and industrial law. 50 The judgment of Hunt CJ at CL in the New South Wales Court of Appeal in Comptroller-General of Customs v D'Aquino Bros Pty Ltd (1996) 135 ALR 649 contains a detailed examination of the Customs Act (Cth) and an analysis of decided cases in determining whether particular proceedings under that Act were criminal or civil. His Honour described the customs offences as being "offences against the public law, punishable on conviction. I do not accept that any such offence punishable on conviction can properly be called a civil offence. I maintain the view which I have previously expressed that a customs prosecution is a proceeding in relation to a criminal offence and thus of a criminal nature." (An interesting historical description of the processes leading to customs prosecutions is contained within the judgment of Else-Mitchell J in the Full Court of the Supreme Court of New South Wales in Collector of Customs for New South Wales v Rieken (1964-5) NSWR 1167 at 1176). 51 The provisions of s 93 of the former Industrial Arbitration Act 1940 were considered by a Full Bench of the Industrial Commission of New South Wales in Platt v Treweneck (1953) 52 AR 642. Section 93 of the Industrial Arbitration Act 1940 provided that if any person committed a breach of an award or an industrial agreement that person would be liable to a penalty. Section 121 of the Act provided that s 82 of the Justices Act would apply with respect to any penalty imposed under the Industrial Arbitration Act 1940. Section 82 of the Justices Act provided in effect for the imposition of imprisonment if the penalty which had been imposed had not been paid. The Full Bench (Cantor, Webb and DeBaun JJ) said: "Applying the test laid down by the Supreme Court in Ex Parte Walsh (12 NSWR 306), viz., 'that the real test to be applied in order to determine whether a proceeding is civil or criminal is not the nature of the proceeding in question but whether the proceeding is one which may end in imprisonment; if the proceedings may have that result, then they are in their nature criminal proceedings; if that result cannot attach, then they are civil proceedings', ….". On this basis the Full Bench held that s 93 was a penal section carrying an obligation of a criminal nature and that proceedings based on s 93 were therefore criminal rather than civil. 52 This matter was also the subject of consideration by the Full Court of the Federal Court of Australia in Gapes v Commercial Bank of Australia Ltd (1979) 27 ALR 87. The Court in those proceedings was constituted by five judges in order to resolve competing decisions concerning the provisions of s 119 of the Conciliation and Arbitration Act 1904 (Cth). 53 Gapes concerned the categorisation of proceedings brought under s 119 of the Conciliation and Arbitration Act 1904 (Cth). That section provided relevantly that where a person bound by an order or award had committed a breach or non-observance of a term of the order or award "a penalty may be imposed by the Court …. or by any district, county or local court or court of summary jurisdiction that is constituted by a Judge, by Police, Stipendiary or Special Magistrate or by an Industrial Magistrate appointed under any State Act ….". There was provision for a maximum penalty that might be imposed. 54 By s 121 of that Act, it was provided that enforcement of a penalty for an offence against the Act or for a breach or non-observance of any term or an order or award may be obtained by the filing of a certificate issued by the Industrial Registrar in any Federal or State court having civil jurisdiction which certificate would be enforceable in all respects as a final judgment of that court. 55 Section 122 provided: "No person shall wilfully make default in compliance with any order or award." There was then provision for the payment of a penalty of an amount of $40, considerably less than any maximum penalty that might be imposed under s 119. 56 All five Judges of the Full Bench (Smithers, J B Sweeney, Evatt, Deane and Fisher JJ) held that the proceedings were not criminal. Evatt, Deane and Fisher JJ agreed in the reasons for judgment of J B Sweeney J, as did Smithers J who added a number of observations which I shall shortly discuss. 57 J B Sweeney J, in his approach to interpretation paid particular attention to the use of the language in s 119 and the failure to make any reference to the commission of an offence, the section speaking only of the imposition of a penalty upon breach being established. In addition s 119(3) allowed a court in considering proceedings under that section to order the payment of moneys by an employer to an employee if it appeared to the court that the employee was entitled by reason of any under-payment. Such collateral power was clearly a civil proceedings rather than a criminal proceeding. J B Sweeney J also considered a number of authorities none of each dissuaded him from the conclusion which he had reached. 58 The additional observations of Smithers J covered a number of areas, which I have found of assistance in determining this particular issue. These were as follows:

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The creation of an offence is described in that Act by proscribing certain conduct and adding at the foot of the relevant section the word "penalty" followed by the maximum amount of the penalty which may be imposed. This form of expression was used in conformity with s 41 of the Acts Interpretation Act (Cth) which provided that the penalty set out at the foot of any section of any act or at the foot of any subsection "shall indicate that any contravention of the section or of the subsection respectively, whether by act or omission shall be an offence against the Act, punishable upon conviction by a penalty not exceeding the penalty mentioned." 59 Having considered the matters referred to above Smithers J concluded that: "The discernible intention of the legislature is that the provisions of s 119(1) do not characterise a breach of an award in respect of which the Court is empowered to impose a penalty as for a criminal offence." His Honour then listed a number of authorities in which varying opinions both in accordance with and contrary to the conclusions which his Honour had reached had been expressed. This demonstrates the difficulties confronted by the courts from time to time in ascertaining the intention of the legislature in this regard, a difficulty which as I have observed is not confined to the field of industrial law. 60 An appropriate summary of the task confronting a court in this area is provided by what was said by Bowen LJ in R v Tyler & International Co Ltd (1891) 2 QB 588 where his Lordship said (at 594): It was then said that a section in an Act of Parliament which directs an act to be done does not necessarily make the disobedience an offence if the Act proceeds to impose a penalty as the only result of non-compliance with the directions of the section. Now, it is true that there are statutes which do not create an imperative and positive duty to the public, but which only impose, as the result of non-compliance with the directions of the statute, a pecuniary loss on the individual who does not so comply. In such a case it is not the intention of the legislature to make the disobedience of the law a misdemeanour; it is only the intention to provide that if the person does not comply with the directions of the statute he must submit to the penalty. In each case it is a question of the construction of the Act to see if that is what is meant. 61 It is now necessary to analyse the relevant provisions of the Act. 62 I have previously set out the provisions of s 129. It is contained within Pt 10 of Ch 2 of the Act. Pt 10 is entitled "Payment of Remuneration". The section requires certain records to be kept by employers. Subs (6) provides that "a person who contravenes this section or the regulations under this section is guilty of an offence." There is a reference to a maximum penalty of 20 penalty units. 63 I have also set out the provisions of s 301 of the Act. This section is contained within Pt 7 of Ch 5. Pt 7 deals with "Entry and Inspection by Officers of Industrial Organisations". Ch 5 deals generally with industrial organisations. 64 It is clear that the provisions of s 301 are designed to enhance the discharge by industrial officers of industrial organisations of their duties which in turn is designed to assist those industrial organisations in carrying out their functions under the Act. 65 Each of the sub sections of s 301 is framed in a manner which enjoins persons against carrying out conduct of a kind therein described. There is provision for a maximum penalty of 100 penalty units. The heading of the section is entitled "Offences" although arguably it does not form part of the Act by reason of the provisions of s 35(2)(a) of the Interpretation Act. 66 However, s 54(1) of the Interpretation Act is relevant. Section 54 (1)(a) provides that: "The penalty …. specified at the end of a section of an Act, whether or not the section is divided into sub sections, …. indicates that a contravention of the section …. is an offence against the Act, punishable on convictions by a penalty not exceeding the penalty so specified." 67 For reasons which I shall shortly state, I am of the opinion that both sections 129 and 301 create offences which are criminal offences. If there was any doubt about the nature of the offence created by s 301 because of the inability to take into account the heading of s 301, I would be entitled to have regard to that heading by reason of the application of s 34(1) of the Interpretation Act. 68 The provisions of the Fines Act 1996 apply to penalties imposed by this Court. "Court" is defined in s 3(1) of that Act to mean this Court, and "fine" is defined in s 4(1)(a) as being : "any monetary penalty imposed by a court for an offence". 69 Pt 2 of the Fines Act contains detailed provisions dealing with the payment of fines. There is provision within Div 3 of Pt 2 for the making of court fine enforcement orders by the State Debt Recovery Office for the enforcement of a fine imposed by a court. Pt 4 of the Fines Act deals with the enforcement of court fine enforcement orders therein called Fine Enforcement Orders. A summary of the enforcement procedure is contained within s 58 which provides firstly for service, secondly suspension or cancellation of a driver's licence or vehicle registration if a fine is not paid within a particular period, civil enforcement by way of property seizure, garnishee or the registration of a charge on land, the making of a community service order and in the event of non-compliance with such order the issuing of a warrant of commitment to a police officer for the imprisonment of the fine defaulter. Accordingly, other than in the case of a corporation imprisonment is an ultimate step which may be taken in the enforcement of a fine, and thus in the enforcement of a penalty imposed by this Court under ss 129 and 301 of the Act. 70 Section 397 of the Act deals with the procedure which applies for offences against the Act. Section 397 is as follows: (1) Proceedings for an offence against this Act or the regulations are to be dealt with summarily: (a) before a Local Court constituted by a Magistrate sitting alone, or (b) before the Commission in Court Session.

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(3) The maximum penalty that may be imposed in those proceedings by the Commission in Court Session is the maximum penalty provided in respect of the offence. 71 It will be noted that the proceedings are to be dealt with summarily. The section speaks in language of the imposition of a penalty in respect of an offence. 72 Section 399 is also relevant. Its provisions are as follows: (1) Proceedings for an offence against this Act or the regulations may be instituted only: (a) by the Minister or by a person with the written consent of the Minister, or (b) by an inspector, or (c) by a person, or a person of a class, prescribed by the regulations. (2) In any such proceedings, a consent to institute the proceedings, purporting to have been signed by a person authorised to give a consent under this section is evidence of that consent without proof of the signature or authority of the person. (3) Any such proceedings instituted by an officer of a Government Department may be prosecuted on his or her behalf by any officer of that Department. (4) This section does not limit any function that may be exercised by the Commission under section 164 (2) with respect to any contempt of the Commission. 73 I should add that regulation 32A prescribes an industrial organisation which is concerned in the industry to which the proceedings relate for the purpose of s 399(1)(c). 74 I observe, generally, that there is a limitation on who may institute proceedings for an offence against the Act. 75 Section 168 is as follows: (1) Proceedings for any offence in respect of which proceedings are taken before the Commission in Court Session are to be dealt with summarily by the Commission. (2) The Supreme Court (Summary Jurisdiction) Act 1967 applies to any such proceedings in the same way as it applies to proceedings that may be taken before the Supreme Court in its summary jurisdiction. (3) For the purposes of subsection (2), a reference (however expressed) in the Supreme Court (Summary Jurisdiction) Act 1967 : (a) to the Supreme Court (except in section 15) - is taken to be a reference to the Commission in Court Session, and (b) to rules - is taken to be a reference to rules of the Commission, and (c) to the Prothonotary - is taken to be a reference to the Industrial Registrar. (4) The provisions applied by this section prevail over any other provisions of this Part for the purposes of proceedings for an offence. Note. See section 196 with respect to the procedure on appeal to the Full Bench in criminal proceedings.

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It may be seen that an industrial organisation may in certain circumstances be entitled to payment or all or some part of any penalty. 78 All of these provisions and in particular ss 129 and 301 should be contrasted with the provisions of Pt 1 of Ch 7 of the Act and in particular s 357, which is in the following terms: 357 Civil penalty for breach of industrial instruments (1) If an industrial court is satisfied that a person has contravened a provision of an industrial instrument, it may order the person to pay a pecuniary penalty not exceeding $10,000 ( a civil penalty ). Note. Section 21 of the Interpretation Act 1987 provides that the expression ``contravene'' in an Act includes a failure to comply. (2) Proceedings for a civil penalty may be instituted: (a) by an inspector or any other person authorised by this Act to institute proceedings for offences, or (b) by an employer bound by the industrial instrument concerned, or (c) by an industrial organisation concerned in the industry to which the proceedings relate. (3) Proceedings for a civil penalty may be instituted within 6 years after the contravention. (4) To avoid doubt, the rules of evidence apply to proceedings for a civil penalty. (5) Evidence given in proceedings for the recovery of money under Part 2 is not admissible in proceedings for a civil penalty. (6) In any proceedings for a civil penalty, the industrial court may award costs to either party and assess the amount of those costs. Costs cannot be awarded against the prosecutor except in the circumstances in which costs can be awarded against the prosecutor in criminal proceedings. (7) The following provisions apply to contraventions of industrial instruments and to proceedings for a civil penalty for such a contravention in the same way as they apply to criminal proceedings for an offence against this Act: (a) Sections 400-403. (b) The provisions of any Act relating to the recovery of penalties imposed for an offence. (c) Any provision of this or any other Act relating to criminal proceedings that is applied to this section by the regulations (whether with or without modification). 79 Here the legislature has made specific reference to the type of proceedings which apply in the case of contravention of a provision of an industrial instrument, as opposed to a provision of the Act. It is clearly indicated that the pecuniary penalty which may be ordered to be paid (rather than "imposed"), is a civil penalty. 80 In undertaking the process of interpretation of the provisions of the Act which is required to determine this issue I have regard to the following matters:

The legislature has specifically referred to a civil penalty in Pt 1 of Ch 7 of the Act and has omitted to make any like reference to the provisions under particular consideration. I therefore assume that the legislature intended that unless there were matters of compelling significance, the intention was that offences created by the Act other than those contained within s 357 are not to be regarded as civil penalties.
Sections 129 and 301 create a positive public duty designed to enhance the administration of the statutory industrial relations regime within New South Wales.
Proceedings for a breach of ss 129 and 301 may only be instituted by a limited class of persons who substantially (although not exclusively) are concerned to promote the interests of the public in the observance of industrial instruments.
Any penalties imposed for breach of the sections do not necessarily benefit the person or body who prosecuted the proceedings and to the extent that they might benefit the industrial organisation which prosecuted the proceedings, no benefit is derived directly or even indirectly by any other person. Otherwise penalties are to be paid into the consolidated fund.
Both sections are directed to offences which may be distinguished from breaches or non-observance of the terms of industrial instruments which may more appropriately be characterised as proceedings for a penalty for breach of a term of a contract between private individuals.
The Act distinguishes between proceedings for a breach of a term of an order or industrial instrument and an offence against the Act itself. Sections 129 and 301 fall into this latter category.
Enforcement of payment of penalties imposed for breach of ss 129 and 301 may eventually lead to imprisonment.
The language used in each of ss 129 and 301 is more indicative of an intention to create a criminal offence rather than any other kind of offence. This includes also the use of the word "penalty". I include, obviously, the use of the word "offence" in s 129(6) and the ability to have regard to the use of that word as a heading to s 301.
The procedure by way of the exercise of summary jurisdiction is not inconsistent with the intention to create a criminal offence. 81 In summary, I have reached the view that the interpretation of the relevant provisions of the Act yields the result that ss 129 and 301 create criminal offences. 82 I shall now deal with each of the summonses in turn:

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IRC 1928 of 1999 83 There are a number of essential ingredients of this offence which it is necessary for the prosecutor to prove beyond a reasonable doubt. I shall deal with each of them in turn: 84 That Ms Driver and Mr Forno were, on 5 March 1999 and at all relevant times authorised industrial officers pursuant to s 298 to the Industrial Relations Act. So much was conceded by the defendant. 85 The defendant was required pursuant to s 298 of the Act to produce to Ms Driver and Mr Forno for their inspection, records relating to the requirements of Schedule I of the contract determination. The defendant conceded for the purpose of the proceedings that it was given 48 hours' notice of the requirement to inspect the records by the letter dated 23 February 1999 under the hand of Mr Sheldon. This concession satisfied the requirement of s 298(3) to give the employer at least 48 hours' notice. I am satisfied on the basis of the evidence that the requirement to produce the records for inspection contemplated that such production and inspection would take place during usual office hours at the employer's premises and that the time and place were mutually agreed between Ms Driver and representatives of the defendant. 86 The letter of 23 February 1999 is directed to a suspicion that the defendant was in breach of the contract determination and specified the areas of breach. The defendant put in issue whether there was in fact a suspected breach. I have already outlined the evidence on which the suspicion of the prosecutor was based. 87 Part of the debate between the parties in these proceedings revolved around the circumstances which needed to be established before the court could be satisfied that there was a "suspected breach" of the contract determination. In Queensland Bacon Pty Ltd v Rees (1965-1966) 115 CLR 266 Kitto J in the High Court of Australia observed, in connection with the use of the word "suspect" in the Bankruptcy Act as follows: In the first place, the precise force of the word "suspect" needs to be noticed. A suspicion that something exists is more than a mere idle wondering whether it exists or not; it is a positive feeling of actual apprehension or mistrust, amounting to "a slight opinion, but without sufficient evidence" as Chambers's Dictionary expresses it. Consequently, a reason to suspect that a fact exists is more than a reason to consider or look into the possibility of its existence. (at 303) 88 In re Storeman and Packers, Wholesale Drug Store (State) (1951) AR 527 a Full Bench of the Industrial Commission of New South Wales considered the provisions of s 129A(1)(a) of the former Industrial Arbitration Act 1940 which allowed a right of entry to a trade union representative in certain circumstances for the purpose of investigating any suspected breach of that Act or any award or industrial agreement etc. In describing the circumstances in which such a right of entry could be exercised the Full Bench (Webb, Ferguson and DeBaun JJ) said: We are of opinion that …. there must be a bona fide suspicion of a breach of the Act, award or agreement, as the case may be, when entry is made under the statutory power. A mere "fishing excursion" made in the hope of finding a breach would not justify an entry. (at 563) 89 Observations to similar effect were made by Ormiston J in the Supreme Court of Victoria in Commissioner for Corporate Affairs v Guardian Investments Pty Ltd (1984) VR 1019 a case involving s 16A of the Companies (Victoria) Code which used the phrase "reason to suspect". His Honour concluded that " 'suspect' requires a degree of satisfaction, not necessarily amounting to belief, but at least extending beyond speculation as to whether an event has occurred or not." (at 1025). I should add that the judgment of Ormiston J in that case contains a comprehensive review of a number of authorities in this area. 90 I am satisfied on the basis of the evidence given in these proceedings that representatives of the prosecutor suspected that there had been a breach of the Contract Determination in the manner outlined in the letter of 23 February 1999. There was an underlying and continuing concern that the defendant and its predecessor owner of the same business had not kept records with respect to hours worked by the contract carriers and that there had been a consequent underpayment of the contract carriers when applying the safety net provided by Schedule I to the rates payable under Schedule II. I am satisfied that there was on the part of the representatives of the prosecutor an actual apprehension and concern that there had been such a breach. It was something more than curiosity as to whether or not such a breach might exist. 91 It is also necessary that the records be required for the purpose of investigating any such suspected breach. The evidence is, in my opinion, conclusive that there was only one reason why the prosecutor required the production of the relevant records, namely to investigate the suspected breach. No other purpose was suggested by the defendant and no other purpose can be drawn by way of inference or otherwise from the evidence. 92 The records and documents must have been kept by the defendant. There is no suggestion to the contrary and the evidence is that the requirement for production was directed to such documents as were kept by the defendant. 93 The records must be related to the suspected breach. "Related to" is an expression of wide application and, again, no suggestion has been made that the records and documents sought were other than ones which related to, that is bore some relevance to the suspected breach as identified by the representatives of the defendant. 94 It is necessary for the prosecutor to prove that there was a failure to produce the necessary records and other documents. The evidence is to the effect that the defendant did produce five bundles of documents. Those documents did not, however, cover the hours worked because no such documents existed. In my opinion the requirement imposed by s 298(2)(a) can only be directed to the production of such records and other documents which are actually "kept" by the defendant. That is, if the defendant has not kept any such documents or records, then they are not capable of being the subject of a requirement to produce under s 298(2)(a) so as to give rise to a breach of that provision. 95 There is no doubt, as I have said, that the defendant did make available a large number of records consisting of many documents. However, as the defendant conceded, it did not and would not produce the drivers' run-sheets because they were said to contain details of the defendant's customer names and were therefore commercially sensitive. To the extent that such run-sheets contained information which could be utilised in assisting and determining the hours worked by drivers, such records and documents were, in my opinion, related to the suspected breach and should have been produced accordingly. I conclude, therefore, that the failure to produce them constituted a breach of this ingredient of the overall offence. Any concerns which the defendant had with respect to confidentiality of certain information could have been either the subject of negotiation with the prosecutor or, if that had failed, a matter which could have been resolved in proceedings before the Industrial Relations Commission of New South Wales. 96 The defendant submitted that it was necessary for the prosecutor to demonstrate an intention on the part of the defendant to breach the provision, that is that there was a requirement in the nature of mens rea which had to be established. 97 The seminal authority in this area is the decision of the High Court of Australia in He Kaw Teh v The Queen (1985) 157 CLR 523. In those proceedings Gibbs CJ discussed briefly the expression "mens rea". His Honour said: The expression "mens rea" is ambiguous and imprecise. The passage which I have cited from Sherras v De Rutzen [1895] 1 QB at p 921 suggests that it means "evil intention, or a knowledge of the wrongfulness of the act". In Iannella v French (1968) 119 CLR 84 at pp 108-109, Windeyer J approved of the statement in which Jordan CJ in R. v Turnbull (1943) 44 SR (NSW) 108 at 109 described the mens rea of an offender: "… assuming his mind to be sufficiently normal for him to be capable of criminal responsibility, it is also necessary at common law for the prosecution to prove that he knew that he was doing the criminal act which is charged against him, that is, that he knew that all the facts constituting the ingredients necessary to make the act criminal were involved in what he was doing."

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However, as Lord Diplock pointed out in Sweet v Parsley [1970] AC at 162 recklessness may be a sufficient mental element of some offences, and there is no single mental element that is common to all offences. As will be seen, it is a question whether negligence can amount to mens rea. (at 530-1). 98 The decision of the High Court in He Kaw Teh makes it clear that the determination of whether mens rea or an intention in the nature of mens rea is an essential ingredient in a statutory offence is one involving the construction of the provision of the relevant statute. 99 Gibbs CJ (with whom Mason J, as his Honour then was, agreed) commenced with the proposition that all statutory provisions creating offences had "to be read in the light of the general principles of the common law which govern criminal responsibility. The relevant principle is stated in Sherras v De Rutzen (1895) 1 QB 918 at 921 as follows: There is a presumption that mens rea, an evil intention, or a knowledge of the wrongfulness of the act, is an essential ingredient in every offence; but that presumption is liable to be displaced either by the words of the statute creating the offence or by the subject-matter with which it deals, and both must be considered." 100 I do not apprehend that the other members of the Court (Wilson, Brennan and Dawson JJ) disagreed with this fundamental approach. 101 In determining whether the presumption that mens rea was an essential ingredient in every offence had been displaced, Gibbs CJ said that there were three matters which required consideration. The first were the words of the statute which created the offence. It might be possible to discern from them the intention of the legislature as to whether mens rea was to be an essential ingredient. The second matter to be considered was the subject matter with which the statute dealt. This included the particular evil which was the subject matter of the offence, its relationship to the community and the consequences of breach. It was relevant for his Honour in the context of those particular proceedings that the consequences of committing the offence were serious and that it was unlikely in the circumstances that the legislature would expose a person to such consequences if that person had "no intention to do anything wrong and no knowledge that he was doing so". (at 530). The third matter to which his Honour referred as an aid to interpretation was whether applying strict liability without reference to any ingredient of mens rea would assist in the enforcement of the regime established by the statute. 102 Gibbs CJ considered the categorisation of offences by reference to the part that any mental element as exemplified by the mens rea principle might play and the part that mere negligence on the part of the defendant might play in establishing guilt or innocence. His Honour referred to a decision of the Supreme Court of Canada, Reg v Sault STE. Marie (1978) 2 SCR 1299 in which Dickson J categorised offences into three categories. That categorisation was adapted by Street CJ in the New South Wales of Criminal Appeal in R v Wampfler (1987) 11 NSWLR 541. I set out hereunder the classification utilised by Street CJ which appears at 546 of the report:

Those in which there is an original obligation on the prosecution to prove mens rea.
Those in which mens rea will be presumed to be present unless and until material is advanced by the defence of the existence of honest and reasonable belief that the conduct in question is not criminal in which case the prosecution must undertake the burden of negativing such belief beyond reasonable doubt.
Those in which mens rea plays no part and guilt is established by proof of the objective ingredients of the offence.

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In relation to the second category, Gibbs CJ in He Kaw Teh said (at 532-535): There has developed a principle that an honest and reasonable mistake of fact will be a ground of exculpation in cases in which actual knowledge is not required as an element of an offence … These cases establish that if it is held that guilty knowledge is not an ingredient of an offence, it does not follow that the offence is an absolute one. A middle course, between imposing absolute liability and requiring proof of guilty knowledge or intention, is to hold that an accused will not be guilty if he acted under an honest and reasonable mistake as to the existence of facts, which, if true, would have made his act innocent …. 103 It is now necessary to undertake the process of statutory interpretation in the manner outlined by Gibbs CJ in He Kaw Teh. The first matter to consider is the words used by which the offence is created. On one view of it the presence of the words "without lawful excuse" in s 301(3) might lead to the inference that the legislature intended that there should be no element of blameworthy state of mind imported into the provision as an essential ingredient. This is because the absence of a blameworthy state of mind could conceivably be a matter to be taken into account in determining whether there was a lawful excuse for a failure to comply. On the other hand, the words "lawful excuse" import some excuse recognised by law as opposed to a state of mind associated with the mens rea principle. It is more probable that, if the words "without reasonable excuse" had been used that such words might encompass a mens rea element. 104 I regard reference to the words used in the statute as not providing any particular indication as to the intention of the legislature in this regard. 105 It is then necessary to consider the subject matter with which this part of the Act deals. Section 301 is contained within Pt 7 of Ch 5 of the Act. That chapter deals with industrial organisations including, within Pt 1 a provision dealing with freedom of association, freedom from victimisation and the like. Pt 7 of Ch 5 is entitled "Entry and inspection by officers of industrial organisations" and is clearly designed to empower industrial officers of organisations to carry out certain functions to assist and enhance the activities of industrial organisations. For example, s 297 gives an authorised industrial officer the right to enter premises where employees are engaged during working hours for the purpose of holding discussions in any lunch time or non working time. I have already set out the provisions of s 298 which gives industrial officers the power in certain circumstances to enter places of work for the purpose of investigating any suspected breach of the industrial relations legislation or any industrial instrument and to require the production of records and documents and make copies of entries therein. It is s 301 that creates the offence. I have already held that these proceedings involve a criminal offence as opposed to proceedings for a civil penalty. On the other hand the maximum penalty is relatively modest and there is no question of any penalty being fixed upon conviction other than a monetary penalty. This is to be contrasted with the situation dealt with by the High Court in He Kaw Teh where Gibbs CJ, in dealing with the serious penalty which might be imposed in those proceedings said: "It is unlikely that the Parliament intended that the consequences of committing an offence so serious should be visited on a person who had no intention to do anything wrong and no knowledge that he was doing so." (at 530). I also regard this matter as not indicating any intention on the legislature to displace the presumption that mens rea be an ingredient of the offence. 106 The third matter to consider is in the nature of a "policy" matter as to the intentions of the legislature. That is, would any good purpose be served by imposing strict liability without regard to any mens rea ingredient. The purpose of s 298 is, as I have said, to facilitate and enhance the activities of industrial organisations through authorised industrial officers. This extends to the requirements which may be imposed by industrial officers under s 298(2). Would the purpose of s 298 be served by interpreting s 301(3) which creates the relevant offence, in such a way as to impose an absolute liability? Whilst I am conscious that arguments may be advanced either way, on balance, and having regard to the prima facie presumption which exists, I cannot see any question of policy which dictates that s 301(3) should be interpreted as imposing an absolute offence. 107 In reaching this conclusion I have had regard to the approach adopted by Gray J in the Federal Court of Australia in Australian Federation of Air Pilots v Australian Airlines Ltd (1991) 36 IR 194. Although the offence being considered by his Honour in those proceedings was of a different kind, it was one which nevertheless could be characterised in the same manner as s 301(3) namely designed to assist and enhance the work, inter alia, of trade unions. I refer generally to the discussion of his Honour commencing at p 207 of the report cited. 108 On balance, I conclude that the offence the subject of this summons is one falling within the second of the classifications referred to by Street CJ in Wampfler. That is, mens rea will be presumed to be present unless the defence advances material of the existence of honest and reasonable belief that its conduct was not criminal, in which case the burden of negativing such belief falls on the prosecutor. 109 The only matter raised by the defendant in these proceedings by way of its belief was to the effect that the running sheets required by the prosecutor were not relevant, in the sense that they were not related to the breach suspected by the prosecutor. Such a belief was expressed in opposition to a request made by the prosecutor not only on this particular occasion but also on previous occasions as referred to in the evidence of Ms Driver, which I have earlier reproduced. 110 If there had been no discussion between representatives of the prosecutor and the defendant about the relevance of these records and the defendant had failed to produce them honestly believing that there was no such relevance I would be more inclined to be sympathetic to the submission made by Mr Higgins of counsel on behalf of the defendant to the effect that the defendant had an honest and reasonable belief that it was not required to produce those documents. On such evidence as is available to me there is no suggestion that the belief of Mr Hill was other than honest. However the refusal to produce those documents appears to have been based on an incorrect appreciation of their relevance to the investigation which Ms Driver and Mr Forno wished to carry out with respect to the suspected breach, namely payments made under Schedule I. I accept the submissions of the prosecutor to the effect that the defendant's belief in this regard was erroneous. However this does not, in my opinion, entitle the defendant to rely on such an erroneous impression of its obligations under s 298(2) in a way which entitles it to raise that belief by way of defence in these proceedings. It may be a relevant matter to take into account in assessing penalty, but in circumstances where representatives of the prosecutor have expressed one view and the defendant another, it is not permissible to rely on the contrary belief by way of defence to a prosecution brought for breach. 111 The question of whether knowledge of the actual law surrounding a particular matter was relevant for the purpose of establishing mens rea was the subject of a recent decision of the Court of Appeal of the Supreme Court of Queensland in R v Taib; Ex parte Director of Public Prosecutions (CTH) (1998) 158 ALR 744. Those proceedings dealt with the provisions of s 15(1) of the Financial Transaction Reports Act (CTH) which creates an offence where a person transfers Australian currency or foreign currency out of or into Australia of not less than $5000 in value without reporting that transaction as required by the section. The Court of Appeal decision dealt with whether or not the prosecution had to prove that the accused knew that he had not reported the transfer and that the accused knew that there was an obligation to report a transfer of $5000 or more. 112 All members of the Court of Appeal (Pincus, Thomas JJA and Ambrose J) held that it was not necessary for the prosecution to prove that the accused knew that he was breaching the relevant provision. All that was necessary was that the prosecution prove the various elements of the offence. 113 Ambrose J said: I can find nothing in He Kaw Teh or in any of the other authorities to which reference has been made to support the proposition that the proof of mens rea on a charge brought under s 15(1) requires proof of knowledge of an obligation to make a report of a currency transfer which a person has knowingly made out of Australia as well as knowledge that such a report has not been made. Knowledge of the law under s 15(1) in my view is quite irrelevant to mens rea; knowledge of or belief in all the facts which constitute elements of the offence suffices to meet the ordinary requirements of mens rea. Such an approach accords with the common law principle stated by Jordan CJ in R v Turnbull (1943) 44 SR (NSW) 108 at 109 which was affirmed by Brennan J in He Kaw Teh at CLR 574; ALR 449: … it is also necessary at common law for the prosecution to prove that he knew that he was doing the criminal act which is charged against him, that is, that he knew that all the facts constituting the ingredients necessary to make the act criminal were involved in what he was doing. If this be established, it is no defence that he did not know that the act which he was consciously doing was forbidden by law. Ignorance of the law is no excuse. But it is a good defence if he displaces the evidence relied upon as establishing his knowledge of the presence of some essential factual ingredient of the crime charged [emphasis added]. (at 755-6). 114 Thomas JA agreed with the reasons of Ambrose J and Pincus JA expressed reasoning to similar effect. 115 For these reasons I reject these submissions of the defendant. In all the circumstances I find this offence proven.

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Summons 1929 of 1999 116 I shall deal with each of the ingredients of this offence: 117 The exercise of the powers referred to is a reference to the powers sought to be exercised by Ms Driver and Mr Forno under s 298(2)(b) of the Act namely the making of copies of entries in the records and documents relating to the requirements of Schedule II. I have dealt with each of the formal requirements with respect to the position and functions of Ms Driver and Mr Forno in connection with matter no. 1928 of 1999. Accordingly, I find that the prosecutor has established beyond a reasonable doubt that each of Ms Driver and Mr Forno was an authorised industrial officer, that the defendant was the principal contractor of contract carriers, that the defendant was required to produce for the inspection of those officers during usual office hours on 5 March 1999 at the defendant's premises and at a mutually convenient time records and other documents kept by the defendant which were related to a breach of the contract determination by the defendant as suspected by the prosecutor and that the defendant was given at least 48 hours' notice. 118 The next essential ingredient with respect to this offence is the records or other documents which the defendant was required to produce and as to whether they related to the suspected breach. The records or other documents as described in the particulars of the charge contained within the summons related to the requirements of Schedule II of the contract determination. There is no doubt that these records were produced and made available. The driver invoices and pay-sheets which prima facie pertained to remuneration actually paid within the relevant periods are prima facie related to the suspected breach of Schedule II. I am satisfied beyond a reasonable doubt that to that extent the documents and records related to the breach of the contract determination as suspected by the prosecutor. 119 The next ingredient relates to the deliberate obstructing or hindering of the making of copies by Ms Driver and Mr Forno. I have previously set out the circumstances which occurred on 5 March 1999. The defendant on the advice of Mr Baroni required Ms Driver and Mr Forno to identify the particular breach before allowing that part only of the documentation which was relevant to that breach as identified to be copied. This raises the question as to whether or not there was an entitlement for the authorised industrial officers to make copies of those entries in that documentation. The answer is provided by reference to the provisions of the subsection. The power given in the subsection is to make copies of entries in records or other documents referred to in s 298(2)(a). These are records and other documents kept by the principal contractor "that are related to the suspected breach." This is not a reference to an actual breach but merely a breach which is suspected in accordance with the meaning of that word which I have previously discussed in connection with summons 1928. Once the records and documents can be identified as being related to the suspected breach then copies of the entries in those records or documents may be made under s 298(2)(b). Prima facie all of the records required to be produced by the letter of 23 February 1999 and which the defendant through Messrs Hill and Baroni said had been produced in connection with Schedule II related to the suspected breach of Schedule II. Accordingly all of the documents were amenable to the power to make copies of entries in them under s 298(2)(b). There is no evidence before me that any part of any of those records or documents did not relate to any suspected breach. The only position contended on behalf of the defendant was that it was necessary for the authorised officers to point to a particular breach before a copy might be made. Such a view is, in my opinion, contrary to the provisions of s 298(2)(a) and (b) which clearly refer to a suspected breach as opposed to an actual breach. On this basis once the documentation bears the necessary relationship to the suspected breach, copies may be made. 120 The next ingredient involves a consideration as to whether or not there was a deliberate hindering or obstruction of the authorised officers which occurred when they were denied the opportunity of making copies unless they first identified any particular breaches. The words "hinder or obstruct" have been the subject of a number of decided cases dealing principally with some form of physical intervention which had the effect of precluding the carrying out of an authorised act. For example in Curran v Thomas Bortheick & Sons (Pacific) Ltd (No 1) (1990) 33 IR 6 Gray J in the Federal Court of Australia dealt with proceedings brought on behalf of a trade union against an employer for a breach of provisions of the Industrial Relations Act 1988 (Cth) which created an offence in similar terms to s 302(2). The defendant employer in those proceedings had allegedly refused to allow two trade union officials to inspect documents. The defendant said that it required one of the trade union officials to leave the premises because of industrial action taken by certain of its employees based on conduct of that particular union official on a picket line. It was held in the circumstances that such action amounted to hindering and obstructing the inspection of records. 121 In these proceedings the circumstances are, in my opinion, relevantly different. Accordingly I propose to approach the resolution of this issue by confining my consideration to the particular facts as established by the evidence. 122 The Macquarie Dictionary 2nd Ed. defines "hinder" by reference to interruption, checking, or retarding or, more relevantly in my opinion, "to prevent from acting or taking place;." The same definition defines "obstruct" relevantly as being "to interrupt, make difficult, or oppose the passage, progress, course etc." It will be seen that the meaning of both words overlaps. 123 In my opinion the action of Messrs Hill and Baroni constituted conduct which involved both hindrance and obstruction of the authorised industrial officers in the exercise of their power to make copies of the relevant entries. Once the records and other documents which satisfied the description of s 298(2)(a) were produced, then the authorised officers were empowered to make copies of the entries in those records or documents. To impose a qualification by way of a requirement to identify an actual breach amounted to both a hindrance and obstruction of that power. 124 It then becomes necessary to consider whether or not the hindrance and obstruction was undertaken deliberately. I am again content to refer to the Macquarie Dictionary 2nd Ed. definition of deliberate where the word "intentional" in my opinion best signifies the meaning which is most appropriate in the context of this provision. I am satisfied beyond a reasonable doubt on the basis of the evidence that the defendant intentionally hindered and obstructed the authorised officers from copying entries in the relevant documentation. This was deliberate in the sense, as I have said, that it was intentional because it was based upon what I have concluded is an erroneous interpretation of the provisions of s 298(2). 125 This leaves for consideration the final ingredient, namely whether the principle of mens rea applies. The determination of this issue will involve the same approach to interpretation which I have adopted in matter no. 1928, and the authorities to which I referred in connection with that matter. 126 The first task is to look at the words which create the offence. In my opinion the use of the word " deliberately" in s 301(2) imports the mens rea element into the offence. To the extent that the hindrance or obstruction is created deliberately, then this will amount to an ipso facto breach of the offence. This is to be contrasted with the use also of the word "deliberately" in connection with s 301(1) but the omission of the use of that word in subs (3) and (4). "Deliberately" was not contained within the provisions of s 306(a) of the Industrial Relations Act 1998 (Cth) considered by Gray J in Australian Federation of Air Pilots v Australian Airlines Ltd, to which I have previously referred. 127 I have already held that the actions of Messrs Hill and Baroni on 5 March 1999 were undertaken deliberately in refusing to allow copies of the extracts of the records to be made. 128 Accordingly, I find the defendant guilty of this charge.

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Summons 1930 of 1999 129 The charge here is directed to the period from 1 August 1998 up to 1 November 1998. Both the prosecutor and the defendant approached this matter on the basis that the alleged failure to keep the records referred to during the totality of that period created but one offence. 130 The following represent the ingredients of this offence: 131 The defendant was a principal contractor who during the period 1 August 1998 to 31 October 1998 engaged contract carriers under contracts of carriage. For reasons which I have given in connection with the summonses which I have dealt with earlier I find this ingredient proven. 132 The defendant was required by s 129(1)(a) to keep records of remuneration paid and hours worked by the contract carriers. By subs (4) those records must be kept for a period of at least six years. The evidence given by Mr Hill in these proceedings on this issue is referred to earlier in para 34 of this judgment. Mr Hill's evidence amounts to a concession that with respect to about two thirds of drivers daily records of hours worked by the contract carriers were not kept at all and with respect to one third of the drivers who had computer terminals installed in their vehicles, such records were kept for a period of about one day only. Whilst the defendant's computer system would be capable of re-creating documents showing the records of hours worked for the one third of drivers whose vehicles had computer terminals installed, this required the creation of a special software programme to enable this to be achieved and such programme had not been created as at 21 March 2000. 133 It is also necessary to consider whether the element of mens rea is an essential ingredient of this offence. The obligation created by s 129(1)(a) which has been allegedly contravened is expressed in terms requiring an employer to ensure that the relevant records are kept. This is in contrast to a requirement that could, by way of example, be expressed as follows: "An employer shall keep the following daily records" etc. The language used is more akin to the creation of an absolute obligation than one where mens rea would be an essential ingredient. 134 The subject matter of s 129 must, in my opinion, be considered in a serious light in that the keeping of records by employers with respect to the matters dealt with in s 129(1)(a) is essential for a variety of reasons extending beyond the contract of employment between employers and employees and any relevant industrial instrument but also to matters such as compliance with superannuation legislation, entitlement to annual leave and long service leave entitlements. I do not include within this analysis any reference to the requirement to keep such records in connection with the several taxation regimes which apply, because in general terms the taxation legislation imposes its own requirements in this area. However I take into account the overall importance of compliance with s 129 of the Act for a variety of purposes. I also have regard to the fact that the penalty is modest and is confined to a monetary penalty. All of this would indicate an intention of the legislature to displace the presumption that mens rea is an ingredient of this offence. In the same way I would regard the significance of the obligation imposed by s 129 and the purpose of the section as favouring a "policy" consideration as to why this section should be construed so as to impose an absolute obligation on employers. Accordingly, I propose to approach the matter on this basis. I would add, however, that if I had selected the alternative basis of utilising the second categorisation described by Street CJ in Wampfler, I would have come to the same conclusion as to the ultimate guilt of the defendant in connection with this charge. 135 I am satisfied beyond a reasonable doubt that the defendant failed to keep the records of hours worked during the relevant period as required by s 129(1)(a). It follows therefore that the defendant is guilty of this charge. I make no finding with respect to records of remuneration paid, this not being the subject of any evidence.

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