$19k penalty for Adelaide transport company after back-pay dispute

The Fair Work Ombudsman (FWO) has secured $19,000 in penalties in court against an Adelaide freight transport company and its sole director.

The Federal Circuit and Family Court imposed a $16,000 penalty against BSH Transport Solutions Pty Ltd, based in Roxby Downs, and a $3000 penalty against company’s director Brenton Philip Smith.

Started in 2004, BSH provides freight services primarily between Roxby Downs and Adelaide, employing 17 drivers and five administrative staff.

FWO says penalties were imposed in response to BSH Transport Solutions failing to comply with a Compliance Notice requiring it to back-pay entitlements to a full-time pay-roll manager it employed between January 2019 and May 2021.

Along with penalties, the Court has also ordered BSH to take the steps required by the Compliance Notice, including calculating and back-paying the worker’s outstanding entitlements in full, plus superannuation and interest.

When contacted by Big Rigs Smith said, “We’re a family show and we’ve always prided ourselves on doing the right thing. We are seriously looking at appealing,” he said.

Judgement documents reveal that on the day of the hearing, Smith filed an affidavit, in which he set out what he alleged were “circumstances which mitigated the seriousness of the contravention in question”.

The employee approached FWO, which appointed a Fair Work Inspector to investigate a complaint that she had not been paid her full termination entitlements, including personal leave for the period in which she supplied a medical certificate and her accrued annual leave.

On her termination of employment, the employee had an accrued unused annual leave entitlement balance of approximately 225 hours and unused personal/carers leave entitlements of approximately 158 hours.

FWO says a Compliance Notice was issued in May 2021 after a Fair Work Inspector formed a belief that the worker was owed approximately $11,438 in personal and annual leave entitlements, owed under the Fair Work Act’s National Employment Standards.

In imposing the penalties, Judge Stewart Brown noted that it took a year after the Compliance Notice, and only after the FWO commenced legal action, for BSH Transport Solutions to make a partial back-payment to the worker and that more was still owed.

Judge Brown found that there was a need to deter the company, and other employers, from similar future conduct, saying “the court needs to indicate that such non-compliance will be regarded as a serious matter”.

“Penalties must hurt so that others who are considering cutting corners, so far as the payment and protection of their employees are concerned, will be deterred from doing so,” Brown said.

“It is important that employers recognise that Compliance Notices are significant and are thus encouraged to manage their business so that errors, including innocent ones, can be rectified quickly and cheaply for the benefit of both business and employee.”

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