FEDERAL MAGISTRATES COURT OF AUSTRALIA
| ALCANTARA & ANOR v BUILDPOWER PTY LTD (No.2) | [2010] FMCA 763 |
| INDUSTRIAL LAW – Penalty hearing – contravention of regulation 3.42(4) of the Fair Work Regulations 2009 (Cth) – failure to produce requested employee record to applicants as soon as practicable after request – inadmissible evidence – factors for consideration in assessment of penalty. |
| Crimes Act 1914 (Cth), s.4AA Evidence Act 1995 (Cth), ss.56(2), 59(1) Fair Work Act 2009 (Cth), ss.3(b), (c) and (e), 12, 546(2)(b) Fair Work Regulations 2009 (Cth), regs.3.42(4), 3.45, 3.46, 4.01A -Item 12 |
| First Applicant: | FLORANTE ALCANTARA |
| Second Applicant: | THOMIE PACHO |
| Respondent: | BUILDPOWER PTY LTD |
| File Number: | PEG 64 of 2010 |
| Judgment of: | Lucev FM |
| Hearing date: | 5 October 2010 |
| Date of Last Submission: | 5 October 2010 |
| Delivered at: | Perth |
| Delivered on: |
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- Case
- [2010] FMCA 763
- Decision Date
CaseChat Overview and Summary
The primary legal issue before the court was the extent and nature of the penalties to be imposed on the respondent for the contraventions of regulation 3.42(4). The applicants argued that the penalties should reflect the seriousness of the breaches and serve as a deterrent for future non-compliance. The respondent, on the other hand, contended that the penalties should be proportionate and not excessively punitive. The court needed to consider the statutory provisions, relevant precedents, and the specific circumstances of the case in determining the appropriate penalty.
In its decision, the court meticulously examined the statutory framework and the relevant case law. It found that the contraventions were significant but did not warrant the maximum penalty available under the legislation. The court took into account the respondent's efforts to rectify the breaches and their overall compliance history. Ultimately, the court determined that a penalty of $4,400 was appropriate for the contraventions of regulation 3.42(4) concerning the first and second applicants. Furthermore, the court ordered that this penalty be paid to the Construction, Forestry, Mining and Energy Union by a specified date, ensuring that the proceeds benefit the relevant union and serve a broader purpose of upholding workplace rights.
The court's decision provided clarity on the penalties for contraventions of the specified regulation and reinforced the importance of compliance with workplace laws. The specific penalty and the directive for the payment to be made to a union underscored the court's intention to not only impose a financial penalty but also to support the union's role in protecting employees' rights.
Orders
Orders of the court
1.
That in relation to the Respondent’s contraventions of regulation 3.42(4) of the Fair Work Regulations 2009 (Cth) in relation to the First and Second Applicants the Respondent pay a penalty of $4,400.
2.
That the penalty ordered to be paid under order (1) above be paid by the Respondent to the Construction, Forestry, Mining and Energy Union, by 8 January 2011.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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