Anstey v Mambourin Enterprises Ltd (No.2)
[2020] FCCA 907
•22 April 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| ANSTEY v MAMBOURIN ENTERPRISES LTD (No.2) | [2020] FCCA 907 |
| Catchwords: INDUSTRIAL LAW – Penalty – failure to pay annual leave loading on the applicant’s fifth and sixth weeks of annual leave each year contrary to the provisions of the applicable award – no admissions – matter going to trial – post-judgment contrition and corrective action – previously unblemished record – single decision leading to multiple breaches over six years. |
| Legislation: Other material: |
| Cases cited: Anstey v Mambourin Enterprises Ltd [2020] FCCA 461 Australian & International Pilots Association v Qantas Airways Ltd [2009] FCA 500 Australian Ophthalmic Supplies Pty Ltd v McAlary-Smith (2008) 165 FCR 560; (2008) 246 ALR 35; [2008] FCAFC 8 Bell v Anglican Aged Care Services Group T/as Benetas [2017] FCCA 1050 Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Telstra Corporation Ltd [2007] FCA 1607 Community and Public Sector Union v Telstra Corporation Limited (2001) 108 IR 228; [2001] FCA 1364 Fair Work Ombudsman v Bedington [2012] FMCA 1133 Fair Work Ombudsman v Hongyun Chinese Restaurant Pty Ltd (in liquidation) [2013] FCCA 52 Kelly v Fitzpatrick (2007) 166 IR 14; [2007] FCA 1080 Mason v Harrington Corporation Pty Ltd [2007] FMCA 7 Mornington Inn Pty Ltd v Jordan (2008) 168 FCR 383; (2008) 247 ALR 714; (2008) 171 IR 455; [2008] FCAFC 70 Plancor Pty Ltd v Liquor, Hospitality and Miscellaneous Union (2008) 171 FCR 357; (2008) 177 IR 243; [2008] FCAFC 170 Ponzio v B & P Caelli Constructions Pty Ltd (2007) 158 FCR 543; (2007) 162 IR 444; [2007] FCAFC 65 Rajagopalan v BM Sydney Building Materials Pty Ltd [2007] FMCA 1412 Tindall v Goulbourn Valley (No.2) [2017] FCCA 2112 |
| Applicant: | JUDITH ANSTEY |
| Respondent: | MAMBOURIN ENTERPRISES LTD (ACN 159 527 036) |
| File number: | MLG 3174 of 2018 |
| Judgment of: | Judge Riley |
| Hearing date: | 15 April 2020 |
| Date of last submission: | 15 April 2020 |
| Delivered at: | Melbourne |
| Delivered on: | 22 April 2020 |
REPRESENTATION
| Counsel for the applicant: | Sarala Fitzgerald |
| Solicitors for the applicant: | McDonald Murholme |
| Counsel for the respondents: | Nicholas Harrington |
| Solicitors for the respondents: | K&L Gates |
ORDER
Pursuant to s. 546 of the Fair Work Act 2009 (“the Act”), the respondent pay the applicant a penalty of $9,450 for the respondent’s breach of s.45 of the Act by breaching cl.31.3(a) of the Social, Community, Home Care and Disability Services Industry Award 2010 by failing to pay the applicant an annual leave loading of 17.5% on her pay for two weeks of annual leave each year that were additional to her standard four weeks and that were taken or accrued on or after 23 October 2012.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 3174 of 2018
| JUDITH ANSTEY |
Applicant
And
| MAMBOURIN ENTERPRISES LTD (ACN 159 527 036) |
Respondent
REASONS FOR JUDGMENT
Introduction
This matter concerns the penalty to be imposed for breaches of the Fair Work Act 2009 (“the Act”). The breaches were found to have occurred in the related liability proceeding, Anstey v Mambourin Enterprises Ltd [2020] FCCA 461. In the liability proceeding, the court declared that:
The respondent breached s.45 of the Fair Work Act 2009 by breaching cl.31.3(a) of the Social, Community, Home Care and Disability Services Industry Award 2010 by failing to pay the applicant an annual leave loading of 17.5% on her pay for two weeks of annual leave each year that were additional to her standard four weeks and that were taken or accrued on or after 23 October 2012.
In addition, in the liability proceeding, the court ordered that:
The respondent pay the applicant annual leave loading of 17.5% on her pay for two weeks of annual leave each year that were additional to her standard four weeks and that were taken or accrued on or after 23 October 2012.
After that declaration and order were made, the parties agreed that the total underpayment amounted to $599.37 and that interest of $184.15 was payable. That meant that the total loss to the applicant, including interest, was $783.52.
The applicant brought various other claims in relation to alleged underpayments and alleged adverse actions in the liability proceeding. However, she was not successful in those claims.
There was some dispute in the penalty proceeding about whether the respondent had breached the privilege relating to settlement discussions. Ultimately, the respondent agreed to withdraw from the court record[1] exhibit DH-3 to the affidavit sworn by David Hartnett on 19 March 2020. The applicant said that she did not waive the privilege, but did not want me to recuse myself either. The applicant’s principal argument was that the settlement discussions were fundamentally irrelevant, and the court should have no regard to them.
[1] It is unclear how to physically withdraw a document from the court record when the court record consists of a digital file.
The respondent tried to argue that the applicant had unreasonably refused to accept a settlement offer. However, until penalty is determined, the reasonableness or otherwise of that refusal cannot be fully assessed. Consequently, the evidence about the settlement offers is irrelevant in the determination of penalty.
The respondent noted that the applicant claimed in the pleadings (and so separately from any settlement discussions) that the respondent had failed to pay her any annual leave loading, although she conceded at the outset of the trial that she had been paid annual leave loading for four weeks of annual leave each year and conceded that the default only related to her additional two weeks of annual leave each year. The respondent argued this factual inaccuracy in the applicant’s case made it impossible to settle the proceedings. That may be so, but the applicant’s factual error does not detract from the respondent’s breach of the Act.
Approach to determining penalty
In general, the proper approach to determining penalty in cases such as this is as follows. The first step for the court is to identify each separate contravention involved.
Where there are multiple contraventions, the second step is to consider whether any of the various contraventions constituted a single course of conduct, such that multiple breaches should be treated as a single breach.
The third step is for the court to consider the extent, if any, to which two or more contraventions have common elements. A person should not be penalised more than once for the same conduct.
The penalty imposed by the court should be an appropriate response to the contravenor’s conduct.[2] This is a separate process from the application of the totality principle.[3]
[2] Australian Ophthalmic Supplies Pty Ltd v McAlary-Smith (2008) 165 FCR 560; (2008) 246 ALR 35; [2008] FCAFC 8 at [46] (Graham J).
[3] Mornington Inn Pty Ltd v Jordan (2008) 168 FCR 383; (2008) 247 ALR 714; (2008) 171 IR 455; [2008] FCAFC 70 at [41]-[46] (Stone and Buchanan JJ).
The fourth step is for the court to consider the appropriate penalty for each breach, treating multiple breaches arising from a course of conduct as a single breach, and taking into account any common elements shared by the various breaches.
The fifth step is for the court to apply the totality principle.
This requires the court to consider the aggregate penalty overall, and determine whether it is an appropriate response to the conduct which resulted in the breaches.[4] The court in this step makes an “instinctive synthesis”.[5]
[4] See Kelly v Fitzpatrick (2007) 166 IR 14 at [30] (Tracey J) (Kelly); Ophthalmic, supra at [23] (Gray J), [71] (Graham J) and [102] (Buchanan J).
[5] Ophthalmic, supra at [27] (Gray J) and [55] and [78] (Graham J).
A convenient checklist of the factors that the court might consider in determining penalty include the matters that were identified by Mowbray FM in Mason v Harrington Corporation Pty Ltd [2007] FMCA 7 at [26]-[59] and adopted by Tracey J in Kelly v Fitzpatrick (2007) 166 IR 14; [2007] FCA 1080 at [14]. That list is as follows, (with paragraph letters inserted):
(a)The nature and extent of the conduct which led to the breaches.
(b)The circumstances in which that conduct took place.
(c)The nature and extent of any loss or damage sustained as a result of the breaches.
(d)Whether there had been similar previous conduct by the respondent.
(e)Whether the breaches were properly distinct or arose out of the one course of conduct.
(f)The size of the business enterprise involved.
(g)Whether or not the breaches were deliberate.
(h)Whether senior management was involved in the breaches.
(i)Whether the party committing the breach had exhibited contrition.
(j)Whether the party committing the breach had taken corrective action.
(k)Whether the party committing the breach had cooperated with the enforcement authorities.
(l)The need to ensure compliance with minimum standards by provision of an effective means for investigation and enforcement of employee entitlements.
(m)The need for specific and general deterrence.
The court must, of course, be mindful of the caution expressed by Buchanan J in Australian Ophthalmic Supplies Pty Ltd v McAlary-Smith (2008) 165 FCR 560; (2008) 246 ALR 35; [2008] FCAFC 8 at [91] as follows:
Check lists of this kind can be useful providing they do not become transformed into a rigid catalogue of matters for attention. At the end of the day the task of the Court is to fix a penalty which pays appropriate regard to the circumstances in which the contraventions have occurred and the need to sustain public confidence in the statutory regime which imposes the obligations. There is no suggestion in the present case that the learned magistrate made any relevant error in her identification of the matters which she should consider in fixing penalties.
The court will consider the circumstances of the case under the various headings suggested by Mowbray FM, and then consider whether any other matters are relevant.
Step 1: identifying the breaches
As stated above:
The respondent breached s.45 of the Fair Work Act 2009 by breaching cl.31.3(a) of the Social, Community, Home Care and Disability Services Industry Award 2010 by failing to pay the applicant an annual leave loading of 17.5% on her pay for two weeks of annual leave each year that were additional to her standard four weeks and that were taken or accrued on or after 23 October 2012.
Step 2: single course of conduct
The applicant argued that there were 13 individual breaches in this case, because there was a separate breach each time the applicant took annual leave for which the annual leave loading was not paid.
The respondent argued that the course of conduct rule in s.557 of the Act applied in this case, because there was only one decision to not pay annual leave loading on the applicant’s fifth and sixth weeks of annual leave each year, which was entrenched in the payroll software, and the underpayment then occurred automatically.
The respondent’s argument was supported by the unsworn affidavit of Cassandra Smith dated March 2020.[6]
[6] The affidavit was not sworn in circumstances of the COVID-19 pandemic. The applicant did not take any point arising from the affidavit not being sworn.
Ms Smith said in paragraph 11 of her affidavit that it was her view, which she now considers to have been erroneous, that annual leave loading was only payable on an employee’s first four weeks of annual leave each year, and not on their additional two weeks of annual leave each year.
Ms Smith said at paragraph 20 of her affidavit that, in accordance with her view at the time, the respondent’s payroll software was programmed in about 2012 to only calculate annual leave loading on each employee’s first four weeks of annual leave each year, and not on their additional two weeks of annual leave each year.
The applicant did not seek to cross-examine Ms Smith in the penalty proceeding. I accept her evidence on this point, and generally.
Applying s.557 of the Act, I consider that there was only one breach in this case, because there was only one decision to not pay annual leave loading on the applicant’s fifth and sixth weeks of annual leave each year, and that decision was automatically applied each time the applicant took such leave.
Step 3: grouped breaches
This step is not relevant in this case, because I have already decided that there was only one breach, in view of the course of conduct provision.
Step 4: the appropriate penalty for the breaches
a. the nature and extent of the conduct which led to the breach
As discussed above, the breaches consisted of not paying the applicant annual leave loading on 13 occasions over a six year period. Although there were 13 separate underpayments, they were all the result of a single decision.
b. the circumstances in which that conduct took place
As discussed above, the breach was the result of one erroneous decision on the respondent’s part. Ms Smith said in her affidavit that, if the applicant had queried the underpayment with her at any stage, she would have obtained legal advice on the issue. However, the fact is that employees are not responsible for ensuring that they are correctly paid. Employers are responsible for ensuring that.
As was said in Fair Work Ombudsman v Hongyun Chinese Restaurant Pty Ltd (in liquidation) [2013] FCCA 52 at [46]:
… it is incumbent upon employers to make all necessary enquiries to ascertain their employees’ proper entitlements and pay their employees at the proper rates.
The respondent’s attempt to subtly shift responsibility to the applicant for the underpayment detracts somewhat from the respondent’s claims of contrition.
c. the nature and extent of any loss or damage sustained
As mentioned above, the total loss to the applicant, including interest, was $783.52. While that amount may seem small, the applicant was a relatively low paid worker for whom the sum is not insignificant.
d. whether there had been similar previous conduct
There was no evidence of any similar previous conduct.
e. whether the breaches arose out of the one course of conduct
As discussed above, the breaches arose from a single decision.
f. the size of the business enterprise involved
The respondent has an annual turnover of about $13 million and 294 staff. As such, the respondent is a medium sized business. It makes an annual surplus of 2% to 3%.
Tracey J said in Kelly v Fitzpatrick (2007) 166 IR 14; [2007] FCA 1080 at [28]:
No less than large corporate employers, small businesses have an obligation to meet minimum employment standards and their employees, rightly, have an expectation that this will occur. When it does not it will, normally, be necessary to mark the failure by imposing an appropriate monetary sanction. Such a sanction “must be imposed at a meaningful level” (citation omitted)
That statement applies with greater force in this case because the respondent is not a small business.
Similarly, in Rajagopalan v BM Sydney Building Materials Pty Ltd [2007] FMCA 1412, the court said at [27]:
Employers must not be left under the impression that because of their size or financial difficulty that they are able to breach an award. Obligations by employers for adherence to industrial instruments arise regardless of their size. Such a factor should be of limited relevance to the Court’s consideration of penalty. …
While there was no suggestion in this case that the respondent is in any financial difficulty, the respondent did emphasise that it is a not-for-profit business. I accept that the respondent does very valuable work in the community, helping disabled people. The respondent is to be commended for that.
However, not-for-profit employers are still subject to industrial laws. Their status as not-for-profit enterprises does not exculpate them for underpaying their employees.
g. whether or not the breaches were deliberate
The breach was deliberate in the sense that it was consciously decided to not pay employees the annual leave loading on their fifth and sixth weeks of annual leave each year. However, I accept Ms Smith’s evidence that she misunderstood the relevant award, and that she would not have established a system whereby the respondent underpaid the applicant and other staff if she had obtained sound legal advice.
h. whether senior management was involved in the breach
Ms Smith was involved in the breach. She was in a senior management role in human resources. Her decision to not pay annual leave loading on the fifth and sixth weeks of annual leave each year was accepted by the relevant senior people employed by the respondent: paragraph 11 of Ms Smith’s affidavit.
contrition, corrective action and co-operation with the authorities
In her affidavit, Ms Smith apologised on her own behalf and separately apologised on behalf of the respondent. She said that the amount owing to the applicant would be paid. She said that the respondent’s payroll software had been corrected to ensure that all staff would be paid their annual leave loading correctly. I accept that Ms Smith and, through her, the respondent are genuinely contrite, and that corrective action has been, or soon will be, taken.
There were no authorities involved in this case, apart from the court. The applicant brought the proceeding herself. The respondent did not entirely cooperate with the court, in the sense that the respondent did not concede the point about annual leave loading and required the court to conduct a hearing and write a judgment about that issue, among others.
The respondent sought to shift responsibility to the applicant, by saying that she inaccurately claimed that she had not been paid any annual leave loading, when in fact she was not paid annual leave loading for only her fifth and sixth weeks of annual leave each year. However, notwithstanding that error on the applicant’s part, which she conceded at the commencement of the trial, the respondent at any time could have conceded the legal point, and narrowed the issues before the court.
The annual leave loading issue was a relatively minor point, and did not occupy a large amount of the time the court spent on this case. However, the respondent cannot claim that it fully cooperated with the authorities in circumstances where it did not concede a legal point, which, with the benefit of hindsight, must now appear fairly obvious.
Similarly, the respondent’s contrition must be seen in the context of no apology or corrective action being taken until after the court had handed down its judgment. This is not a case where, as soon as the underpayment was pointed out, the respondent immediately apologised and took corrective action.
j. the need to ensure compliance with minimum standards
In a sense, the respondent in this case breached the applicant’s minimum entitlements, in that her minimum entitlement included a 17.5% loading on annual leave. On the other hand, the respondent voluntarily gave the applicant an extra two weeks paid annual leave each year, which is well above minimum entitlements.
k. the need for specific and general deterrence
In relation to specific deterrence, Gray J observed in Plancor Pty Ltd v Liquor, Hospitality and Miscellaneous Union (2008) 171 FCR 357; (2008) 177 IR 243; [2008] FCAFC 170 at [37] that:
… Specific deterrence focuses on the party on whom the penalty is to be imposed and the likelihood of that party being involved in a similar breach in the future. Much will depend on the attitude expressed by that party as to things like remorse and steps taken to ensure that no future breach will occur. …
The applicant conceded that the need for specific deterrence in this case is low. In my view, it is negligible. The respondent appears to have had a previously unblemished record. It seems very unlikely that the respondent would make a similar mistake in the future, much less deliberately underpay staff.
In relation to general deterrence, Lander J noted in Ponzio v B & P Caelli Constructions Pty Ltd (2007) 158 FCR 543; (2007) 162 IR 444; [2007] FCAFC 65 at [93]:
… In regard to general deterrence, it is assumed that an appropriate penalty will act as a deterrent to others who might be likely to offend. The penalty therefore should be of a kind that it would be likely to act as a deterrent in preventing similar contraventions by like minded persons or organisations. If the penalty does not demonstrate an appropriate assessment of the seriousness of the offending, the penalty will not operate to deter others from contravening the section. However, the penalty should not be such as to crush the person upon whom the penalty is imposed or used to make that person a scapegoat. In some cases, general deterrence will be the paramount factor in fixing the penalty…(citations omitted)
Similarly, in Community and Public Sector Union v Telstra Corporation Limited (2001) 108 IR 228 at 230-231; [2001] FCA 1364, Finkelstein J said:
… even if there be no need for specific deterrence, there will be occasions when general deterrence must take priority, and in that case a penalty should be imposed to mark the law's disapproval of the conduct in question, and to act as a warning to others not to engage in similar conduct ….
The respondent relied on Australian & International Pilots Association v Qantas Airways Ltd [2009] FCA 500 at [10], where it was said that:
As for general deterrence, the mitigating factors are such that little purpose would be served by imposing a financial penalty. It certainly is not the case that, in every situation a party can insist on a construction of a provision of an award or certified agreement, later found to be unsustainable, and avoid the imposition of a financial penalty. Nevertheless there are cases where the adoption of a construction that is fairly open permits a court to say that the imposition of a financial penalty would not be appropriate. The special feature of this case is that both parties at the relevant time had taken the position that the relevant provisions of EBA6 were not legally enforceable, because they were non-pertaining pursuant to the Electrolux judgment. In those circumstances, it seems to me, that no purpose of general deterrence would be served by the imposition of a financial penalty.
Qantas is readily distinguishable, because the present case does not contain the special feature of that case, namely, that both parties had agreed that the relevant provision was unenforceable. There was no common ground about the provision in issue in the present proceeding. It is beside the point that the applicant did not agitate the issue until the proceedings were commenced.
The respondent also relied on Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Telstra Corporation Ltd [2007] FCA 1607 where Gordon J, sitting in the Federal Court, said that:
13Before moving to apply these considerations to the facts set out in the Primary Reasons, two further points must be made. First, the Court has a discretion whether or not to impose a penalty: s 719 of the WR Act and see also Australasian Meat Industry Employees’ Union v Australia Meat Holdings (1998) 82 IR 76 at 78 and Victoria University of Technology v Australian Education Union (1999) 91 IR 96 at [33] (which considered the discretion to impose penalty under s 178 of the WR Act prior to substantial amendments to the WR Act in 2005). In other words, there is no principle that a Court must, in all cases of proven breach, impose a penalty: Victoria University of Technology v Australian Education Union (1999) 91 IR 96 at [33].
…
18As the Primary Reasons demonstrate, the breaches arose out of a dispute and disputable construction of the 2005 Enterprise Agreement and the TRA. Neither breach was flagrant, wilful or deliberate. Amendments to the WR Act increasing the penalty for breaches of industrial instruments arising out of unlawful industrial conduct indicate a legislative desire to deter and discourage such conduct. These changes in industrial law have led to general deterrence being referred to as the “most significant factor” in determining the applicable penalty: see Finance Sector Union v Commonwealth Bank of Australia (2005) 224 ALR 467 at [60], [72]. Where the unlawful conduct arises out of an arguable but erroneous construction of a relevant term, and the subsequent breach cannot be characterised as demonstrating a flagrant or wilful disregard for the agreement, this legislative purpose is not furthered by imposition of a penalty. In these circumstances, neither general nor specific deterrence is a significant factor weighing in favour of imposing a penalty. Moreover, Mr McDonald has been fully compensated for the loss suffered as a result of the breach. I do not consider that the circumstances in which the conduct took place warrant the Court exercising its discretion to impose a penalty on Telstra.
Whether Telstra applies to the present case depends on whether the respondent’s defence of the annual leave loading point in this proceeding was arguable. In my view, it was only very faintly arguable. If the annual leave loading point had not been clouded by the numerous other points raised in the proceeding, I dare say that, properly advised, the respondent would have conceded it. Therefore, I also consider that Telstra is distinguishable.
In my view, in all the circumstances of this case, some level of general deterrence is required.
Other issues
This is not a case where a discount for admissions is appropriate, because there were no admissions.
In Mornington Inn Pty Ltd v Jordan (2008) 168 FCR 383; (2008) 247 ALR 714; (2008) 171 IR 455; [2008] FCAFC 70, Stone and Buchanan JJ held at [75]:
A conventional consideration in assessing a discount in a criminal case for a plea of guilty is the stage in the proceedings at which the plea is entered. Normally, the maximum discount for this factor, sometimes thought to be 25%, is reserved for a plea made at the first reasonable opportunity …
In Fair Work Ombudsman v Bedington [2012] FMCA 1133 Jarrett FM held at [87]:
The cases indicate that a discount on the penalty to be imposed is appropriate where there has been co-operation and admissions early in the course of an investigation or soon after the commencement of proceedings. Such discounts range as high as 30% in some cases. …
The respondent sought to rely on Bell v Anglican Aged Care Services Group T/as Benetas [2017] FCCA 1050. However, that case is readily distinguishable from the present case because, in Bell, the respondent promptly admitted the breaches and paid the applicant prior to the hearing an amount greater than the claim. The respondent appeared to wish to say that it would have settled the claim if the applicant had been more reasonable. However, the fact is that the respondent could have conceded the point on which the applicant was ultimately successful, regardless of the applicant’s position on the matter.
The respondent also sought to rely on Tindall v Goulbourn Valley (No. 2) [2017] FCCA 2112, where Judge Hartnett, as her Honour then was, said:
21.The difficulty for the Respondent in these proceedings was that the Applicant continued until after the commencement of the trial to pursue a claim that was beyond the six year limitation as provided for by s.545(5) of the Act, and in circumstances where the Applicant knew or ought to have known the Court had no jurisdiction to entertain such a claim. Furthermore, the Applicant was advised of same by the Respondent prior to the issue of proceedings. The Applicant was not deterred.
22.In these circumstances, and given the nature of the Applicant’s claims which in the main, sought a motor vehicle allowance to travel between her residence and her place of work and home again, a claim that has been rejected by the Full Court on appeal, the Respondent was afforded no opportunity to engage in any dialogue to resolve the matter.
While it is permissible for parties to put an agreed position on penalty to the court, the court must make its own decision on the applicable penalty. In the present case, the applicant conceded at the commencement of the trial that she had received annual leave loading for four weeks annual leave each year. The only issue remaining, in relation to annual leave loading, was whether it was payable for the applicant’s additional two weeks of annual leave each year. The respondent could easily have conceded that point at the commencement of the trial, regardless of the applicant’s position on the other issues that remained for the court’s determination. It was simply not the case that the respondent could have reached a global settlement, or made no concessions at all.
Step 4: the appropriate penalty
There was no dispute that the maximum penalty for the respondent in this case is $63,000.
The applicant submitted that there were 13 breaches, and a 20% penalty should be imposed for each breach, making a total penalty of $163,800. In the alternative, the applicant submitted that, if the court considered that there was only one breach, then a 75% penalty should be imposed, making a total penalty of $47,250.
The respondent submitted that there should be no penalty at all for the respondent. In the alternative, the respondent submitted that the penalty should be no more than $1,500.
In my view, the appropriate penalty in this case is 15% of the maximum, or $9,450. That is primarily because:
a)the respondent’s position was only faintly arguable;
b)the respondent did not make any admissions;
c)the underpayment continued for a period of six years[7];
d)there is some need for general deterrence;
e)there is a negligible need for specific deterrence;
f)the breach was the result of a single error in interpreting an award;
g)the respondent is most unlikely to make a similar error in the future;
h)the respondent is now contrite, but only after judgment was delivered;
i)the respondent has taken corrective action, as far as the applicant is concerned for past underpayments and as far as other employees are concerned for future annual leave[8]; and
j)the respondent has a previously unblemished record.
[7] It was probably longer, but the limitation period is six years.
[8] It was unclear whether the respondent plans to give back pay to other affected employees.
Step 5: the totality principle
The check that is required by the totality principle does not strictly apply in this case, because there was only one breach. In any event, I consider that the penalty I have stated is proper, in view of the whole of the respondent’s contravening conduct.
To whom the penalty should be paid
The applicant asked that the penalty be paid to her, pursuant to s.546(3) of the Act. The respondent did not oppose that. It is entirely appropriate.
Conclusion
There will be orders accordingly.
I certify that the preceding sixty-seven (67) paragraphs are a true copy of the reasons for judgment of Judge Riley
Associate:
Date: 22 April 2020
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