Australian Rail, Tram and Bus Industry Union v Transit Systems West Services Pty Ltd (No 2)

The case of Australian Rail, Tram and Bus Industry Union v Transit Systems West Services Pty Ltd (No 2) involved the Union bringing proceedings against Transit Systems for underpayments made to its employees. The dispute centred on the employer's failure to comply with the copied State award and section 768AG of the Fair Work Act 2009 (Cth) by not paying the annual wage review increase under section 285. The Federal Circuit Court was tasked with determining the legal issues surrounding the calculation of underpayments, the imposition of pecuniary penalties, and whether the final orders should be postponed pending the employer's application to the Fair Work Commission.

The legal issues before the court included the accuracy of the calculations performed by the Court-appointed referee, the employer's failure to pay the wage review increase, and the appropriate quantum of pecuniary penalties to be imposed given the employer's lack of a history of contraventions and its cooperation in paying the underpayments once the matter was brought to its attention. The court had to consider the principles set out in Commonwealth v Director, Fair Work Building Industry Inspectorate, which highlighted the differences between civil penalty proceedings and criminal prosecutions. The court noted that the primary purpose of a civil penalty is protective, aiming to deter repetition by the contravenor and others.

The court determined that the referee had made a calculation error in her initial assessment of underpayments. The court ordered a supplementary report from the referee to correct the error and recalculate the underpayments. Regarding the penalty, the court took into account the employer's contrition, good industrial law history, and cooperation in paying the underpayments once the matter was brought to its attention. The court concluded that the employer's single, minor transgression did not warrant severe penalties, given its otherwise good conduct.

The court made orders for the parties to confer and file draft orders to give effect to the reasons for judgment on or before 14 April 2022. The final orders were to be entered in accordance with Rule 39.32 of the Federal Court Rules 2011.