BIRCH v Bass Strait Oysters Pty Ltd
[2016] FCCA 191
•5 February 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BIRCH v BASS STRAIT OYSTERS PTY LTD & ANOR | [2016] FCCA 191 |
| Catchwords: INDUSTRIAL LAW – Fair work – undefended – contraventions of the Fair Work Act 2009 (Cth) – vulnerable employee – declarations made – compensation ordered – penalty determined – payable to the Applicant. |
| Legislation: Fair Work Act 2009 (Cth), ss.45, 48, 323(1), 535(2), 536(2), 546(2), 546(3),550, 570, 570(2) Fair Work Regulations 2009 (Cth) |
| Kelly v Fitzpatrick [2007] FCA 1080 Sayed v Construction, Forestry, Mining and Energy Union [2015] FCA 338 |
| Applicant: | HONNEE BIRCH |
| First Respondent: | BASS STRAIT OYSTERS PTY LTD (ACN 152 357 303) |
| Second Respondent: | JEREMY BONIS MULLER |
| File Number: | MLG 1060 of 2015 |
| Judgment of: | Judge Hartnett |
| Hearing date: | 25 January 2016 |
| Orders made: | 25 January 2016 & 5 February 2016 |
| Delivered at: | Melbourne |
| Delivered on: | 5 February 2016 |
REPRESENTATION
| Counsel for the Applicant: | Mr Hull |
| Solicitors for the Applicant: | Peter Hull & Associates |
| The Respondents: | No appearance |
ORDERS MADE ON 25 JANUARY 2016
THE COURT DECLARES THAT:
The First Respondent contravened s.45 of the Fair Work Act 2009 (Cth) (“the Act”) in that it:-
(a)failed to inform the Applicant of the terms of her engagement in breach of cl.10.2 of the Fast Food Industry Award 2010 (Cth) (“the Award”);
(b)failed to inform the Applicant of her classification under the Award in breach of cl.16.1 of the Award;
(c)failed to pay the Applicant the minimum rate payable to her as an adult, Level 1 casual employee for ordinary hours worked from Monday to Friday in breach of cls.13.2 and 17 of the Award;
(d)failed to pay the Applicant an additional 25% for work on Saturdays in breach of cl.25.5(b) of the Award; and
(e)failed to make any superannuation contributions to a superannuation fund for the benefit of the Applicant in breach of cl.21.2 of the Award.
The First Respondent contravened sub-s.323(1) of the Act by deducting $60 from the Applicant’s pay for the pay week, ending 8 October 2014, without the Applicant’s consent or authority where the deduction was not otherwise a permitted deduction under s.324 of the Act.
The First Respondent contravened sub-s.535(2) of the Act by failing to make or keep proper employee records that contained the information prescribed by sub-regs.3.32(a) and (c) – (f) inclusive; 3.33(3)(c) and (d); 3.34; 3.37 and 3.40 of the Fair Work Regulations 2009 (Cth) (“the Regulations”).
The First Respondent contravened sub-s.535(2) of the Act by failing to give the Applicant pay slips that included information prescribed by sub-regs.3.46(1)(a), (f) and (h); 3.46(2) and 3.46(5) of the Regulations.
The First Respondent contravened either sub-reg. 3.43(3) or 3.43(4), according to the location where it kept its employee records with respect to the Applicant, by failing to make copies of those records available, for inspection and copying on request on behalf of the Applicant.
The Second Respondent was involved in each of the contraventions listed in paragraphs 1 to 5 above pursuant to s.550 of the Act.
THE COURT ORDERS THAT:
Service be deemed to have been effected upon the First Respondent and further service upon the First Respondent is dispensed with.
With respect to the contraventions declared in paragraphs 1(c), 1(d) and 1(e), the First Respondent pay the Applicant compensation pursuant to s.545(2)(b) of the Act in the sum of $3,531.15 within 30 days of this Order.
The First Respondent pay pre-judgment interest on the compensation ordered in order 2 above pursuant to s.547(2) of the Act in the sum of $286.12 within 30 days of this Order.
AND THE COURT NOTES THAT:
A.With respect to the contraventions declared in paragraphs 1 to 5, and pursuant to s.546(1) of the Act, judgment is reserved as to any pecuniary penalties that may be imposed and costs.
ORDERS MADE ON 5 FEBRUARY 2016
The First Respondent pay a penalty in the amount of $30,000 pursuant to s.546(1) of the Fair Work Act 2009 (Cth) (‘the Act’) for the contraventions set out in the declarations made on 25 January 2016.
The Second Respondent pay a penalty in the amount of $20,000 pursuant to s.546(1) of the Act for the contraventions set out in the declarations made on 25 January 2016.
Pursuant to s.546(3)(c) of the Act, the First Respondent pay the penalty amount to the Applicant.
Pursuant to s.546(3)(c) of the Act, the Second Respondent pay the penalty amount to the Applicant.
There be no order as to costs.
The proceedings are otherwise dismissed.
The Applicant have liberty to apply on 28 days’ notice in the event that any of the orders are not complied with.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 1060 of 2015
| HONNEE BIRCH |
Applicant
And
| BASS STRAIT OYSTERS PTY LTD (ACN 152 357 303) |
First Respondent
| JEREMY BONIS MULLER |
Second Respondent
REASONS FOR JUDGMENT
These proceedings commenced with the filing of an Application in the Fair Work Division in this Court, seeking orders as set out in an accompanying Statement of Claim, which contained the grounds of the application. The Application itself is dated 12 May 2015. The Statement of Claim was amended by Amended Statement of Claim filed at the hearing on 25 January 2016.
The Amended Statement of Claim contained no surprises for the First or Second Respondent, in that, the amendments included matters such as corrections of minor arithmetic errors and specification of the precise sub-regulations of the Fair Work Regulations 2009 (Cth) (‘the Regulations’) together with paragraph 7B, which is as follows:-
“In breach of clause 10.2 of the Award and thereby in contravention of section 45 of the Act, the first respondent failed to properly advise the applicant of the terms of her engagement at the time of her engagement.”
The facts that went to establishing this matter and the pleading of them were already notified to the First and Second Respondents (‘the Respondents’). The correction of arithmetical errors were likewise already notified to the Respondents, as contained in the Applicant’s Outline of Argument filed on 9 January 2016.
The Applicant relies upon her Amended Statement of Claim filed on 25 January 2016 and Application in the Fair Work Division; an Affidavit affirmed by her on 26 October 2015 and annexures marked “Annexure HB 1” to “Annexure HB 6” inclusive; the Applicant’s Outline of Argument filed on 9 January 2016, which has annexed to it a schedule entitled Underpayment Calculations; and various affidavits of service.
The Court is satisfied that the Respondents have been served with all relevant documents in this proceeding. The affidavits of service relied upon by the Applicant are as follows:-
(a)an Affidavit of Service sworn by Mr David Keen, process server, on 26 May 2015, attesting to the service upon the Second Respondent of the Application dated 12 May 2015. That service was personal service upon the Second Respondent at 22 Loch Park Road Traralgon in the State of Victoria. The conversation had between Mr Keen and the Second Respondent was as follows and occurred on 15 May 2015:-
“What is your name? The male replied Jeremy Bonis Muller. Is this the registered address for Bass Strait Oysters Pty Ltd (ACN 152 357 303)? He replied “Yes it is.”
(b)a second Affidavit of Mr Keen, process server, as to service upon the Second Respondent at 22 Loch Park Road Traralgon in the State of Victoria on 15 May 2015 of the Application with notice of filing and hearing and the Statement of Claim with notice of filing both dated 12 May 2015;
(c)an Affidavit of Service, sworn by Mr Peter Hull, lawyer for the Applicant affirmed on 19 January 2016 as to postal service upon the Second Respondent on 29 October 2015 of the Affidavit of the Applicant affirmed on 26 October 2015;
(d)an Affidavit of Service sworn by Mr Hull, lawyer for the Applicant, as to service on 11 January 2016 upon the Second Respondent, personally and as director of the First Respondent, of the Applicant’s Outline of Submissions. Such service was effected as follows:-
“I delivered the outline of submissions in a sealed envelope addressed to second respondent Jeremy Muller at 22 Loch Park Road Traralgon Victoria 3844 on 11 January 2016 at about 6:40 pm. No one was at home. I left the envelope under the front door.”; and
(e)an Affidavit of Service sworn by Mr Hull, lawyer for the Applicant, as to service on 18 January 2016 upon the Second Respondent, personally and as director of the First Respondent, of the Court Book by postal service to 22 Loch Park Road Traralgon in the State of Victoria.
Tended in evidence before the Court by the Applicant at the hearing was the Australian Securities and Investment Commission current and historical company extract of Bass Strait Oysters Pty Ltd, Australian Company Number 152 357 303, with the search date being 24 January 2016. That extract notes that the First Respondent’s current registered address is 22 Loch Park Road Traralgon in the State of Victoria. That registered address commenced on 21 July 2015. That extract also notes that the Second Respondent is the sole director, secretary and shareholder of the company. In practical terms, he is the business owner.
The Court is satisfied that the Second Respondent has been served with all the relevant documents in the proceedings. The Court is also satisfied that the First Respondent has been so served by virtue of the service of all documents upon the Second Respondent and both deems service has been effected upon the First Respondent and finds no further service is required to be effected upon the First Respondent.
The matter proceeded before Registrar Luxton on 5 June 2015 and 24 August 2015. By Orders made 5 June 2015, the Respondents were to file and serve a notice of address for service and a defence by 3 July 2015. The Respondents have failed to comply with those Orders.
0n 5 June 2015, the matter was referred to a Registrar for mediation. On 24 August 2015, the mediation date of 26 August 2015 was vacated. The Respondents had still failed to file and serve any defence and were given a further opportunity to do so, and until 30 September 2015. The Respondents have failed to file and serve a defence in accordance with the Orders.
No material has been filed by the Respondents. No lawyer has represented the First Respondent company and there has been no representation by a lawyer for of the Second Respondent, nor has the Second Respondent appeared as a litigant in person.
The Applicant’s case is as set out in her Amended Statement of Claim filed on 25 January 2016.
History
From on or about 8 August 2014 to on or about 10 October 2014 (‘the employment’), the Applicant was employed by the First Respondent to attend on customers at a retail seafood and takeaway food business (‘the business’).
At all material times, the business at which the Applicant was employed:-
(a) was named Bass Strait Seafood;
(b) was owned and operated by the First Respondent, and
(c) was situated at Shop 33 Stockland Plaza Traralgon in the State of Victoria.
In addition to the Second Respondent being the sole shareholder, director and secretary of the First Respondent, the Second Respondent managed and controlled the business for the First Respondent. He had actual knowledge of the factual matters which comprise the contraventions of the First Respondent.
Pursuant to s.48 of the Fair Work Act 2009 (Cth) (‘the Act’), the Fast Food Industry Award 2010 (‘the Award’) covered the Applicant and the First Respondent. Pursuant to sch.B of the Award, the applicable classification for the work the Applicant performed was “Fast Food Employee Level 1”.
In breach of cl.10.2 of the Award and thereby in contravention of s.45 of the Act, the First Respondent failed to properly advise the Applicant of the terms of her engagement at the time of her engagement.
In breach of cl.16.1 of the Award and thereby in contravention of s.45 of the Act, the First Respondent failed to advise the Applicant of her classification under the Award.
In breach of s.45 of the Act, the First Respondent failed to pay the Applicant at the rate prescribed under the Award for an adult Level 1 casual employee for ordinary hours worked Monday to Friday, which rate was $23.15 per hour:-
a)except for the pay weeks ending 20 August 2014 and 15 October 2014, the Applicant was paid $15.71 per hour for all hours worked;
b)for the pay week ending 20 August 2014, the Applicant was paid $15.42 per hour for all hours worked; and
c)for the pay week ending 15 October 2014, the Applicant was not paid for any of the hours she worked.
In breach of s.45 of the Act, the First Respondent failed to pay the Applicant an additional 25 per cent for work on Saturdays, pursuant to cl. 25.5(b) of the Award:-
a)the minimum award rate payable to the Applicant for Saturday work was $28.94 per hour;
b)the Applicant worked on nine Saturdays during the employment; and
c)the Applicant worked for about nine hours on each Saturday she worked.
In breach of sub-s.323(1) of the Act the First Respondent failed to pay the Applicant in full for work she performed for the pay week ending 8 October 2014 by deducting $60 for “Misconduct” and for the pay week ending 15 October 2014 by failing to pay the Applicant at all:-
a)a yellow “sticky note” was attached to the pay slip for the pay week ending 8 October 2014 with the following words written on it:-
“Staff neg -$60 x 2 missed customers x 1 misconduct.”
This pay slip was given to the Applicant on 10 October 2014 and she sought an explanation about the $60 deduction. She was informed by the Second Respondent that the deduction consisted of three deductions of $20 each; two for failing to serve customers within 30 seconds; and the other for alerting another member of staff who had temporarily left her workplace to talk to a friend that the First Respondent’s wife was approaching, and that she was at risk of being discovered. The Applicant did not authorise or agree to this $60 deduction from her pay.
As a consequence of the above matters, the Applicant was underpaid a total of $3,531.14, being $2,883.89 for wages and $647.25 for superannuation. Pursuant to cl.21.2 of the Award, for the period of the employment, the Applicant was entitled to have superannuation contributions made by the First Respondent. The amount of $647.25 is 9.5 per cent of the total amount that was payable to the Applicant for her ordinary hours of work, including work on Saturdays, calculated on the minimum rates payable under the Award. The failure of the First Respondent to make any superannuation contributions to a superannuation fund for the benefit of the Applicant was a breach of s.45 of the Act.
Interest on the total underpayment sum of $3,531.14 from 10 October 2014 to 25 January 2016. The total compensation to which the Applicant is entitled for the underpayment including interest is $3,817.26.
In breach of sub-s.535(2) of the Act, the First Respondent failed to make and keep employee records that included information prescribed by the Regulations:-
a)the employee records made and kept by the First Respondent failed to specify, either correctly or at all:-
i)the employer’s name;
ii)whether the employment was full-time or part-time;
iii)whether the employment was permanent, temporary, or casual;
iv)the date on which the employment began;
v)the Australian Business Number of the First Respondent as the employer;
vi)the details of the 25 per cent loading the Applicant was entitled to be paid as a casual employee;
vii)the details of the 25 per cent penalty rate the Applicant was entitled to be paid for work on Saturdays;
viii)the hours the Applicant worked on Saturdays and when the Applicant started and finished that work;
ix)information with respect to superannuation contributions; and
x)information concerning the termination of the employment.
In breach of sub-s.536(2) of the Act, the First Respondent failed to give the Applicant payslips that included information prescribed by the Regulations:-
a)the payslips the First Respondent gave the Applicant failed to correctly specify:-
i)the employer’s names as required; or
ii)the Australian Business Number of the employer as required;
b)no payslip was given to the Applicant for the pay week ending 15 October 2014. A payslip for this period was included with the employee records that were provided to the Applicant’s lawyer on 27 January 2015. This document falsely recorded payments to the Applicant. The Applicant was not paid at all for the work she performed for this period;
c)the payslips given to the Applicant falsely record employer superannuation contributions to REST Superannuation for the Applicant’s benefit, in breach of sub-reg.3.46(5) of the Regulations. No superannuation contributions were made for the Applicant’s benefit; and
d)the payslip given to the Applicant for the pay week ending 8 October 2015 does not record the $60 deduction made from the Applicant’s pay and in breach of sub-reg.3.46(1)(f) and 3.46(2) of the Regulations.
In breach of sub-reg.3.42 of the Regulations, the First Respondent failed to make a copy of the employee records it made and kept concerning the employment to the Applicant for inspection and copying:-
a)by letter from her lawyer to the Second Respondent dated 27 November 2014, sent to him that day, the Applicant asked that the employee records kept with respect to the employment be made available for inspection and copying; and
b)copies of the employee records made and kept by the First Respondent were not made available to the Applicant until 27 January 2015, when they were sent by email to the Applicant’s lawyer by Employsure Pty Ltd, acting for the First Respondent.
By his conduct during the Applicant’s employment and subsequently in response to her claims for restitution, the Second Respondent demonstrated a disregard of the lawful obligations the company he alone controlled had, to the Applicant, as her employer.
By his conduct, the Second Respondent personally caused each of the contraventions described in these Reasons for Judgment and was thereby involved within in the meaning of s.550 of the Act in each contravention of a civil remedy provision.
Consideration of factors
A non-exhaustive list of factors relevant to the imposition of a penalty was usefully summarised by Mowbray FM (as he then was) in Mason v Harrington Corporation Pty Ltd t/as Pangaea Restaurant & Bar.[1] Those factors include:-
[1] [2007] FMCA 7 at [26] to [59].
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 Respondents;
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, taken corrective action and co-operated with the enforcement authorities;
j)the need to ensure compliance with minimum standards by provision of an effective means for investigation and enforcement of employee entitlements; and
k)the need for specific and general deterrence.
This summary was adopted by Tracey J in Kelly v Fitzpatrick.[2] While the summary is a convenient checklist, it does not prescribe or restrict the matters which may be taken into account in the exercise of the Court’s discretion.[3] The discretion remains at large.
[2] [2007] FCA 1080 at [14].
[3] Sharpe v Dogma Enterprises Pty Ltd [2007] FCA 1550.
The factors which are material to this matter and the question of appropriate penalties are addressed below. What the Court needs to determine is an appropriate penalty proportionate to the gravity of the contravention.
The Applicant is 23 years of age. She has two children who are aged three years and approximately seven months. She is currently in receipt of Centrelink benefits. She is the sole source of financial support for herself and her children.
The period of the Applicant’s employment with the First Respondent was one of only nine weeks. The Applicant was especially vulnerable because of her difficult financial position. The income that she earned, as an employee working ordinary weekly hours for the minimum rates payable under the Award, was small. The First Respondent paid her just 53 per cent of the minimum remuneration she was lawfully entitled to receive as a Level 1 employee. This was aggravated by the First Respondent’s poor recording keeping practices. Further, the First Respondent sought to mislead the Applicant as to payments of superannuation monies on her behalf and in fact made no such payments. This conduct occurred in circumstances where the Applicant was a vulnerable person. No rectification of the underpayments was made by the First Respondent. No admissions have been made by either Respondent.
The Applicant attempted to resolve this matter with the Respondents so as to avoid litigation. No meaningful response was received by either Respondent. The Respondents have failed to partake in the proceedings. The treatment of a vulnerable employee requires both specific and general deterrents.
It is well-established that the need for specific and general deterrence is a factor that is relevant to the imposition of a civil penalty.[4] In Ponzio v B & P Caelli Constructions Pty Ltd Lander J. said:-
“The penalty must recognise the need for deterrence, both personal and general. In regard to personal deterrence, an assessment must be made of the risk of re-offending. 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: Yardley v Betts (1979) 22 SASR 108. 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.”[5]
[4] Workplace Relations Act 1996 (Cth), s.3, Fair Work Act 2009 (Cth), s.3.
[5] [2007] FCAFC 65 at [93].
The financial circumstances and size of the First Respondent’s business is unknown to the Court. The behaviour of the Respondents warrants a meaningful penalty as a specific deterrence. The behaviour described above is worthy of significant reprimand.
There is no apology and no acceptance of responsibility by the Respondents. There is also, at trial, no payment of monies owed to the Applicant. The treatment of the Applicant by the Respondents is very poor and there is a need, in the industry in which the Respondents operate, to provide a penalty sum that shall operate as a general deterrence in that industry. Had the Applicant remained employed by the First Respondent the underpayment sum would have continued to grow. It is relatively small, although not to the Applicant herself, because the Applicant left the employment after a matter of weeks.
Totality Principle
In Kelly v Fitzpatrick, Tracey J. said:-
“30 Another factor which must be taken into account in the fixing of pecuniary penalties for multiple breaches of statutory stipulations is the totality principle. This principle is designed to ensure that the aggregate of the penalties imposed is not such as to be oppressive or crushing. Different views have been expressed as to the manner in which the principle ought properly to be applied. On one view the starting point should be the determination of an appropriate total penalty. That figure would then be divided by the number of breaches to produce a penalty for each breach: see CPSU v Telstra Corporation Limited [2001] FCA 1364; (2001) 108 IR 228 at 230[7]. The orthodox position, however, which I consider should be adopted, is that the starting point is the determination of appropriate penalties for each contravention of the statutory norm. The aggregate figure is then considered with a view to ensuring that it is an appropriate response to the conduct which led to the breaches: see Australian Competition and Consumer Commission v Australian Safeway Stores Pty Ltd (1997) 145 ALR 36 at 53. See also Ponzio v B & P Caelli Constructions Pty Ltd [2007] FCAFC 65 at [145] per Jessup J. This approach was recently described, in the criminal context from which the totality principle is derived, as "the orthodox, but not necessarily immutable, practice" adopted by sentencing courts: see Johnson v R [2004] HCA 15; (2004) 205 ALR 346 at 356[26] per Gummow, Callinan & Heydon JJ.”[6]
[6] [2007] FCA 1080 at [30].
The maximum penalty prescribed by the Act insofar as the penalty applies to a natural person at the relevant time was $10,200 (60 penalty units)[7] for a single contravention of a provision. The maximum penalty prescribed by the Act insofar as the penalty applies to a body corporate at the relevant time was $51,000 (five times the maximum number of penalty units for an individual)[8] for a single contravention of a provision.[9]
[7] Fair Work Act 2009 (Cth), s.539.
[8] Fair Work Act 2009 (Cth), s.546(2)(b).
[9] Note: A “penalty unit” means the amount of $170 pursuant to s.4AA of the Crimes Act 1914 (Cth), later amended by Crimes Legislation Amendment (Penalty Unit) Act 2015 (Cth).
Having regard to the matters above I consider that the appropriate penalty:-
a)for the five breaches by the First Respondent of s.45 of the Act and the single breach of sub-s.323(1) of the Act is $10,000 in respect of each (total $60,000). The appropriate penalty in respect of the remaining three breaches is $3,000 in respect of each (total $9,000);
b)for the five breaches by the Second Respondent of s.45 of the Act and the single breach of sub-s.323(1) of the Act is $5,000 in respect of each (total $25,000). The appropriate penalty in respect of the remaining three breaches is $1,500 in respect of each (total $4,500).
However, when looking to the aggregate penalties with a view of ensuring that it is an appropriate response to the conduct which led to the breaches, I propose a penalty for the First Respondent in the sum of $30,000 and the Second Respondent in the sum of $20,000.
The Applicant seeks that the First and Second Respondents jointly pay the Applicant’s costs on an indemnity basis, in the sum of $12,496. Thus, the Applicant seeks an award of costs which requires the Court to exercise the discretion conferred upon it by s.570 of the Act. However, none of the matters referred to in s.570(2) of the Act exist and the Court could not be satisfied as required by the subsection. The Respondents have simply allowed the proceeding to continue undefended. There is no evidence before the Court about any costs of the Applicant incurred unnecessarily and by reason of the conduct of the Respondents. No order for costs can be made.
The Applicant sought an order for the Respondents to be jointly and severally liable for payment of compensation, pre-judgment interest and penalties. This is not a matter for an order of the Court. The legislation makes no such provision. The legislation sets out the matters which the Court may order and to whom a penalty can be paid. In determining the amount of any pecuniary penalty, clear division is made between a person which is an individual and a person who is a body corporate as set out in s.546(2) of the Act below:-
“(2) The pecuniary penalty must not be more than:
(a) if the person is an individual--the maximum number of penalty units referred to in the relevant item in column 4 of the table in subsection 539(2); or
(b) if the person is a body corporate--5 times the maximum number of penalty units referred to in the relevant item in column 4 of the table in subsection 539(2).”
There is no formal partnership agreement. There is the primary responsibility of the First Respondent employer.
The Applicant also sought payment of any pecuniary penalty ordered to be paid to the Applicant by both the First and Second Respondents. Section 546(3) of the Act allows the Court to order that a penalty or part of a penalty, be paid to the Commonwealth, a particular organisation, or a particular person.
The Applicant has brought this proceeding in her personal capacity and borne the cost and risk of prosecution to expose the unlawful behaviour of the Respondents. She is required, because of the provision of s.570 of the Act, to pay her own legal costs. In considering this matter I have had the opportunity of being guided by the decision of Tracey, Barker and Katzmann JJ. in Sayed v Construction, Forestry, Mining and Energy Union.[10] In particular, I refer to and rely upon the following paragraphs of that judgment:-
“To the extent that the primary judge appears to have drawn a distinction, at [88][89], between a case prosecuted by a union or other representative organisation and one prosecuted by the person directly affected by the contravention(s), we fail to see how that distinction, of itself, should lead to any immediate assumption or conclusion that the individual, by contrast to an organisation, has not, or has not necessarily, incurred significant time, trouble and lost opportunity costs in maintaining the prosecution, so that in the absence of some disentitling feature, the usual order for payment of the penalty to the prosecutor is appropriate.
Furthermore, it is not apparent to us why the receipt of a penalty should not operate as an incentive to an affected person to bring a prosecution like this under the FW Act. After all, as Wilcox J noted in Finance Sector Union, it ensures the enforcement of the legislative scheme. Moreover, as Jessup J put it in Murrihy, this incentive to bring and maintain such a proceeding makes it more likely that the applicable provisions of the FW Act “will be more than mere words on the statute book”. As Gray J said in Plancor, the question of “profit” does not arise on a proper construction of the power.”[11]
[10] [2015] FCA 338.
[11] [2015] FCA 338 at [120] to [121].
I shall Order the payment of the pecuniary penalties to be made to the Applicant.
I certify that the preceding forty-three (43) paragraphs are a true copy of the reasons for judgment of Judge Hartnett
Date: 5 February 2016
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