Construction, Forestry and Maritime Employees Union v Griffiths Cranes Pty Ltd
[2023] FedCFamC2G 1219
•20 December 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Construction, Forestry and Maritime Employees Union v Griffiths Cranes Pty Ltd [2023] FedCFamC2G 1219
File number(s): SYG 219 of 2023 Judgment of: JUDGE D HUMPHREYS Date of judgment: 20 December 2023 Catchwords: FAIR WORK – Fair Work Act – Pecuniary penalty – determination of penalty – Contravention – Enterprise agreement Legislation: Fair Work Act 2009 (Cth) ss 44, 50,117,546, 550, 562
Federal Circuit and Family Court of Australia Act 2021
(Cth) s 141
Cases cited: Australian Building and Construction Commissioner v Pattinson [2022] HCA 13
Australian Ophthalmic Supplies Pty Ltd v McAlary‑Smith (2008) 165 FCR 560
Canturi v Sita Coaches Pty Ltd (2002) 116 FCR 276
Canturi v Sita Coaches Pty Ltd [2002] FCA 349
Fair Work Ombudsman v NSH North Pty Ltd t/as New Shanghai Charlestown (NSH) [2017] FCA 1301
Fair Work Ombudsman v Nobrace Centre Pty Ltd (in Liquidation) [2019] FCCA 2979
FWO v Grouped Property Services Pty Ltd (No 2) [2017] FCA 557
Mason v Harrington Corporation Pty Ltd [2007] FMCA 7
1 Mornington Inn Pty Ltd v Jordan (2008) 168 FCR 383; [2008] FCAFC 70
Seven Network (Operations) Pty Ltd v Communications, Electrical, Electronic, Energy Information, Postal Plumbing and Allied Services Union of Australia (CEPU) (2001) 110 IR 372
Division: Division 2 General Federal Law Number of paragraphs: 53 Date of last submission/s: 15 December 2023 Date of hearing: 15 December 2023 Place: Parramatta Counsel for the Applicant: Mr Boncardo Solicitor for the Applicant: Ms Charlson Counsel for the Respondents: Mr Britt Solicitor for the Respondents: Mr Daniele ORDERS
SYG 219 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: CONSTRUCTION, FORESTRY AND MARITIME EMPLOYEES UNION
Applicant
AND: GRIFFITHS CRANES PTY LTD TRADING AS BOTANY CRANES & FORKLIFT SERVICES & ANOR
First Respondent
DAMIAN GRIFFITHS
Second Respondent
ORDER MADE BY:
JUDGE D HUMPHREYS
DATE OF ORDER:
20 DECEMBER 2023
THE COURT ORDERS THAT:
1.A declaration be made pursuant to s 562 of the Fair Work Act 2009 (Cth) (FW Act) and/or s 141 of the Federal Circuit and Family Court of Australia 2021 (Cth) that:
(a)Griffiths Cranes Pty Ltd trading as Botany Cranes & Forklift Services contravened s 44 of the FW Act on 27 April 2021 by terminating the employment of Martin Astrup contrary to s 117 of the FW Act by failing to provide Mr Astrup with the minimum period of notice or payment in lieu of notice required by s 117 of the FW Act, being 4 weeks;
(b)Griffiths Cranes committed a single contravention s 50 of the FW Act, by reason of it committing the following contraventions of the Griffiths Cranes Pty Ltd t-as Botany Cranes & Forklift Services / CFMEU Collective Agreement 2019 (Agreement), which contraventions arose out of a course of conduct for the purposes of s 557 of the FW Act and which contraventions resulted in loss and damage of $23,500 to each of Howard Byrnes, Martin Astrup and Patrick Miller:
(i)on 2 April 2020, deducting 8 hours of Howard Byrnes' accrued rostered day of entitlements to purportedly pay Mr Byrnes for his ordinary hours of work on 2 April 2020 in circumstances where its managing director Damian Griffiths had directed Mr Byrnes not to attend for work and otherwise not paying Mr Byrnes for 8 hours of work which he was ready, willing and able to perform;
(ii)on 2 April 2020, deducting 8 hours of Patrick Miller's accrued rostered day of entitlements to purportedly pay Mr Miller for his ordinary hours of work on 2 April 2020 in circumstances where its managing director Damian Griffiths had directed Mr Miller not to attend for work and otherwise not paying Mr Miller for 8 hours of work which he was ready, willing and able to perform;
(iii)on 32 occasions between 6 May 2020 and 12 March 2021, by its managing director Damian Griffiths, directing Mr Byrnes not to attend for work and deducting on each day Mr Byrnes did not attend for work in accordance with Damian Griffiths' instructions, amounts from Mr Byrnes' accrued rostered days off to purportedly pay Mr Byrnes for his ordinary hours of work on such days and otherwise not paying Mr Byrnes for 8 hours of work which he was ready, willing and able to perform on such days;
(iv)on 12 occasions between 2 August 2020 and 8 March 2021, by its managing director Damian Griffiths, directing Mr Byrnes not to attend for work until after 8AM and failing on such days when Mr Byrnes did not attend for work in accordance with Mr Griffiths' instruction until after 8AM to pay Mr Byrnes for 8 hours of work which he was ready, willing and able to perform on such days;
(v)on 26 occasions between 10 May 2020 and 22 March 2021, by its managing director Damian Griffiths, directing Mr Miller not to attend for work and otherwise deducting on each day Mr Miller did not attend for work in accordance with Damian Griffiths' instructions, amounts from Mr Miller's accrued annual leave entitlements or accrued rostered days off to purportedly pay Mr Miller for his ordinary hours of work on such days and otherwise not paying Mr Miller for 8 hours of work which he was ready, willing and able to perform on such days;
(vi)on 31 occasions between 16 April 2020 and 22 March 2021, directing Mr Miller not to attend for work until after 8AM and failing on such days when Mr Miller did not attend for work in accordance with Mr Griffiths' instruction until after 8AM, to pay Mr Miller for 8 hours of work which he was ready, willing and able to perform;
(vii)on 54 occasions between 4 May 2020 and 25 April 2021, by its managing director Damian Griffiths directing Mr Astrup not to attend for work and otherwise deducting on each day Mr Astrup did not attend for work in accordance with Damian Griffiths' instructions, amounts from Mr Astrup's accrued annual leave entitlements or accrued rostered days off to purportedly pay Mr Astrup for his ordinary hours of work on such days and otherwise not paying Mr Astrup for 8 hours of work which he was ready, willing and able to perform on such days;
(viii)on 21 occasions between 16 April 2020 and 20 April 2021, directing Mr Astrup not to attend for work until after 8AM and failing on such days when Mr Astrup did not attend for work in accordance with Mr Griffiths' instruction until after 8AM, to pay Mr Miller for 8 hours of work which he was ready, willing and able to perform;
(ix)on 7 December 2020, failing to pay Mr Miller and Mr Astrup for their ordinary hours of work when they attended the Building Industry Picnic Day;
(x)failing to pay Mr Byrnes for all hours worked by him in performing on-line site inductions;
(xi)failing to pay Mr Astrup annual leave loading on accrued but untaken annual leave when it terminated Mr Astrup's employment;
(xii)failing, on a number of occasions in 2020-2021, to make superannuation contributions for Mr Byrnes, Mr Astrup and Mr Miller's respective benefits amounts equivalent to the superannuation guarantee levy as prevailed from time to time in respect to all ordinary time earnings of Mr Byrnes, Mr Astrup and Mr Miller;
(c)Damian Griffiths was directly knowingly concerned in Griffiths Cranes' contraventions of the Agreement for the purposes of s 550(2)(c) of the FW Act and is taken to have been involved in its single contravention of s 50 of the FW Act and to have himself committed a single contravention of s 50 of the FW Act.
2.That pursuant to s 546 of the Act, the first respondent pays a pecuniary penalty set in the amount of $30,000.00 in relation to the contravention of s44 of the Act.
3.That pursuant to s 546 of the Act, the first respondent pays a pecuniary penalty set in the amount of $30,000.00 in relation to the contravention of s50 of the Act.
4.That pursuant to s 546 and s 550(2)(c) of the Act, the second respondent pay a pecuniary penalty of $6,660.00 in relation to a contravention of s 50 of the Act.
5.Pursuant to s 546(3) of the Act, each penalty is to be paid to the applicant within 28 days of the date of these orders.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE D HUMPHREYS
INTRODUCTION
This judgement concerns the appropriate pecuniary penalties that should be imposed in circumstances where the first and second respondents admit by way of a Statement of Agreed Facts, they have committed the following contraventions pursuant to s 562 of the Fair Work Act 2009 (Cth) (“the Act”) and/or s141 of the Federal Circuit and Family Court of Australia Act 2021 (Cth).
The first respondent committed a single contravention of s 44 of the Act by terminating Mr Astrup’s employment on 27 April 2021 without providing to him the minimum period of notice or payment in lieu of notice required by s 117 of the Act. In so doing, the first respondent contravened the National Employment Standard contained at s 117 of the Act and therefore s 44 of the Act. This resulted in loss to Mr Astrup of $6,262.91 inclusive of superannuation.
The first respondent committed a single contravention of s 50 of the Act, by reason of it committing the following contraventions:
a) On 1 April 2020, instructing Mr Byrnes and Mr Miller not to attend for ordinary hours of work and then making unlawful non-payments and deductions.
b) From 1 April 2020, from time to time directing Mr Byrnes, Mr Astrup and Mr Miller not to attend for a day’s work or to work at a commencement time after 8.00 and then making unlawful non-payments and deductions, including annual leave entitlements.
c) Failing to pay Mr Miller and Mr Astrup their ordinary hours of work on 7 December 2020 when they attended the Building Industry Picnic Day in contravention of cl 34 of the relevant Enterprise Agreement applicable to the employees.
d) Failing to pay employees including Mr Byrnes for time taken to perform on-site inductions in breach of cl 12.1 and cl 32.1 of the relevant Enterprise Agreement applicable to him.
e) Failing to pay Mr Astrup annual leave loading that applied to the value of his accrued, but untaken, annual leave on the termination of his employment in contravention of cl 22.3 of the relevant Enterprise Agreement applicable to him.
f) On several occasions in 2020 and 2021 failing to pay into a superannuation fund the amount equivalent to the superannuation guarantee levy as prevailed from time to time in respect of the ordinary earnings of Mr Byrnes, Mr Astrup and Mr Miller. In so doing the first respondent contravened cl 12.5 of the relevant Enterprise Agreement applicable to the employees.
The loss occasioned to each of Mr Byrnes, Mr Astrup and Mr Miller was $23,500.00 each.
The second respondent committed a single contravention of s 50 of the Act being involved in the above contraventions by the first respondent within the meaning of s 550(2)(c) of the Act.
In light of the admissions as set out in the Statement of Agreed Facts, the Court will make the declarations set out in the orders section of this judgement.
Following a mediation conducted by a Court Registrar the Statement of Agreed Facts was filed with the Court and all monies claimed have been paid to the affected workers, Mr Byrnes, Mr Astrup and Mr Miller.
That leaves the Court to determine the appropriate pecuniary penalties to be imposed on the first and second respondents.
THE LAW IN RELATION TO THE FIXING OF PENALTIES UNDER THE ACT
The Court has a broad discretion as to penalty. In Australian Building and Construction Commissioner v Pattinson [2022] HCA 13 (“Australian Building and Construction Commission”) at [71] it was held that the Court should fix a penalty ‘it considers fairly and reasonably to be appropriate to protect the public interest from future contraventions of the Act’. Further at [10] and [12], the High Court stated that the penalty must not exceed what is ‘reasonably necessary to achieve the purpose of s 546 of the Act: the deterrence of future contraventions of a like kind by the contravener and others’.
In Fair Work Ombudsman v NSH North Pty Ltd t/as New Shanghai Charlestown (NSH) [2017] FCA 1301 (“NSH North Pty Ltd”) Bromwich J summarised how the discretion is to be approached at [36], as follows:
[36] The written submissions in chief for the FWO helpfully outlined the approach that should be taken in determining the appropriate penalty, there being no dissent between the parties at this level of principle. Five steps were described as follows (with some adjustment of expression):
1) Identify the separate contraventions, with each breach of each obligation being a separate contravention, and each breach of a term of the Award being a separate contravention.
2) Consider whether each separate contravention should be dealt with independently or with some degree of aggregation for those contraventions arising out of a course of conduct, noting that s 557 of the Act provides that two or more contraventions of a given civil remedy provision are to be taken to be a single contravention if committed by the same person and arising out of a course of conduct by that person.
3) Consider whether there should be further adjustment to ensure that, to the extent of any overlap between groups of separate aggregated contraventions, there is no double penalty imposed, and that the penalty is an appropriate response to what each respondent did.
4) Consider the appropriate penalty in respect of each final individual group of contraventions, taken in isolation.
5) Consider the overall penalties arrived at, including by reference to those which may be proposed by the FWO (as permitted by Commonwealth v Director, Fair Work Building Industry Inspectorate [2015] HCA 46; 258 CLR 482 (CFMEU Civil Penalties Case) at [64]) and what is proposed by the respondents, and apply the totality principle, to ensure that the penalties for each respondent are appropriate and proportionate to the conduct viewed as a whole, making such adjustments as are necessary: see Kelly v Fitzpatrick [2007] FCA 1080; 166 IR 14 at [30]; Australian Ophthalmic Supplies Pty Ltd v McAlary-Smith [2008] FCAFC 8; 165 FCR 560 at [23]. [71] and [102].
The purpose of a civil penalty is primarily, if not wholly, promoting the public interest in compliance with the laws that have been contravened, and it does not engage principles of retribution or rehabilitation (see; Fair Work Ombudsman v Nobrace Centre Pty Ltd (in Liquidation) [2019] FCCA 2979 (“Nobrace”) per Kelly J at [65]. As these principles of retribution or rehabilitation are not involved in the determination of a civil penalty, this intensifies the focus of a civil penalty determination on issues of specific and general deterrence: (see; Nobrace at [66]).
The Act does not set out any mandatory criteria, inclusive or exclusive, that the Court must consider when determining whether to impose a penalty or the amount of any penalty: (see; Canturi v Sita Coaches Pty Ltd (2002) 116 FCR 276; [2002] FCA 349 (“Canturi”) at [88]). The choice of penalty must be guided by the “individual circumstances of a case, not by a line-by-line comparison with another case”: (see; Australian Ophthalmic Supplies Pty Ltd v McAlary‑Smith (2008) 165 FCR 560 (“Australian Ophthalmic Supplies”) at [12]). The process is an intuitive one by the Court and not an application of a scientific process (see; Mornington Inn Pty Ltd v Jordan (2008) 168 FCR 383; [2008] FCAFC 70 (“Mornington Inn”) at [60‑63].
In Mason v Harrington Corporation Pty Ltd [2007] FMCA 7 (“Mason”), Mobray FCM set out what is a now well accepted set of factors relevant in assessing a pecuniary penalty. They are as follows:
(i)the nature and extent of the conduct which led to the breaches;
(ii)the circumstances in which the conduct took place;
(iii)the nature and extent of any loss sustained as a result of the breaches;
(iv)whether there has been similar previous conduct by the Respondents;
(v)whether the breaches were properly distinct or arose out of one course of conduct;
(vi)the size of the business enterprise involved;
(vii)whether or not the breaches were deliberate;
(viii)whether senior management was involved in the breaches;
(ix)whether the party committing the breach had exhibited contrition;
(x)whether the party committing the breach had taken corrective action;
(xi)whether the party committing the breach had cooperated with enforcement authorities;
(xii)the need to ensure compliance with minimum standards by provision of an effective means for the investigation and enforcement of employee entitlements; and
(xiii)the need for specific and general deterrence.
Merkel J in Seven Network (Operations) Pty Ltd v Communications, Electrical, Electronic, Energy Information, Postal Plumbing and Allied Services Union of Australia (CEPU) (2001) 110 IR 372 (“Seven Network”) set out some guiding considerations for the Court at [374]:
[374] matters to be taken into account in determining the appropriate penalty include the cost of the contravention, deterrence, the flagrancy and deliberateness of the breach, the offender’s past record of behaviour and any contrition displayed by the offender.
This matter revolves around (by agreement between the parties) two admitted contraventions, each by the first and second respondents. The Court notes that the maximum penalty is $66,600.00 from 1 July 2020 for the first respondent and $13,320.00 for the second respondent.
The Court notes the conduct spanned a period where the maximum penalties increased to those set out above. Given the bulk of the contraventions occurred post 1 July 2020, the Court is of the view it is appropriate to reference any penalties with regard to the maximum after 1 July 2020: (see; FWO v Grouped Property Services Pty Ltd (No 2) [2017] FCA 557 (“FWO”).
THE EVIDENCE
An initial Affidavit from each of the affected employees, together with an Affidavit in response to the second respondent’s Affidavit were tendered to the court. The issue in dispute centres around advice given to the second respondent that directing workers not to attend work or start late and then accruing that time against annual leave or rostered days off was unlawful as it was not in accordance with the enterprise agreement.
Based on the totality of the evidence the Court is satisfied the respondents were made clearly aware of the issues with the course of action they pursued and that there was deliberate conduct in this regard.
APPLICANT’S SUBMISSIONS
On behalf of the applicant, it was submitted that Mr Byrnes was directed not to attend work on 33 occasions, Mr Miller on 27 occasions and Mr Astrup on 54 occasions during the relevant period. Further, Mr Byrnes was directed to start work later and work fewer hours on 12 occasions, Mr Miller on 31 occasions, and Mr Astrup on 21 occasions. On each occasion, the first respondent did not pay the employees when they were directed not to work, or for eight ordinary hours on the days they were directed to attend work late and not work a full eight hours. Further, amounts were deducted from each of the employees accrued rostered days off or annual leave to “pay” them for the days they were directed not to work or not to work the usual ordinary hours.
Other contraventions included failing to pay Mr Byrnes when he was required to undertake online at home inductions, paying annual leave loading to Mr Astrup on the termination of his employment or making superannuation guarantee contributions. The loss to each of the employees was significant.
It was submitted that the second respondent, being the sole shareholder of the first respondent, was told by employees and the union representatives on multiple occasions, including prior to the contravening conduct commencing, that the contravening conduct was unlawful and in breach of the agreement. In this regard, it is alleged employees often put notes on the timesheets asking that rostered days off an annual leave not be deducted.
It is alleged that the second respondent stated that he would desist from the contravening conduct but determined to persist in it and that the conduct was plainly and frequently in breach of the relevant enterprise agreement. Accordingly, it was submitted that the deliberateness of the contravening conduct was serious in nature and underscores the need for both specific and general deterrence.
It was submitted that the second respondent deliberately decided to keep permanent, long-term, and loyal employees “on the books” in circumstances where there was a downturn in business rather than making them redundant and incurring a liability to pay termination entitlements.
The temporal scope of the contraventions covers a period of more than a year, was systematic and ongoing. It comprised a course of conduct that was serious and reinforces the need of deterance.
The loss to each of the employees total some $23,500.00 with an additional amount of $6,262.91 in relation to Mr Astrup. It was submitted that this caused considerable financial difficulty to the affected employees as a result of receiving less income than they were entitled to. This caused disruption and dislocation to their lives given that they did not know when they were going to work and how much they would be paid. There was thus an element of non-financial damage to the affected workers.
The breaches involve the most senior of managers at the employer and the second respondent, Mr Griffiths, personally engage in or sanction facilitated the conduct.
It was submitted that Griffiths Cranes continues to operate a substantial business in Sydney Metropolitan area and markets itself as the ‘lead crane hire provider’. In the circumstances, it is appropriate for it to be a prime vehicle for general deterrence. It was submitted that the contraventions will not have any material impact on the company’s financial viability or financial position.
It was acknowledged that both the first and second respondent had cooperated with the applicant in agreeing to the Statement of Agreed Facts and thus avoiding the hearing on liability. As a result, they are entitled to a moderate reduction in penalty for the utilitarian value of their cooperation.
It was finally submitted that no actual contrition, for example by way of an apology to the affected workers has been demonstrated by the respondents.
It was submitted that on a penalty in the range of 85% to 90% of the maximum should be imposed on the respondents for the respective contraventions of s 50 of the Act. A penalty in the range of 50% to 60% of the maximum should be imposed on the first and second respondents for the contraventions of s 44 of the Act in relation of the failure to pay Mr Astrup is minimum entitlements on termination.
RESPONDENT’S SUBMISSIONS
On behalf of the respondents, it was accepted that any penalty imposed needed to take account of general deterrence to ensure that other employers do not breach the Act, and in particular employers in the mobile crane industry.
It was submitted however, that the need for specific deterrence in this case was significantly lessened as neither the first nor second respondents continue to work in the mobile crane industry. Thus, there was no need to deter either respondent specifically from engaging in the same contravening conduct in the future.
The respondents notes that the losses occasioned to each of the employees have been re-paid to each of the employees.
In terms of the circumstances in which the conduct took place, this involved the impact of the COVID-19 pandemic on the mobile crane industry as many small to large sized construction projects were put on hold or cancelled given the number of uncertainties, including financial, at the time.
The sudden significant decline in any new work caused a considerable drop in the availability of work for the company’s cranes.
It was submitted that the second respondent believed it was in the employees’ best interest to try to ensure that any funds generated from the small number of remaining jobs were available to be distributed evenly amongst all of the company’s employees, rather than make some 4 to 5 employees redundant. It was submitted that an approach using annual leave or rostered days off was discussed with the employees and that they were in agreement regarding the proposed arrangement until such time as work picked up. The Court does not accept this submission, given the factual findings set out above.
It is asserted that at the time of the conduct, the second respondent did not know that his conduct was unlawful. It is accepted with that, that the contravening conduct has had a non-financial impact or at least the potential for a non-financial impact on the employees concerned. However, this is no different to that which would have been occasioned had the employees been made redundant.
It was submitted that since the contravening conduct, the company has been sold to another entity and whilst the company remains registered, it is not operating in the mobile crane industry and therefore the respondents cannot engage in the same contravening conduct in the future.
As at the time of the breaches, it was submitted that the first respondent was a small company with 11 crane operators, a dog man and four administrative staff. It had one shareholder, being the second respondent. Given there is only one shareholder in the first respondent, being the second respondent, from a practical perspective any fault in the first respondent will fall directly on the second respondent.
It was submitted that this is the first occasion of any contravening conduct by the first respondent and the second respondent noting that the first respondent has been in business for seven years.
It was submitted that the admitted corrective action, cooperation and contrition shown by the Statement of Agreed Facts, and the repayment of moneys due to the employees is a matter that should be taken significantly into account. Further, the Court has been spared the necessity of the conduct of contested liability hearing.
In these circumstances, it was submitted that a penalty in the range of 20% to 30% of the maximum should be imposed on both respondents for their respective contraventions of s 50 of the Act. A penalty of 15% to 25% of the maximum should be imposed on the first respondent for its contravention of s 44 of the Act.
CONSIDERATION
Pursuant to the Statement of Agreed Facts, the Court is required to consider the appropriate penalty to be imposed in respect of two contraventions by the first respondent and a single contravention by the second respondent.
The Court is of the view that the contravening conduct was both serious and persistent. The Court does not accept that, in relation to the failure to pay and Mr Astrup, the minimum period of notice or payment in lieu of notice, upon his termination, was not other than deliberate and intentional. The requirement for the payment in lieu of notice is a matter of common knowledge.
There is a factual disagreement between the parties in relation to whether or not the second respondent was told by both employees and the applicant that the conduct in relation to directing employees not to attend work or work less than eight hours in any one day, was unlawful and in breach of the relevant enterprise agreement. The second respondent denied he was told these things. The applicants allege that the second respondent was. The Court is satisfied that the respondents were aware that their conduct was in breach of the relevant enterprise agreement and in breach of the Act. Thus, the conduct was deliberate.
The Court notes in this regard the context and temporal time frame of the contraventions. The Court accepts the submission that the second respondent made a wrong decision at a time he was grappling with serious business disruption due to the COVID-19 pandemic and its impact on the building and construction industry, and thus demand for mobile cranes.
Further the contravening conduct was directed by the second respondent, who was the sole shareholder and General Manager of the first respondent. Thus, the contravening conduct involved the most Senior Manager of the first respondent. This is an aggravating factor.
The Court notes the business can be categorised as medium in size. No evidence has been provided as to any incapacity to pay any penalty that might be imposed. While it is noted the first respondent no longer operates in the crane hire industry, the business remains an ongoing entity. The Court notes the submission that this lessens the need for a high level of specific deterrence.
The Court has taken account of the admissions made in the Statement of Agreed Facts and the utilitarian nature of those admissions, sparing the Court a defended hearing. The Court notes the corrective action taken by the first respondent in paying all monies outstanding to the affected workers. The respondents are also first offenders. These are matters of significant mitigation.
Notwithstanding these matters there is a need for a level of general deterrence that will dissuade other companies from pursuing a like course of action. That is the primary focus of pecuniary penalties.
The appropriate penalty is 50% of the maximum available for the two contraventions by the first respondent and the second respondent. This would result in penalty of $33,30.00 for each of the two contraventions of the first respondent or a total of $66,600.00 and $6,660.00 for the second respondent.
The last step in the process is to consider the principle of totality. The Court is of the view that a further reduction is warranted in relation to the penalties imposed on the second respondent of approximately 10% to reduce the overall penalty to $30,000.00 for each contravention of $60,000.00 in total.
ORDERS
In addition to the declarations sought by the applicant the Court makes the following orders:
(1)That pursuant to s 546 of the Act, the first respondent pays a pecuniary penalty set in the amount of $30,000.00 in relation to the contravention of s 44 of the Act.
(2)That pursuant to s 546 of the Act, the first respondent pays a pecuniary penalty set in the amount of $30,000.00 in relation to the contravention of s 50 of the Act.
(3)That to pursuant to s 546 and s 550(2)(c) of the Act, the second respondent pay a pecuniary penalty of $6,660.00 in relation to a contravention of s 50 of the Act.
(4)Pursuant to s 546(3) of the Act, each penalty is to be paid to the applicant within 28 days of the date of these orders.
I certify that the preceding fifty-three (53) numbered paragraphs are a true copy of the Reasons for Judgment of Judge D Humphreys. Associate:
Dated: 20 December 2023
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