Cummings, R.S. v Worbey, K. J.

[1988] FCA 187

POY STANLOI CUMMINGS

Applicant

and

~ T H L E E N JENNY WORBEX

Respondent

COURT :	NORTHROP J.
m :	31 MARCH 1988

PUCK: HOBART

Ex TEMPORE REASONS FOR JUDGMENT

The applicant brings these proceedings against the

respondent claiming the imposition of a penalty under 6.119 of the Conciliation and Arbitration Act 1904 alleging a breach of an award by the respondent. The respondent, Kathlecn Jenny Worbey, carries on business under the name Southern Cartage and Excavators and has carried on that

and Maintenance) Consolidated Award 1987. That business is

business under that name since 1981.

Southern Cartage and Excavators 1s named as an
employer bound by the Australian Workers Union (Construction

carried on in the State of Tasmania. That award, by clause

3, is binding on the employer, in this case, Kathleen Jenny Worbey, in respect of the employment of all her employees, uhether members of the Australian Horkers Union or not, in

work done in or in connection with a listed number of different types of work, including construction of roads,

freeways, general	engineering and civil engineering works.
"he respondent	is engaged in works of that kind and does

employ persons in connection with that work. Accordingly,

l

the award	applies to the respondent	with	respect to those
employees.

Clause 49 of the award provides for the keeping of

record6 and I read the subclause (a):

"The employer shall keep a record of the names of the employees of such employer and in respect of each employee a record

fortnightly of the periods times and

class of work done and the rate of wages

and amount of wages paid and shall obtain
fortnightly the signature of such

employee to such record."

In the present case I am satisfied, from the

evidence of the applicant, Roy Stanley Cumlngs, who is an inspector within the meaning of the Conciliation and Arbitration Act, that on 22 December 1987 he interviewed the respondent and during the course of that interview she

admitted to him that she did employ three persons, being the peraonm named in the application and statement of claim, namely Doug Horbey, Doug McConnon and Bruce Sullivan, and thoro pcraons vera engaged as a labourer, a plant operator

and a plant operator respectively and were employed in connection with the type of work described earlier in these reasons in the construction and maintenance of roads,

freeways and civil engineering works generally. She also

said that she did not keep time records in accordance wlth clause 49(a) but the three persons had been employed since 1 September 1987 and were still employed at the time of the interview on 22 December 1987. The reason she gave was: it is just too much trouble, there had been no worries as far as

I the employees were concerned, they did not want to sign any

time records and	she had	not kept them in	accordance wlth
clause 49.

On all the materlal I am satisfied that the

respondent has committed a breach of clause 49 of the award,

and the question arises as	to what penalty should be imposed.
I refused to admit evidence a6 to prior proceedings in	which
the respondent may	have had a penalty imposed upon her for
breaches of the award.	There was no allegation of any such
prior penalties in the statement of claim.	The respondent
did not appear at the first directions hearing at which this	matter was directed to be heard today. The respondent does
it would be unfair on the respondent to allow evidence of a matter not alleged against her in the statement of claim to be given in support of a penalty.
Under sub-section 119(1) of the Conciliation and Arbitration Act, where any person bound by an award has committed a breach or non-observance of a term of the award,
the Court may impose a penalty on that person. Sub-section

not appear today and in those circumstances I take the view

(1A) provides:-

"(U) Subject to sub-sections (1B) and

(K), where a Court finds that 2 or

more breaches sam the by

organization or person of a term of an order or award have been committed and those breaches appear to that Court to have arisen out of

a course of conduct	by
that

organization or person, those breaches shall, for the purposes of this section, tr ated be as constituting a single breach of that term. "

Sub-sections (1B) and (1C) have no application to

the facts of this case. Under sub-section (1D) the maximum penalty that may be imposed under sub-section (1) in respect of a breach of an award is, where the penalty is imposed by the Federal Court, the sum of $1000.

Sn the present case the application alleges one breach only although it relates to three different employees.

The statement of claim alleges one breach only and in those

circumstances it is not necessary to apply sub-section

119(1A). I am satisfied that a breach has occurred. It

occurred where the respondent deliberately refused or failed to keep or to observe clause 49(a) and in those circumstances this is a case where a substantial penalty should be imposed.

The maximum penalty is $1000 and I propose to impose a

penalty of $500. d

. I I ,

. 5 .

In the absence of any further order that penalty

uill be paid into the Consolidated Revenue Fund. I do not propose to make any other order, see S. 120 of the

atfon and Arbitration Act. Under that Act no order

for costs c m be made in proceedings of this kind.

Order accordingly.