Fair Work Ombudsman v A To Z Catering Solution Pty Limited (No.3)
[2018] FCCA 3574
•7 December 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| FAIR WORK OMBUDSMAN v A TO Z CATERING SOLUTION PTY LIMITED & ANOR (No.3) | [2018] FCCA 3574 |
| Catchwords: INDUSTRIAL LAW – Assessment of pecuniary penalties for contraventions of provisions of the Fair Work Act 2009 (Cth) (FW Act) and the Fair Work Regulations 2009 (Cth) – grouping of contraventions – whether s.557(1) of the FW Act is first applied to multiple contraventions before s.556 of the FW Act – pecuniary penalties assessed. |
| Legislation: Fair Work Act 2009 (Cth), ss.44, 45, 90(2), 125, 323(1)(a), 417, 421, 535, 536, 539, 546, 556, 557(1) |
| Cases cited: Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41 |
| Applicant: | FAIR WORK OMBUDSMAN |
| First Respondent: | A TO Z CATERING SOLUTION PTY LIMITED (No.2) |
| Second Respondent: | MOHAMMED MOSEEM YASIN |
| File Number: | SYG 3448 of 2014 |
| Judgment of: | Judge Manousaridis |
| Hearing date: | 9 November 2018 |
| Date of Last Submission: | 9 November 2018 |
| Delivered at: | Sydney |
| Delivered on: | 7 December 2018 |
REPRESENTATION
| Counsel for the Applicant: | Mr M Easton |
| Solicitors for the Applicant: | Office of the Fair Work Ombudsman |
| Counsel for the Second Respondents: | Mr I Latham |
| Solicitors for the Second Respondents: | Segelov Taylor Lawyers |
| No appearance by the first respondent |
THE COURT DECLARES THAT:
The second respondent was involved in the first respondent’s contraventions of s.45 of the Fair Work Act 2009 (Cth) by failing to pay at least 11 hours’ worth of Late Work to Ms Chalker during the period 1 December 2013 to 23 April 2014, in accordance with cl.29.4(a) of the Registered and Licensed Clubs Award 2010.
THE COURT ORDERS THAT:
Pursuant to s.546(1) of the Fair Work Act 2009 (Cth) (FW Act) the second respondent pay the following pecuniary penalties:
(a)$5,600 for being involved in the first respondent’s failure to pay to Ms Abdulofski the Monday-Friday rate in contravention of cl.17 and cl.29.1 of the Registered and Licensed Clubs Award 2010 (Award), and, therefore, in contravention of s.45 of the FW Act.
(b)$800 for being involved in the first respondent’s failure to pay to Ms Abdulofski and Ms Chalker the Late Work penalty rate in contravention of cl.17 and cl.29.1 of the Award and, therefore, in contravention of s.45 of the FW Act.
(c)$2,000 for being involved in the first respondent’s failure to pay to Ms Abdulofski, Ms Chalker, and Ms P Fulmer the Saturday Penalty rate in contravention of cl.17 and cl.29.1 of the Award and, therefore, in contravention of s.45 of the FW Act.
(d)$2,000 for being involved in the first respondent’s failure to pay to Ms Abdulofski, Ms Chalker, and Ms P Fulmer the Sunday Penalty rate in contravention of cl.17 and cl.29.1 of the Award and, therefore, in contravention of s.45 of the FW Act.
(e)$5,200 for being involved in the first respondent’s failure to pay to Ms Chalker, Ms P Fulmer, and Ms Busby the Monday-Friday casual rate in contravention of cl.17 and cl.29.1 of the Award and, therefore, in contravention of s.45 of the FW Act.
(f)$2,000 for being involved in the first respondent’s failure to pay to Ms Chalker the Public Holiday penalty rate in contravention of cl.17 and cl.29.1 of the Award and, therefore, in contravention of s.45 of the FW Act.
(g)$7,000 for being involved in the first respondent’s failure to make superannuation contributions so as to avoid the superannuation guarantee charge in relation to Mr Biasio, Ms Chalker, Ms P Fulmer, and Ms Busby in contravention of cl.23.2 the Award and, therefore, in contravention of s.45 of the FW Act.
(h)$5,000 for being involved in the first respondent’s failure to pay annual leave when employment ended in relation to Mr Biasio and Ms Abdulofski in contravention of cl.30(2) of the Award and s.90(2) of the FW Act and, therefore, in contravention of s.44 and s.45 of the FW Act.
(i)$6,000 for being involved in the first respondent’s failure to provide a fair work information statement to Mr Biasio, Ms P Fulmer, Ms Chalker, Ms K Fulmer, Ms Abdulofski, Ms Polsen, and Ms Busby in contravention of s.125 of the FW Act.
(j)$4,500 for being involved in the first respondent’s failure to provide payslips to Mr Biasio, Ms P Fulmer, Ms K Fulmer, Ms Chalker, Ms Abdulofski, Ms Polsen, Ms Busby, and Ms Sparks in contravention of s.536 of the FW Act.
(k)$4,500 for being involved in the first respondent’s failure to make and keep records in relation to Mr Biasio, Ms P Fulmer, Ms K Fulmer, Ms Chalker, Ms Abdulofski, Ms Polsen, Ms Busby, and Ms Sparks in contravention of s.535 of the FW Act.
(l)$2,000 for being involved in the first respondent’s failure to ensure records were not false or misleading in relation to Ms Chalker, Ms Sparks, and Ms K Fulmer in contravention of reg.3.44(1) of the Fair Work Regulations 2009 (Cth) (FW Regulations).
(m)$2,000 for being involved in the first respondent’s making use of records in relation to Ms Chalker, Ms Sparks, and Ms K Fulmer knowing they were false in contravention of reg.3.44(6) of the FW Regulations.
(n)$1,500 for being involved in the first respondent’s deducting $60 from wages due to Ms Chalker in contravention of cl.18.1 of the Award and, therefore in contravention of s.45 of the FW Act, and in contravention of s.323(1)(a) of the FW Act.
The second responded pay the pecuniary penalties referred to in order 2 to the Commonwealth, and that he do so within 28 days of the day on which these orders are pronounced.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 3448 of 2014
| FAIR WORK OMBUDSMAN |
Applicant
And
| A TO Z CATERING SOLUTION PTY LIMITED (No.2) |
Respondent
REASONS FOR JUDGMENT
Introduction
On 24 August 2018 I made declarations (Declarations) that the second respondent, Mr Yasin, was involved in a number of contraventions by the first respondent (AZC) of s.44, s.45, s.323, s.535, and s.536 of the Fair Work Act 2009 (Cth) (FW Act), and of reg.3.44(1) and reg.3.44(6) of the Fair Work Regulations 2009 (Cth) (FW Regulations). In these reasons for judgment I consider the question of penalties.
Before I consider that question, I should note that after I made the Declarations the applicant (FWO) filed short submissions in which she submitted that, given the findings I made in my reasons for judgment I published on 24 August 2018 (earlier judgment),[1] I should also have made a declaration to the following effect:
The second respondent was involved in the first respondent’s contraventions of section 45 of the Fair Work Act 2009 (Cth) by failing to pay at least 11 hours’ worth of Late Work to Ms Chalker during the period 1 December 2013 to 23 April 2014, in accordance with clause 29.4(a) of the Registered and Licensed Clubs Award 2010.
[1] Fair Work Ombudsman v A to Z Catering Solution Pty Limited & Anor (No.2) [2018] FCCA 2299
Mr Yasin does not submit a declaration to this effect would not reflect findings I made in the earlier judgment. I am satisfied that my making a declaration to the effect proposed by the FWO would reflect findings I made in the earlier judgment, and I propose, therefore, to make such declaration at the time I publish these reasons. In these reasons for judgment, therefore, I will proceed on the basis that Mr Yasin contravened the provisions identified in the Declarations and the declaration I propose to make when I publish these reasons.
Power to order pecuniary penalties
Under s.546(1) of the FW Act this Court may, on application, order a person to pay a pecuniary penalty the Court considers is appropriate if the Court is satisfied the person has contravened a civil remedy provision. Under s.546(2) of the FW Act the pecuniary penalty the Court may impose must not, where the person is an individual, be more than “the maximum number of penalty units referred to in the relevant item in column 4 of the table in subsection 539(2).”
The maximum penalty units specified in the table in s.539(2) of the FW Act for the contraventions of each of s.44, s.45 and s.323 of the FW Act at the relevant time was 60 penalty units, and the maximum penalty units for contraventions of s.535 and s.536 of the FW Act was 30 penalty units.[2] By the combined operation of s.539(3) of the FW Act and reg.4.01A(1) and reg.4.01A(2) of the FW Regulations, the maximum penalty units for each contravention of reg.3.44(1) and reg.3.44(6) of the Fair Work Regulations 2009 (Cth) is 20 penalty units. Under s.12 of the FW Act, “penalty unit” has the meaning given by s.4AA of the Crimes Act 1914 (Cth). For the period that is relevant to these reasons for judgment, $170 was the “penalty unit” provided for by s.4AA.
[2] Section 539(2) was amended by the Fair Work Amendment (Protecting Vulnerable Workers) Act 2017 (Cth) where the penalty units for contravention of s.535 and s.536 were increased from 30 to 60
Principles
In her written submissions the FWO referred to the approach for assessing penalties Bromwich J in Fair Work Ombudsman v NSH North Pty Ltd trading as New Shanghai Charlestown accepted as correct:[3]
(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 FW 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].
[3] [2017] FCA 1301, at [36]
It will be apparent that this passage prescribes three broad steps: identify the contraventions; (provisionally) assess the penalty for each contravention; and consider whether adjustments should be made to the penalty (provisionally) assessed for each contravention. As will appear shortly, this passage may not necessarily reveal all of the steps for assessing penalties; and it may incorrectly imply that contraventions that have been treated as one contravention under s.557(1) of the FW Act may be grouped further to give effect to the principle that the same conduct should not be penalised more than once.
Identifying the contraventions
The essential starting point when assessing a pecuniary penalty is the identification of the conduct that constitutes the contravention of a civil remedy provision of the FW Act; it is the nature and quality of the conduct constituting the contravention that is to be considered, in its relevant context, when assessing the amount of the penalty.
The ordinary meaning of “contravene” is “[t]o go counter to; to transgress, infringe (a law, provisions, etc.); to act in defiance or disregard of” something.[4] In the context of s.546 of the FW Act, “contravened” implies the existence of provisions that express rules which, in the circumstances specified by the rules, prohibit a person from engaging in particular conduct, or which require a person to engage in particular conduct. A person contravenes a particular provision containing such rule, therefore, if, first, there exist the circumstances the rule specifies must exist before a person is prohibited by the rule from doing something or before the person is required by the rule to do something; and, second, the person does the thing the rule prohibits the person from doing, or the person fails to do that which the rule requires the person to do.
[4] Oxford English Dictionary
Thus where, as is the case before me, the term of an award or a provision of the FW Act or of the FW Regulations imposes an obligation that accrues periodically, the term or provision is contravened on each occasion the obligation accrues but is not performed. This is reflected in the contraventions identified in the Declarations which declare AZC contravened each term of the Registered and Licensed Clubs Award 2010 (Award) identified in the Schedule to the Declarations and, therefore, s.45 of the FW Act, on each occasion AZC failed to pay the amounts the Award required it to pay to each of the employees; and AZC contravened s.536 of the FW Act on each occasion it failed to provide a payment slip one day after each occasion it had paid each of the relevant employees.
Identifying the contraventions for which penalties are to be imposed - general
There are circumstances where two or more contraventions of provisions of the FW Act can be the subject of only one pecuniary penalty order. One set of circumstances is that provided for by s.557(1) of the FW Act where a number of distinct contraventions are treated as a single contravention. Another set is that provided for by s.556 of the FW Act where the Court is prohibited from making more than one pecuniary penalty order in relation to two or more contraventions.
It may reasonably be supposed that both s.557(1) and s.556 of the FW Act seek to give effect to the policy that the same conduct, or conduct of the same character, should be penalised only once; but the means by which each provision gives effect to this policy differs. Subsection s.557(1) of the FW Act proceeds on the premise that distinct contraventions are capable of bearing a single character so that the distinct contraventions should be treated as one contravention, and are therefore to be assessed for penalty as if there were one contravention. Section 556 of the FW Act, on the other hand, continues to treat the contravener as having contravened two or more provisions of the FW Act, but the conduct can be penalised only once; and s.556 achieves this end by prohibiting the Court from making a penalty order for more than one of the contraventions. Although s.557(1) and s.556 of the FW Act operate differently, however, their effect is the same – conduct that contravenes two or more provisions of the FW Act is liable to only one penalty order.
Of uncertain operation, at least to my mind, is a principle borrowed from the law of criminal sentencing that is often referred to as “the one transaction principle”. [5] It is not clear whether this principle is a basis for treating two or more contraventions as one contravention, and then assessing the penalty on that basis, or whether the principle does not permit the grouping of two or more contraventions into one contravention, but instead is a matter that is to be taken into account after a penalty for each contravention has been (provisionally) assessed. As I will show later, the better view is that the “one transaction principle” should be applied as an adjusting factor after a penalty has been assessed for each contravention that is liable to be assessed for a penalty after the application of s.557(1) and s.556 of the FW Act.
[5] I discussed the contents of that principle and the cases that have applied it in Fair Work Ombudsman v Australian Wild Tuna Pty Ltd & Anor [2016] FCCA 2626, [35]-[42]
Section 557 of the FW Act
Subsection 557(1) of the FW Act provides as follows:
For the purposes of this Part, 2 or more contraventions of a civil remedy provision referred to in subsection (2) are, subject to subsection (3), taken to constitute a single contravention if:
(a)the contraventions are committed by the same person; and
(b)the contraventions arose out of a course of conduct by the person.
Section 557 and the equivalent provision in previous legislation has been considered in the context of contraventions of s.44 and s.45 of the FW Act and their equivalents in previous legislation. Each of these provisions is “a civil remedy provision” within the meaning of s.539(1) of the FW Act. In Rocky Holdings Pty Ltd v Fair Work Ombudsman the Full Federal Court rejected the submission that where s.44 and s.45 of the FW Act have been contravened, and there are two or more contraventions, s.557(1) operates to provide that each contravention of s 44(1) is taken to constitute a single contravention, and each contravention of s.45 is taken to constitute a single contravention. [6] In Shanghai Trading Bromwich J explained the effect of the Full Federal Court’s judgment in Rocky Holding as follows:[7]
[T]he phrase “civil remedy provision” in s 557 does not refer to ss 44(1) and 45 of the FW Act, but rather to “a provision” of the National Employment Standards or “a term” of a modern award. What is required is a focus on the substance of the particular obligation creating provisions, and “grouping” them accordingly to produce a rational outcome: Rocky Holdings at [23], [26]. This process of grouping is analogous to the criminal law concept of “rolled up” charges and can produce a considerable degree of leniency in the penalty determination process, albeit that the process is mandated by statute: cf R v Glynatsis [2013] NSWCCA 131; 230 A Crim R 99 at [65]-[66].
[6] [2014] FCAFC 62
[7] [2017] FCA 1301
I considered the scope of s.557(1) of the FW Act in Fair Work Ombudsman v Australian Wild Tuna Pty Ltd.[8] I there noted that the effect of the authorities is that s.557(1) of the FW Act does not apply to contraventions of different terms of modern awards, even if such contraventions arise out of a course of conduct, and even if the contraventions affect only one person; and that s.557(1) of the FW Act applies to the multiple contraventions of the one term of a modern award, even where the contravention may affect two or more persons.[9]
[8] [2016] FCCA 2626, at [25]-[34]
[9] [2016] FCCA 2626, at [32]
Section 556 of the FW Act
Section 556 of the FW Act provides as follows:
If a person is ordered to pay a pecuniary penalty under a civil remedy provision in relation to particular conduct, the person is not liable to pay a pecuniary penalty under some other provision of a law of the Commonwealth in relation to that conduct.
The effect of s.556 of the FW Act is that where “particular conduct” consists of multiple contraventions of civil remedy provisions (including, in the context of s.44 and s.45 of the FW Act, provisions of the National Employment Standards and terms of a modern award), the person who engages in the conduct can only be liable to the imposition of one pecuniary penalty, whether or not the conduct contravenes two or more civil remedy provisions. Counsel for Mr Yasin submits that although s.556 of the FW Act is expressed not to apply until an order is made, “in practice, the Courts prospectively apply the section in relation to the orders that they intend to make”.[10] Counsel relies on the judgment of Jessup J in Australian Building and Construction Commissioner v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union & Ors (The Australian Paper Case) (No.2).[11]
[10] Outline Submissions for the Second Respondent
[11] [2017] FCA 367
In The Australian Paper Case, two employees were found to have contravened s.417(1) and s.421(1) of the FW Act. The conduct that constituted the contravention of s.417(1) of the FW Act consisted of the refusal to perform work during the period 27 March 2014 to 31 March 2014. The conduct that constituted the contravention of s.421(1) consisted of the same conduct that constituted the contravention of s.417(1) of the Act, except that it occurred only on 31 March 2014 and in contravention of orders made by the Fair Work Commission. Having concluded each employee would be ordered to pay a pecuniary penalty for their contraventions of s.417(1), his Honour concluded s.556 of the FW Act prevented the Court from imposing a penalty for the employees’ contravention of s.421(1) of the FW Act. That is so because the conduct of each employee that constituted the contravention of s.421(1) formed part of the conduct that constituted the contravention of s.417(1) of the FW Act for which his Honour proposed to order the payment of a pecuniary penalty. In so concluding his Honour rejected the submission that s.556 of the FW Act applied only where the constituent elements of each contravention are the same. His Honour said:[12]
The better view is that the reference to “particular conduct” in s 556 is to what the person actually did, with all of its attributes and in its whole context. If that conduct gives rise to liability to penalty under two or more provisions, the section is, in my view, engaged. In the present case, the conduct of the workers who took the industrial action attracted liability under s 417(1) and under s 421(1). It is true that, additionally to that conduct, there were adjectival elements the presence of which were necessary ingredients of the provisions respectively, and that these elements differed as between the two (the in-term agreement under s 417(1) and the Commission’s order under s 421(1)), but, as it happened, both were in fact present on 31 March 2014 and both gave legal consequences to what the workers actually did. In my view, s 556 would stand in the way of penalties being imposed on the workers themselves under both sections, and the same applies where others, such as the organisers, were deemed to have contravened because of their involvement in that very conduct.
[12] [2017] FCA 367, [40]
Judges of the Federal Court have followed Jessup J’s construction of s.556 of the FW Act. Thus, in Australian Building and Construction Commissioner v Huddy (No.2), White J said that the “effect of s 556 is to preclude the imposition of pecuniary penalties for contraventions of two or more civil remedy provisions in respect of the same “particular conduct””, and that its “application extends to contraventions of multiple provisions in the FW Act itself”.[13] His Honour then set out with approval the passage from the Judgment of Jessup J in The Australian Paper Case.[14] In Australian Building and Construction Commissioner v Upton (The Gorgon Project Case) (No.2)[15] and The BKH Contractors Case (No.2)[16] Barker J and Flick J respectively found that Jessup J’s construction of s.556 of the FW Act is not plainly wrong.
[13] [2017] FCA 1088, [55]
[14] [2017] FCA 1088, [56]
[15] [2018] FCA 897, [63]
[16] [2018] FCA 1563, [32]
Where the same conduct constitutes contraventions of two or more provisions of the FW Act, the question arises: for the contravention of which provision should the one penalty be ordered to be paid? Barker J considered that question in The Gorgon Project Case (No.2) where his Honour found that s.556 of the FW Act applied to conduct that contravened s.346(a), s.348, and s.500 of the FW Act. It was submitted that a particular provision should be treated as the “lead” contravention.[17] His Honour’s responded to that submissions as follows:[18]
I do not accept the submission that either s 500, or s 348, or s 346(a) should in some conceptual theoretical sense be accorded priority status as the lead penalty offence. In my view, the Court should consider the seriousness of the contravening conduct and determine for itself, objectively on the facts, in respect of which contravention the primary penalty should be imposed.
[17] [2018] FCA 897, [56]
[18] [2018] FCA 897, [65]
Counsel for Mr Yasin submits three steps should be taken when assessing penalties.[19] First, “apply the double jeopardy provision in s 556 of the Act to determine which orders should be made”. Second, “pursuant to s.557 of the Act and the common law as to course of conduct, ‘group’ the remaining contraventions to the extent required”; and, third, “determine the common elements of each contravention as part of assessing penalty, and apply the totality principles to the final conclusion”. I do not accept this submission.
[19] Outline of Submissions for the Second Respondent, [8]
The logical order of inquiry is, first, to identify the conduct (which includes omissions) that constitutes each contravention of a provision of the FW Act. This requires the Court, to use the words of Jessup J in The Australian Paper Case, to identify what the contravener “actually did” (and did not do) “with all of its attributes and in its whole context”. In the case of contraventions of s.45 of the FW Act, that means identifying the conduct that constituted each contravention of each term of the relevant modern award. The second step is to consider whether s.557(1) of the FW Act applies to any of the conduct constituting the contraventions identified under the first step. If s.557(1) applies to two or more of those contraventions, then, in relation to the conduct to which it applies, what was conduct constituting separate contraventions must now be treated as conduct constituting a single contravention. The third step is whether any of the conduct that constitutes any of the contraventions, including the conduct or any part of the conduct that constitutes any of the contraventions which by the operation of s.557(1) of the FW Act is to be treated as a single contravention, also constitutes a contravention of two or more provisions. If that occurs, a penalty order can be made only for the contravention of one of the provisions. The Court will determine for which of the provisions that have been contravened a penalty will be imposed; and it will do so after it considers the seriousness of the contravening conduct.
This reflects the approach of Jessup J in The Australian Paper Case. His Honour found that there was one contravention of s.417(1) of the FW Act which meant that his Honour did not have to apply s.557(1) of the FW Act. His Honour, however, also considered the matter on the assumption that he was mistaken that each employee had contravened s.417(1) once, and his Honour held that in that circumstance s.557(1) of the FW Act would apply.[20] His Honour considered the application of s.556 of the FW Act to the contravention of s.421(1) after his Honour had determined whether there was one contravention of s.417(1) or, in the alternative multiple contraventions of s.417(1) which “were collapsed into one by the operation of s 557”.[21] His Honour said:[22]
The conduct of the workers on 31 March 2014, and the organisers’ involvement in that conduct, have already been subject to a penalty under s 417(1) – as part of a course of conduct, by all means, but as conduct in relation to which a penalty was imposed. That is all that is required by s 556.
[20] [2017] FCA 367, [6]
[21] [2017] FCA 367, [6]
[22] [2017] FCA 367, [42]
In her written submissions in reply, the FWO notes that nearly all of the case law on s.556 of the FW Act relates to breaches of provisions of the industrial action and general protection provisions of the FW Act, and there has been almost no consideration of s.556 in the context of the types of underpayment and record keeping contraventions that I have found occurred.[23] The FWO further submits that cases such as The Australian Paper Case concerned the taking of “particular conduct” involving positive acts, “being, respectively, industrial action and threats to non-union workers”, that “were in contravention of various prohibitions set out in the relevant provision of the FW Act” (emphasis by counsel for the FWO).[24] By contrast, the FWO submits, in the case of an award the “particular conduct” can comprise not only a positive act in contravention of a prohibition, but also an omission. In that context, the FWO submits, care must be taken when applying cases such as The Australian Paper Case and other cases “particularly if it would give a result that is inconsistent with the objects stated in s.3 of the FW Act”.[25]
[23] Applicant’s Outline of Submissions on Penalty in Reply, [17]
[24] Applicant’s Outline of Submissions on Penalty in Reply, [18]
[25] Applicant’s Outline of Submissions on Penalty in Reply, [18]
I do not accept these submissions. Whether or not s.556 of the FW Act applies to a given set of contravention depends, in the first instance, on the proper construction of s.556 of the FW Act. The task of statutory construction “must begin with a consideration of the text itself”, with the “language which has actually been employed in the text of legislation” being “the surest guide to legislative intention”.[26] The meaning of the text, however, “may require consideration of the context, which includes the general purpose and policy of a provision, in particular the mischief it is seeking to remedy”.[27] There is nothing in the text of s.556 of the FW Act that suggests it is restricted to positive acts or to provisions that prohibit positive conduct. And there would be no apparent reason for reading s.556 as being restricted in that way. Most contravening conduct is capable of being characterized as the taking of positive action or omitting to take action. Further, that s.556 of the FW Act has not been considered in its application to multiple contraventions of terms of an award does not mean s.556 of the FW Act does not apply to such contraventions. Given that s.556, like s.557(1) of the FW Act, appears to have been enacted to further the policy that the same conduct should not be penalized more than once, and that s.557(1) applies to contraventions of s.45 of the FW Act, there is every reason to expect that s.556 is also intended to apply to the contravention of all civil remedy provisions, including s.45 of the FW Act.
[26] Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41 [47] (Hayne, Heydon, Crennan and Kiefel JJ), cases referred to omitted.
[27] Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41 [47] (Hayne, Heydon, Crennan and Kiefel JJ), cases referred to omitted.
One transaction principle
The third step contained in the passage Bromwich J in Shanghai Trading accepted as the correct approach to the assessment of penalties requires the Court to consider whether there is any overlap “between groups of separate aggregated contraventions” to ensure the same conduct is not penalised twice and, if there is an overlap, whether there should be a “further adjustment”. Bromwich J did not expressly describe the nature of the adjustment that may need to be made to avoid a double penalty; but the passage suggests that the adjustment is to be made by further aggregation. That is apparent from the fourth step the passage identifies, namely, the consideration of “the appropriate penalty in respect of each final individual group of contraventions, taken in isolation” (emphasis added).
Given s.557 and s.556 of the FW Act, there would appear to be no room for the operation of the “one transaction principle” to treat two or more contraventions of the FW Act as one contravention. In Fair Work Ombudsman v Lohr, that is what Bromwich J found in the case of s.557(1) of the FW Act. His Honour there accepted[28] the FWO’s submission that s.557 of the FW Act “is the express statutory manifestation of the one transaction or course of conduct principle”, that by “enacting s 557 Parliament has determined how multiple contraventions arising from a course of conduct are to be treated”, and that, once s.557 has been applied it is not open to “further consolidate the … contraventions into one contravention by applying that principle, in effect, again”.[29] As for s.556 of the FW Act, it in terms provides that the same conduct cannot be penalised twice. The correct approach, therefore, appears to be that the one transaction principle is to be applied after a penalty has been (provisionally) assessed for two or more contraventions; and it is to be applied by adjusting the penalties so assessed having regard to the degree of commonality between the conduct that constitutes each contravention. That is the approach Flick J applied in The BKH Contractors Case:[30]
Of particular concern in the present proceeding is the need to:
· separately consider the penalty which should be imposed in respect to each contravention and to properly characterise conduct which may constitute separate contraventions by reference to the objective facts and circumstances giving rise to those contraventions,
but also the need to:
· consider whether the conduct giving rise to separate contraventions was such that the separate imposition of penalties would be effectively imposing multiple penalties for either the same conduct or for overlapping parts of the same conduct which separately went to make out the separate contraventions; and
· ensure that a person who has engaged in contravening conduct is not punished twice for the same conduct and to ensure that the total penalty imposed in respect to the contraventions is “just and appropriate” and not disproportionate.
The attempt being made is to quantify the appropriate penalty for each contravention whilst at the same time recognising that conduct may involve different factual elements – some elements of which go towards one contravention and different elements going to another contravention. Common to multiple different contraventions, however, may be one or more of those common facts.
[28] [2018] FCA 5, [34]
[29] [2018] FCA 5, [32]
[30] [2018] FCA 1563, [59]
Matters relevant to assessing penalty for each contravention
Having identified the contraventions after applying s.557(1) and s.556 of the FW Act, the next step is to assess the penalties for each of the contract by reference to the conduct that constitutes each contravention.
When assessing the amount of the pecuniary penalty it is useful to distinguish between the purpose or purposes for which pecuniary penalties are to be imposed and, given that purpose or purposes, the matters that may be relevant to assessing the penalty. As for the purpose of imposing pecuniary penalties, I need go no further than set out the following passage from the judgment of the Full Federal Court in Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (ABCC v CFMEU):[31]
Whereas criminal penalties import notions of retribution and rehabilitation, the purpose of a civil penalty is primarily, if not wholly, protective in promoting the public interest in compliance. The principal object of a pecuniary penalty is to attempt to put a price on contravention that is sufficiently high to deter repetition by the contravenor and by others who might be tempted to contravene; both specific and general deterrence are important. A pecuniary penalty for a contravention of the law must be fixed with a view to ensuring that the penalty is not to be regarded by the offender or others as an acceptable cost of doing business. In relation to general deterrence, it is important to send a message that contraventions of the sort under consideration are serious and not acceptable.
The question whether a pecuniary penalty involves an element of punishment remains somewhat controversial. To a certain extent, that debate appears to be more semantic or philosophical than real. It is sufficient to say that, accepting that the primary purpose of imposing a pecuniary penalty is to protect and deter, that purpose is achieved by imposing a punishment in the form of a pecuniary penalty.
[31] [2017] FCAFC 113, [98], [99] (citations omitted)
In Kelly v Fitzpatrick,[32] Tracey J adopted what Mowbray FM in Mason v Harrington Corporation Pty Ltd Mowbray FM identified as “a non-exhaustive range of considerations to which regard may be had in determining whether particular conduct calls for the imposition of a penalty, and if it does the amount of the penalty”.[33] Those considerations are: the nature and extent of the conduct which led to the breaches; the circumstances in which that conduct took place; the nature and extent of any loss or damage sustained as a result of the breaches; whether there had been similar previous conduct by the respondent; whether the breaches were properly distinct or arose out of the one course of conduct; the size of the business enterprise involved; whether or not the breaches were deliberate; whether senior management was involved in the breaches; whether the party committing the breach had exhibited contrition; whether the party committing the breach had taken corrective action; whether the party committing the breach had cooperated with the enforcement authorities; the need to ensure compliance with minimum standards by provision of an effective means for investigation and enforcement of employee entitlements; and the need for specific and general deterrence.
[32] [2007] FCA 1080, [14]
[33] [2007] FMCA 7
In ABCC v CFMEU the Full Federal Court provided the following guidance to assessing penalties:[34]
The fixing of a pecuniary penalty involves the identification and balancing of all the factors relevant to the contravention and the circumstances of the defendant, and making a value judgment as to what is the appropriate penalty in light of the protective and deterrent purpose of a pecuniary penalty.
In general terms, the factors that may be relevant when fixing a pecuniary penalty may conveniently be categorised according to whether they relate to the objective nature and seriousness of the offending conduct, or concern the particular circumstances of the defendant in question.
The factors relating to the objective seriousness of the contravention include: the extent to which the contravention was the result of deliberate, covert or reckless conduct, as opposed to negligence or carelessness; whether the contravention comprised isolated conduct, or was systematic or occurred over a period of time; if the defendant is a corporation, the seniority of the officers responsible for the contravention; the existence, within the corporation, of compliance systems and whether there was a culture of compliance at the corporation; the impact or consequences of the contravention on the market or innocent third parties; and the extent of any profit or benefit derived as a result of the contravention.
The factors that concern the particular circumstances of the defendant, particularly where the defendant is a corporation, generally include: the size and financial position of the contravening company; whether the company has been found to have engaged in similar conduct in the past; whether the company has improved or modified its compliance systems since the contravention; whether the company (through its senior officers) has demonstrated contrition and remorse; whether the company had disgorged any profit or benefit received as a result of the contravention, or made reparation; whether the company has cooperated with and assisted the relevant regulatory authority in the investigation and prosecution of the contravention; and whether the company has suffered any extra-curial punishment or detriment arising from the finding that it had contravened the law.
[34] [2017] FCAFC 113, [100]-[104]
It would also be useful to refer to what the Full Federal Court said in the context of assessing pecuniary penalties for contraventions of the Trade Practices Act 1974 (Cth) in Flight Centre Ltd v Australian Competition and Consumer Commission (No.2):[35]
[T]he task is one that is evaluative, taking into account all the circumstances of the case, not to be reached mechanically or by some illusory process of exactitude, but rather by evaluation that is articulated to a point (but no further) that is useful and meaningful. One starts the process by giving proper weight to the statutory maximum as referable to the most serious kind of contravention.
[35] [2018] FCAFC 53, at [55]
Finally, it will also be necessary to say something about the relevance maximum penalty provided for by the FW Act for assessing a penalty; and here I need only refer to the following passage from the judgment of Flick J in The BKH Contractors Case (No.2):[36]
In undertaking the task of assessing and quantifying the penalties to be imposed, the maximum penalty prescribed by the Commonwealth legislature for a specific contravention serves as a “yardstick” against which the assessment of penalties is generally to proceed . . . .
[36] [2018] FCA 1563, [19]
“One transaction” principle and “totality” principle
Having assessed the penalty for each contravention, the Court is required to consider whether any adjustment should be made under the one transaction principle. This requires the Court to assess the extent to which two or more contraventions have common elements. That is the approach McKerracher J suggested in Fair Work Ombudsman v Kentwood Industries Pty Ltd (No.3):[37]
Next, to the extent that two or more contraventions have common elements, this may be taken into account when considering what is an appropriate penalty for each contravention. The respondents should not be penalised more than once for the same conduct. The penalties imposed by the Court should be an appropriate response to the respondents’ actions.
[37] [2011] FCA 579, [10]
The one transaction principle, where it applies, is directed to conduct contravening particular provisions. There is a related, but distinct principle,[38] known as the “totality principle” that usually must be considered; and this is directed to the assessment of the overall quality of the contravener’s conduct. Under that principle a sentencing judge is required “to impose a sentence or sentences which reflect the overall criminality of the offending for which the offender has been convicted”.[39] In R v Holder Street CJ described the principle as follows:[40]
The principle of totality is a convenient phrase, descriptive of the significant practical consideration confronting a sentencing judge when sentencing for two or more offences. Not infrequently a straight-forward arithmetical addition of sentences appropriate for each individual offence considered separately will arrive at an ultimate aggregate that exceeds what is called for in the whole of the circumstances. In such a situation the sentencing judge will evaluate, in a broad sense, the overall criminality involved in all of the offences and, having done so, will determine what, if any, downward adjustment is necessary, whether by telescoping or otherwise, in the aggregate sentences in order to achieve an appropriate relativity between the totality of the criminality and the totality of the sentences.
[38] Mornington Inn Pty Ltd v Jordan [2008] FCAFC 70. At [42] Stone and Buchanan JJ said: “For the purpose of the present discussion the general principle which appears to be relied upon by the appellant [i.e., the “one transaction” principle] may be accepted, although it is important to distinguish it from the application of the totality principle which is a final check to be applied to ensure that a final, total or aggregate, penalty is not unjust or out of proportion to the circumstances of the case.”
[39] Contin v The Queen [2012] VSCA 247, [38]
[40] R v Holder (1983) 3 NSWLR 245, at page 260
The totality principle has been held to apply to the assessment of pecuniary penalties under the FW Act.[41]
[41] Director Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union [2015] FCAFC 59, [41]
Summary of approach
In light of the principles I have identified, I propose to assess penalties as follows:
a)First, I will identify the conduct constituting AZC’s contraventions of the FW Act in which Mr Yasin was involved, and the provisions of the FW Act the conduct contravened.
b)Second, I will consider whether s.557(1) of the FW Act applies to any of those contraventions.
c)Third, I will consider whether the conduct constituting the contraventions (including contraventions which, because of s.557(1) of the FW Act, are to be treated as one contravention) also constitutes the contravention of two or more provisions of the FW Act and, for that reason, s.556 of the FW Act prevents me from ordering two pecuniary penalties for the same conduct.
d)Fourth, I will assess the penalty that should be imposed for each (grouped) contravention, and then provisionally assess the penalty that I would at this stage of the analysis impose for each (grouped) contravention.
e)Fifth, I will consider whether there is any overlap between the conduct constituting the contraventions for the purpose of determining whether any adjustment should be made to the penalties I provisionally assess.
f)Finally, I will consider whether the penalties as they have been assessed up to the fifth stage are appropriate having regard to character of the contravening conduct viewed as a whole and in all of the circumstances.
The contraventions
The conduct constituting AZC’s contraventions of the FW Act in which I found Mr Yasin was involved is set out in the Schedule to these reasons (Contraventions Schedule). This schedule is the same as the Schedule to the Declarations except it omits those contraventions by AZC in which I found Mr Yasin was not involved, and a number has been assigned to each class of contraventions. The parties agree that this schedule represents AZC’s contraventions in which I have found Mr Yasin was involved.
Application of s.557(1)
The FWO submits the contraventions of the terms of the Award should be grouped according to the principle that s.557(1) of the Act operates to treat as one contravention multiple contraventions of the same term of an Award or the same provision of the FW Act.[42] That is consistent with what I have said above about the operation of s.557(1) of the FW Act. More importantly, it is also consistent with the Full Federal Court in Rocky Holdings accepting the FWO’s submissions that “s.517 operates to group together contraventions of the same provision or term”.[43]
[42] Applicant’s Outline of Submissions on Penalty in Reply, [5(a)]
[43] [2014] FCAFC 62, [26] (emphasis in original)
The FWO further submits that the words “term” and “provision”, when used to identify the terms of a modern award or a provision of the FW Act when considering the application of s.557(1) of the FW Act, refer to matters of substance, namely the different obligations set out in the award. The FWO relies on Gibbs v City of Altona,[44] where Gray J considered the meaning of “term” as used in s.178(2) of the Industrial Relations Act 1988 (Cth), being a predecessor to s.557(1) of the FW Act. One issue that troubled his Honour was the relationship between “term of an award”, as that expression appeared in s.178(2) of that Act, and obligations created by the award. His Honour concluded that the expression “term” denoted an obligation created by the award. His Honour said:[45]
The object of s 178(2) appears to be that a party bound by an award and pursuing a course of conduct involving repeated acts or omissions, which would ordinarily be regarded as giving rise to a series of separate breaches, should not be punished separately for each of those breaches. If such a party has pursued a course of conduct which gives rise to breaches of several different obligations, there is no reason why it should be treated as immune in respect of its breach of one obligation, merely because it has acted in breach of another. This reasoning leads to the conclusion that each separate obligation found in an award is to be regarded as a “term”, for the purposes of s 178 of the Act. The ascertainment of what is a term should depend not on matters of form, such as how the award maker has chosen to designate by numbers or letters the various provisions of an award, but on matters of substance, namely the different obligations which can be spelt out. For these reasons, I incline to the view that each separate obligation imposed by an award is to be regarded as a “term”, for the purposes of s 178 of the Act. If the different terms impose cumulative obligations or obligations that substantially overlap, it is possible to take into account the substance of the matter by imposing no penalty, or a nominal penalty, in respect of breaches of some terms, but a substantial penalty in respect of others.
[44] [1992] FCA 374
[45] [1992] FCA 374, [24]
Given that it is the substance of a term of an award that is relevant, the FWO submits that cl.29.1 of the Award (which deals with penalty rates), does not impose a single obligation but imposes at least the following obligations that apply at different times and days when a relevant employee works:[46]
a)an obligation to pay a Monday-Friday rate for a full-time or part-time employee;
b)an obligation to pay a Monday-Friday rate for a casual employee;
c)an obligation to pay a Saturday rate;
d)an obligation to pay a Sunday rate; and
e)an obligation to pay a public holiday rate.
[46] Applicant’s Outline of Submissions on Penalty in Reply, [7]
On this basis, the FWO submits the application of s.557(1) of the FW Act results in the contraventions being grouped as follows (FWO Groups):[47]
[47] Applicant’s Outline of Submissions on Penalty in Reply, [11] (FWO’s emphasis)
Contraventions Schedule No.
FWO Group No.
Conduct and term/provision contravened
1
1, [1][48]
Failure to pay Monday-Friday rate to a full-time employee (Ms Abdulofski) under cl.17 and cl.29.1 of the Award
1, 2
2, [6]
Failure to pay Late Work penalty rates to 2 employees (Ms Abdulofski and Ms Chalker) under cl.17 and cl.29.1 of the Award
1, 2, 3
3, [3]
Failure to pay Saturday penalty rates to 3 employees (Ms Abdulofski, Ms Chalker, and Ms P Fulmer) under cl.17 and cl.29.1 of the Award
1, 2, 3,
4, [4]
Failure to pay Sunday penalty rates to 3 employees (Ms Abdulofski, Ms Chalker, and Ms P Fulmer) under cl.17 and cl.29.1 of the Award
2, 3, 4
5, [2]
Failure to pay Monday-Friday rate to 3 casual employees (Ms Chalker, Ms P Fulmer and Ms Busby) under cl.17 and cl.29.1 of the Award
2
6, [5]
Failure to pay Public Holiday penalty rate to 1 employee (Ms Chalker) under cl.17 and cl.29.1 of the Award
6, 7, 8, 9
7, [9]
Failure to make superannuation contributions so as to avoid the superannuation guarantee charge in relation to 4 employees (Mr Biasio, Ms Chalker, Ms P Fulmer and Ms Busby) under cl.23.2 of the Award
10, 11
8, [10]
Failure to pay annual leave when employment ended at the rate that would have been payable had the employee taken the period of leave (which includes annual leave loading under cl.30.3 of the Award) in relation to two employee (Mr Biasio and Ms Abdulofski) under s.90(2) of the FW Act
12
9, [11]
Failure to provide Fair Work Information Statement to 7 employees (Mr Biasio, Ms P Fulmer, Ms Chalker, Ms K Fulmer, Ms Abdulofski, Ms Polsen, and Ms Busby) under s.125 of the FW Act
14
10, [12]
Failure to provide pay slips to 8 employees (Mr Biasio, Ms P Fulmer, Ms K Fulmer, Ms Chalker, Ms Abdulofski, Ms Polsen, Ms Busby, and Ms Sparks) under s.536 of the FW Act
15
11, [13]
Failure to make and keep records in relation to 8 employees (Mr Biasio, Ms P Fulmer, Ms K Fulmer, Ms Chalker, Ms Abdulofski, Ms Polsen, Ms Busby, and Ms Sparks) under s.535 of the FW Act
16
12, [14]
Failure to ensure records were not false or misleading in relation to “Time and Pay Sheet” documents for Ms Chalker, Ms Sparks, and Ms K Fulmer under reg.3.44(1) of the FW Regulations
17
13, [15]
Making use of records knowing they were false in relation to Time and Pay Sheet” documents for Ms Chalker, Ms Sparks, and Ms K Fulmer under reg.3.44(6) of the FW Regulations
[48] The numbers in square brackets is the number given in “Annexure A: Applicant’s Summary of Contraventions and Recommended Penalties”, being the annexure to the Applicant’s Outline of Submissions on Penalty.
After grouping the contraventions into the 13 FWO Group Nos. there remains two separate contraventions, one being AZC’s failure to reimburse Ms Chalker for the costs of her work shirt under cl.18.1(b)(ii) of the Award (being the contravention identified in Contraventions Schedule No. 5), [49] and the other being AZC’s failing to pay Ms Chalker in full by unlawfully deducting from amounts due to her the cost of her work shirt, contrary to s.323(1)(a) of the FW Act (being the contravention identified in Contraventions Schedule No. 13).[50]
[49] Being contravention [7] identified in Annexure A: Applicant’s Summary of Contraventions and Recommended Penalties
[50] Being contravention [8] identified in Annexure A: Applicant’s Summary of Contraventions and Recommended Penalties
As I have already noted, counsel for Mr Yasin submits that the correct approach is that I should first apply s.556 of the FW Act, then apply s.557(1) of the FW Act, and then determine the common elements of the contraventions that have been determined after applying s.556 and s.557.[51] On this approach, counsel submits as follows:
a)The contraventions identified in Contraventions Schedule Nos. 1, 2, 3, and 4 arise from the same particular conduct, namely, the failure to pay penalty rates, contrary to cl.17.1 and cl.29 of the Award.[52]
b)The contraventions identified in Contraventions Schedule Nos. 6, 7, 8, and 9 arise from the same particular conduct, namely, the failure to make superannuation contributions, contrary to cl.23.2 of the Award.[53]
c)The contraventions identified in Contraventions Schedule Nos. 5 and 13 arise from the same particular conduct, namely, the deduction of $60 from money owing to Ms Chalker, contrary to s.45 and s.323 of the FW Act.[54]
d)The contraventions identified in Contraventions Schedule Nos. 10 and 11 arise from the same particular conduct, namely, the failure to pay leave loading, contrary to cl.30.3 of the Award.[55]
e)The contraventions identified in Contraventions Schedule Nos. 15, 16, and 17 arise from the same particular conduct, namely, conduct contravening s.535 and reg.3.44 of the FW Regulations.[56]
[51] Outline of Submissions for the Second Respondent, [8]
[52] Outline of Submissions for the Second Respondent, [13(i)]
[53] Outline of Submissions for the Second Respondent, [13(ii)]
[54] Outline of Submissions for the Second Respondent, [13(iii)]
[55] Outline of Submissions for the Second Respondent, [13(iv)]
[56] Outline of Submissions for the Second Respondent, [13(v)]
Counsel for Mr Yasin submits that once s.556 of the FW Act is applied in this way, no further grouping is necessary, and that the contraventions identified in Schedule Contraventions Nos. 1, 5, 10, 12, 14, and 15 “should be dealt with independently (subject to the totality principle)”.[57] In the alternative, counsel submits that s.557(1) of the FW Act operates to group the contraventions in the manner counsel submits the contraventions should be grouped for the purposes of the application of s.556 of the FW Act.[58]
[57] Outline of Submissions for the Second Respondent, [22]
[58] Outline of Submissions for the Second Respondent, [22]
I have already indicated I do not accept the submission that the Court must first consider whether s.556 of the FW Act applies before it considers whether s.557(1) of the FW Act applies. The question, then, is whether the grouping of the contraventions counsel for Mr Yasin suggested for the purposes of s.556 of the FW Act is the grouping that should be made for the purposes of s.557(1) of the FW Act. The FWO and Mr Yasin agree that the contraventions identified in Contraventions Schedule Nos. 6, 7, 8, and 9 (superannuation) and the contraventions identified in Schedule Contraventions Nos. 10 and 11 (accrued annual leave) should each be grouped into a single contravention. To the extent there is a difference between the FWO’s suggested grouping and that suggested by counsel for Mr Yasin, I prefer the FWO’s grouping.
a)The contraventions identified in Contraventions Schedule Nos. 1, 2, 3, and 4 relate to the contravention of five distinct obligations under the Award. And if the rate for “Late Work” is included, there are six distinct obligations. These contraventions, therefore, constitute six contraventions, being the contraventions identified in FWO Group Nos. 1, 2, 3, 4, 5, and 6.
b)The contraventions identified in Contraventions Schedule Nos. 5 and 13 are contraventions of different provisions (cl.18.1 of the Award and s.323(1)(a) of the FW Act respectively) and, therefore, constitute distinct contraventions to which s.517(1) of the FW Act does not apply. (In the remainder of these reasons, I will refer to these contraventions as the “withholding of money contraventions”.)
c)The contraventions identified in Contraventions Schedule Nos. 12, 14, 15, 16, and 17 are contraventions of different provisions (s.125, s.536, and s.535 of the FW Act, and reg.3.44(1) and reg.3.44(6) of the FW Regulations respectively) and, therefore, constitute distinct contraventions to which s.517(1) of the FW Act does not apply.
For these reasons I find that s.557(1) of the FW Act results in the grouping of contraventions for which the FWO contends. In the rest of these reasons I will refer to these contraventions as the “Grouped Contraventions”.
Application of s.556
The question I must address when considering whether s.556 of the FW Act applies to any of the Grouped Contraventions is whether any two or more of them are constituted by the same “particular conduct”; and this is to be determined by reference to what AZC “actually did, with all of its attributes and in its whole context”.[59]
[59] The Australian Paper Case [2017] FCA 367, [40]
The contraventions comprised in FWO Group Nos. 1, 2, 3, 4, 5, and 6 consist of the same active conduct, namely, the periodic payment of amounts of money to the relevant employees that was less than the amounts AZC was required to pay under the Award. This may give the impression that the contraventions comprised in FWO Group Nos. 1, 2, 3, 4, 5, and 6 are constituted by the same “particular conduct”, and that s.556 of the FW Act applies to prevent the Court from imposing a penalty on more than one of these grouped contraventions. Such impression, however, would be incorrect, because it would ignore that an essential element of each of the contraventions was an omission; and the omission that formed an element of the contraventions differed according to the obligation under the Award with which AZC failed to comply when it paid the relevant employees.
In other words, AZC’s acts of payment do not, for the purpose of s.556 of the FW Act, reveal all of the relevant attributes of the “particular conduct” that constituted the contraventions that comprise FWO Group Nos. 1, 2, 3, 4, 5, and 6, or the context in which the contravening conduct occurred. What is also relevant is that which AZC omitted to do; and that is to be determined by reference to the particular obligations under the Award with which AZC failed to comply. To the extent, therefore, that the Award obliged AZC to perform different things that AZC failed to perform when it paid the relevant employees, the particular uniform conduct in which AZC engaged – paying money to the relevant employees - cannot be taken to be the same “particular conduct” for the purpose of determining whether s.556 of the FW Act applies to the conduct constituting the contraventions comprised in FWO Group Nos. 1, 2, 3, 4, 5, and 6. For these reasons, I am not satisfied that FWO Group Nos. 1, 2, 3, 4, 5, and 6 were constituted by the same “particular conduct” and, therefore, that s.556 of the FW Act applies to the conduct that comprised those contraventions.
11