Fair Work Ombudsman v Glad Group Pty Ltd
[2012] FMCA 731
•21 August 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| FAIR WORK OMBUDSMAN v GLAD GROUP PTY LTD | [2012] FMCA 731 |
| INDUSTRIAL LAW – Admitted contraventions of ss.182(1), 234(2), 246(4) of the Workplace Relations Act 1996 (Cth), cls.8(vii) and 10(i) of the Notional Agreement Preserving the State Award, reg. 19.4(1) of the Workplace Relations Regulations 2006 (Cth) and s.535(1) of the Fair Work Act 2009 (Cth) – whether pecuniary penalties should be awarded pursuant to s.546 of the Fair Work Act 2009 (Cth) and s.719 of the Workplace Relations Act 1996 (Cth) – whether the pecuniary penalties agreed upon by the parties are appropriate – whether the pecuniary penalties should be paid to the applicant pursuant to s.546(3) of the Fair Work Act 2009 (Cth) – whether declarations of contraventions should be made by the Court. |
| Corporations Act 2001 (Cth) Fair Work Ombudsman v Hungry Jack’s Pty Ltd [2011] FMCA 233 |
| Applicant: | Fair work ombudsman |
| Respondent: | glad group pty ltd (ACN 092 928 115) |
| File Number: | SYG 2970 of 2011 |
| Judgment of: | Emmett FM |
| Hearing date: | 1 August 2012 |
| Date of Last Submission: | 1 August 2012 |
| Delivered at: | Sydney |
| Delivered on: | 21August 2012 |
REPRESENTATION
| Appearing for the Applicant: | Ms J Dennis |
| Solicitors for the Applicant: | Fair Work Ombudsman |
| Counsel for the Respondent: | Mr R Warren |
| Solicitors for the Respondent: | Workplace Advisory Group |
DECLARATIONS
During the period from 22 October 2008 to 30 June 2009, the respondent contravened subsection 182(1) of the Workplace Relations Act 1996 (Cth) (“WR Act”) in respect of the 27 employees listed at Schedule B of the Statement of Claim by failing to pay the employees a basic periodic rate of pay in accordance with the Australian Pay and Classification Scale derived from the Cleaning and Building Services Contractors (State) Award;
During the period from 1 July 2009 to 4 August 2009, the respondent contravened item 5 of Schedule 16 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (“Transitional Act”) (by virtue its continuing contravention of subsection 182(1) of the WR Act in respect of the 27 employees listed at Schedule B of the Statement of Claim on and from 1 July 2009);
During the period from 22 October 2008 to 30 June 2009, the respondent contravened subsection 234(2) of the WR Act in respect of the 30 employees listed at Schedule C of the Statement of Claim by failing to credit the employees with the amounts of annual leave which the employees had accrued;
During the period from 1 July 2009 to 4 August 2009, the respondent contravened sub-item 6(1)(a) of Schedule 16 the Transitional Act (by virtue of its continuing contraventions of subsection 234(2) of the WR Act in respect of the 30 employees listed at Schedule C of the Statement of Claim on and from 1 July 2009);
During the period from 16 April 2009 to 30 June 2009, the respondent contravened subsection 246(4) of the WR Act in respect of the 31 employees listed at Schedule D of the Statement of Claim by failing to credit the employees with the amounts of paid personal / carer’s leave which the employees had accrued;
During the period from 1 July 2009 to 4 August 2009, the respondent contravened sub-item 6(1)(a) of Schedule 16 the Transitional Act (by virtue of the contraventions of subsection 246(4) of the WR Act in respect of the 31 employees listed at Schedule D of the Statement of Claim on and from 1 July 2009);
During the period from 22 October 2008 to 4 August 2009, the respondent breached subclause 8(vii) of the Notional Agreement Preserving a State Award derived from the Cleaning and Building Services Contractors (State) Award (“NAPSA”) by failing to pay a toilet cleaning allowance to the two employees listed at Schedule E of the Statement of Claim;
During the period from 22 October 2008 to 4 August 2009, the respondent breached subclause 10(i) of the NAPSA in respect of the 11 employees listed at Schedule F of the Statement of Claim by failing to pay overtime rates of pay;
During the period 22 October 2008 to 30 June 2009, the respondent contravened subregulation 19.4(1) of the Workplace Relations Regulations 2006 (“WR Regulations”) in respect of each of the 31 employees listed at Schedule A of the Statement of Claim by failing to make and keep required employee records; and
During the period 1 July 2009 to 4 August 2009, the respondent contravened subsection 535(1) of the Fair Work Act 2009 (Cth) (“FW Act”) in respect of each of the 31 employees listed at Schedule A of the Statement of Claim by failing to make and keep required employee records.
NOTE: Copies of Schedules A, B, C, D, E and F to the Statement of Claim, filed on 22 December 2011, are attached to this Order.
ORDERS
Pursuant to subsection 719(1) of the WR Act (for contraventions prior to 1 July 2009) and section 546(1) of the FW Act (for contraventions on and from 1 July 2009), a penalty of $15,000 be imposed on the respondent in respect of its contraventions of subsection 182(1) of the WR Act;
Pursuant to subsection 719(1) of the WR Act (for contraventions prior to 1 July 2009) and section 546(1) of the FW Act (for contraventions on and from 1 July 2009), a penalty of $15,000 be imposed on the respondent in respect of its contraventions of subsection 234(2) of the WR Act;
Pursuant to subsection 719(1) of the WR Act (for contraventions prior to 1 July 2009) and section 546(1) of the FW Act (for contraventions on and from 1 July 2009), a penalty of $15,000 be imposed on the respondent in respect of its contraventions of subsection 246(4) of the WR Act;
Pursuant to subsection 719(1) of the WR Act (for contraventions prior to 1 July 2009) and section 546(1) of the FW Act (for contraventions on and from 1 July 2009), a penalty of $1,000 be imposed on the respondent in respect of its breach of Clause 8(vii) of the NAPSA;
Pursuant to subsection 719(1) of the WR Act (for contraventions prior to 1 July 2009) and section 546(1) of the FW Act (for contraventions on and from 1 July 2009), a penalty of $15,000 be imposed on the respondent in respect of its breach of Clause 10(i) of the NAPSA;
Pursuant to regulation 14.4 of Part 14 of Chapter 2 of the WR Regulations (for contraventions prior to 1 July 2009) and section 546(1) of the FW Act (for contraventions on and from 1 July 2009), a penalty of $1,000 be imposed on the respondent in respect of its contraventions of sub-regulation 19.4(1) of the WR Regulations and subsection 535(1) of the FW Act;
Pursuant to section 841 of the WR Act and subsection 546(3) of the FW Act, the penalties referred to at orders 1 to 6 above be paid into the Consolidated Revenue Fund of the Commonwealth;
Payments required pursuant to Order 7 above are to be paid within 28 days.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2970 of 2011
| Fair work ombudsman |
Applicant
And
| glad group pty ltd (ACN 092 928 115) |
Respondent
REASONS FOR JUDGMENT
A. Background
By statement of claim filed on 22 December 2011, the applicant seeks various declarations of contraventions of the Workplace Relations Act 1996 (Cth) (“the WR Act”), the Workplace Relations Regulations 2006 (Cth) (“the WR Regulations”), Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth) (“the Transitional Act”), the Notional Agreement Preserving the State Award (“the NAPSA”) and the Fair Work Act 2009 (Cth) (“the FW Act”). The applicant also seeks penalties in respect of the contraventions pursuant to s.546 of the FW Act and that any penalties ordered be paid into the Consolidated Revenue Fund of the Commonwealth pursuant to s.546(3) of the FW Act.
On 27 February 2012, the legal representative of each party appeared at a first directions hearing. Directions were made for the filing and serving of an agreed statement of facts in respect of the contraventions, together with written submissions in support, and the matter was set down for a penalty hearing before me.
On 27 April 2012, an agreed statement of facts was filed by the applicant. Accordingly, I make findings in accordance with the statement of agreed facts which is as follows:
“THE APPLICANT
1. The Applicant has standing and authority to bring these proceedings.
2. The Applicant has standing to pursue civil remedy penalties in relation to the Respondent’s contraventions (as set out in paragraphs 27 to 61 below).
THE RESPONDENT
3. On 19 May 2000, the Respondent became incorporated as a proprietary company incorporated under the Corporations Act 2001 (Cth).
4. The Respondent is capable of being sued in and by its corporate name and style.
5. From 19 May 2000, the Respondent has been a constitutional corporation within the meaning of section 4 of the WR Act and, from 1 July 2009, a constitutional corporation within the meaning of section 12 of the FW Act.
6. From 19 May 2000, the Respondent was an employer within the meaning of sub-section 6(1) of the WR Act and, from 1 July 2009, the Respondent has been and continues to be a national system employer within the meaning of section 14 of the FW Act.
7. The Respondent is a large business that supplies retail and commercial cleaning services. The Respondent is currently contracted to clean over 125 office buildings. The Respondent services Australia's leading property identities including Westfield, Jones Lang LaSalle, Mirvac, Investa Property Group, Lend Lease, Centro Properties Group, AMP Capital, ISPT, Resolve FM, and Colliers International. The Respondent also services public organisations.
8. The Respondent employees in excess of 200 employees. The Respondent also engages contractors.
9. At all relevant times, the Respondent was contracted to perform cleaning services at 126 Phillip Street, Sydney (Deutsche Bank Place) in the state of New South Wales.
THE EMPLOYEES
10. These proceedings relate to the 31 employees listed in Schedule A to this Statement of Agreed Facts (Employees).
11. During the period from 22 October 2008 to 4 August 2009 (Audit Period) or part thereof, the Respondent employed the Employees.
12. The Employees were employed by the Respondent to perform cleaning services at Deutsche Bank Place for the Respondent.
13. The Employees were employed on a part-time basis.
THE ARRANGEMENT
14. The Employees were engaged to work on shifts of four hours duration (excluding any overtime worked by them).
15. The Respondent paid the Employees for the first three hours of each shift.
16. The Respondent did not pay the Employees for the final hour of each shift. The Respondent entered into a sub-contract arrangement with another company, LJ & LJ King Pty Ltd, pursuant to which LJ & LJ King Pty Ltd was obliged to pay the Employees for the fourth hour of each shift.
17. Despite the contractual arrangement between the Respondent and LJ & LJ King Pty Ltd, the Respondent admits that the Respondent was the employer of the Employees for the entire duration of the shifts worked by the Employees (including the fourth hour of each shift).
INVESTIGATION INTO THE RESPONDENT
18. In or about July 2009, the Applicant commenced an audit in relation to the Respondent to assess the Respondent’s compliance with its workplace obligations (Audit).
19. Due to potential contraventions of the Respondent’s workplace obligations being identified by the Audit, an investigation into the Respondent was commenced (Investigation).
20. The Audit and Investigation revealed that the Respondent failed to:
(a) pay 27 of the Employees the basic periodic pay (detailed below at paragraphs 27 to 34);
(b) credit annual leave to 30 of the Employees (detailed below at paragraphs 35 to 40);
(c) credit personal leave to all 31 Employees (detailed below at paragraphs 41 to 45);
(d) pay toilet allowances to 2 of the Employees (detailed below at paragraphs 47 to 50);
(e) pay overtime rates to 11 of the Employees (detailed below at paragraphs 51 to 55).
21. The Respondent also failed to keep adequate employee records (detailed below at paragraphs 58 and 61).
RELEVANT LEGISLATION
22. Prior to 1 July 2009, the Respondent was bound in respect of the Employees by the Workplace Relations Act 1996 (Cth) (WR Act).
23. At all relevant times on and from 1 July 2009 to at least 4 August 2009, the Respondent was also bound in respect of the Employees by the WR Act as it continues to apply by virtue of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Transitional Act).
24. On and from 1 July 2009, the Respondent was bound in respect of the Employees by the Fair Work Act 2009 (FW Act).
RELEVANT INDUSTRIAL INSTRUMENT
25. At all material times during the Audit Period, the Respondent was bound by the Australian Pay and Classification Scale derived from Notional Agreement Preserving State Award (NAPSA), entitled the Cleaning and Building Services Contractors (State) Award (Cleaning and Building Services Pay Scale).
26. At all times during the Audit Period, the Employees’ employment with the Respondent was covered by the Cleaning and Building Services Pay Scale because the Employees are classified as “cleaners” under the “cleaning services stream” of the NAPSA.
CONTRAVENTIONS
Failure to pay employees the basic periodic pay
27. At all material times on and from 22 October 2008 until 4 August 2009, the 27 employees listed in Schedule B to this Statement of Agreed Facts were classified as part-time Night Shift Workers B under the Cleaning and Building Services Pay Scale.
28. At all material times on and from 22 October 2008 until 4 August 2009, the Respondent was required to pay each of the 27 employees listed in Schedule B an hourly rate not less than the guaranteed basic periodic rate of pay prescribed by the Cleaning and Building Services Pay Scale for each of their hours worked.
29. At all material times on and from 22 October 2008 until 4 August 2009, the rate of pay prescribed by the Cleaning and Building Services Pay Scale for part-time employees classified as Night Shift Workers B was $17.95.
30. In contravention of sub-section 182(1) of the WR Act, the Respondent failed to pay the 27 employees listed in Schedule B to this Statement of Agreed Facts the correct rate of pay for the final hour of each shift worked on and from 22 October 2008 until 30 June 2009, as required under sub-section 182(1) of the WR Act.
31. In contravention of item 5 of Schedule 16 of the Transitional Act, the Respondent failed to pay the 27 employees listed in Schedule B to this Statement of Agreed Facts the correct rate of pay for the final hour of each shift worked on and from 1 July 2009 until 4 August 2009, as required under sub-section 182(1) of the WR Act.
32. The Respondent contravened item 5 of Schedule 16 of the Transitional Act by virtue of sub-section 182(1) of the WR Act between 1 July 2009 and 4 August 2009.
33. In contravening item 5 of Schedule 16 of the Transitional Act, the Respondent contravened a civil remedy provision under sub-section 539(2) of the FW Act.
34. The Respondent underpaid the 27 employees listed in Schedule B to this Statement of Agreed Facts the total amount of $92,356.07.
Failure to credit annual leave
35. The 30 employees listed in Schedule C were employed on a part-time basis and therefore were entitled to accrue annual leave for each hour worked for the Respondent.
36. At all relevant times, the Respondent was required to credit to the 30 employees listed in Schedule C the amount of annual leave accrued by them for their final hour of work in each shift between 22 October 2008 and 4 August 2009.
37. The Respondent failed to credit the 30 employees listed in Schedule C to this Statement of Agreed Facts, the amount of annual leave accrued during the final hour of each shift worked by those employees between 22 October 2008 and 4 August 2009.
38. A total of 2,025.94 hours were not credited to the 30 employees. The total monetary value of these hours is $36,365.66.
39. The Respondent contravened sub-section 234(2) of the WR Act by failing to credit the 30 employees listed in Schedule C of this Statement of Agreed Facts with the amount of annual leave accrued during the final hour of each shift worked between 22 October 2008 and 30 June 2009 under sub-section 232(2) of the WR Act.
40. The Respondent contravened sub-item 6(1)(a) of Schedule 16 of the Transitional Act by virtue of sub-section 234(2) of the WR Act by failing to credit the 30 employees listed in Schedule C of this Statement of Agreed Facts with the amount of annual leave accrued during the final hour of each shift worked between 1 July 2009 and 4 August 2009 under sub-section 234(2) of the WR Act.
Failure to credit personal leave
41. The 31 employees listed in Schedule D were employed on a part-time basis and therefore were entitled to accrue personal/carer’s leave for each hour worked for the Respondent.
42. At all relevant times, the Respondent was required to credit to the 31 employees listed in Schedule D the amount of personal leave accrued by them for their final hour of work in each shift between 16 April 2009 and 4 August 2009.
43. The Respondent failed to credit the 31 employees listed in Schedule D to this Statement of Agreed Facts with the amount of personal/carer’s leave accrued during the final hour of each shift worked by those employees between 16 April 2009 and 4 August 2009.
44. The Respondent did not credit personal/carer’s leave to the 31 employees listed in Schedule D to this Statement of Agreed Facts. A total of 2,375 hours were not credited to the 31 employees. The total monetary value of these hours is $42,631.13.
45. The Respondent contravened sub-section 246(4) of the WR Act by failing to credit the 31 employees listed in Schedule C of this Statement of Agreed Facts with the amount of personal/carer’s leave accrued during the final hour of each shift worked between 14 April 2009 and 30 June 2009 under sub-section 246(2) of the WR Act.
46. The Respondent contravened sub-item 6(1)(a) of Schedule 16 of the Transitional Act by virtue of sub-section 246(4) of the WR Act by failing to credit the 31 employees listed in Schedule C of this Statement of Agreed Facts with the amount of personal/carer’s leave accrued during the final hour of each shift worked between 1 July 2009 and 4 August 2009 under sub-section 246(2) of the WR Act.Failure to pay toilet allowance
47. During the Audit Period, the Respondent was required to pay to the 2 employees listed in Schedule E to this Statement of Agreed Facts a Toilet Cleaning Allowance for shifts where the employee cleaned toilet cubicles and/or urinals.
48. The total amount of toilet allowance not paid to the 2 employees listed in Schedule E to this Statement of Agreed Facts is $412.80.
49. The Respondent failed to pay the 2 employees listed in Schedule E to this Statement of Agreed Facts toilet allowance as required by sub-clause 8(vii) of the NAPSA.
50. The Respondent contravened sub-clause 8(vii) of the NAPSA by failing to pay the employees listed in Schedule E of this Statement of Agreed Facts toilet cleaning allowance during the Audit Period.
Failure to pay overtime rates
51. The 11 employees listed in Schedule F who worked in excess of 38 hours per week and/or worked in excess of eight hours per day during the Audit Period were entitled to be paid overtime at the rate of time and one-half for the first two hours and double time thereafter.
52. The Respondent paid the 11 employees listed in Schedule F to this Statement of Agreed Facts overtime at their ordinary rate of pay, instead of the overtime rate.
53. The total amount of overtime payable during the Audit Period to each of the 11 employees listed in Schedule F to this Statement of Agreed Facts is $41,077.06.
54. In breach of sub-clause 10(i) of the NAPSA, the Respondent failed to pay the 11 employees listed in Schedule F to this Statement of Agreed Facts overtime during the Audit Period at the applicable rate of time and one-half for the first two hours and double time thereafter resulting in an underpayment to them.
55. The Respondent contravened sub-clause 10(i) of the NAPSA by failing to pay the employees listed in Schedule F of this Statement of Agreed Facts the appropriate overtime rates during the Audit Period.
Total Underpayments
56. The Respondent underpaid the Employees a total of $133,845.93, as set out in Schedule G to this Statement of Agreed Facts.
57. The Respondent failed to credit the 30 employees listed in Schedule C to this Statement of Agreed Facts, the amount of annual leave and personal leave accrued during the final hour of each shift for a total of 4,400.94 hours. The total monetary value of this leave is $78,996.79.
Record Keeping
58. The Respondent was required to make and keep for seven years employee records which included specified information in relation to an employee’s pay.
59. The Respondent failed to keep any records relating to the Employees’ pay for the final hour worked in each shift.
60. The Respondent contravened sub-regulation 2.19.4(1) of the WR Regs, which is a civil remedy provisions under sub-regulation 2.19.4(4) of the WR Regs.
61. The Respondent contravened section 535 of the FW Act, which is a civil remedy provision under sub-section 539(2) of the FW Act.
RECTIFICATION
62. As a result of the Audit and Investigation, the Respondent, at the direction of the Applicant, undertook the process of carrying out calculations of the underpayments owed to the Employees, which totalled $133,845.93 (gross).
63. The Respondent undertook a process to rectify the total underpayments in respect of each of the Employees as set out in Schedule G to this Statement of Agreed Facts in varying instalments.
64. The first rectification instalment was a payment of $37,246.82 (gross) made on 18 December 2009. This amount was intended as a rectification of wages for the period 1 July 2009 to 4 August 2009. The rectification was made to the following employees of the Respondent:
(a) Fernando Dos Santos
(b) Phairin Kham-Ek
(c) Zuzana Sidova
(d) Carlos Franken
(e) Barbara Pribulova
(f) Filip Fuchs
(g) Veronika Habrmanova
(h) Karolina Svetlikova
(i) Anju Adhikari Thapa
(j) Sarka Slavickova
(k) Hakan Gultekin
(l) Adriana Papuchova
(m) Anju Rai
(n) Ivana Visnovcova
(o) Monika Blascovic
(p) Ozhan Coplan
(q) Monika Zarubova
(r) Martin Kollar
(s) Eric von Ammon
(t) Sibel Tekiner
(u) Hatice Ebru Gungoren
(v) Adem Kilavuz
(w) Danielle Monteiro
(x) Radka Sevcikova
(y) Lukas Vachna
(z) Ozge Celik
(aa) Martin Pinter
65. The Applicant was informed by the Respondent that the rectification on 18 December 2009 to the employees listed in paragraph 0 above had been completed.
66. Subsequent to 18 December 2009, the employees listed in paragraph 0 above were asked by the Respondent to return the funds that they had been paid and the employees followed this request.
67. The Applicant was not informed by the Respondent that the employees listed in paragraph 0 above had been asked by the Respondent to return the funds paid to them as rectification.
67. When the request by the Respondent for return of the funds became known to the Applicant, the Applicant raised the matter with the Respondent.
68. Only after the Applicant notified the Respondent that it was aware of the request for return of the funds did the Respondent re-credit the employees listed in paragraph 0 above with the appropriate funds.
69. The Respondent has now rectified and repaid the Employees the total underpayments owed to the Employees. The Employees have been repaid the amounts set out in Schedule G to this Statement of Agreed Facts.
70. The Respondent re-credited the existing employees with their annual and personal/carer’s leave as set out in Schedule G to this Statement of Agreed Facts.”
On 7 May 2012, the applicant filed an outline of submissions relating to penalty and a summary of legislative provisions relating to liability. That summary of the legislative provisions is as follows:
“If the Court finds that liability is proven, the Court has the power to impose pecuniary penalties in respect of the contraventions of the WR Act and the FW Act.
WR Act
Whilst the WR Act was repealed on 1 July 2009, the relevant WR Act contraventions pleaded in these proceedings continue to operate after the repeal date pursuant to Item 13 of Part 3 of Schedule 18 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth) (Transitional Act).
The power to impose a penalty in respect of contraventions of sections 182, 234 and 246 of the WR Act arises from subsection 719(1) of the WR Act. Subsection 719(1) of the WR Act provides that an eligible court (which includes this Court) can impose a penalty in respect of a contravention of an “applicable provision” by a person bound by that provision. Subsection 717(a)(ii) of the WR Act defines “applicable provision” as including a term of the Australian Fair Pay and Conditions Standard, which relevantly includes sections 182, 234 and 246 of the WR Act.
The power to impose a penalty in respect of contraventions of clauses 8 and 10 of the NAPSA also arises from subsection 719(1) of the WR Act. Clause 43, Schedule 8 of the WR Regulations provides that a Notional Agreement Preserving a State Award may be enforced as if it were a collective agreement. Subsection 717(a)(iv) of the WR Act defines “applicable provision” as including a term of a collective agreement.[1]
[1] Item 3, section 717, WR Act
The power to impose pecuniary penalties in respect of contraventions of sub-regulation 19.4(1) of the WR Regulations arises by virtue of sub-regulations 14.3 and 14.4 of the WR Regulations.
FW Act
Section 535(1) of the FW Act provides that employers must keep employee records of the kind prescribed by the FW Regulations for 7 years.
The power to impose a penalty in respect of contraventions of sections 535 of the FW Act arise from section 546 of the FW Act. Section 546 of the FW Act provides that an eligible court (which includes this Court) can impose a penalty if the court is satisfied that the person has contravened a civil remedy provision, which includes section 535 of the FW Act.[2]
Maximum penalties under the WR Act and the FW Act
Section 719(4) of the WR Act and section 539(2) (by virtue of section 546(2)) of the FW Act prescribe the maximum penalties that may be imposed by this Court for each contravention of the WR Act and the FW Act, to be, in the case of an individual, 60 penalty units and the case of a body corporate, 300 penalty units[3]; with the exception in this matter being section 535 of the FW Act, which, pursuant to section 539(2) of the FW Act, bears a maximum penalty of 30 penalty units and in the case of a body corporate, 150 penalty units.
Section 846(2)(g) of the WR Act and regulation 14.4 of the WR Regulations prescribe the maximum penalty that may be imposed by this Court for each contravention of the WR Regulations to be, in the case of an individual, 10 penalty units, and in the case of a body corporate, 50 penalty units.
Section 4(1) of the WR Act and section 12 of the FW Act provide that “penalty unit” has the same meaning as in the Crimes Act 1914 (Cth). Section 4AA(1) of the Crimes Act 1914 (Cth) defines “penalty unit” to be $110.
Therefore, the maximum penalty that may be imposed by the Court for each breach of the WR Act and FW Act is:
(a) $33,000 for each contravention of an applicable provision or civil remedy provision by the Respondent (as a body corporate); and
(b) $16,500 for each contravention of section 535 of the FW Act by the Respondent (as a body corporate).
[2] Section 535 of the FW Act is a civil remedy provision by virtue of section 539 of the FW Act.
[3] Section 546(2) of the FW Act.
The maximum penalty that may be imposed for each contravention of the WR Regulations is $5,500 for each contravention by the Respondent (as a body corporate).
Course of conduct provisions under the WR Act and the FW Act
Both the WR Act and the FW Act sets out that multiple breaches of particular provisions may, depending upon the particular circumstances, attach the operation of the course of conduct provisions contained in subsection 719(2)[4] of the WR Act and section 557 of the FW Act.
Subsection 719(2) of the WR Act provides that where the same person commits two or more breaches of an “applicable provision” and the breaches arise out of the same course of conduct by that person, the breaches are taken to constitute a single breach.
The course of conduct provisions contained in subsection 719(2) of the WR Act do not apply to contraventions of the WR Regulations because those provisions (which are civil penalty provisions by virtue of section 846 of the WR Act) are not “applicable provisions” as defined by the WR Act.
Section 557 of the FW Act provides that two or more contraventions of a specific civil penalty provision (listed in subsection 557(2) of the FW Act) are taken to constitute a single contravention if the contraventions are committed by the same person and the contraventions arose out of a course of conduct by the person.”
[4] See e.g. Clothing and Allied Trades Union v Snugglerite Industries Pty Ltd (1990) 34 IR 124 at 126.
The contraventions admitted and the maximum penalties provided by the relevant Acts are as follows:
“In total the Respondent has admitted to the following contraventions of the WR Act, WR Regulations and the FW Act:
(a) Failure to pay employees the basic guaranteed periodic pay - section 182 of the WR Act; item 5, Schedule 16 of the Transitional Act (maximum penalty $33,000) - repeated contraventions, 27 employees;
(b) Failure to credit annual leave - Section 234(2) of the WR Act, sub-item 6(1)(a) of Schedule 16 of the Transitional Act (maximum penalty $33,000) – repeated contraventions, 30 employees;
(c) Failure to credit personal/carer’s leave - Section 246 of the WR Act; sub-item 6(1)(a) of the Transitional Act (maximum penalty $33,000) – repeated contraventions, 31 employees;
(d) Failure to pay toilet allowance - Section 719(1) and 719(6) of the WR Act, by virtue of breaching clause 8(vii) of the NAPSA; sub-item 2(1) of Schedule 16 of the Transitional Act (maximum penalty $33,000) – repeated contraventions, 2 employees;
(e) Failure to pay overtime rates - Section 719(1) and 719(6) of the WR Act, by virtue of breaching clause 10 of the NAPSA; sub-item 2(1) of Schedule 16 of the Transitional Act (maximum penalty $33,000) – repeated contraventions, 11 employees;
(f) Failure to keep employee records - Sub-regulation 19.4(1) of the WR Regulations (maximum penalty $5,500) – repeated contraventions, 31 employees;
(g) Failure to keep employee records - Sub-regulation 3.33 of the FW Regulations (maximum penalty $16,500) – repeated contraventions, 31 employees.”
B. Relevant Factors on Penalty
I accept the written submissions of the applicant as to the relevant factors in relation to determining penalties as follows:
“The factors relevant to the imposition of a penalty under the WR Act have been summarised by Mowbray FM in Mason v Harrington Corporation Pty Ltd t/as Pangaea Restaurant & Bar [2007] FMCA 7 (Pangaea), [26]-[59], as follows:
(a) the nature and extent of the conduct which led to the breaches;
(b) the circumstances in which that conduct took place;
(c) the nature and extent of any loss or damage sustained as a result of the breaches;
(d) whether there had been similar previous conduct by the defendant;
(e) whether the breaches were properly distinct or arose out of the one course of conduct;
(f) the size of the business enterprise involved;
(g) whether or not the breaches were deliberate;
(h) whether senior management was involved in the breaches;
(i) whether the party committing the breach had exhibited contrition;
(j) whether the party committing the breach had taken corrective action;
(k) whether the party committing the breach had cooperated with the enforcement authorities;
(l) the need to ensure compliance with minimum standards by provision of an effective means for investigation and enforcement of employee entitlements; and
(m) the need for specific and general deterrence.”
This summary was adopted by Tracey J in Kelly at [14]. While the summary is a convenient checklist, it does not prescribe or restrict the matters which may be taken into account in the exercise of the Court’s discretion: Sharpe v Dogma Enterprises Pty Ltd [2007] FCA 1550, [11]; Merringtons at [91] per Buchanan J.”
Circumstances in which the conduct took place and nature and extent of the conduct
I accept the written submissions of the applicant in respect of these circumstances. I note that the respondent does not contend otherwise. Those submissions are as follows:
“The contraventions represent a failure to provide basic and important conditions and entitlements under the workplace relations legislation. The purpose of the legislation is to provide a safety net which ensures adequate minimum entitlements to employees, particularly those whom are vulnerable or in low income roles. The legislation is also designed to provide an even playing field for all employers with regard to employment costs. Contraventions of these fundamental entitlements undermine the workplace relations regime as a whole and display a disregard for the Respondent’s statutory obligations.
The Respondent’s contraventions relate to a course of conduct which led to the underpayment of the Employees. The underpayments result from an arrangement where the Respondent (who was the employer of the Employees) attempted to contract out of its obligations by deliberately entering into an informal and artificial arrangement with an unrelated entity, LJ & LJ King Pty Ltd, in an attempt to have LJ & LJ King Pty Ltd be responsible for a portion of the time that the Employees worked.[5]
[5] Statement of Claim, [9]; SOAF, [15]-[16].
The Applicant can see no reason why the Respondent attempted to enter into this informal and artificial arrangement.
The Applicant is does not have any evidence of the motivations behind the conduct. However, the Applicant notes that the informal and artificial arrangement may have been an attempt by the Respondent to reduce its obligations to the employees and, as a practical matter, the arrangement had significant consequences for the Employees who were not provided their entitlements.
The range of contraventions spans a large variety of different contravening conduct. As a result of the Respondent’s informal and artificial arrangement with LJ & LJ King Pty Ltd:
(a) a total of 27 night shift workers were paid less than the guaranteed basic periodic rate of pay, receiving less than $17.95 per hour for the fourth hour of their shift;[6]
[6] Statement of Claim, Schedule B.
(b) a total of 30 night shift workers were not credited annual leave for collectively having worked over 2,025 hours;[7]
(c) all 31 of the Employees, being night shift workers in the cleaning industry, were not credited personal/carer’s leave and denied the opportunity to use personal leave because the Respondent failed to accrue it. Collectively, the Employees worked 2,375 hours without the benefit of accruing personal/carer’s leave;[8]
(d) 2 of the Employees worked (between them) 192 hours cleaning toilets. The Respondent failed to pay those two night shift workers the allowance owed to them under the NAPSA for performing this work;[9]
(e) a total of 11 night shift workers were not paid applicable overtime rates for over 1525 hours of work;[10]
(f) there are no records for the hours worked by all 31 of the Employees for the period when the workers were purportedly working for LJ & LJ King Pty Ltd. Accordingly, there is no way to determine whether the Employees worked additional hours for which they have still not been paid.
The Respondent admitted to the Applicant that it was responsible for wages and entitlements for the fourth and additional hours worked by the Employees.[11]
On about 18 December 2009, the Respondent made a payment of $37,246.82 (gross) to the employees who were current employees at the time. These amounts were intended as rectification of wages for the period 1 July 2009 to 4 August 2009.
Shortly after the Respondent’s attempt to rectify the contraventions, the Applicant was notified by an aggrieved employee that the Employees were requested to return the amounts that were paid to them, in cash to LJ & LJ King Pty Ltd.
When the Applicant questioned the Respondent in relation to the claw-back of the rectification payments, the Respondent admitted that it had taken this action and subsequently took further remedial steps.[12]”
[7] Statement of Claim, Schedule C.
[8] Statement of Claim, Schedule D.
[9] Statement of Claim, Schedule E.
[10] Statement of Claim, Schedule F.
[11] Record of Conversation dated 15 July 2010, SOAF; [17].
[12] SOAF, [60]-[69].
Course of conduct
The applicant conceded that the multiple breaches of particular provisions by the respondent was a course of conduct in terms of s.719(2) of the WR Act and s.557(2) of the FW Act. However, the course of conduct provisions in s.719(2) of the WR Act does not apply to contraventions of the WR Regulations.
I accept the submission of the applicant that each civil remedy provision is separate for the purposes of s.719(2) of the WR Act and s.546(1) of the FW Act and that s.719(2) of the WR Act and s.557 of the FW Act should not be applied to reduce the number of contraventions where there are contraventions of distinct civil remedy provisions. In the circumstances, I accept that the course of conduct considerations only arise to limit the contraventions in respect of the repeated breaches by the respondent of a particular provision in respect of multiple employees.
In the circumstances, I am satisfied that the respondent engaged in a total of seven contraventions of the relevant legislation.
In relation to the record keeping contraventions of reg.2.19.4(1) of the WR Regulations and subsequently the provisions of s.535 of the FW Act, whilst contraventions of both the WR Regulations and the FW Regulations, I am satisfied that there was in fact a single course of conduct for the purposes of determining penalty.
Further, I accept the written submissions of the respondent that the record keeping contraventions flowed directly as a consequence of other pleaded breaches by the respondent.
Nature and extent of the loss
I accept the written submissions of the applicant in respect of these circumstances. I note that the respondent does not contend otherwise. Those submissions are as follows:
“The Applicant submits that the nature and extent of the loss suffered by the Employees was significant and warrants the imposition of a penalty because it involves contravention of minimum standards of the most fundamental kind: the payment of wages and entitlements.
The underpayments owing to the Employees are as a result of separate and distinct contraventions by the Respondent of Australian workplace laws.
A large number of employees, being 31 employees, were affected by the Respondent’s contraventions.
The total value of the underpayments claimed is $133,845.93 (gross),[13] the sum of which is a culmination of underpayments over a significant period of time.
In addition, the Respondent failed to credit annual leave and personal leave for a total of 4,400.94 hours.[14] The total monetary value of this leave is $78,996.79.[15] The consequences of the Respondent’s failure to credit leave cannot be measured purely in monetary terms. The failure to accrue leave entitlements meant that the Employees were not able to utilise the benefit of those entitlements as they accrued, the effect of which cannot be measured by conventional means.
The Applicant also submits that there is a possibility that the figures to calculate the owed entitlements are conservative figures. The fact that no records were kept for a portion of the time worked by the Employees means that the Applicant is unable to determine whether the Employees worked additional hours (in excess of the amounts claimed and rectified).”
[13] Statement of Claim, [47].
[14] Statement of Claim, Schedule G
[15] SOAF, [57].
Size and financial circumstances of the business
I accept that the respondent is a large business that supplies retail and commercial cleaning services. The respondent employs over 200 workers and is currently contracted to clean over 125 office buildings. The respondent does engage contractors and provides services to Australia’s leading property identities and public service organisations.
Accordingly, as a large company employer, I am satisfied that the respondent has the resources and ability to access professional and legal advice. I note that the respondent was legally represented for the duration of this proceeding.
Further, I accept that the penalties for failure to comply with minimum entitlements should be imposed at a meaningful level and that the expectations that a large employer should comply with its workplace relations obligations may be greater (see Fair Work Ombudsman v Hungry Jack’s Pty Ltd [2011] FMCA 233 at [49] per Burchardt FM).
Deliberateness of the breaches, cooperation with authorities, corrective action and contrition
I accept that the respondent deliberately entered into the subcontracting arrangement which lead to its employees not receiving their full statutory entitlements for the last hour of each shift. I also accept that the contraventions committed by the respondent only ceased because of the audit and investigation of the respondent by the applicant.
I further accept that, after the respondent made the first instalment to repay money owed to the employees, the respondent told the applicant that the payments had been made and yet asked the employees to return the money.
However, I accept the unchallenged evidence of Raelene Lesley Verran contained in her affidavit, affirmed 9 May 2012, that any such request to the employees to return the money paid was in the context of a mistaken belief by management within the respondent that the employees had been paid twice for parts of the shifts in question.
I also have regard to the fact that, upon the conduct of its subcontractor resulting in underpayment to the respondent’s employees being brought to the attention of the respondent, the respondent accepted responsibility for the entirety of the employees’ entitlements and cooperated fully with the applicant in seeking to redress the subcontractor’s conduct.
I also accept that the contrition expressed by the respondent in writing to each of its employees apologising for the underpayment of wages, overtime, toilet allowance and unaccrued annual and personal leave, is genuine. I do not accept the written submission of the applicant that the attempt to reclaim from the employees underpayments, once made, negates the genuine contrition of the respondent in circumstances where the respondent provided unchallenged evidence by way of explanation as referred to above.
Ensuring compliance with minimum standards
I accept the written submissions of the applicant in respect of these standards. I note that the respondent does not contend otherwise. Those submissions are as follows:
“It is submitted that this is an important consideration in the present case. One of the stated principal objects of the WR Act and the FW Act has been the preservation of an effective safety net for employee entitlements and effective enforcement mechanisms. Further, it is vital to ensure compliance with record keeping provisions, as the making and retention of employment records enables Fair Work Inspectors to carry out compliance and enforcement roles.
The substantial penalties set by the legislature for contraventions of the WR Act and FW Act reinforce the importance placed on compliance with minimum standards.
The present proceedings are concerned with underpayment of wages, failure to accrue leave entitlements and pay allowances due under the terms of an industrial instrument. The fundamental nature of the contraventions demonstrates the Respondent’s disregard for statutory obligations.”
General deterrence
I accept the written submissions of the applicant in respect of general deterrence. I note that the respondent does not contend otherwise. Those submissions are as follows:
“It is well-established that “the need for specific and general deterrence” is a factor that is relevant to the imposition of a penalty under the WR Act and the FW Act. See for example, Mowbray FM in Mason v Harrington Corporation Pty Ltd t/as Pangaea Restaurant & Bar [2007] FMCA 7 (Pangaea), [26]-[59].
The role of general deterrence in determining the appropriate penalty is illustrated by the comments of Lander J in Ponzio v B & P Caelli Constructions Pty Ltd (2007) 158 FCR 543, [93]:
‘In regard to general deterrence, it is assumed that an appropriate penalty will act as a deterrent to others who might be likely to offend: Yardley v Betts (1979) 22 SASR 108. The penalty therefore should be of a kind that it would be likely to act as a deterrent in preventing similar contraventions by like minded persons or organisations. If the penalty does not demonstrate an appropriate assessment of the seriousness of the offending, the penalty will not operate to deter others from contravening the section. However, the penalty should not be such as to crush the person upon whom the penalty is imposed or used to make that person a scapegoat. In some cases, general deterrence will be the paramount factor in fixing the penalty: R v Thompson (1975) 11 SASR 217.’
The contraventions in the current proceedings concern the removal of key employment conditions by way of a deliberate and artificial commercial relationship between a contractor and sub-contractor. The Applicant submits that penalties in this case should be imposed on a meaningful level so as to deter other employers from committing similar contraventions, especially in the cleaning industry.
The Applicant submits that the nature of the cleaning industry is such that it involves unskilled labour[16] and therefore it is more likely to attract vulnerable workers. As a result, it is particularly important to deter other employers from committing similar contraventions in the cleaning industry.
Further, it is submitted that it is important to deter other employers from implementing informal commercial arrangements as a mechanism to purportedly remove an employer’s obligations to its employees, for example, employee entitlements and workplace health and safety obligations.
Finally, it is submitted that when imposing penalties, the Court should have regard to the ‘message sent’ in the imposition of penalties, to employers and the community generally, to make it clear that obligations to workers cannot be avoided or abrogated.”
[16] The unskilled nature of the cleaning industry is demonstrated by the duties of the Employees in these proceedings. The Employees duties are derived from the classification of “cleaners” under the “cleaning services stream” of the Award, which provides that cleaners are involved in “any description on premises or in bringing into or maintaining premises in a clean condition, whatever may be the nature of the employees other duties.” These duties are general and require no prescribed training or specific skills set.
Specific deterrence
As stated above, the respondent cooperated fully with the applicant upon the revelation of the breaches pleaded to following the applicant’s random audit of the respondent and pleaded at the earliest possible time to the contraventions. Further, as stated above, I accept that the respondent has expressed genuine contrition and has no prior history of industrial workplace offences.
Further, I accept the unchallenged affidavit evidence of Ms Verran that the respondent has taken positive steps to ensure the breaches are not repeated. That evidence is as follows:
“In 2010 and 2011 I advised the Defendant that the following steps needed to be implemented to ensure that the company would be in proper and consistent compliance with all employment laws for its future dealings:
(i) Management at all levels had to be told in plain language that compliance was fundamental to the company’s business;
(ii) Local management could no longer have any significant degree of autonomy in human resources matters. All human resources issues had to be dealt with through Head Office with the direct involvement of the Human Resources Manager;
(iii) All sub contractors had to be issued with a formal directive that they would be held to the same standards of compliance as the Defendant itself;
(iv) An external service provider should be engaged to do regular audits of sub contractors to ensure that the compliance required was in fact being observed.;
(v) A booklet should be developed to be issued to all sub contractors setting out what they needed to do to comply. A copy is attached as ‘B’;
(vi) Preferred sub contractors should be engaged on the basis of their compliance levels.
The Defendant adopted all my advised recommendations listed in Paragraph 13 of this my affidavit.
I am now responsible for to do random audits of both sub contractors engaged on contracts and the Defendant’s own employee-based contracts. In the period from late 2011 to date when I took over the audit process I have found full compliance with employment legislation by the Defendant. I have found some instances of non compliance by sub contractors but in every case the sub contractor concerned has worked cooperatively to rectify the situation and there has been no reoccurrence.
In my capacity as Human Resources Manager I am confident that the Defendant has fundamentally changed its approach to human resources issues and compliance. I am also confident that by working closely with FWO on a cooperative basis the Defendant has established a culture within the company of both respect and compliance which is genuine and sustainable on a long term basis.”
The respondent also participated in a Court annexed mediation resulting in the agreement of the civil penalties proposed.
Importantly, the employees have all been fully recompensed for unpaid wages and overtime and their records now accurately reflect payment of monies and available accrued leave.
Further, I note that the investigation by the applicant into the respondent’s conduct resulted in the applicant alleging breaches at only one location and the other location audited by the applicant was found to be fully compliant. In the circumstances, I am satisfied that the breaches were isolated to the respondent’s cleaning contract at 126 Phillip Street, Sydney.
In the circumstances, I am satisfied that the specific deterrence required for the respondent in respect of the breaches is minimal.
C. Contraventions proved
Accordingly, in all the circumstances and in the light of the material and evidence before me, I find each of the contraventions agreed to proved.
D. Penalty
The penalties which the parties ask the Court to impose in respect of each of the agreed contraventions are as follows:
“By agreement, the parties recommend that the Court imposes penalties as outlined below (see paragraph 72 of the SOAF).”
SUGGESTED PENALTIES
[17] The SOAF incorrectly states that the maximum penalty for a breach of sub- regulations 19.4 of the WR Regulations is $1,100 (which is the maximum penalty that can be imposed upon an individual) instead of $5,500 (which is the maximum penalty that can be imposed upon a corporation). This error does not alter the parties’ submissions to the Court regarding recommended penalties (as outlined in paragraph 72 of the SOAF).
[18] The SOAF incorrectly states that the maximum penalty for a breach of sub-regulations 3.33 of the FW Regulations (by virtue of section 535(1) of the FW Act) is $3,300 (which is the maximum penalty that can be imposed upon an individual) instead of $16,500 (which is the maximum penalty that can be imposed upon a corporation). This error does not alter the parties’ submissions to the Court regarding recommended penalties (as outlined in paragraph 72 of the SOAF).
[19] The SOAF incorrectly states that the maximum total penalty is $169,400 instead of $187,000. This error has arisen because the SOAF contains the incorrect maximum penalty for a breach of sub- regulations 19.4 of the WR Regulations (see footnote directly above). This error does not alter the parties’ submissions to the Court regarding recommended penalties (as outlined in paragraph 72 of the SOAF).
Provision contravened
Description of contravention
Maximum penalty
Parties’ submission on penalty
Section 182 of the WR Act; item 5, Schedule 16 of the Transitional Act Failure to pay employees the basic guaranteed periodic pay $33,000 $15,000 Section 234(2) of the WR Act, sub-item 6(1)(a) of Schedule 16 of the Transitional Act Failure to credit annual leave $33,000 $15,000 Section 246 of the WR Act; sub-item 6(1)(a) of the Transitional Act Failure to credit personal/carer’s leave $33,000 $15,000 Clause 8(vii) of the NAPSA Failure to pay toilet allowance $33,000 $1,000 Clause 10 of the NAPSA Failure to pay overtime rates $33,000 $15,000 Sub-regulation 19.4(1) of the WR Regulations Failure to keep employee records $5,500[17] $1,000 Sub-regulation 3.33 of the FW Regulations Failure to keep employee records $16,500[18] Sub-total $187,000[19] $62,000
I accept the written submissions of the applicant in respect of the relevant law as to the role of the Court in considering whether to impose the agreed penalties. Those submissions are as follows:
“Notwithstanding the agreement of the parties (as outlined in the table above and at paragraph 72 of the SOAF), the determination of the correct penalty to be imposed on the Respondent is ultimately a matter for the Court. The task of the Court is to ‘fix a penalty which pays appropriate regard to the circumstances in which the contraventions have occurred and the need to sustain public confidence in the statutory regime which imposes the obligations’.
In Minister for Industry, Tourism and Resources v Mobil Oil Australia Pty Ltd[20] the Full Court endorsed the principles in NW Frozen Foods Pty Ltd v Australian Competition and Consumer Commission[21] in relation to the propositions that should be taken into account where parties have reached agreement about penalty. In summary, they are that:”
[20] [2004] FCAFC 72 (Branson, Sackville and Gyles JJ).
[21] (1996) 71 FCR 285 at 298-299 (Burchett and Kiefel JJ).
(a) it is the responsibility of the court to determine the appropriate penalty;
(b) determining the amount of a penalty is not an exact science. Within a permissible range, the courts have acknowledged that a particular figure cannot necessarily be said to be more appropriate than another;
(c) there is a public interest in promoting settlement of litigation, particularly where it is likely to be lengthy;
(d) the view of the regulator, as a specialist body, is a relevant, but not determinative, consideration;
(e) in determining whether the proposed penalty is appropriate, the court examines all of the circumstances of the case; and
(f) where the parties have jointly proposed a penalty, it will not be useful to investigate whether the court would have arrived at that precise figure is in the absence of agreement. The question is whether that figure, in the court’s view, appropriate in the circumstance of the case. In answering that question, the court will not reject the agreed figure simply because it would have been disposed to select some other figure. It will be appropriate if it is within the permissible range.
The above propositions have been applied by the Full Court in relation to the determination of penalties in an industrial context.
While fixing a penalty is ultimately a matter for the Court, where parties agree on penalty, the Court should not disturb it unless it falls outside the permissible range. Jessup J observed:
‘The court is not bound by the agreement of the parties as to the level of penalty which should be imposed in a case such as the present. However, the court will not depart from an agreed figure merely because it might otherwise have been disposed to award some other figure. The predictability involved in the resolution of penal proceedings in accordance with a pre-trial agreement reached by the parties is something which should, as a matter of public policy, be regarded as beneficial. Only where the agreed penalty falls outside the permissible range should the court depart from the figure agreed by the parties. In this context, the permissible range is the range which would be permitted by the court, that is, a range within which the penalty is neither manifestly inadequate nor manifestly excessive’.[22]”
[22] Wells v Locarno Management Pty Ltd [2008] FCA 1034 at [23] per Jessup J.
I accept that the contraventions involve breaches of important statutory protections relating to acceptable workplace conduct and that a meaningful penalty should be imposed.
I note the written submissions of the legal representatives of each of the parties that the agreed penalties falls within the permissible range of penalties for the offences proven.
I have had regard to the totality of the agreed penalties. I am satisfied that, whilst in my view the agreed penalty is at the highest end of a permissible penalty, it is not manifestly excessive.
Accordingly, the following penalties should be imposed upon the respondent:
a)Pursuant to subsection 719(1) of the WR Act (for contraventions prior to 1 July 2009) and section 546(1) of the FW Act (for contraventions on and from 1 July 2009), a penalty of $15,000 be imposed on the respondent in respect of its contraventions of subsection 182(1) of the WR Act;
b)Pursuant to subsection 719(1) of the WR Act (for contraventions prior to 1 July 2009) and section 546(1) of the FW Act (for contraventions on and from 1 July 2009), a penalty of $15,000 be imposed on the respondent in respect of its contraventions of subsection 234(2) of the WR Act;
c)Pursuant to subsection 719(1) of the WR Act (for contraventions prior to 1 July 2009) and section 546(1) of the FW Act (for contraventions on and from 1 July 2009), a penalty of $15,000 be imposed on the respondent in respect of its contraventions of subsection 246(4) of the WR Act;
d)Pursuant to subsection 719(1) of the WR Act (for contraventions prior to 1 July 2009) and section 546(1) of the FW Act (for contraventions on and from 1 July 2009), a penalty of $1,000 be imposed on the respondent in respect of its breach of Clause 8(vii) of the NAPSA;
e)Pursuant to subsection 719(1) of the WR Act (for contraventions prior to 1 July 2009) and section 546(1) of the FW Act (for contraventions on and from 1 July 2009), a penalty of $15,000 be imposed on the respondent in respect of its breach of Clause 10(i) of the NAPSA;
f)Pursuant to regulation 14.4 of Part 14 of Chapter 2 of the WR Regulations (for contraventions prior to 1 July 2009) and section 546(1) of the FW Act (for contraventions on and from 1 July 2009), a penalty of $1,000 be imposed on the respondent in respect of its contraventions of sub-regulation 19.4(1) of the WR Regulations and subsection 535(1) of the FW Act.
I am satisfied that the penalties should be paid to the Consolidated Revenue Fund of the Commonwealth and note that such order is by consent.
The parties have also asked the Court to make declarations by consent. In the circumstances, and having regard to the need for general deterrence in respect of the conduct engaged in by the applicant, I am satisfied that the declarations agreed to should be made.
I certify that the preceding thirty-eight (38) paragraphs are a true copy of the reasons for judgment of Emmett FM
Date: 21 August 2012
1
10
8