Ghobrial v Spectrum Migrant Resource Centre - [2022] FedCFamC2G 358

Federal Circuit and Family Court of Australia

(DIVISION 2)

Ghobrial v Spectrum Migrant Resource Centre [2022] FedCFamC2G 358

File number(s):	MLG 3754 of 2020
Judgment of:	JUDGE BLAKE
Date of judgment:	17 November 2022
Catchwords:	INDUSTRIAL LAW – Pecuniary penalties – Applicant alleged, inter alia, failure to consult with the Applicant prior to the termination of his employment on redundancy grounds as required by the Social, Community, Home Care and Disability Services Award 2010 – where contraventions were admitted promptly - assessment of penalty to be imposed - where Respondent submitted no penalty should be imposed because no quantifiable loss for the Applicant and because consultation unlikely to have negated outcome – Respondent’s submission ignores authorities on the importance of consultation – other factors assessed – HELD Respondent to pay pecuniary penalties for two contraventions of Award.
Legislation:	Fair Work Act 2009 (Cth) ss 45, 546(1), 557, 557A, 557A(1), 557A(2). Social, Community, Home Care and Disability Services Industry Award 2010 cc 8, 8.1, 8.2. Workplace Relations Act 1996 (Cth) ss 170GA, 170GA(1)(b).
Cases cited:	Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (2017) 249 FCR 458 Australian Building and Construction Commissioner v Pattinson [2022] HCA 13 Australian Competition and Consumer Commission v BAJV Pty Ltd [2014] FCAFC 52 Australian Ophthalmic Supplies Pty Ltd v McAlary-Smith [2008] FCAFC 8 Boyd v Glenvill Pty Ltd (No 2) [2021] FedCFamC2G 164 Civil Air Operations Officers Association of Australia v Airservices Australia (No 2) [2021] FCA 993 Commonwealth v Director, Fair Work Building Industry Inspectorate [2015] HCA 46 Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v QR Limited [2010] FCA 591 Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v QR Limited (No 2) [2010] FCA 652 Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Optus Administration Pty Ltd (AW791910 Print L4596) Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Vodafone Network Pty Ltd (C2001/5770 PR911257) Construction, Forestry, Mining and Energy Union v Cahill (2010) 269 ALR 1 Construction, Forestry, Mining and Energy Union v Newcastle Wallsend Coal Company Ltd (C2758 Dec 1533/98 S Print R0234) Construction, Forestry, Mining and Energy Union v Williams [2009] FCAFC 171 Fair Work Ombudsman v NSH North Pty Ltd t/as New Shanghai Charlestown [2017] FCA 1301 Hansen v Mt Martha Community Learning Centre Inc (No 2) [2015] FCA 1283 Kelly v Fitzpatrick [2007] FCA 1080 Mason v Harrington Corporation Pty Ltd [2007] FMCA 7 NW Frozen Foods Pty Ltd v Australian Competition and Consumer Commission (1996) 71 FCR 285 Parker & Ors v Australian Building and Construction Commissioner (2019) 365 ALR 402 Port Louis Corporation v Attorney-General of Mauritius [1965] AC 1111 Sayed v Construction, Forestry, Mining and Energy Union 239 (2016) FCR 336 Sinfield v London Transport Executive [1970] 1 Ch 550 TVW Enterprises Ltd v Duffy (No 2) (1985) 7 FCR 172
Division:	Division 2 General Federal Law
Number of paragraphs:	80
Date of last submission:	21 July 2022
Date of hearing:	On the papers
Place:	Melbourne
Solicitor for the Applicant:	None
Solicitor for the Respondents:	Spark Helmore

ORDERS

MLG 3754 of 2020

BETWEEN:

GUINDY GHOBRIAL

Applicant

AND:

SPECTRUM MIGRANT RESOURCE CENTRE

First Respondent

RENEE MAZLOUM

Second Respondent

ROMY VITALIEN (and another named in the Schedule)

Third Respondent

order made by:	JUDGE BLAKE
DATE OF ORDER:	17 November 2022

THE COURT ORDERS THAT:

Pursuant to section 546(1) of the Fair Work Act 2009 (Cth) (‘Act’), the First Respondent pay a pecuniary penalty of:
(a)$25,200 in respect of its contravention of clause 8.1 of the Social, Community, Home Care and Disability Services Industry Award 2010 (‘Award’); and
(b)$6,300 in respect of its contravention of clause 8.2 of the Award.
The penalties in Order 1 above be paid to the Applicant within 30 days of the date of these Orders.
The Applicant have liberty to apply on seven days notice in the event that the preceding Orders are not complied with.

Note: The form of the order is subject to the entry in the Court’s records.

Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).

REASONS FOR JUDGMENT

JUDGE BLAKE:

The sole issue before the Court is the amount, if any, of pecuniary penalties to be imposed on Spectrum Migrant Resource Centre (‘Spectrum’) in respect of certain contraventions of section 45 of the Fair Work Act 2009 (Cth) (‘Act’) and clause 8 of the Social, Community, Home Care and Disability Services Industry Award 2010 (‘Award’).
For the reasons that follow, I have decided that Spectrum should pay a pecuniary penalty of:
(a)$25,200 in respect of its contravention of clause 8.1 of the Award; and
(b)$6,300 in respect of its contravention of clause 8.2 of the Award.

background

The Applicant commenced proceedings in this Court by filing an Application and Statement of Claim on 21 October 2020. Spectrum, Renee Mazloum, Romy Vitalien and Genevieve Cooper (collectively, the ‘Respondents’) filed a Defence and Response on 22 and 23 December 2020 respectively.
Following various procedural steps, the matter came on for trial before Judge Davis on 13 September 2021. The trial ran over some 13 days.
On 13 September 2021, the first day of the trial, each party amended their pleadings. The pleadings were not formally filed with the registry or on the Court system or portal, however, there was a discussion about the amended pleadings before Judge Davis, who acknowledged and accepted that the pleadings had been amended.
On 13 May 2022 following the trial, Judge Davis made the following Orders and Declarations:
THE COURT DECLARES THAT:
1. The first respondent contravened section 45 of the Fair Work Act 2009 (Cth) by breaching clause 8 of the Social, Community, Home Care and Disability Services Award 2010 (Award) by:
(a)failing to consult with the applicant before terminating his employment on 2 July 2020 because his position had been made redundant, with the termination to take effect on 10 July 2020;
(b)failing to consult with the applicant as soon as practicable after a definite decision to terminate his position was made as required by clauses 8.1(b) and 8.1(c) of the Award; and
(c)failing to give the applicant, in writing, all relevant information about the changes including their nature, expected effect on the applicant and any other matter likely to affect the applicant, until after he had already been formally terminated, as required by clauses 8.1(b) and 8.2(a)-(c) of the Award.
THE COURT ORDERS THAT:
1.The hearing as to whether any and, if so, what penalty will be imposed on the first respondent by reason of the contravention which is the subject of the Court’s declaration herein be adjourned to a date to be advised by the Court.
2. The application is otherwise dismissed.
THE COURT NOTES THAT:
A.The declaration made is in the terms admitted by the first respondent in paragraphs 68(b), 69 and 70 in the amended defence dated 14 September 2021.
Judge Davis subsequently ceased to be a Judge of this Court. He never delivered oral or written reasons for the judgment and Orders he made on 13 May 2022.
On 24 May 2022, the matter was called on for mention before Chief Judge Alstergren. The Chief Judge explained to the parties and in particular to the Applicant, that Orders and Declarations had been made without the giving of reasons. The Chief Judge also explained to the Applicant the options available to him, including, lodging an appeal to the Federal Court of Australia, attending mediation or accepting Judge Davis’ Orders and Declarations, and moving to a hearing on penalty. After some discussion, the Applicant confirmed that he was content to accept the Declarations, deal with penalty only and not appeal the remainder of Judge Davis’ Orders. As a consequence of receiving that indication, the Chief Judge made an Order that the issue of penalty be determined on the papers and also made Orders for the filing of any submissions and evidence in relation to penalty. The matter was subsequently docketed to me to deal with penalty.
The Applicant filed a written submission in the Court on 24 June 2022. The Respondents filed written submissions on 21 July 2022. I have had regard to those documents. I have also (in light of the fact that the Orders and Declarations of Judge Davis are founded upon alleged contraventions that are admitted in the Amended Defence) had regard to the Amended Application dated 13 September 2021, the Amended Statement of Claim dated 13 September 2021 and the Amended Defence dated 14 September 2021.
While each party filed an outline of submissions on the issue of penalty, neither party filed any further affidavit material relating to penalty as provided for by the Orders of the Chief Judge. The parties did not file any agreed facts (noting they were not ordered to do so), and nor are there any written reasons available which disclose findings of fact.
In its written submissions, Spectrum indicated it wished to rely on all material previously filed. I observe that the allegations which gave rise to the Declarations were only made at the start of the trial and were admitted promptly. That means, among other things, that there is limited direct evidence about the contraventions that are the subject of the Declarations because the parties were understandably focussed on the other live issues in the proceeding. Where there is evidence relevant to the question of penalty, I have endeavoured to review not only the evidence in question, but whether there was any challenge to the evidence, before taking it into account.

the contraventions the subject of the court’s orders

The contraventions which form the basis of the Orders and Declarations made by Judge Davis, spring from the Amended Statement of Claim and admissions contained within the Amended Defence. The contraventions were admitted only by Spectrum and not by the other Respondents. In these reasons, I refer to these contraventions collectively as the ‘admitted contraventions’. Before outlining each of the admitted contraventions, it is necessary to set out the relevant term of the Award that was contravened.

The terms of the Award

Clause 8 of the Award provides as follows:
8.        Consultation about major workplace change
8.1If an employer makes a definite decision to make major changes in production, program, organisation, structure or technology that are likely to have significant effects on employees, the employer must:
(a)give notice of the changes to all employees who may be affected by them and their representatives (if any); and
(b)discuss with affected employees and their representatives (if any):
(i)the introduction of the changes; and
(ii)their likely effect on employees; and
(iii)measures to avoid or reduce the adverse effects of the changes on employees; and
(c) commence discussions as soon as practicable after a definite decision has been made.
8.2For the purposes of the discussion under clause 8.1(b), the employer must give in writing to the affected employees and their representatives (if any) all relevant information about the changes including:
(a)       their nature; and
(b)       their expected effect on employees; and
(c)       any other matters likely to affect employees.
8.3Clause 8.2 does not require an employer to disclose any confidential information if its disclosure would be contrary to the employer’s interests.
8.4The employer must promptly consider any matters raised by the employees or their representatives about the changes in the course of the discussion under clause 8.1(b).
8.5      In clause 8:
significant effects, on employees, includes any of the following:
(a)termination of employment; or
(b)major changes in the composition, operation or size of the employer’s workforce or in the skills required; or
(c)loss of, or reduction in, job or promotion opportunities; or
(d)loss of, or reduction in, job tenure; or
(e)alteration of hours of work; or
(f)the need for employees to be retrained or transferred to other work or locations; or
(g)job restructuring.
8.6Where this award makes provision for alteration of any of the matters defined at clause 8.5, such alteration is taken not to have significant effect.

The failure to consult (‘first contravention’)

At paragraph [68] of the Amended Statement of Claim, the Applicant pleaded as follows:
[68]Spectrum MRC breached Clause 8.1(a) of the Award by failing to give notice of its definite decision to make major changes in production, program, organisation, structure or technology (the changes), that are likely to have significant effects to all employees who may be affected by them. Spectrum MRC failed to engage in meaningful consultation with the applicant regarding two major workplace changes; first, in failing to properly consult with the applicant regarding the standing down provisions in or around April 2020, being a significant effect on the applicant by way of the alteration in his hours of work per Clause 8.5(a) of the Award, and second, by failing to meaningfully consult with the applicant prior to his termination, in that he was first made aware of the decision on the same day he was formally terminated, in itself a significant effect as defined in Clause 8.5(e) of the Award.
At paragraph [68] of the Amended Defence, Spectrum pleaded as follows:
[68] In relation to paragraph 68, the first respondent:
a.denies that is breached clause 8.1(a) of the Social, Community, Home Care and Disability Services Award 2010 (Award) and denies that it failed to properly consult with the applicant regarding the stand down requirement in or around April 2020, which had the effect of altering his hours of work; and
Particulars
Measures that were initially considered to address the impact of the COVID-19 pandemic on the first respondents operations included standing down a number of employees. In April 2020, a one-hour videoconference meeting was held via Microsoft Teams to discuss the need for employees to take annual leave.
During the videoconference, the employees were told that a direction had been given by senior management and Human Resources to reduce by 1 FTE in the team in order to avoid job losses and that, because the Migration Services team was made up of 5 FTE, employees in the team would need to take a day of leave.
On 23 April 2020, an email confirming arrangements was sent by Renee Mazloum to the employees in the Migration Services team. The email set out a roster, and the email also clarified that, “a drop in one day will be required across the Department” and that the employees, “will be entitled to take leave on that day until you no longer have leave and then it will be unpaid.” A copy of the email is annexed to the affidavit of Ms Mazloum filed in this proceeding, dated 22 June 2021 and marked “RM-4”.
Employees of the first respondent were also advised about the stand down arrangements in a newsletter dated 1 May 2020, which attached an FAQ document dated 30 April 2020. The newsletter and the FAQ document were sent to all employees of the first respondent by an email sent to all staff of the first respondent on 1 May 2020.
A copy of the all staff email and attachments is annexed to the affidavit of Bernard Arthur Nott filed in this proceeding, dated 21 June 2020 and marked “BN-4”.
b. admits that it breached the Award by failing to consult with the applicant before terminating his employment on 2 July 2020 because his position had been made redundant, with the termination to take effect on 10 July 2020.

Failure to consult as soon as practicable after decision has been made to terminate the employment (‘second contravention’)

At paragraph [69] of the Amended Statement of Claim, the Applicant pleaded as follows:
[69]Spectrum MRC breached Clauses 8.1(b) and (c) of the Award by failing to consult with the applicant as soon as practicable after a definite decision to terminate his position was made. The applicant was first made aware that his position was being terminated at a meeting, with the formal termination notice coming through later the same day.
At paragraph [69] of the Amended Defence, Spectrum pleaded as follows:
[69]The first respondent admits paragraph 69.

Failure to give relevant information (‘third contravention’)

At paragraph [70] of the Amended Statement of Claim, the Applicant pleaded as follows:
[70]Spectrum MRC breached Clauses 8.1(b) and 8.2(a)-(c) by failing to give the applicant in writing, all relevant information about the changes including their nature; expected effect on the applicant and any other matter likely to affect the applicant, until after he had already been formally terminated.
At paragraph [70] of the Amended Defence, Spectrum pleaded as follows:
[70] The first respondent admits paragraph 70.

the position of the parties

The Applicant submits that the three contraventions should be treated separately and penalised accordingly. He says they are serious contraventions within the meaning of section 557A of the Act because, among other things, other employees (not the subject of this litigation) were subjected to the same contravention. The Applicant therefore asks the Court to impose a pecuniary penalty of 600 penalty units for each contravention upon Spectrum. Alternatively, he submits that if the Court does not view the contraventions as serious contraventions, the Court should impose the maximum penalty of for each contravention.
The principal submission of Spectrum is that no penalty should be imposed in respect of the contraventions. Alternatively, if the Court is of the view that a penalty should be imposed, Spectrum submits that the three contraventions should be treated as a single contravention having regard to section 557 of the Act, and established common law principle. Spectrum submits that a nominal penalty in the range of $1,000-$3,150 is appropriate for the single contravention, it says, is established in this case.
A number of matters that Spectrum advances in support of its submission, that no pecuniary penalty be imposed, overlap with the matters the Court is required to consider in the event that it is required to assess the extent of any penalty. Accordingly, I now propose to consider the factors which guide the Court in determining penalty, before returning to the question of whether no penalty ought to be imposed.

relevant Principles

In Fair Work Ombudsman v NSH North Pty Ltd t/as New Shanghai Charlestown [2017] FCA 1301 (‘NSH North’), Bromwich J set out at paragraph [36] the approach to be taken when determining penalty:
[36]The written submissions in chief for the FWO helpfully outlined the approach that should be taken in determining the appropriate penalty, there being no dissent between the parties at this level of principle. Five steps were described as follows (with some adjustment of expression):
(1)Identify the separate contraventions, with each breach of each obligation being a separate contravention, and each breach of a term of the Award being a separate contravention.
(2)Consider whether each separate contravention should be dealt with independently or with some degree of aggregation for those contraventions arising out of a course of conduct, noting that s 557 of the 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].

In Kelly v Fitzpatrick [2007] FCA 1080, the Federal Court set out a list of non-exhaustive factors relevant to the imposition of penalties under the Act.
[14]In Mason v Harrington Corporation Pty Ltd [2007] FMCA 7 Mowbray FM identified "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". Those considerations were derived from a number of decisions of this Court. I gratefully adopt, as potentially relevant and applicable, the various considerations identified by him. They were:
•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.
The parties accepted that these considerations should guide the exercise of my discretion in the present proceeding. More recently, in Australian Building and Construction Commissioner v Pattinson [2022] HCA 13, the High Court at [18] referred to these principles and also stated at [42] that penalties ‘are not retributive, but rather are protective of the public interest in that they aim to secure compliance by deterring repeat contraventions’.

separate contraventions or a single contravention

A relevant question that arises in the present matter is the application of what is commonly referred to as the ‘course of conduct principle’. That principle finds voice in section 557 of the Act and also in the common law: Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (2017) 249 FCR 458 at [88].
In Construction, Forestry, Mining and Energy Union v Cahill (2010) 269 ALR 1 at [39], the Full Court (Middleton and Gordon JJ) stated:
[39]As the passages in Williams [2009] FCAFC 171; 262 ALR 417 explain, a "course of conduct" or the "one transaction principle" is not a concept peculiar to the industrial context. It is a concept which arises in the criminal context generally and one which may be relevant to the proper exercise of the sentencing discretion. The principle recognises that where there is an interrelationship between the legal and factual elements of two or more offences for which an offender has been charged, care must be taken to ensure that the offender is not punished twice for what is essentially the same criminality. That requires careful identification of what is "the same criminality" and that is necessarily a factually specific enquiry. Bare identity of motive for commission of separate offences will seldom suffice to establish the same criminality in separate and distinct offending acts or omissions.
In Parker & Ors v Australian Building and Construction Commissioner (2019) 365 ALR 402, Besanko and Bromwich JJ stated at [272]-[273] as follows:
[272] As the Commissioner points out, the passage quoted at [268] above from Cahill requires consideration not just of an interrelationship between the legal and factual elements of two or more contraventions, but also the factually specific inquiry as to whether the different contraventions constitute the “same criminality”, translating that criminal law concept to the civil penalty context.
[273]Concepts such as course of conduct (and, for that matter, totality) that are drawn from the criminal law and applied to the imposition of civil penalties are not rigid rules of law, but, rather, general principles to guide the exercise of the penalty imposing discretion:
I have set out clause 8 of the Award above. It is the clause that gives rise to each of the admitted contraventions. It can be seen that clause 8.1 imposes obligations on an employer that has made a definite decision to make major changes in production, program, organisation, structure or technology that are likely to have significant effects on employees. The first obligation is to give notice of the changes to all employees (subparagraph 8.1(a)). The second obligation is to discuss the changes with affected employees (subparagraph 8.1(b)). Subparagraph 8.1(c) stipulates the time at which those discussions are to occur, being ‘as soon as practicable after a definite decision has been made’.
Clause 8.2 is a provision designed to facilitate the discussions contemplated by clause 8.1. It requires an employer to give certain specified information in writing to affected employees in order to facilitate the discussions contemplated by clause 8.1.
As will be seen from what follows, there is little information before the Court as to the specific circumstances that gave rise to the admitted contraventions. I accept Spectrum’s submission that the situation that confronted it, including the redundancy of the Applicant, arose from its deteriorating financial position, a matter I examine in greater detail below, but that evidence does not assist the Court to understand how it is that Spectrum and its officers came to not adhere to the obligations contained in clause 8 of the Award. This creates some difficulty. The Court is required to assess whether the contraventions arose out of the same criminality or course of conduct, but there is limited information before it as to what actually occurred.
To illustrate the difficulty that confronts the Court in relation to the lack of evidence about the specific circumstances that caused Spectrum not to comply with clause 8 of the Award, I have summarised the evidence below.
Under cross examination, Mr Nott, the Chief Executive Officer (‘CEO’)stated that:
(a)to the best of his belief, Spectrum communicated impending changes to its staff: see Transcript page 76, lines 28 – 32;
(b)there was regular and ongoing communication with staff when the pandemic commenced in terms of the implications for work, staff, clients and the continuity of services, that started in March 2020: see Transcript page 77 lines 6 – 24;
(c)he was unaware whether the Applicant received information required to be given to him under clause 8.2 of the Award: see Transcript page 77, lines 28 – 33;
(d)the Applicant received his redundancy notice on the first day he was made aware of the decision: see Transcript page 78, lines 14 – 16.
Ms Vitalien, the Manager of Settlement and Family Services at Spectrum, gave somewhat more extensive evidence on the circumstances leading to the admitted contraventions. Her evidence was as follows:
MR GHOBRIAL: I just want to ask why.
HIS HONOUR: Why there was no consultation?
MR GHOBRIAL: Yes.
HIS HONOUR: All right. So leave it with me, Mr Ghobrial.
Ms Vitalien, do you accept that there was no consultation about the redundancy prior to the meeting on 2 July – that you know of?---Your Honour, at the – at the time that this process was occurring, we were advised that a consultation process with the – the leadership team, including the team leaders and the senior leadership team, would suffice in this instance, given there were no redeployment opportunities.
Yes. I’m – to be clear, all I’m asking is whether you accept that there was no consultation, to your knowledge, with the applicant. That’s all?---With the applicant, I would agree, your Honour.
Thank you. And then what the applicant wants to know is why that’s so, and I think you were commencing to answer that. So could you then tell the applicant why that’s – why – to the best of your ability, could you tell the applicant why there was no consultation prior to 2 July?---Yes, your Honour. Throughout the entire process, I was being guided by the manager of human resources. I’ve – I’ve never had any reason to doubt the HR advice that I’ve been provided by HR managers throughout my career.
Yes. And could you identify the manager that you’re referring to?---Yes. I – I knew her as Kerri Williams. I think Kerri might be a shortened name, but that’s how I have known her.
Yes?---So, yes, I’ve never had any reason to doubt the – the advice given. I – I did question several times whether a consultation needed to occur, because that has been my understanding of redundancies. I was advised several times that the consultation in these circumstances would be tokenistic - - -
Unnecessary?---Yes. Yes, tokenistic or not genuine, I suppose, because there were no redeployment opportunities available. I was advised that – that many hours of discussion amongst members of the senior leadership team and the team leaders constituted consultation to the extent that it could occur in these circumstances.
Thank you. Mr Ghobrial, you have the witness’ answer.
MR GHOBRIAL: So you are sure that there is no other reasons?
HIS HONOUR: Well, that’s a – if you – so – do you mean, Mr Ghobrial, that there are no other reasons for the lack of consultation, or there are no other reasons for the redundancy? I just – for your own benefit - - -
MR GHOBRIAL: The lack of consultation, yes.
HIS HONOUR: Thank you. All right.
So, what – you’ve heard the witness’ question, Ms Vitalien, and I can see that you understand it. If you would answer that question?---Yes. I – yes, your Honour. I – I can’t comment on anyone else’s reasons for doing anything at that time.
Yes?---From my perspective of circumstances, I – I asked several times about whether a consultation was required. I was advised that a consultation usually involves presenting opportunities for redeployment, but that given that this was a financial decision and that staffing needed to be reduced, there was no viable consultation that could occur. For me, certainly, that was the only reason I was given, and the only reason I accepted.
Mr Ghobrial, that’s – the witness has answered that question, I think, comprehensively.
Ms Williams, the Human Resources (‘HR’) Manager at the time, referred to in the passages above, was cross examined. She confirmed that she was aware of the Award: see Transcript page 132, line 46 to page 133 line 2. Her evidence does not explain how, if she was aware of the Award, clause 8 was not complied with.
The position then seems to be that Ms Vitalien was following the advice of Human Resources. It seems Ms Vitalien was advised by someone in Human Resources that consultation with the senior management team would suffice in this instance and that any consultation would be ‘tokenistic’ because no other positions were available.
I pause to observe that it appears from both the evidence of Ms Vitalien and the evidence of Ms Williams that Spectrum was aware of the Award and its contents, including clause 8.
There are three admitted contraventions. It is an inescapable conclusion when regard is had to the pleadings and the Declarations made by Judge Davis, that the conduct that underlies the first contravention and the second contravention is the same. There was a failure by Spectrum to consult the Applicant at all in relation to the redundancy of his position, and the termination of his employment. There was only one occasion on which redundancy of the position occurred, and only one occasion on which the Applicant’s employment was terminated as a consequence.
Declarations 1(a) and 1(b) are both concerned with a failure to consult within a specific time period. Declaration 1(a) of the Declarations made by Judge Davis is concerned with a failure to consult before termination of employment (emphasis added). Declaration 1(b) is concerned with failing to consult with the Applicant as soon as practicable after a definite decision to terminate his position (emphasis added). Despite the way in which the Declarations are drafted, it is to be observed that clause 8.1 does not, in terms, require consultation at two separate points in time. It only requires consultation to occur at one point in time being ‘as soon as practicable after a definite decision has been made’ (see clause 8.1(c)).
For the above reasons, I propose to group the first contravention and the second contravention together for the purposes of determining penalty. The contraventions arose out of the same course of conduct, being the failure to consult in the circumstances described. To reach any other conclusion would mean that Spectrum would be exposed to two penalties in circumstances where the Award provides only an obligation to consult before termination of employment.
There is then the third contravention. That contravention concerns the failure by Spectrum to provide the written information required to be provided by clause 8.2. A separate and distinct obligation is created by clause 8.2, albeit the clause sits within clause 8 of the Award. The obligation imposed by clause 8.2 is designed to facilitate the discussions and consultation contemplated by clause 8.1. The obligation created by clause 8.2 is important. The quality of any discussion or consultation that might occur under clause 8.1 may be easily eroded if there is not compliance with clause 8.2.
In my view, the third contravention should be treated as a separate contravention for the purposes of penalty. I accept the contravention occurred because Spectrum did not consult at all. The nature of the obligation imposed by clause 8.2 is different and distinct and is of no less importance than the obligations imposed by clause 8.1 for the reasons given above. It is possible to consider circumstances where an employer consults with employees, but does not provide the information required by clause 8.2. Such a course may attract a penalty and understandably so, because it would affect the quality of any consultation process and the ability of the employee to meaningfully participate in any consultation process.
Step 3 identified by Bromwich J in NSH North requires the Court to consider whether any further adjustment should be made to ensure that, to the extent of any overlap between groups of contraventions, there is no double penalty imposed and that the penalty is an appropriate response to what a respondent did. As Bromwich J did at [41] of his reasons, I propose to address that issue below when dealing with the remaining matters relevant to the assessment of penalty.

factors relevant to the assessment of penalty

I now turn to consider the various factors in this case relevant to assessing the appropriate penalty to be imposed. In doing so, I note that the maximum penalty that the Court could impose on Spectrum for each contravention, if it is taken to be a serious contravention, is $630,000 at the time the contraventions occurred. If it is not a serious contravention, the maximum penalty that may be imposed at the time each contravention occurred is $63,000 per contravention.

Nature, extent and circumstances leading to the contraventions and whether the contravention was deliberate

Other than what I have referred to above, there is no explanation in the evidence as to how Spectrum managed to fall foul of the obligations contained in clause 8.1 of the Award. That is unsurprising given the allegations were raised late and admitted promptly.
Spectrum invited the Court to consider the admitted contraventions through the prism of the circumstances which gave rise to redundancies. By that submission, Spectrum refers to evidence it led about its deteriorating financial circumstances at the time the redundancy was effected, the COVID 19 pandemic, the risk the enterprise may cease to exist, and other matters which led to its decision to make employees positions redundant and to terminate the employment of the Applicant.
There is a great deal of evidence about the deteriorating financial position that Spectrum found itself in at the end of 2019 and at the start of 2020. That evidence is set out in various places including the affidavit of Bernard Nott, the CEO of Spectrum.[1] Mr Nott attached to his affidavit various business papers from Business Priorities Meetings of Spectrum. Those business papers included, for example, cash flow statements, profit and loss statements and other financial analyses in the period leading up to the Applicant’s termination of employment. Documents were also tendered during the hearing (for example, exhibits R5, R6 and R8) showing, among other things, the operating position of certain business units and the financial performance (actual and anticipated) of Spectrum. Mr Nott was also cross examined about the financial position of Spectrum at the time. Given the extent of the evidence, I accept that Spectrum’s financial position was deteriorating at the time the Applicant’s position was declared redundant and I accept that the financial position of Spectrum was likely to be further adversely affected by the COVID 19 pandemic.
[1] The deteriorating financial position of Spectrum at the relevant time is also a matter canvassed in the evidence of Ms Williams (see for example, exhibit ‘KW2’), Ms Vitalien (see for example, paragraphs 15 and 18 of her affidavit, exhibit ‘RV1’) and the affidavit of Ms Mazloum (see for example, paragraph 6)
While the above might be accepted, the principal difficulty with Spectrum’s submission is that whatever the financial circumstances may have been, they do not excuse non-compliance with clause 8.1 or 8.2 of the Award, particularly when one considers the obligations in those clauses do not confer monetary benefits on employees. It must be remembered that provisions such as clause 8 of the Award are designed to ensure employees are consulted about significant effects on their employment. The purpose of clause 8 of the Award and consultation provisions generally would be completely undermined if employers were to receive lesser penalties, or have their non-compliance with Award provisions treated less seriously, because of financial pressures.
Spectrum also submitted that the admitted contraventions were not deliberate and were inadvertent. I have traversed earlier what evidence there is in relation to the circumstances of the contravention. I do not accept the contraventions were inadvertent. The evidence shows there was knowledge of the Award. The evidence also shows that consultation was to be tokenistic. I am unable to see any evidence that indicates the contraventions occurred because Spectrum misunderstood or misinterpreted the obligation in the Award. The better inference to be drawn from the evidence is that Spectrum was aware of its obligation to consult but did not comply with it.
The Applicant submitted that the admitted contraventions should be treated as serious contraventions in accordance with section 557A of the Act. That submission cannot be accepted. There is no finding or Declaration, and no evidence that Spectrum ‘knowingly’ contravened clause 8.1 of the Award as required by clause 557A(1)(a) of the Act. There is no finding, no Declaration and insufficient evidence to conclude that Spectrum’s conduct was part of a ‘systematic pattern of conduct’ as contemplated by section 557A(1)(b) and section 557A(2) of the Act. The only findings against Spectrum relate to the employment of the Applicant, and the failure to consult with him under clause 8 of the Award. While the Applicant points to other persons he says were subject to the same contraventions, those persons were not parties to this proceeding and no findings have been made, or contraventions found, against Spectrum in relation to these other employees either in this matter or in any other proceedings. Moreover, no findings have been made that Spectrum has contravened any other term of the Award, or the terms of any other award or the Act. Spectrum has not admitted contraventions in relation to any other person.

Nature and extent of loss and damage sustained

Spectrum makes a number of submissions in relation to this issue. It says that its failure to consult gave rise to ‘no quantifiable loss for the applicant in this matter’ and that there is no financial benefit for the Applicant which has otherwise been denied. It further submits that it did not receive any benefit in respect of the failure to consult.
Spectrum also makes the further submission that the Applicant was not denied an opportunity to change the decision because clause 8.1 only requires consultation to occur once a ‘definite decision’ has been made, and as this decision would have been ’definite’ at the stage consultation should have occurred, it follows that it would not have been subject to change. It also submits that there was nothing the Applicant could have said or done to change the outcome given the financial difficulties that confronted it, and the impact of the COVID 19 pandemic.
In Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v QR Limited [2010] FCA 591 (‘Queensland Rail No 1’) and Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v QR Limited (No 2) [2010] FCA 652 (‘Queensland Rail No 2’), Logan J, in the Federal Court, had the opportunity to consider the significance of consultation provisions in industrial instruments and the importance of them being complied with. The factual background in the Queensland Rail decisions is significantly different to the present situation, as was the content of the consultation term, but Logan J’s comments on the principle of consultation and the importance of consultation remain apposite.
On the importance of consultation, Logan J said in Queensland Rail No 1:
[43]Thus, in Port Louis Corporation v Attorney-General of Mauritius [1965] AC 1111 at 1124 the Judicial Committee observed of a consultation obligation in an ordinance in respect of measures to alter local government boundaries that: “[t]he nature and object of consultation must be related to the circumstances which call for it” and “The requirement of consultation is never to be treated perfunctorily or as a mere formality. The local authority must know what is proposed; they must be given a reasonably ample and sufficient opportunity to express their views or to point to problems or difficulties; they must be free to say what they think.” These observations as to what was entailed in a requirement to consult commended themselves, in the different context of their use in broadcasting legislation, to Toohey J when a judge of this Court in TVW Enterprises Ltd v Duffy (No 2) (1985) 7 FCR 172. His Honour pithily remarked (at 178), “Consultation is no empty term.” That same sentiment is evident in the following passage from the judgement of Sachs LJ in Sinfield v London Transport Executive [1970] 1 Ch 550 at 558 concerning a consultation obligation which attended a power to alter bus routes:
It is apposite first to mention that Mr Francis emphasised not once but several times that whatever be the true construction of section 22(3) [which contained the consultation requirement] and whatever order this court might make, it was in the end the executive and no one else who made the decision. If that was intended to intimate that the executive merely looked on consultations as being an opportunity for those consulted to make ineffective representations, it would represent an approach that, to put it mildly, cannot be supported. Consultations can be of very real value in enabling points of view to be put forward which can be met by modifications of a scheme and sometimes even by its withdrawal. I start form the viewpoint that any right to be consulted is something that is indeed valuable and should be implemented by giving those who have the right an opportunity to be heard at a formative stage of proposals – before the mind of the executive becomes unduly fixed.
[44]Such cases have proved influential in the Australian Industrial Relations Commission (industrial commission) for the guidance they offer as to what a requirement to “consult” entails: Construction, Forestry, Mining and Energy Union v Newcastle Wallsend Coal Company Ltd (C2758 Dec 1533/98 S Print R0234) (Full Bench); Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Vodafone Network Pty Ltd (C2001/5770 PR911257) (Cmr Smith); Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Optus Administration Pty Ltd AW791910 Print L4596) (Cmr Smith). The apprehension in the industrial commission that these cases were of assistance was not, with respect, misplaced. They serve to confirm an impression as to the content of an obligation to “consult” evident from the dictionary meaning of the word. A key element of that content is that the party to be consulted be given notice of the subject upon which that party’s views are being sought before any final decision is made or course of action embarked upon. Another is that while the word always carries with it a consequential requirement for the affording of a meaningful opportunity to that party to present those views. What will constitute such an opportunity will vary according the nature and circumstances of the case. In other words, what will amount to “consultation” has about it an inherent flexibility. Finally, a right to be consulted, though a valuable right, is not a right of veto.
[145]“Consultation”, as Toohey J remarked, is no empty term. Of course finality of decision-making rested with boards of management to whom a unanimous Ministerial shareholder decision had been communicated. That does not mean that the QR employers were excused from compliance with the QR Agreements. Well may it have been that employee consultation about the partial privatisation itself may have been unlikely to alter that announced position but it does not follow that how it was to be implemented was a sterile subject. Further, it is not for an employer bound by a clause such as cl 36 to make a priori assumptions about the outcome of consultation. As cl 36.1 states a genuine opportunity to influence the outcome must be extended. Here, the QR employers made no a priori assumption about consultation. They did not consult at all. (emphasis added)
On whether a contravention of a consultation provision is serious, Logan J in Queensland Rail No 2 stated:
[66]In the face of radical change, to exclude workers from consultation is a very, very serious contravention. I regard the present as a paradigm case where consultation was required. There is a convenience about the approach that QR Limited and its two respondent subsidiaries adopted, a convenience about closing one’s eyes to the obvious, that yields an absence of a need to draw to the attention of shareholding ministers the presence of such an obligation, with the necessary and, perhaps, beneficial delay that might bring with it. (emphasis added)
In Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Vodafone Network Pty Ltd (C2001/5770 PR911257), Commissioner Smith of the then Australian Industrial Relations Commission had cause to consider section 170GA of the then Workplace Relations Act 1996 (Cth). Similar to clause 8 of the Award, section 170GA provided, among other things, that an employer who decided to terminate the employment of 15 or more employees for reasons of an economic, technological, structural or similar nature was required ‘as soon applicable after so deciding and in any event before terminating an employee’s employment’ to inform relevant trade unions about the terminations and give the union an opportunity to consult about, among other things, measures to avert or minimise any terminations and measures to mitigate the adverse effects of terminations. In considering the obligation imposed by section 170GA, Smith C stated:
[25]In deciding whether or not to make the orders sought I have considered the importance of consultation. Consultation is not perfunctory advice on what is about to happen. This is common misconception. Consultation is providing the individual, or other relevant persons, with a bona fide opportunity to influence the decision maker. Section 170GA(1)(b) of the Act speaks of measures to avert or minimise terminations or to mitigate the adverse effects of the terminations. Consultation is not joint decision making or even a negative or frustrating barrier to the prerogative of management to make decisions. Consultation allows the decision making process to be informed, particularly as it may effect the employment prospects of individuals. The opportunity to seek to avoid or mitigate the effects of a termination can not be underestimated by those who wield power over those and their families who will the subject of the exercise of that power.
It is apparent from the above that Smith C regarded consultation as important, notwithstanding that section 170GA operated once the employer had ‘decided’ to terminate the employment of employees.
The importance of the right to consult has also been restated by the Federal Court recently in Civil Air Operations Officers Association of Australia v Airservices Australia (No 2) [2021] FCA 993 (Murphy J) at [75]-[77].
When the above statements are considered, it becomes apparent that the submissions of Spectrum in this matter on the nature of the Applicant’s loss should be rejected. The right to be consulted was an important right denied to the Applicant. He lost not only the opportunity to be consulted, but the opportunity to influence the course of events. It is not to the point for Spectrum to say that his contributions would not have altered the ultimate decision. That is nothing more than mere speculation from a party who has denied another the right to be consulted. Moreover, it ignores the fact that while it might be the case that termination of employment would nevertheless have taken place, proper consultation may have resulted in modifications to the manner in which the redundancy process was managed and executed.
Spectrum’s submissions seek to make much of the fact that the obligations contained in clause 8.1 are only enlivened after a ‘definite decision’ has been made. That ignores the various authorities in this area which I have referred to above that recognise that consultation must forward an employee a genuine opportunity to influence events. The authorities emanating from the Fair Work Commission dealing with unfair dismissals and the obligation to consult, to which Spectrum referred in paragraph 11(e) of its written submissions, are of no assistance in the present matter either.
Having regard to the above, Spectrum’s submissions on this issue are rejected. The Applicant’s loss was the loss of his right to be consulted. This was a serious loss of a valuable right, given the importance of consultation provisions in industrial instruments.

Similar previous conduct

There is no evidence before the Court of Spectrum ever being found to have engaged in contraventions of workplace laws.

Size of the business

I have traversed the evidence before the Court. There is limited evidence before the Court in relation to the size of Spectrum’s business. I have noted earlier Mr Nott’s evidence about the deteriorating financial position of Spectrum in the lead up to the decision to make the Applicant’s position redundant, and I have accepted that Spectrum’s financial position was deteriorating. While the financial position of Spectrum was clearly deteriorating and action apparently needed to be taken, there is little evidence that illuminates the overall size of Spectrum’s business. Perhaps the document that provides the best, albeit, limited insight into the size of the business of Spectrum is a Balance Sheet dated 30 March 2020 annexed to Mr Nott’s affidavit. The Balance Sheet shows that at 31 March 2020, Spectrum had total assets of approximately $7.7m, total liabilities of approximately $5.2m, and a net asset position of approximately $2.32m.
Spectrum submits that is a not for profit employer, established to support refugees and migrants in Australia by providing a range of services to them and that this is ‘a highly relevant mitigating factor to the determination of penalty’. In support of that submission, Spectrum refers to the judgment of Jessup J in Hansen v Mt Martha Community Learning Centre Inc (No 2) [2015] FCA 1283 (‘Hansen’) at [5]. I accept that Spectrum operates on a not for profit basis and provides a range of important services to migrants and refugees. Hansen does not, however, stand for the proposition that the status of an organisation as a ‘not for profit’ is a ‘mitigating factor to the determination of penalty’ nor does it stand for the proposition that not for profit organisations are entitled to a discount on penalty simply by virtue of their not for profit status. As Jessup J makes clear in Hansen, having regard to the comments of Tracey J in Kelly v Fitzpatrick (2007) 166 IR 14 at [28], any sanction, must be imposed at a meaningful level and what is a meaningful level can rarely be determined without at least some consideration of the size of the relevant contravener. In this respect, see also Australian Competition and Consumer Commission v BAJV Pty Ltd [2014] FCAFC 52 at [40], [41] and NW Frozen Foods Pty Ltd v Australian Competition and Consumer Commission (1996) 71 FCR 285 at [293].

Involvement of senior management

Having regard to what I have set out above in relation to how Spectrum came to contravene clause 8.1 of the Award, there is not sufficient evidence before me to conclude that senior management either was, or was not, involved in the admitted contraventions. Clearly there was an awareness by senior management as to what was occurring at a general level, but there is insufficient evidence of involvement by senior management personnel in the admitted contraventions.

Contrition, co-operation and corrective action

Given the circumstances in which the contraventions were raised and admitted, I accept that Spectrum could not have acted any sooner than it did in owning up to the conduct which was alleged against it. I note that as a result of that admission, there was no need for Judge Davis to deal with the issue, including the various difficulties that would have arisen in relation to the admission of evidence on those points during the course of the trial, given affidavits had been filed in advance of the trial.
In addition to admitting the contraventions as soon as it was in a position to do so, Mr Nott sent a letter of apology to the Applicant on 20 April 2022. The letter is attached to the affidavit of Mr David Saunders that was filed during the trial on 22 April 2022. In the letter, Mr Nott apologises to the Applicant for the failure to consult. The letter, in my view, reflects genuine heartfelt contrition on behalf of Spectrum. It is not a brief or perfunctory letter of apology. It is an apology expressing genuine regret.
In his affidavit, Mr Saunders also deposes that the contraventions have been brought to the attention of Spectrum’s human resources staff and its senior leadership group, and that Spectrum will now ensure that in appropriate cases in the future, it seeks advice in order to ensure compliance with its obligations. The content of Mr Saunders affidavit, while welcome, provides little detail as to how Spectrum will ensure that it meets its Award obligations on a day-to-day basis, other than seeking advice in ‘appropriate cases’. Apart from drawing the Award obligations to human resources and the senior leadership group’s attention, and seeking advice, no information is provided as to what internal systems and processes will be modified to ensure compliance on a continued basis.
In summary, I am satisfied that there has been co-operation by Spectrum, evidenced by its early admission of the contraventions, which has saved Court time and resources. I am satisfied that Spectrum has expressed genuine remorse and is genuinely remorseful for its actions. I am also satisfied that Spectrum has taken some steps to ensure that it does not reoffend. I take all of these matters into account.

Compliance with minimum standards

Clause 8.1 is contained within an Award. Awards, together with provisions of the Act such as the National Employment Standards, reflect the minimum terms and conditions which employees are entitled to enjoy. The admitted contraventions are a contravention of the minimum obligation to consult with employees about significant changes. The fact that the contravention is of a minimum term of employment is a matter I give weight to and take account of.

Deterrence

On one view, the need for specific deterrence is low in this case when one considers that Spectrum has not previously contravened workplace laws, has expressed genuine remorse and has taken some steps to ensure it will not reoffend. There are, however, factors which suggest there is a need for specific deterrence in this case. These include the following. First, as I have noted, there is nothing before me which indicates specifically how Spectrum came to fall foul of the relevant provisions in the Award. It can be difficult to have confidence that a problem can be addressed in the future, if there is not a detailed understanding of how the problem has occurred on this occasion. Second, I am somewhat troubled by Spectrum’s submissions that the admitted contraventions did not cause the Applicant quantifiable loss, and that even if he had been given the opportunity to consult, it would not have altered the outcome. In his affidavit, Mr Saunders says that Spectrum has learned a valuable lesson from the proceedings, and that it will be vigilant of its termination of employment processes. It is difficult to reconcile Mr Saunders’ statements however, with the submission that the failure to consult did not result in loss to the Applicant and would not have altered the outcome. Those submissions reflect an attitude which undervalues the importance and significance of provisions like clause 8.1 and 8.2. I have endeavoured to address the importance of consultation provisions earlier in these reasons and I rely on that reasoning here. Spectrum simply must understand that the obligation to consult about, in this instance, the termination of an employee’s employment, is a fundamentally important obligation. Of course, these matters need to be weighed against Spectrum’s evidence as to the steps it has taken to ensure it will not repeat the contravening conduct. When these matters are weighed, there is in my view some need for specific deterrence.
There is in my view a need for general deterrence in this case. Spectrum’s attitude to the contravention of clause 8 (reflected in submissions that the Applicant has not suffered financial loss, and that his contributions would not have altered the outcome) is, in my experience, not uncommon. That view persists, despite what superior Courts have had to say about the importance of consultation. Not imposing a penalty, or the imposition of a nominal penalty, in this case risks sending the wrong message to employers. It risks sending the message that failure to abide by consultation provisions is not a serious contravention, and that Courts will not take it seriously. That is a position that should not be endorsed or encouraged.

Penalty

I have considered and weighed the various matters above. In my view, this is a case in which a penalty should be imposed having regard to the matters above. Spectrum’s submissions that this is a case in which no penalty should be imposed are rejected. It then falls to consider the amount of the penalty. The factors that point to a penalty at the lower end of the scale include the cooperation, contrition and corrective action displayed by Spectrum, and the fact that it has not been found to have previously contravened workplace laws. There are, however, a number of factors that suggest a higher penalty should be imposed. These include the fact that this was a contravention of a minimum term and condition of employment, Spectrum’s attitude that breach of a consultation provision should be regarded as a low-level or less serious breach because it did not cause financial loss, and Spectrum’s attitude that even if consultation did occur it would not have affected the outcome. Critically, noting the High Court’s comments in Pattinson, there is a need for both specific and general deterrence in this case.

I note that Spectrum submitted that a single penalty should be imposed in the range of $1,000-$3,150. The amount of $3,150 amounts to 5% of the maximum penalty. Even if I were to apply that penalty to both contraventions in this case, it would be too low.
The Applicant sought that the contravention be treated as a serious contravention and irrespective of whether the Court found the contravention to be a serious contravention, the maximum penalty should be imposed in respect of each contravention. As I have stated, there is not a basis for treating the contraventions as ‘serious’ contraventions under the Act. This is also not a case that calls for the maximum penalty to be imposed for each contravention, given the matters to which I have referred above, including that this is a first offence by Spectrum, it has displayed genuine contrition and taken some corrective action.
In my view, weighing all of the factors I am required to weigh, the penalty to be imposed in respect of the single contravention of clause 8.1 should be set at 40% of the maximum. That is, the penalty will be $25,200.
In respect of the contravention of clause 8.2, while that is to be treated as a separate contravention and subject to a separate penalty for the reasons stated, it is also a contravention that arose from Spectrum’s decision not to comply at all with the Award. For that reason, some adjustment to the penalty is warranted when regard is had to what Bromwich J identified at Step 3 of NSH North. In my view, the penalty for the contravention of clause 8.2 of the Award should be set at 10% of the maximum. That is, the penalty will be $6,300.
I have given consideration to whether the penalties set out above are crushing or oppressive, and whether the totality principle should be applied. There is no evidence before me that suggests that the penalty I have imposed would be crushing or oppressive. There is no other basis upon which I would entertain a reduction of the penalty amount on the basis of the application of the totality principle.
The Applicant has sought an Order that the pecuniary penalty be paid to him rather than the Commonwealth. Spectrum has not opposed such an Order being made. The considerations pertaining to whether an applicant should receive the whole of a pecuniary penalty were recently canvassed in detail by Judge Kelly in Boyd v Glenvill Pty Ltd (No 2) [2021] FedCFamC2G 164 at [139]-[161]. See also Sayed v Construction, Forestry, Mining and Energy Union 239 (2016) FCR 336; 327 ALR 460.
It is appropriate to order that the Applicant receive the penalties in this case. The Applicant has brought this case through his own efforts. He has invested significant time and effort. He has represented himself in protracted proceedings. He was denied the opportunity to consult with Spectrum and had that opportunity been genuinely given, it is possible that there might have been a different outcome, or at the very least, that the execution of any final redundancy decision may have been handled differently. Payment of the penalties to him will not result in any windfall. In the circumstances, I regard it as appropriate to make an Order that Spectrum pay the penalty to the Applicant within 30 days of the date of these reasons. Orders will be issued to that effect.

I certify that the preceding eighty (80) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Blake.

Associate:

Dated: 17 November 2022

SCHEDULE OF PARTIES

MLG 3754 of 2020
Respondents
Fourth Respondent:	GENEVIEVE COOPER