Hanssen Pty Ltd v Jones

Case [2009] FCA 192

FEDERAL COURT OF AUSTRALIA

Hanssen Pty Ltd v Jones [2009] FCA 192

INDUSTRIAL LAW – appeal from penalty imposed by Federal Magistrate – appellant’s employees were holders of Subclass 457 work visas issued under the Migration Act 1958 (Cth) – whether the appellant exploited the vulnerability of the employees – whether the appellant engaged in deliberate contraventions of the Workplace Relations Act 1996 (Cth)

Workplace Relations Act 1996 (Cth) ss 341, 337, 337(1), 337(2), 337(8), 337(9), 340(1), 341

Australian Ophthalmic Supplies Pty Ltd v McAlary‑Smith (2008) 165 FCR 560
Mornington Inn Pty Ltd v Jordan (2008) 168 FCR 383

HANSSEN PTY LTD v ANDREW MARK JONES

WAD 61 of 2008

SIOPIS J
4 MARCH 2009
PERTH


IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY

WAD 61 of 2008
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN:

HANSSEN PTY LTD
Appellant
AND:

ANDREW MARK JONES
Respondent

JUDGE:

SIOPIS J

DATE OF ORDER:

4 MARCH 2009

WHERE MADE:

PERTH

THE COURT ORDERS THAT:

1.The appeal is allowed.

2.The orders numbered 1, 3 and 4 made by the Federal Magistrate on 11 March 2008 are set aside.

3.The appellant is to pay in respect of the contraventions of s 341 and s 337 of the Workplaces Relations Act 1996 (Cth) a total penalty of $85,000.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.


The text of entered orders can be located using eSearch on the Court’s website.


IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY

WAD 61 of 2008
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN:

HANSSEN PTY LTD
Appellant
AND:

ANDREW MARK JONES
Respondent

JUDGE:

SIOPIS J

DATE:

4 MARCH 2009

PLACE:

PERTH

REASONS FOR JUDGMENT

  1. The appellant is a Perth based construction company which carries on business building high rise apartments.  Its sole director and secretary is Mr Gerardus Peter Hanssen.  In 2006, the company employed approximately 20 persons, the majority of whom were foreign nationals holding a Subclass 457 work visa (a 457 visa).  These employees worked as tradesmen.

  2. In 2006, the appellant entered into an employment agreement, known under the Workplace Relations Act 1996 (Cth) (the Act) as an Australian Workplace Agreement (AWA), with each of a number of its employees who held a 457 visa. Later each of the AWAs was lodged with the Office of the Employment Advocate. This case is about the way in which those agreements were entered into and lodged.

  3. By an application dated 12 September 2007, filed in the Federal Magistrates Court, the respondent, who is a workplace inspector appointed pursuant to s 167 of the Act, alleged that the appellant had contravened s 341 of the Act in respect of the AWAs entered into with 10 of these employees; and that the appellant had contravened s 337(1) and s 337(8) as well as s 337(2) and s 337(9) in respect of the AWAs entered into with another five of these employees. It was also alleged…

Continue reading Hanssen Pty Ltd v Jones

Sign in free to access the full text

Details
AGLC
Hanssen Pty Ltd v Jones [2009] FCA 192
Case
[2009] FCA 192
Decision Date

CaseChat Overview and Summary

Hanssen Pty Ltd has appealed against the penalties imposed by the Federal Magistrate for contraventions of the Workplace Relations Act 1996 (Cth). The appellant admitted to contravening s 337(8), s 337(9) and s 341 of the Act. The Federal Magistrate imposed a penalty of $173,250 in respect of the contraventions of s 337 and s 341, and a penalty of $750 in respect of the contravention of s 342. The appeal against the penalty imposed in respect of s 342 was not upheld.

The primary issue before the court was the appropriate penalty to be imposed in respect of the admitted contraventions. The court needed to consider a range of factors in determining the penalty, including the circumstances of the conduct, the consequences of the contraventions, and the need for deterrence. The court also needed to consider the vulnerability of the employees involved, as they were holders of 457 visas and were dependent on their employer for their continued stay in Australia.

The court found that the appellant had deliberately contravened the Act and had exploited the vulnerability of the employees. The appellant had obtained detailed legal advice about its obligations in relation to the entering into and lodgement of AWAs, but had not followed that advice. The court found that the appellant had deliberately asked the employees not to date the AWAs and had intended to date them himself, in order to avoid breaching the 7 day access requirement. The court found that the appellant had acted deliberately and with disregard for the Act.

The court considered a range of factors in determining the appropriate penalty, including the size of the prescribed maximum penalty, the totality principle, and the need for deterrence. The court found that the penalty imposed by the Federal Magistrate was excessive and set it aside. The court imposed a penalty of $85,000 in respect of the contraventions of s 337 and s 341. The penalty imposed in respect of the contravention of s 342 was not appealed and therefore remains in place.

The court allowed the appeal and set aside the orders made by the Federal Magistrate. The appellant is to pay a total penalty of $85,000 in respect of the contraventions of s 337 and s 341 of the Workplace Relations Act 1996 (Cth). The penalty imposed in respect of the contravention of s 342 remains in place.

Orders

Orders of the court

1. The appeal is allowed.

2. The orders numbered 1, 3 and 4 made by the Federal Magistrate on 11 March 2008 are set aside.

3. The appellant is to pay in respect of the contraventions of s 341 and s 337 of the Workplaces Relations Act 1996 (Cth) a total penalty of $85,000.

Note:

Background

Background to the litigation

The only issue before the Federal Magistrate at the hearing on 5 November 2007 was the penalty to be imposed in respect of the contraventions of the Act which the appellant had admitted. The Federal Magistrate imposed a penalty totalling $173,250 in respect of the contraventions of s 337 and s 341 referred to above. The appellant has appealed against this penalty. The Federal Magistrate also imposed a penalty of $750 in respect of the contravention of s 342 of the Act, but no appeal is brought against the imposition of that penalty.BACKGROUND As mentioned above, the appellant entered into an AWA with each of the 15 employees the subject of this appeal. Each of the agreements was in the same form. There was a place for the date to be inserted beneath the signature of each of the signatories to the agreement. There was also a space for the signature of a witness to be inserted. On 20 June 2006, the appellant lodged 10 of the AWAs with the Office of the Employment Advocate. Each of these AWAs reflected that Mr Hanssen had signed the agreements on behalf of the company on either 13 June or 14 June 2006 and that the employee in question, other than Mr Merina, had signed the agreement on 21 June 2006. In respect of Mr Merina, the agreement when lodged did not contain a date. It is the lodgement of these 10 AWAs which constitute the basis of the allegation that the appellant contravened s 341 of the Act. At the relevant time s 340(1) relevantly provided:An AWA is approved if:(a)the AWA is signed and dated by the employee and the employer; and(b)those signatures are witnessed; and(c)…(Original emphasis.) Section 341 provided:341(1) An employer contravenes this subsection if:(a)the employer lodges a workplace agreement (other than a greenfields agreement); and(b)the agreement has not been approved in accordance with section 340.341(2) Subsection (1) is a civil remedy provision. On 5 July 2006, the Office of Workplace Services (OWS) commenced an investigation into the conduct of the appellant regarding the approval and lodgement of these AWAs. This was because it was apparent that something was awry ‑ at least in respect of nine of the AWAs lodged on 20 June 2006, because the date of lodgement predated the date on which each of the employees had purportedly signed the agreement. On 10 July 2006, the appellant lodged an AWA which recorded that it had been signed by an employee of the appellant, Mr Salazar on 22 June 2006. It is this circumstance that formed the basis for the alleged contravention of s 342 of the Act. On 18 August 2006, the appellant entered into an AWA with Mr Frampton. On 24 August 2006, it entered into an AWA with Mr Hennessy and on 25 August 2006 it entered into an AWA with Mr Twomey. It had also entered into an AWA with Mr Orano on 13 June 2006. It was the circumstances surrounding the entry into the AWAs with each of these employees, as well as the agreement entered into with Mr Salazar, referred to above, that formed the basis of the allegations that the appellant had contravened s 337(8) and s 337(9) of the Act.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

SIOPIS J
On 14 December 2006, another meeting took place between Mr Hanssen and officers of the OWS. A record of this interview was also made.DECISION OF THE FEDERAL MAGISTRATE At the hearing on 5 November 2007, the Federal Magistrate was required only to determine the appropriate penalty for the admitted contraventions of the Act. The evidence before the Federal Magistrate comprised an affidavit of Mr Hanssen and an affidavit of the respondent. Among the documents annexed to the respondent’s affidavit were the records of the interviews between the officers of the OWS and Mr Hanssen on 13 September 2006 and 14 December 2006 respectively. Among the relevant considerations that the Federal Magistrate took into account, in assessing the appropriate penalty in these circumstances, were:·the circumstances of the conduct (including deliberate defiance or disregard of the Act);·the relevant record of civil penalty contraventions;·the consequences of the contravening conduct;·whether the contraventions are distinct or arise from a single course of conduct;·general and specific deterrence;·cooperation with regulatory authorities;·the contravener’s contrition;·the size of the prescribed maximum penalty;·the totality principle. As to the circumstances of the conduct, the Federal Magistrate observed that the 15 employees affected by the contraventions were holders of 457 visas and were, therefore, vulnerable because their remaining in Australia depended, at least in part, on their maintaining good relations with their employer, who was their sponsor for migration purposes. At [8]‑[9] of his reasons, the Federal Magistrate stated:The [appellant] was aware of the employees’ vulnerability. Mr Hanssen, the director and secretary of the [appellant], acknowledged that the employees “would sign anything” because they “are frightened of…being sent back”. The Court has no difficulty in concluding that this was a vulnerable set of employees, that the [appellant], through its principal officer Mr Hanssen had knowledge of that, and that he exploited his perception of these employees as being malleable to the wishes of the [appellant].The [appellant] obtained detailed legal advice which correctly set out the [appellant’s] obligations with respect to the entering into and lodgement of AWAs with the [appellant’s] employees. The legal advice obtained was not followed by the [appellant], at least in relation to the contraventions. (Footnote omitted.) The Federal Magistrate went on to observe that in the case of nine of the contraventions of s 341, the appellant lodged AWAs on 20 June 2006 which were purportedly signed on 21 June 2006. The tenth AWA was undated. At [10]–[11] of his reasons the Federal Magistrate stated:The unapproved AWAs were lodged on 20 June 2006. They were purportedly dated by employees on 21 June 2006. Mr Hanssen admitted asking the employees not to date the AWAs, and that that was done because he intended to date them. Mr Hanssen did so because he was aware of the 7 day access requirement. The Court finds that he did this deliberately in circumstances where he knew that the documents might not accurately reflect whether or not the employees had been afforded the requisite 7 day access period.Mr Hanssen sought to justify the conduct on the basis that it was common practice in the building industry not to date various documents. However much that might be the case in the building industry it cannot countenance such a practice in respect of statutory requirements, particularly where:a)the [appellant] had taken specific legal advice about its obligations in the AWA approval process; andb)Mr Hanssen admitted that the [appellant] “mucked around with the dates a bit” because it “thought we were breaching” the 7 day requirement. Moreover he regarded this as of little consequence.(Footnotes omitted.)

Ratio Decidendi

Legal Principle Established

Established by: SIOPIS J

Full text does not contain this section.