Hayes, Peter Robert v Locatelli, Lucy Evelyn

[1983] FCA 354

I N	THE FEDEXU	COURT OF a u s T m L i a	I
I Cl0 T 2 of 1983

REGI	DISTRICT	TASbLWIA	TRY	I	No	T 3 o f 1983
I	No	T 4 o f 1983

DIVISION INDUSTRIAL I No T 5 o f 1983

i

PZTER ROBERT Hams

- P r o s e c u t o r

BETrEEN :	a n d
LUCY EVELYN LOCATZLLI D e f e n d a n t

- OFDER

C o r m : Beaumont J .

Date :	l December, 1983
Phere:	Hobart

T h e C o u r t o r d e r s t ha t : -

1. Upon her own admxsslon, In each m a t t e r , i f i n d rhe

d e f e n d a n t p x l t y of an o f f e n c e a g a x n s c sub-sectxon

1 2 6 P ( 3 ) o f the s c x l x a t l c n a n d A r b x t r a t i o n A c t 1904.

2 . In each case I o r d e r t h a t the d e f e n d a n t p a y a monetary

p e n a l t y of S100 t o c o n s o l x d a t e d revenue a t cr b e f c r e

4.00 $.m. on 1 5 December, 1 9 8 3 .

P

I N THE FEDERAL COURT OF AUSTXALIA	l
I NO T 2 of 1983

TASlANIA DISTRICT REGISTRY	No T 3 of 1983
No T 4 of 1983

INDUSTRIAL DIVIS ION l No T 5 o f 1983

PETER ROBERT HPYES Prosecutor

BETWEEU :	a n d
LUCY EVELYN LOCATELLI Defendant

corn1 :	Beaumont	J .
DATE :

- 1 D e c e m b e r , 1983

REASONS FOR JUXIIENT

In these m a t t e r s , heard t o g e t h e r b y consent, the d e f e n d a n t h a s

p l e a d e d g u l l t y t o each c h a r g e . The c h a r g e s , i n each c a s e , a l l e g e a b r e a c h

o f Sectlon 1 2 6 P ( 3 ) o f the Conclllatlon and A r b i t r a t z o n Act 1904 ("the A c t " )

w h l c h p r o v l d e s :

"A p e r s o n w h o hinders or obstructs an authorlzed person m the

exercise of his d u t l e s , refuses or f a l l s , w r t h o u t r e a s o n a b l e

excuse, t o c o m p l y w l t h a r e q u l r e m e n t m a d e b y an a u t h o r l z e d p e r s o n

m accordance wlth p a r a g r a p h (c l o f sub-sectlon ( 1 ) or m a k e s t o a n

authorlzed person. i n the course o f h l s d u t i e s , a s t a t e m e n t ,

w h e t h e r o r a l l y or m w r l t m g , t h a t IS f a l s e or m l s l e a d m g 1n a n y

p a r t l c u l a r , s h a l l be g u l l t y o f an o f f e n c e .

P e n a l t y : $ 5 0 0 or l m p r r s o n m e n t for 6 months ."

The f a c t s relied u p o n b y the p r o s e c u t o r a r e a s follows:

On 11 N o v e m b e r , 1982 Mr Peter X a y e s , then an authorlsed o f f i c e r p u r s u a n t

t o S126Q o f the A c t conducted an l n s p e c t l o n a t the P e n n y R o y a l V a t e r m l l l Xotel

. . . ;2

r 2.

whlch 1 s operated b y John Batman Internatlonal P t y L t d , re latmg to the

observance of the Motels Award 1976. Durlng the course of t h a t lnspectlon,

he dlscovered t h a t i4rs Janine Nuccltell l , a casual receptionlst employed

a t the motel and an employee whose classlf icatlon 1 s contained In t h a t

Award, was belng pald l e s s than her Award entztlement. She was belng p a l d

a t a rate for f i r s t year o f f i c e employees a d she was ent l t led to be p a l d a t

a rate for a t h z r d year o f f i c e employee a s she had approximately 7 years

o f f i c e experlence.

On 18 November, 1982, Mr Hayes forwarded a l e t t e r t o John Batman

Internatlonal P t y L t d requesting t h a t the company rect l fy certaln breaches

o f the Award that were set out 1n the Summary o f Award Non-observance

attached t o t h a t l e t t e r . Included In t h a t Summary was the matter relatlng

t o the apparent underpayment t o Nrs Nuccltelll. Also attached t o & a t l e t t e r

was an Acknowledgement of Payment form t o be completed b y the employer m

accordance with the lnformatlon clrcular on the payment o f monies whlch was

also attached t o t h e l e t t e r .

On 24 November, 1982, a l e t t e r was recelved 1n the Hobart Off ice of

the Bureau from the defendant, a dlrector of the company. The defendant had

attached t o thls l e t t e r an Acknowledgement o f Payment form whzch purporced

t o show t h a t 3 employees had acknowledged recelpt of certaln sums xnlch had

apparently been calculated b y the employer followmg the recelpt of itlr Hayes'

l e t t e r o f 18 November, 1982. Entrles on t h i s Acknowledgement o f Payment form

rndicated t h a t Janlne Nuccltelli had acknowledged payment o f $252.00 b y

signlng the form accordmgly. T h e portlon of the form relatlng to the

cert l f icat ion b y the employer t h a t the amounts had been p a d i n accordance

w i t h the lnformatlon In the body of the form had not Deen completed.

On 19 Nay 1983, Nr Hayes conducted a further lnvestlgatlon of the

company's observance of the Notels	Award a t the Penny Royal	Watermlll Xotel.
v	3.

Upon examinatlon of the Acknowledgement o f Payment form, I t was

noted t h a t the lower portlon of t h a t form relat ing to the cert l f icat lon b y the

employer had not been completed. Havmg regard to the a l l e g a t i o n s made b y

Jlrs Nuccltelll 1n the conversation she had w ~ t h I.lr Hayes on 19 May 1983 , I t

was d e c l d e d to wri te to the company seeklng cert i f icat ion t h a t the company

had p a l d the monles to the three employees mentloned on t h a t form. Accordingly

a l e t t e r seeklng t h a t cert l f icat lon was forwarded to the company b y Mr Hayes

on 23 May 1983.	No response was recelved t o t h a t l e t t e r b y the Industrial
Relations Bureau.

On 1 June, 1983, +Jr Xayes and Mr Hooker visl ted the motel and spoke

to the defendant. During the dlscusslon wlth the defendant a f i l e copy o f

r'lr Hayes' l e t t e r o f 23 May 1983 was hown t o her. Nr Kayes asked the defendant

i f she had seen the ongin 'al of ' that le t ter . She sazd she had not. The

defendant was then shown the Acknowledgement of Payment form b y Mr Hayes. I t

was pomted out t o the defendant b y LYr Hayes that the employer had not completed

the lover portlon of the form. M r Hayes then asked the defendant whether the

employees mertloned on t h a t form had recelved the amounts shown. 14r Hayes

then asked the defendant i f she could show some record of the payment o f

$252.00 made t o Mrs Nuccltell l . The defendant agreed and signed the Acknowle-

dgement o f Payment form. The defendant proceeded t o look through some books

whlch were located on a shelf behlnd her desk. After a short w h l l e the

defendant sald she could not locate the entry concerned. She then said t h a t

she thought r'lrs Nuccitelll had been slck around t h a t tlme and t h a t the money

had probably been p a i d then. h l r Kooker then asked the defendant i f tYrs Nuccltelll

was a t work. The defendant s a l d t h a t she was and t h a t she could be located

i n the reception area.

Following a dlscusszon between i4r Hooker and Nrs Nuccitell l , Nr Hooker

and Mr Hayes returned t o speak CO tne defendant In her o f f i c e . i'lr Hayes asked

the defendanr: t o produce the tlme a n d wage records for the period In whlch the

. . ./4

. d .

payment 1n questlon was made. rrlr Aayes also asked for the time and wage

records €or the 4 week perlod p r l o r t o and the 2 week perlod a f t e r the

alleged payment o f the $252.00. The defendant s a l d t h a t those records

were In the store and t h a t she was not able t o get them s t r a l g h t away.

Mr Hayes then advised the defendant t h a t he would return a t about 2.30 p.m.

t h a t afternoon t o Inspect those records.

On the afternoon of 1 June 1983, Mr Hayes returned to t he motel 2nd

agaln spoke to the defendant. The defendant advlsed Ilr Hayes t h a t she could

only locate 4 of the tlme sheets requested and l of those sheets, for the

week ended 8.12.1982, showed t h a t Mrs Nuccltelll had been sick and t h a t she

thought the arrears o f wages had been p a l d t o her t h a t week as slck leave

( t o whlch she was not entltled a s a c a s u a l ) . The 4 tlme sheets gzven t o

Mr Hayes were for the weeks ended 24.11.1982, 1.12.1982, 8.12.1982 a n d 15.12.1982.

The defendant also p u t t o Nr Hayes t h a t firs Nuccltelli had not wanted the money

a t the tlme (i.e. a t the tine she had slgned for I t ) because of taxatlon and

t h a t I t had been p a l d t o her	in t he week	t h a t she :?as slck	(1.e.	week ended
8.12.1982).

Accordlng to the prosecutlon, on 2 June 1983, Nr Hayes lnzervrewed

I l r s Nuccltelll a t the Department of Labour a n d Industry Office m Launceston .

Durlng t h a t lntervlew, llrs Nuccl te l l~ was hown the 4 tlme sheets t h a t had been

glven t o t4r Aayes b y the defendanr: on the previous d a y . Nrs Nuccltelll

n ient l f ied each o f the 4 tlne sheets a s havmg been completed b y her. She a lso

told Nr Hayes d u r m g t h a t rntervlew t h a t the tlne sheet slgned b y her and

dated 9 December, 1982 was completed b y her on 1 June, 1983 a t the defendant's dlrectlon. She alleged t h a t the defendanr: had dlrected her t o complete a new

tlme sheet for the week ended 8 December 1982 showlng t h a t she was slck €or

the f u l l week. She alleged she saw tne defendant destroy the orlgmal tzne

sheet €or the week ended 8 December 1982. Nrs tVuccltell1 told Ilr Hayes t h a t

. . / 5

5.

she had In fact worked durlng t h a t week.

On 7 June 2983 m the presence o f Mr Hayes, Mr Hooker conducted

an lntervlew w l t h Mrs Nuccitelli a t her home. In the course o f t h a t

mterview Mrs Nuccitelll s t a t e d t h a t .

(a)	she had slgned the Acknowledgement o f Payment form
f o r the recelpt of $252.00 i n November, 1982;
( b )	she had recelved the sum o f $252.00 b u t this was
not p a x ? t o her unt l l 6 June 1983;
( C )	she had completed a fa lse tlme sheet on 2 June 1983
for the week ended 8 December 1982 a t the dlrectlon
of the defendant;
( d )	she had worked during. the week ended 8 December 1982
and had completed a tlme sheet f o r t h a t week and t h a t
t h a t tlme sheet was destroyed b y the defendant on

l June 1983.

At the conclusion of that mterview, :Ws Nuccltelll also produced

t o l'lr Hooker a cheque f o r $252.00 whlch sne had recelved from the defendant

on 6 June 1983.

On 8 June 1983, 1n che presence o f Nr Hayes, Nr Hooker conducted an

intervlew w l t h the defendant a t the Penny Royal Watermill Notel. The defendant

was reluctant to have an mtervlew. However, a number of questlons were p u t

t o her which she answered. However, durlng the course of that mtervzew

the defendant refused t o answer further questlons and the intervlew had t o be

abandoned. Durlng the course o f the mtervlew the defendant d i d admlt t o

_ .

h a v m g Janlne Nuccltelll slgn the ?icknowledgement o f Payment form a n d h a v m g

forwarded I t t o Ilr Hayes. The defendant also stated t h a t the tlme sheet for

Mrs Nuccltell l for the week ended 8 December 1982 (showmg her s l ck ) was

completed b y Nrs Nuccltelli "when she came back" and t h a t she "probably

comuleted I t on 9 December 1982".

I turn now to the charges made In each case. In the matter

number T 2 o f 1983, the false statement alleged i s the statement made on

8 June 1983 t h a t the sum of $257.00 p a l d t o Mrs Nuccltelll Ln December 1982

was a payment f o r wages due t o her fo r wages underpald b y reason o f non-

observance o f an award. In matter number T 3 o f 1983, the fa l se statement

alleged i s t h a t on 1 June 1983, the defendant falsely replled "yes" to a ~

question whether the employees had been p a l d the amounts shown In the form

entlt led "Achowledgement o f Payment". In matter number T4 o f 1983, it 1s

_ .

a l l e g e d t h a t the false statement conslsted o f the statement made on 8 June 1983

t h a t a copy of the times sheet shown t o Idr Hooker was a true copy of the tlme

sheet for Mrs Nuccitelll f o r the week ending 8 December 1982. F l n a l l y , i n

the mat ter number T5 of 1983, the charge IS that the defendant made a false

statement t o tVr Hayes 0x2'24 November 1982 In the document entl t led

"Acknowledgement o f Paymenr:" In t h a t She falsely cert i f ied t h a t Mrs Nuccltelll

had recelved the sum o f $252.00 l e s s $51.25.

The defendant through her counsel, p u t the following circumstances

to the Court b y way of mltlgatlon. The defendant, a s a dlrector of John

Batman Internatlonal P t y L t d , engaged Mrs Nuccltelll as a receptionlst 1n

A p r i l 1982. A t t h a t tlme, Mrs I?uccltelll had had no prlor experlence as a

receptlonlst. tdrs Nuccltelll remalned In the employment of the company w-tll

23 June 1983. Her retlrement was caused b y a pregnancy. Mr Anderson, counsel

for the defendant,sald that when Mr Hayes came to the motel, the matter

probably should have been referred to t he Managing Dlrector b u t was unfortun-

ately d e a l t with b y the defendant. After the v ls i t , the defendant spoke t o

[Irs Nuccltellr and explalned t h a t I t would be necessary t o report the matter

t o management. Mrs Nuccltelll expressed concern t h a t thls may lead management

t o form the n e w t h a t she should be reclaced b y a younger person whose wages

would be less than hers. In thls w a y , ,\Jr hderson submitted, the defendant

was placed i n a posltlon where she f e l t she should endeavour t o look af ter

the Interests of Nrs Nuccltell l .

. . ./7

I t was suimuttrd t h a t L v t l l Lhr Jrfendant a n d Xrs Nuccltelll were Involved

In the matter and t h a t I t would be wrong t o a t t r ibu te blame to the defendant

excluszvely. In partlcular, the defendant s a y s t ha t the new t i m e sheet was

wrltten b y [Irs Nuccitelll a l though I t was presented b y the defendant. In

summary, I t was p u t t h a t the defendant trled t o deal w ~ t h a matter beyond

her capabillty and In an a t t e m p t t o protecr: i 4 rS Nuccltelll. IIr tmierson

polnted out t h a t on 6 June 1983 a cheque was drawn m favour of Hrs Nuccltelll

In the sum o f $252.00, # a t i s , payment was made before the mtervlerr on

8 June 1983.

The defendant i s aged 64 years. She IS marrred wlth 3 adult chlldren.

She has been employed by John Batman Internatlonal P t y L t d since 1971. She

commenced her employment there as a stenographer a n d secretary t o the

Managlng Director. Although she 1 s a dlrector of the company she holds no

shares m l t s capltal. Her salary 1s In a fixed amount and she has no

entitlement to the p r o f i t s of the busmess. She came t o A u s t r a l l a In 1969

from the Unlted Wngdom upon her husband's retlrement from the Royal A n Force.

She has no prlor convictlons a n d character evldence has been glven t h a t she

enloys a good reputatlon In the community.

In assesslng the appropriate penalty m thls case, I take lnto account

the sl tuation in which the defendant found herself once she determlned tnat

she should endeavour t o protect the lnterests o f Mrs Nuccatelll. I a l so take

Into account her good character and absence of any prlor convictlons. On the

other hand, i n enactlng sub-s 126P(31 , Parllament has artached conslderable

lmportance t o theneed to deter members of the community from mlsleadlng

o f f i ce r s o f the Department charged 111th the admlnlstratlon o f the Act.

..

I also take into account the clrcumstance thar I t may be s a l d t h a t a l though

four dlstinct charges are levelled agalnst the defendant, they derlve from

a slngle rncldent. A t the same tlme, I must have regard t o the fact t h a t ,

. . . / 8

, n *

8 .

alrhough on notice t h a t the Department was lnvestlgatmg the matter, the

defendant elected t o m i s l e a d I t s o f f i c e r s on a number o f occasions In

varlous	ways .
On the whole, I am of the oplnlon t h a t an approprlate penalty In

the case o f each o f the charges is the sum o f $100.00.

I propose t o m a k e the followmg findlngs and orders:

(1)

Upon her own admlsslon In each m a t t e r , I frnd the

defendant g u l l t y of an offence agarnst sub-sectlon

126P(3/ of the Conclllatlon and Arbltratzon Act 1904.

(21

In each case I order t h a t the defendant p a y a monetary

penalty of $iOO t o consolldated revenue a t or before

4.00 p.m. on 15 December, 1983.

I ce r t l f y t h a t this and the seven precedlng

pages are a true copy of che Reasons fo r Judqment

hereln o f hls Honour Justzce Beaumont.

Assoclate

Dated 1 December, 1983

I

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