Maslen v Core Drilling Services Pty Ltd & Anor (No.2)
[2015] FCCA 290
•16 February 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| MASLEN v CORE DRILLING SERVICES PTY LTD & ANOR (No.2) | [2015] FCCA 290 |
| Catchwords: COSTS – Industrial law proceedings – whether proceedings instituted without reasonable cause – whether unreasonable act or omission. |
| Legislation: Crimes Act 1914 (Cth), s.4AA Fair Work Act 2009 (Cth), Part 3-1, ss.3, 44, 45, 117(2) and (3), 124(1) and (2)(a), (b) and (f), 125(1), 134(1), 323(1), 340, 360, 361, 369, 539, 546(2), 547 550, 557(1) and (2), 570, 611 Federal Circuit Court Rules 2001 (Cth), rr.7.01, 21.02(1)(c), Sch.1 |
| Australasian Meat Industry Employees’ Union v Australia Meat Holdings (1998) 82 IR 76 Australian Liquor, Hospitality & Miscellaneous Workers Union v Broadlex Cleaning Australia Pty Ltd (1997) 78 IR 464 Australian Ophthalmic Supplies Pty Ltd v McAlary-Smith (2008) 165 FCR 560; [2008] FCAFC 8 Re Commonwealth; Ex parte Marks (2000) 177 ALR 491 at 499; [2000] HCA 67 |
| Applicant: | ANDREW OWEN MASLEN |
| First Respondent: | CORE DRILLING SERVICES PTY LTD |
| Second Respondent: | LOUISE JANE GURNELL |
| File Number: | PEG 373 of 2011 |
| Judgment of: | Judge Antoni Lucev |
| Hearing date: | Determined on written submissions |
| Date of Last Submission: | 11 September 2013 |
| Delivered at: | Perth |
| Delivered on: | 16 February 2015 |
REPRESENTATION
| For the Applicant: | In person |
| Counsel for the First and Second Respondents: | Mr A Longland |
| Solicitors for the First and Second Respondents: | Herbert Smith Freehills |
DECLARATIONS AND ORDERS
THE COURT:
Declares that the First Respondent contravened s.45 of the Fair Work Act 2009 (Cth) (“the Act”) by failing to pay the applicant in accordance with the provisions of the Mining Industry Award 2010 (“the Award”) in the period from 4 July 2011 to 24 September 2011, and orders that the First Respondent pay a penalty of $6,600 to the Applicant in respect of that contravention, by 26 February 2015.
Declares that the First Respondent contravened s.323(1)(a) of the Act by deducting from payment due to the Applicant on 29 September 2011 a uniform allowance and flight costs, and further declares that the Second Respondent was, under s.550 of the Act, involved in the First Respondent’s contravention, and orders that:
(a)the First Respondent pay a penalty to the Applicant of $1650;
(b)the Second Respondent pay a penalty to the Applicant of $330,
by 26 February 2015.
Declares that the First Respondent contravened s.45 of the Act by failing to pay the Applicant in accordance with clauses 13.1(a) and 15 of the Award for training days on 11 and 12 July and 8 and 13 September 2011, and further declares that the Second Respondent was, under s.550 of the Act, involved in the First Respondent’s contravention, and orders that:
(c)the First Respondent pay a penalty to the Applicant of $3300;
(d)the Second Respondent pay a penalty to the Applicant of $660,
by 26 February 2015.
Declares that the First Respondent contravened s.45 of the Act by failing on 23 September 2011 to give the Applicant one week’s notice of termination of employment with the First Respondent, or to give the Applicant one week’s pay in lieu of notice of termination, in accordance with clause 11.1 of the Award, and orders that the First Respondent pay a penalty of $3300 to the Applicant in respect of that contravention, by 26 February 2015.
Orders that in respect of the contraventions of s.45 of the Act that if not already paid, the First Respondent pay the Applicant the sum of $2613.38 (“the Sum”) agreed in the Memorandum of Consent Agreement filed 3 July 2013 by 26 February 2015, and that the First Respondent pay interest at the rate of 6% per annum with effect from 24 September 2011 to the date of payment of the Sum, with the interest to be paid by 26 February 2015.
Orders that the time for compliance with order 2 of the Court’s orders of 7 August 2013 be extended to 28 August 2013.
Orders that there be no order as to costs.
Orders that the name of the Second Respondent be amended from “Lou Gurnell” to “Louise Jane Gurnell”.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 373 of 2011
| ANDREW OWEN MASLEN |
Applicant
And
| CORE DRILLING SERVICES PTY LTD |
First Respondent
| LOUISE JANE GURNELL |
Second Respondent
REASONS FOR JUDGMENT
Application
The applicant, Mr Andrew Owen Maslen,[1] filed his application and supporting affidavit on 9 December 2011,[2] and his amended application and amended Form 2 on 17 February 2012. Various contraventions of the Fair Work Act 2009 (Cth)[3] and the Mining Industry Award 2010[4] by the respondents, Core Drilling Services Pty Ltd and Ms Louise Jane Gurnell[5] were alleged by Mr Maslen.
[1] “Mr Maslen”.
[2] “Mr Maslen’s December 2011 Affidavit”.
[3] “FW Act”.
[4] “the Award”
[5] “Core Drilling” and “Ms Gurnell” respectively, collectively “the Respondents”.
Liability judgment
On 24 June 2013 the Court delivered judgment on liability in this matter.[6] Four issues were before the Court in relation to liability. They were as follows:
a)whether the termination of Mr Maslen’s employment by Core Drilling contravened s.340 of the FW Act;[7]
b)whether the total monies paid to Mr Maslen by Core Drilling met its obligations under the Award and whether s.45 of the FW Act had been contravened;[8]
c)whether deductions made from payments to Mr Maslen upon the termination of his employment contravened s.323 of the FW Act;[9] and
d)whether Ms Gurnell was “knowingly involved” in any contravention for the purposes of s.550 of the FW Act.[10]
[6] Maslen v Core Drilling Services Pty Ltd & Anor [2013] FCCA 460 (“Maslen (No. 1)”).
[7] “General Protections Claim”.
[8] “Award Breach Claim”.
[9] “Deductions Claim”.
[10] “Personal Liability Claim”.
In Maslen (No. 1) the Court concluded that:
a)the General Protections Claim has not been made out;
b)the Award Breach Claim requires the parties to consider the findings of the Court, and to confer with a view to reaching agreement as to whether or not there has been an underpayment, and if so, how much, and if no agreement can be reached then each party, having regard to the findings of the Court, is to file and serve within 14 days a schedule of alleged underpayments, if any, and the Court will determine that issue on the papers;
c)those parts of the Award Breach Claim with respect to the non-payment of training days, and the non-provision of a week’s notice of termination, have been made out;
d)the Deductions Claim has been made out; and
e)in relation to the contraventions with respect to the Deductions Claim, and the non-payment of training days, the Personal Liability Claim has been made out.[11]
[11] Maslen (No. 1) at para.92 per Judge Lucev.
In Maslen (No.1) the Court ordered that the parties confer and provide the quantum of underpayment, if any, under the Award. The parties filed a memorandum of consent agreement[12] agreeing that the quantum of underpayment was $2,613.38.[13]
[12] “the Memorandum”.
[13] “the Underpayment”.
The application – current phase – penalties and costs
Mr Maslen now seeks that penalties be imposed upon the Respondents for the contraventions found by the Court in Maslen (No.1). The Respondents seek the making of a costs order against Mr Maslen in relation to the proceedings.
The principal purposes of this judgment are therefore to determine:
a)the appropriate penalties, if any, for the contraventions found in Maslen (No.1); and
b)whether it is appropriate for the Court to exercise discretion under s.570 of the FW Act and make a costs order against Mr Maslen.
Penalty
General factors relevant to determining penalty
A non-exhaustive list of factors relevant to the imposition of a penalty under the FW Act includes:
a)the nature and extent of the conduct which led to the contraventions;
b)the circumstances in which that conduct took place;
c)the nature and extent of any loss or damage sustained as a result of the contraventions;
d)whether there had been similar previous conduct by any respondent;
e)whether the contraventions were properly distinct or arose out of the one course of conduct;
f)the size of the business enterprise involved;
g)whether or not the contraventions were deliberate;
h)whether senior management were involved in the contraventions;
i)whether the party committing the contravention had exhibited contrition;
j)whether the party committing the contravention had taken corrective action;
k)whether the party committing the contravention had cooperated with the enforcement authorities;
l)the objects of the FW Act, including the need to ensure compliance with minimum standards by provision of an effective means for investigation and enforcement of employee entitlements; and
m)the need for specific and general deterrence.[14]
[14] Mason v Harrington Corporation Pty Ltd t/as Pangaea Restaurant & Bar [2007] FMCA 7 at paras.26-59 per Mowbray FM.
This summary was adopted by the Federal Court in Kelly v Fitzpatrick,[15] and is regularly applied in workplace penalty proceedings in the federal courts. The summary is a convenient checklist, but does not prescribe or restrict the matters which may be taken into account in the exercise of the Court’s discretion.[16]
[15] (2007) 166 IR 14 at 21-22 per Tracey J; [2007] FCA 1080 at para.30 per Tracey J (“Kelly”).
[16] Australian Ophthalmic Supplies Pty Ltd v McAlary-Smith (2008) 165 FCR 560 at 580 per Buchanan J; [2008] FCAFC 8 at para.91 per Buchanan J (“Australian Ophthalmic Supplies”); Fair Work Ombudsman v MMP Management Services Pty Ltd (2012) 219 IR 397 at 407-408 per Lucev FM; [2012] FMCA 207 at para.7 per Lucev FM (“MMP Management Services”).
Number of contraventions and quantum of penalty
The following principles are to be taken into account when considering the number of contraventions and quantum of penalty:
a)firstly, the Court must identify the separate contraventions. Each contravention of each separate obligation found under the FW Act and the Award in relation to Mr Maslen is a separate contravention;[17]
b)secondly, the Court must consider whether the contraventions constitute a single course of conduct. Where the same person commits two or more contraventions of a civil remedy provision set out in s.557(2) of the FW Act, and the contraventions arise out of the same course of conduct by that person, the contraventions are to be taken to constitute a single contravention of the applicable civil remedy provision;[18]
c)thirdly, where two or more contraventions have common elements the Court must take this into account in considering an appropriate penalty in all the circumstances for each contravention, and the penalties may be grouped. A contravener should not be penalised more than once for the same conduct, and any penalties should be an appropriate response to the conduct of the contravener.[19] This task is distinct from and in addition to the final application of the “totality principle”;[20]
d)fourthly, the Court must determine an appropriate penalty to impose in respect of each contravention (whether a single contravention alone or taken to be so as part of a course of conduct or group), having regard to all of the relevant circumstances of the case; and
e)finally, having fixed an appropriate penalty for each contravention, group of contraventions or course of conduct, the Court considers the aggregate penalty, to determine whether it is an appropriate response to the conduct which led to the contraventions.[21] The Court should apply an “instinctive synthesis” in making this assessment. This is known as an application of the “totality principle”.[22]
[17] Gibbs v The Mayor, Councillors and Citizens of The City of Altona (1992) 37 FCR 216 at 223 per Gray J (“Gibbs”); McIver v Healey [2008] FCA 425 at para.16 per Marshall J.
[18] FW Act, s.557(1).
[19] Australian Ophthalmic Supplies FCR 571 per Graham J; FCAFC at para.46 per Graham J.
[20] Mornington Inn Pty Ltd v Jordan (2008) 168 FCR 383 at 396-396 per Stone and Buchanan JJ; [2008] FCAFC 70 at paras.41-46 per Stone and Buchanan JJ (“Mornington Inn”).
[21] See Kelly IR at 21-22 per Tracey J; FCA at para.30 per Tracey J; Australian Ophthalmic Supplies FCR at 567 per Gray J, 576 per Graham J and 583 per Buchanan J; FCAFC at paras.23 per Gray J, para.71 per Graham J and para.102 per Buchanan J.
[22] Australian Ophthalmic Supplies FCR at 567-567 per Gray J, 572-573 and 577 per Graham J; FCAFC at para.27 per Gray J and paras.55 and 78 per Graham J.
On the face of it, there are:
a)four contraventions by Core Drilling of s.45 of the FW Act for contravening the Award:
i)by underpaying Mr Maslen;[23]
[23] “Underpayment Contravention”.
ii)for failing to pay Mr Maslen for training days:
A) in July 2011;[24] and
[24] “July 2011 Training Contravention”.
B) in September 2011;[25] and
[25] “September 2011 Training Contravention”.
iii)for failing to give Mr Maslen the required notice of termination or required pay in lieu of notice of termination;[26]
[26] “Notice of Termination Contravention”.
b)two contraventions by Core Drilling of s.323(1)(a) of the FW Act for deducting from Mr Maslen’s wages the costs of:
i)his airfare following the termination of his employment;[27] and
ii)uniforms following the termination of his employment;[28]
c)four contraventions by Ms Gurnell of s.323(1)(a) of the FW Act, being:
i)the two contraventions under s.45 of the FW Act for contravening the Award by failing to pay Mr Maslen for training days; and
ii)the same two contraventions of s.323(1)(a) of the FW Act, as were committed by Core Drilling, and set out immediately above.
Whether the contraventions were distinct or arose out of one course of conduct
[27] “Airfare Deduction Contravention”.
[28] “Uniform Deduction Contravention”.
Mr Maslen’s submissions
Mr Maslen submitted that:
a)the Underpayment Contravention arises from the failure to pay him the correct wages while he was on site and arises from a single course of conduct, namely the decision to pay him a flat daily rate of remuneration regardless of what penalties might apply to the hours worked;
b)the underpayment of wages during three of the four cycles worked can be properly characterised as arising out of a course of conduct and attract the operation of s.557(1) of the FW Act, thereby constituting a single contravention for the purpose of assessing penalties for Core Drilling;
c)the July and September 2011 Training Contraventions occurred two months apart. Core Drilling’s requirement for Mr Maslen to attend training courses and the failure to pay for attendances at them are the only common elements. On balance, however, the July and September 2011 Training Contraventions can also be characterised as arising out of a single course of conduct and attract the operation of s.557(1) of the FW Act for the Respondents;
d)the Notice of Termination Contravention is a single contravention by Core Drilling;
e)while the Airfare and Uniform Deduction Contraventions occurred simultaneously and were repaid simultaneously, they are properly separate contraventions, having been made in respect of separate matters and based on different constructions the Respondents placed on separate provisions in the contract of employment, neither of which was reasonably open to the Respondents to rely upon; and
f)the Respondents say that in relation to the Notice of Termination Contravention and the Airfare and Uniform Deduction Contraventions these should be treated as a single contravention as they occurred as a result of Core Drilling terminating Mr Maslen’s employment. There is no causal or even temporal connection between the relevant events, and the deductions and failure to pay the correct amount of pay in lieu of notice occurred a week after the termination of Mr Maslen’s employment.
Respondents’ submissions
The Respondents’ submissions on this factor are as follows:
a)where an employer has been found to have engaged in multiple contraventions of the FW Act, it is relevant to consider whether the contraventions are properly attributable to a single course of conduct. This is based on the well-established principle that a respondent should not be penalised multiple times for what is, in practical terms, a single course of conduct;[29]
b)multiple contraventions will be seen as arising out of a single course of conduct if they have “common elements”[30] or if there is a “factual overlap”[31] in relation to the acts or omissions which led to the contraventions, such that the Court is required to “recognise the existence of a course of conduct and of inter-related or overlapping elements”;[32]
c)in Maslen (No. 1) the Court held that each of the Airfare Deduction Contravention and the Uniform Deduction Contravention occurred as a result of Core Drilling terminating Mr Maslen’s employment;[33] and
d)the Respondents submit that as it related to payment in lieu of notice of termination the Notice of Termination Contravention also occurred as a result of Core Drilling terminating Mr Maslen’s employment.
[29] Automotive, Foods, Metals, Engineering, Printing and Kindred Industries Union v Thornton Engineering Australia Pty Ltd (2009) 191 IR 315 at 319 per North J; [2009] FCA 1584 at para.24 per North J (“Thornton Engineering”); Fair Work Ombudsman v Australian Shooting Academy Pty Ltd [2011] FCA 1064 a para.23 per Logan J (“Australian Shooting Academy”).
[30] Fair Work Ombudsman v Offshore Marine Services Pty Ltd (2012) 219 IR 435 at 439 per Gilmour J; [2012] FCA 498 at para.7 per Gilmour J (“Offshore Marine Services”).
[31] Thornton Engineering IR at 319 per North J; FCA at para.24 per North J.
[32] Australian Shooting Academy at para.23 per Logan J.
[33] Maslen (No. 1) at paras.73 and 76 per Judge Lucev.
Separately, Core Drilling:
a)submits that in determining the amount of any penalty to be imposed on Core Drilling, the Court should group the Airfare Deduction Contravention, the Uniform Deduction Contravention and the Notice of Termination Contravention together and treat those contraventions as arising out of single course of conduct; and
b)acknowledges that the July and September 2011 Training Contraventions did not arise out of Mr Maslen’s termination of employment, but submits that immediately upon receipt of advice from CCIWA, the July and September 2011 Contraventions were rectified, and there was no intention to deprive Mr Maslen of his entitlements. Further, Core Drilling paid Mr Maslen for all four training days despite not being legally required to do so, in circumstances where Mr Maslen had represented to Core Drilling that he already held the specified certification.
Consideration
Because the Memorandum does not specify the constituent elements of the Underpayment, it is not possible to say, on the evidence, how it is that the Underpayment is constituted. In particular, there is no evidence to support Mr Maslen’s assertion that there were three separate contraventions which made up the Underpayment (leaving aside the Notice of Termination Contravention). Ultimately, little turns on how many separate underpayments there were, because they were all of the same character and as a result it is plain, as Mr Maslen properly submits, that the Underpayment Contravention arises from a single course of conduct. That course of conduct involved the repetition of the application of the wrong interpretation of the Award to the wages payable to Mr Maslen, and for the purposes of determining the number of contraventions, it involved nothing “other than the outcome of Core Drilling’s usual payroll processes”.[34] In the circumstances, the Underpayment Contravention is properly characterised as a single contravention.
[34] Maslen (No. 1) at para.90 per Judge Lucev.
In relation to the Respondents’ submission that the Airfare Deduction Contravention, the Uniform Deduction Contravention and the Notice of Termination Contravention ought to be treated as a single contravention arising out of a single course of conduct, the Court notes that at first instance in Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v QR Ltd (No.2)[35] the Federal Court observed that:
[35] [2010] FCA 652 (“QR Ltd (No. 2)”).
[16]In my view, the course of conduct must be associated with the particularised term of the particularised instrument. That is the contravention of the term of the transitional instrument. One does not look at course of conduct for the purposes of s 557 at a level of abstraction divorced from the contravened provision as particularised (ie the term in question and the transitional instrument in question).
[17]Were s 557 to be read at the level of abstraction for which the QR respondents contend (in other words, the same provision, just looking at item 2(2) in its generality, a provision which is applicable to different terms in different instruments in particular cases) the result would be that different terms in different instruments, or different terms in the same instrument perhaps embracing quite different forms of conduct would all be assimilated as one. Each would just be a civil remedy provision. If the overall conduct gave rise to breaches of different terms, they would be treated as but one contravention.
[18]That seems an odd result to me.
[19]Especially that is so in light of s 557(3). That renders the otherwise beneficial effects of s 557 inapplicable if a penalty has already been imposed for a breach of a civil remedy provision. On the construction for which the QR respondents contend, if a person had contravened item 2(2) in respect of a term quite unrelated to consultation and in but one of the applicable transitional instruments, that person would be denied the beneficial effects of s 557(1). That seems to me to be a result contrary to the intendment of the provision concerned.
[20]I note that like considerations would apply in respect of s 45 of the Fair Work Act in relation to terms of modern awards and in respect of s 50 of that Act in relation to terms of enterprise agreements. Again, it would seem an odd result to assimilate the outcomes of different terms in awards or enterprise agreements, one with another. In short then, the submissions of the QR respondents, as to the construction of s 557, would be subversive of the intendment of that provision, in my opinion.[36]
[36] QR Ltd (No. 2) at paras.16-20 per Logan J.
On appeal, in QR Ltd v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia the Full Court of the Federal Court said:[37]
[47]It seems to us, as it seemed to the primary judge, that the difficulty with the appellants’ argument is that Item 2(2) provides: “A person must not contravene a term of an agreement based transitional instrument that applies to the person”. The note to Item 2(2) states that it is a civil remedy provision.
[48]There may be one course of conduct in respect of each agreement associated with the relevant term of each of many agreements. There are, for the purposes of s 557(1), contraventions of multiple terms of multiple agreements. Accordingly, s 557(1) does not avail the appellants.[38]
[37] (2010) 204 IR 142; [2010] FCAFC 150 (“QR Ltd Appeal”).
[38] QR Ltd Appeal IR at 163 per Keane CJ, Gray and Marshall JJ; FCAFC at paras.47-48 per Keane CJ, Gray and Marshall JJ.
In Murrihy v Betezy.com.au Pty Ltd & Anor (No.2)[39] the Federal Court was dealing with two contraventions of s.323(1) of the FW Act and one contravention of s.536(1) of the FW Act, both of which are civil remedy provisions. The Respondents argued that there was only one contravention by each of them in relation to those contraventions. The Federal Court disagreed, observing that:
… I do not accept that submission. Section 557(1) refers to “2 or more contraventions of a civil remedy provision” (emphasis added). … In this context, I take the view that the reference to a civil remedy provision in the singular was a conscious, specific, one. The section should not, in my view, be given a broader operation than that for which the legislature expressly provided. The outer limits, therefore, of the operation of s 557 in the present case are set by the statutory provisions under which the various contraventions arose. ...[40]
[39] (2013) 221 FCR 118; [2013] FCA 1146 (“Murrihy (No. 2)”).
[40] Murrihy (No. 2) FCR at 128-129 per Jessup J; FCA at para.33 per Jessup J.
It is therefore necessary to examine separately each of the contraventions in respect of which it is alleged by the Respondents that they ought to be treated as a single contravention. Before doing that, but to assist in the task of doing that, it is also necessary to examine the July and September 2011 Training Contraventions.
The Court notes the Respondents’ submission that the Airfare and Uniform Deduction Contraventions were held by the Court to have occurred as a result of Core Drilling terminating Mr Maslen’s employment. The Court made no such finding. The Court did find that Core Drilling had no entitlement upon termination to make the deductions concerned, but did not find that the contraventions occurred as a result of the termination of employment.[41] Rather, the deductions were made as a consequence of Ms Gurnell’s unilateral interpretation of the relevant provisions of Mr Maslen’s contract of employment.
[41] Maslen (No. 1) at paras.73 and 76 per Judge Lucev.
With respect to the July and September 2011 Training Contraventions the attendance of Mr Maslen at the relevant training and the failure to pay for that training were separated, in the case of the July training by some two months, and in the case of the September training by little more than a fortnight. The July and September 2011 Training Contraventions ultimately, however, arose from a single decision by Core Drilling not to pay Mr Maslen for his training days, or at least not to pay until such time as advice had been sought and obtained with respect to whether payment was due. The evidence in that regard is in Ms Gurnell’s affidavit sworn 23 July 2012.[42] From Ms Gurnell’s Affidavit it is clear that:
a)the process of making enquiries and obtaining a response to those enquiries, as to whether or not the training days ought to be paid for, took slightly over two weeks;
b)Mr Maslen’s enquiry (or at least his final enquiry) with respect to payment for training days was made on 13 September 2011, 11 days before his termination of employment took effect;
c)advice with respect to whether the training days were to be paid or not was not sought from CCIWA until five days after Mr Maslen’s employment had been terminated, and the response was not received until the following day, that is six days after Mr Maslen’s employment had been terminated; and
d)the contraventions (in the sense of a failure to pay) had occurred by the time the advice had been sought, and were ongoing until such time as payment was received.[43]
[42] “Ms Gurnell’s Affidavit”.
[43] Gurnell Affidavit, paras.21-24.
In the above circumstances the July and September 2011 Training Contraventions were not related to the termination of Mr Maslen’s employment in any way. The July and September 2011 Training Contraventions occurred prior to the termination of employment, advice with respect to them was not sought until after the termination of employment, and it was only thereafter that the contraventions were remedied by payment.
The Court notes that the July and September 2011 Training Contraventions were therefore contraventions which occurred at different times to the Airfare Deduction Contravention and the Uniform Deduction Contravention and the Notice of Termination Contravention, and were contraventions of cll.13.1(a) and 15 of the Award,[44] whereas the Deduction Contraventions are contraventions under s.323(1)(a) of the FW Act relating to terms of the contract of employment while the Notice of Termination Contravention was a contravention of s.117(2) of the FW Act and cl.11.1 of the Award.[45] Further, the mere fact that the July and September 2011 Training Contraventions were remedied at the same time as the Airfare Deduction Contravention and the Uniform Deduction Contravention, and that the payments were made in Mr Maslen’s final termination payment, do not make those contraventions part of the same course of conduct leading to those contraventions (as opposed to remedying them). The July and September 2011 Training Contraventions were, therefore, contraventions which were unrelated to Mr Maslen’s termination.
[44] Maslen (No. 1) at para.61 per Judge Lucev.
[45] Maslen (No. 1) at para.60 per Judge Lucev.
In all of the above circumstances the Court is of the view that:
a)the July and September 2011 Training Contraventions can be treated as a single contravention (and the Court notes that Mr Maslen concedes this); and
b)the July and September 2011 Training Contraventions are separate contraventions to the Airfare Deduction Contravention and the Uniform Deduction Contravention and the Notice of Termination Contravention.
The Airfare Deduction Contravention and the Uniform Deduction Contravention both appear to have arisen from a single unilateral decision by Ms Gurnell to deduct the cost of airfares and uniforms from Mr Maslen’s final payment. That decision was made on 29 September 2011, that being five days after Mr Maslen’s termination of his employment, and six days after Mr Maslen was given notice of that termination.
The Airfare Deduction Contravention and the Uniform Deduction Contravention arise from separate provisions of Mr Maslen’s contract of employment in relation to separate subject matter, and, whilst there was no entitlement to deduct in this case, on a proper interpretation of the provisions of the contract of employment any entitlement to deduct ordinarily arises from slightly different circumstances in relation to the manner of termination of employment of an employee.[46] In this case, there was a single decision to make the two deductions, both of which deductions contravene s.323(1)(a) of the FW Act, and which gave rise to two or more contraventions of a civil remedy provision,[47] namely s.323(1)(a) of the FW Act, which is a civil remedy provision in respect of which the course of conduct provisions in s.557(1) of the FW Act apply.[48] The Court is therefore of the view that the Airfare Deduction Contravention and the Uniform Deduction Contravention are not separate contraventions but rather a single contravention.[49]
[46] Maslen (No. 1) at paras.72-76 per Judge Lucev.
[47] FW Act, s.557(1).
[48] FW Act, s.557(2)(h).
[49] “Deductions Contravention”.
The Notice of Termination Contravention arose from conduct of Core Drilling in writing to Mr Maslen and giving him only five days’ notice of termination. That conduct occurred on 23 September 2011, and was quite separate and distinct from the decision, made six days later, to deduct from Mr Maslen’s final payment the sums constituting the Deductions Contravention, and which related to wholly different subject matter and different provisions of Mr Maslen’s contract of employment, giving rise to a contravention under s.323(1)(a) of the FW Act, whereas the Notice of Termination Contravention is a contravention of s.45 of the FW Act, being a contravention of cl.11.1 of the Award. Further, the Notice of Termination Contravention was completed well before the decision giving rise to the Deductions Contravention was made. And whilst the Notice of Termination Contravention arose directly out of the decision to terminate the employment of Mr Maslen, the Deductions Contravention decision was made days after the decision to terminate Mr Maslen’s employment. In all of the above circumstances the Court is of the view that the Notice of Termination Contravention was a separate contravention.
In the Court’s view, therefore, there were the following contraventions in respect of which the Court must consider whether or not to impose penalty:
a)by Core Drilling:
i)the Underpayment Contravention;
ii)the Training Contravention;
iii)the Deductions Contravention; and
iv)the Notice of Termination Contravention;
b)by Ms Gurnell:
i)the Training Contravention; and
ii)the Deductions Contravention.
The maximum penalty for each contravention by Core Drilling is $33,000, and therefore the total maximum penalty to which Core Drilling is exposed is $132,000. The total number of contraventions by Ms Gurnell is two, and the maximum penalty for each contravention by Ms Gurnell is $6,600. The total maximum penalty to which Ms Gurnell is exposed is therefore $13,200.[50]
Nature and extent of the conduct and circumstances in which it took place
[50] The maximum penalty for contravention of the FW Act at the relevant times was no more than 60 penalty units for a natural person, and no more than 300 penalty units for a corporation: FW Act, ss.539 and 546(2). A penalty unit was valued at $110: Crimes Act 1914 (Cth), s.4AA.
Mr Maslen’s submissions
On this factor Mr Maslen submits that:
a)Core Drilling adopted a daily rate remuneration system that expressly contemplated that overtime, weekend rates, public holiday shift penalties, disability and first aid allowances, night shift and travel time might be payable other than by way of contractual agreement, and therefore recognised that industrial instruments may apply to the work performed;
b)the derivation of the daily rate and the incorporation of obligations under any industrial instrument was not ascertainable from the contract of employment, nor was it the subject of evidence by the Respondents, and the Respondents’ failure to explain how the daily rate was derived leads to an inference of a reckless indifference as to what Award conditions might apply and whether the remuneration satisfied those conditions;
c)Core Drilling was a member of the Chamber of Commerce and Industry of WA Inc.[51] Ms Gurnell admitted having recourse to CCIWA’s advisory services whenever needed. The Respondents’ failure to seek CCIWA’s advice and to ensure that his daily remuneration satisfied minimum Award obligations was seriously reckless;
d)he had no prior experience of this type of work, or in the industry, and was not in a position to appreciate whether the daily rate remuneration was sufficient, and there being no evidence that the Fair Work Information Statement[52] was given to him, he had no reasonable way to find out;
e)even on the Respondents’ most favourable construction of the Award provisions at the time of hearing, there was an admitted underpayment;
f)Ms Gurnell, on behalf of Core Drilling, made a deliberate decision to not pay Mr Maslen for attending the training courses;[53]
g)his action in raising with the Respondents by telephone call and by letter the issue of non-payment is evidence that he did not consider the failure to pay him to be insignificant;
h)the Respondents knew of but only admitted the Notice of Termination Contravention in final submissions;[54] and
i)on a plain reading of the deductions provisions in the contract of employment it should have been apparent to the Respondents that the deductions provisions did not apply to his termination of employment. It is astonishing that the Respondents continued to maintain the lawfulness of the deductions.[55] Core Drilling’s membership of CCIWA, and Ms Gurnell’s evidence that she had considerable experience in employment matters, and also utilised CCIWA’s advisory services whenever required, but nonetheless made the deductions without making all reasonable efforts to ensure that they were lawful, is an aggravating factor. The provisions in the FW Act are not new: it has been unlawful for more than a century for an employer to withhold monies from an employee’s wages without proper authority.
[51] “CCIWA”; Ms Gurnell’s Affidavit, para.24.
[52] “FW Information Statement”. Under s.124 of the FW Act the Fair Work Ombudsman must prepare a FW Information Statement containing information concerning, amongst other things, the National Employment Standards, modern awards and termination of employment: FW Act, s.124(1) and (2)(a), (b) and (f). Under s.125(1) of the FW Act an employer must give each employee the FW Information Statement before, or as soon as practicable after, an employee starts employment.
[53] Ms Gurnell’s Affidavit, para.22; Mr Maslen’s December 2011 Affidavit, para.17.
[54] Respondents’ schedule provided during submissions: final page stating applicant owed wages in lieu of notice of termination.
[55] Respondents’ Contentions of Fact and Law, paras.23 and 24.
With respect to the July and September 2011 Training Contraventions, Mr Maslen submits they involved a deliberate or reckless disregard of workplace relations laws because:
a)Ms Gurnell admitted that from at least 13 September 2011 she knew that there may have been an obligation to pay him for attending training courses and that she needed to look into it,[56] and on her own admission,[57] Ms Gurnell took no action until 29 September 2011, and did not pay him for attending the training courses until the following day, after he had seen Ms Gurnell to complain about the uniform and airfare deductions being made; and
b)the Respondents had been advised of the possibility of an obligation to pay him for attending training courses when he was employed in July 2011, when he asked if he was to be paid for attending the July training courses. On the second occasion, on 13 September 2011, Ms Gurnell said she recognised that the obligation to pay him for attending training courses may exist. The Respondents either deliberately ignored the possibility, or were reckless in not seeking advice, and consequently failed to pay him.
[56] Ms Gurnell’s Affidavit, paras.21 and 23.
[57] Ms Gurnell’s Affidavit, paras.21 and 23.
Respondents’ submissions
The Respondents’ submissions on this factor are as follows:
a)at no time, either during Mr Maslen’s employment or during the proceedings, have the Respondents intended to avoid obligations under the FW Act or the Award or to deny Mr Maslen payment to which he is entitled;
b)the July and September 2011 Training Contraventions were due to a misunderstanding of the application of the Award. When Mr Maslen first queried why he had not been paid for attending the four days of training, Ms Gurnell said she “would make enquiries and revert back to him as soon as [she] could”;[58]
[58] Ms Gurnell’s Affidavit, paras.23 and 24.
c)Ms Gurnell contacted CCIWA and received advice that Core Drilling:
i)was required to pay Mr Maslen for attending two Barrick induction training days; and
ii)was not required to pay Mr Maslen for attending the First Aid and Working at Heights training days unless Core Drilling agreed to do so;
d)despite not being strictly required to, Core Drilling made the decision to pay Mr Maslen for all training days and payment was made to Mr Maslen on 30 September 2011.[59] Therefore, Mr Maslen suffered no loss from the July and September 2011 Training Contraventions from that date;
e)the Deductions Contravention occurred on 29 September 2011 when Core Drilling deducted the cost of Mr Maslen’s uniform and flight from the mine site to Perth from Mr Maslen’s final wages upon his termination of employment;
f)following advice from CCIWA these errors were rectified and the applicable amounts paid into Mr Maslen’s bank account on 30 September 2011. Nothing more can reasonably be expected from a small business employer with no internal expertise in the interpretation of complex and changing industrial relations requirements. Core Drilling promptly clarified the position and made the required payment to Mr Maslen. In Maslen (No. 1) the Court noted that “the speed with which the contravention was corrected, and the other surrounding circumstances, will be matters going to the imposition of penalty”.[60] Again, Mr Maslen suffered no loss from the Deductions Contravention from this date;
g)the Respondents recognise the importance of complying with the FW Act and the Award and submit that any failure to do so was by virtue of a misunderstanding of the application of the Award and the FW Act and was rectified; and
h)Core Drilling amended contracts of employment for its current employees and the template used for future employees, following the conciliation at the Fair Work Commission on 25 November 2011, so as to avoid an error of this nature occurring in the future.
[59] Maslen (No. 1) at para.62 per Judge Lucev.
[60] Maslen (No. 1) at para.78 per Judge Lucev.
Consideration
The remuneration system adopted by Core Drilling has in this case resulted in the underpayment of Mr Maslen. No evidence has been led to show why, or how, Core Drilling came to adopt a remuneration system which came to result in the underpayment of an employee vis-à-vis the Award entitlements, or how, for example, Core Drilling came to give five days’ notice of termination instead of one week, or pay in lieu of notice. There was no evidence that the remuneration system adopted by Core Drilling was based on legal advice, or advice from an employer advisory group, such as CCIWA. Evidence to that effect might, to some degree, have mitigated this aspect of Core Drilling’s conduct. Without it, Core Drilling’s conduct in adopting a remuneration system which resulted in payments less than those under the Award could be characterised as reckless or indifferent, particularly in circumstances where it is notorious that employers must pay employees, at a minimum, in accordance with an industrial award that applies to the employers.[61] As Mr Maslen points out, even on the Respondents’ interpretation of the Award, it underpaid him, although it asserted with effect from 9 March 2012 and until judgment in Maslen (No. 1) that that was an underpayment of $123.55,[62] which it says it was prepared to pay. By contrast it would appear that Mr Maslen originally claimed $7,379.07 by way of an Award entitlement[63] when he filed the application on 9 December 2011, and that was subsequently reduced to $3,475.12 when an Amended Application was filed on 17 February 2012. In response to the Amended Application the Respondents on 9 March 2012, offered to pay Mr Maslen the $123.55, and otherwise reserved their position with respect to costs. Mr Maslen further reduced the underpayment of Award entitlements claimed to $2946.43 on 6 July 2012.[64] As a result of the judgment in Maslen (No. 1) the Underpayment is now agreed at $2,613.38. The disparity between the two latter sums, and the relative closeness of the amount ultimately claimed by Mr Maslen, and the amount of the Underpayment, provide an obvious and sensible explanation as to why the Underpayment Claim did not settle, and against those facts to assert, as the Respondents do, that they had not intended to deny Mr Maslen payment to which he was entitled, even if that be true, is an argument without significant merit given the disparity in the sums concerned.
[61] FW Act, s.45; Josephson v Walker (1914) 18 CLR 691 at 700 per Isaacs J (“no man being capable under the State of contracting himself out of his rights or obligations in this respect”); expressly affirmed in Byrne & Anor v Australian Airlines Limited (1995) 185 CLR 410 at 421 per Brennan CJ, Dawson and Toohey JJ.
[62] Maslen (No. 1) at para.41(c) per Judge Lucev; Affidavit of Meqha Bhandari, sworn 26 July 2012 (“Ms Bhandari’s Affidavit”), annexure “MB-13”.
[63] Mr Maslen’s December 2011 Affidavit, annexure B.
[64] Affidavit of Mr Maslen, affirmed 6 July 2012, para.18 (“Mr Maslen’s July 2012 Affidavit”).
It is, however, fair to observe that the Award Breach Claim and the final calculation of the Underpayment, was made more difficult by the terms of the Award. Mr Maslen observed in his submissions that the relevant terms of the Award were an “abomination”.[65] For the Court it suffices to observe that they were not necessarily easy to interpret, and that the Court’s interpretation of the relevant terms with respect to the Award Breach Claim (in particular) differed to those of both Mr Maslen and the Respondents.[66]
[65] Applicant’s Submissions on Penalty, para.5(a)(iii).
[66] Maslen (No. 1) at para.63 per Judge Lucev.
In Maslen (No.1) the Court noted that:
a)the Deductions Contravention had been corrected the next day following those contraventions;[67] and
b)the contract “on its face” provides for the cost of a uniform to be an expense of the employee. The Court found, however, that the contract of employment was not worded exactly to that effect, and that the right to deduct uniform costs from an employee’s wage only occurs if the employee terminates the employment within the probationary period. The Respondents’ decision to deduct the airfares was contrary to the plain terms of the contract of employment and ought not to have been made, because the flight costs clause made a clear distinction between circumstances where an employee or employer terminates the contract of employment. Mr Maslen’s submission that it ought to have been readily apparent to the Respondents that the deductions were not permissible is therefore accepted with respect to the Airfare Deduction Contravention, but not accepted with respect to the Uniform Deduction Contravention.
[67] Maslen (No. 1) at para.78 per Judge Lucev.
The Court does not accept the Respondents’ submission that “nothing more can be expected from a small business”, or that the Deductions Contravention was a result of complex and changing industrial law or a lack of internal speciality. The Deductions Contravention occurred because the Respondents incorrectly interpreted and applied Core Drilling’s own contract of employment. The Court gives weight to Mr Maslen’s sensible submission that, given Core Drilling’s membership of CCIWA, it is not clear why Ms Gurnell made the deductions without first clarifying, or even attempting to clarify, the meaning of the provisions of the contract of employment. The Deductions Contravention was, however, rectified quickly and effectively no loss was suffered by Mr Maslen. The nature of any failure to pay an employee in full is serious, however, given the quick rectification and the fact that Mr Maslen suffered no effective loss as a result of the Deductions Contravention, the seriousness otherwise attributable to the Deductions Contravention is seriously diminished.
There has been no allegation, claim or any other evidence before this Court that Core Drilling failed to provide Mr Maslen with a FW Information Statement, and consequently no finding to that effect. It is therefore not appropriate for the Court to give any weight to this issue. There is no evidence to support Mr Maslen’s submission that his lack of industry experience caused him to fail to appreciate the underpayment or any other of Core Drilling’s contraventions. There is no evidence to support a claim that Mr Maslen was a vulnerable employee, and even if the Court were to accept that Mr Maslen was a vulnerable employee, there is no evidence to demonstrate that he was, in any relevant sense, exploited by reason of that vulnerability and that the contraventions caused harm to Mr Maslen of a different or greater character than that of a non-vulnerable employee.[68] Further, the notion that a lack of industry experience or, if it had been the case, the failure of an employer to provide a FW Information Statement would render an employee “with no reasonable way to find out” their own entitlements is not a plausible submission. There is no evidence of any attempt, at the relevant time, to contact a lawyer, industrial relations adviser, relevant union, workplace body, or government body in an endeavour to obtain assistance. All of those avenues were open and reasonable ways for Mr Maslen to endeavour to find out his correct remuneration during the currency of his employment.
[68] Hanssen Pty Ltd v Jones (2009) 179 IR 57 at 67-68 per Siopis J; [2009] FCA 192 at paras.57-62 per Siopis J. See also: Fair Work Ombudsman v ACN 146 435 118 Pty Ltd & Anor (No. 2) [2013] FCCA 1270; Director of The Fair Work Building Industry Inspectorate v Zion Tiling Pty Ltd & Anor (No. 2) [2013] FCCA 1288.
The delay in payment of the July 2011 Training Contravention is significant, particularly bearing in mind that Mr Maslen raised with Ms Gurnell his eligibility for payment at or about the time of the training itself. The fact that nothing was then done with respect to determining whether or not Mr Maslen was entitled to be paid is not indicative of an employer who manifested concern with respect to whether Mr Maslen was correctly paid or not. The delay in payment of the September 2011 Training Contravention following Ms Gurnell’s acknowledgement that there may have been an obligation to pay, is not as significant but is aggravated to some degree by Ms Gurnell’s ongoing failure to seek advice on whether payment ought to be made, advice which was seemingly not sought until after Mr Maslen’s employment was terminated.
The Training Contraventions, whilst deliberate, were rectified quickly once advice was obtained by Ms Gurnell from CCIWA.
The Notice of Termination Contravention was in very limited compass with five days’ notice having been given, where seven days’ notice ought to have been given, or paid for in lieu.
The nature and extent of the conduct and the circumstances involved in relation to the Contraventions fall within the low to middle range with respect to the Underpayment Claim, and very much at the lower end of the range with respect to the other Contraventions.
The nature and extent of any loss or damage
Mr Maslen’s submissions
In relation to this factor Mr Maslen submits that:
a)the consequence of the contraventions are that Mr Maslen was underpaid. The Respondents conceded from the very beginning that there was an underpayment but disputed the amount. On the basis of the parties’ agreed calculations subsequent to delivery of Reasons for Judgment in Maslen (No. 1), the Underpayment was significant. The Underpayment was more than $2,600, which is approximately equivalent to 10 days’ pay for Mr Maslen at his contracted rate of wage;
b)the Respondents ask the Court to infer that because the ultimately agreed amount of the Underpayment was a “very small sum”[69] the loss or damage suffered by Mr Maslen because of the underpayment of wages was small and should attract a lesser penalty. Mr Maslen’s calculation of Award entitlements was actually greater than was ultimately agreed to be the case following Maslen (No. 1). The “very small sum” argument has no merit; and
c)the Respondents’ contention that none of the Contraventions have affected Mr Maslen’s ability to obtain further employment following his dismissal has even less merit, there being no causal connection between the contraventions and Mr Maslen’s subsequent employment.
[69] Respondent’s Outline of Submissions on Penalties, para.23.
Respondents’ submissions
The Respondents’ submissions on this factor are as follows:
a)on 4 October 2011, Mr Maslen sent a letter of demand to Core Drilling stating that Mr Maslen would be “prepared to accept $25,000 to settle all matters between the parties”;[70]
b)Core Drilling responded on 12 October 2011, stating that Core Drilling “would be prepared to consider any claim for an underpayment if [Mr Maslen] would specify with some particularity the specific clauses of the Award that [Mr Maslen] says have been breached and the date upon which these have allegedly been breached”;[71]
c)at this time, and throughout the course of the proceedings, Core Drilling always maintained it would rectify any underpayment of wages owing to Mr Maslen. Until Mr Maslen specified the alleged underpayment and supplied the basis for calculation for verification by Core Drilling, this could not occur;
d)Mr Maslen failed to particularise his claim for $25,000 until 27 November 2011, that is, not until after the conciliation conference before the Fair Work Commission.[72] Mr Maslen’s re-calculation of the underpayment totalled $7,973.07;[73]
e)the Underpayment calculated in accordance with the Reasons for Judgment in Maslen (No.1) and agreed in the Memorandum totalled $2,613.38, was significantly less than Mr Maslen’s original demand for $25,000, and his re-calculation of $7,973.07; and
f)none of the Contraventions have affected Mr Maslen’s ability to obtain further employment following his dismissal by Core Drilling. It is therefore reasonable to infer that the loss and damage suffered by Mr Maslen is restricted to the Underpayment.
[70] Ms Bhandari’s Affidavit, annexure MB-1.
[71] Ms Bhandari’s Affidavit, annexure “MB-2”.
[72] “FWC”.
[73] Ms Bhandari’s Affidavit, annexure “MB-5”.
Consideration
The Underpayment is, in absolute terms, not a significant sum of money. Nor was it the subject of a long-running contravention, or a contravention involving numerous employees. In those respects it is significantly removed from the most serious category of underpayment cases. There is, nevertheless, force in Mr Maslen’s submission that it amounts to about 10 days’ payment in relation to a period of employment which lasted just 12 weeks. As a proportion of the remuneration to which Mr Maslen was entitled, the underpayment was, therefore, relatively significant.
In assessing penalty, and the nature and extent of any loss or damage, the Court disregards Mr Maslen’s argument that the actual quantum of underpayment was more than the Underpayment the subject of the Memorandum. The parties have, in accordance with the Court’s orders in Maslen (No.1), agreed the quantum of the Underpayment in the Memorandum, and the Court cannot go behind that and consider an argument that the Underpayment is greater than that agreed in the Memorandum. Equally, the Respondents’ argument that the Court ought to take as its starting point Mr Maslen’s claim for $25,000 is, in the Court’s view, wrong, at least insofar as it asserted that the Underpayment was “significantly less than Mr Maslen’s original demand for $25,000”.[74] Mr Maslen’s original demand for $25,000 was in relation to a settlement of all matters, including the General Protections Claim,[75] a claim which was ultimately unsuccessful.[76] In circumstances where the Award Breach Claim was calculated, for the purposes of these proceedings, at $7,973.07 in the Application originally filed, recalculated to $3,475.12 in the Amended Application, further recalculated in Mr Maslen’s 6 July 2012 Affidavit to $2,946.43[77] and ultimately agreed at $2,613.38 in the Memorandum, no criticism can be levelled at Mr Maslen for refusing to settle the Underpayment Claim for the sum of $123.55 being offered by the Respondents. As the Court has observed above, the offer to settle made by the Respondents did not ever exceed $123.55, even when the Award Breach Claim was particularised, and then particularised and reduced further, as it was in the Amended Application and the Mr Maslen’s July 2012 Affidavit. In those circumstances, the Respondents cannot seriously contend for a reduction in penalty on the basis of Mr Maslen’s refusal to settle the Award Breach Claim.
[74] Respondents Outline of Submissions on Penalties, para.21.
[75] Ms Bhandari’s Affidavit, annexure “MB-1”.
[76] Maslen (No. 1) at paras.13-38.
[77] Mr Maslen’s July 2012 Affidavit, para.18.
The Court observes that penalty, as opposed to costs, is to be assessed on the contravention found to have been committed, not on the basis of an alleged contravention which was found not to have been committed (as in the case of the General Protections Claim). Further, whilst it may be the case that Mr Maslen’s loss and damage is restricted, for present purposes, to the Underpayment, as is asserted by the Respondents, that does not mean that it has a causal nexus with Mr Maslen’s ability to obtain further employment. Penalty is to be assessed on the basis of loss and damage that did occur, which in this case is limited to the Underpayment. For reasons already set out above, the loss and damage in this case is significant in immediate terms for Mr Maslen, but not significant in absolute terms as to the quantum or conduct of the Respondents. In these respects, it is again, probably conduct which falls in the lower to middle end of the range of conduct giving rise to loss and damage in respect of Mr Maslen.
Similar previous conduct and prior contraventions
In the Court’s view, the Respondents, because of their own calculations with respect to the Underpayment Claim, which was seriously in error, did not make an offer to settle for more than the amount of $123.45 that they fixed upon on 9 March 2012. Further, and in any event, it would have been entirely reasonable for the Respondents to settle the Underpayment Claim aspect of the matter by making an offer which exceeded the amount offered on 9 March 2012 of $123.45. Although it would not have settled the General Protections Claim an offer to settle closer to the amount of the Underpayment Claim by Mr Maslen, if accepted, would have significantly reduced the costs with respect to the Underpayment Claim part of the proceedings. In that regard, if there was an unreasonable act or omission, in the Court’s view it was the failure of the Respondents to make a reasonable offer of settlement to Mr Maslen with respect to the Underpayment Claim prior to hearing. It was that conduct which caused costs in this part of the proceedings to continue to be incurred, not any delay or obfuscation by Mr Maslen.
Finally, in this regard, and perhaps most conclusively of all, it is necessary to note that in relation to the Underpayment Claim which went to the liability hearing, Mr Maslen was substantially successful. The Underpayment was agreed at $2,613.38 in the Memorandum as against a claim of $2,946.42 taken to the liability hearing, reduced from an amount of $3,475.12 in the Amended Application filed on 17 February 2012. In this regard, it is also worth noting that, the interpretation of the relevant Award provisions was in dispute between the parties, and the interpretation of those provisions by the Court did not accord with the interpretation of either of the parties, but nevertheless, as has just been pointed out, resulted in Mr Maslen being substantially successful on the Underpayment Claim.
In all of the above circumstances, the Respondents’ application for costs on the basis of Mr Maslen’s alleged unreasonable acts or omissions must fail.
Conclusions and orders
The Court has concluded that:
a)the Respondents must pay penalties in the amounts specified above, namely $14,850 for Core Drilling and $990 for Ms Gurnell, with those penalties being payable to Mr Maslen, by 26 February 2015;
b)the Respondents’ application for costs has failed for the reasons set out above, and there will therefore be an order that there be no order as to costs; and
c)there will be an extension of time for compliance with order 2 of the Court’s order of 7 August 2013, time being extended to the actual time of filing of the Respondents’ submissions.
As indicated in Maslen (No.1)[214] there will also be declarations as to liability, and orders as to penalty and payment of the Underpayment.
[214] Maslen (No. 1) at paras.63 and 93 per Judge Lucev.
Mr Maslen has also requested the payment of interest on the Underpayment,[215] and there will be an order for interest to be paid at the rate of 6% per annum with effect from 24 September 2011 (being the last day of employment) to the date of payment of the Underpayment.[216]
[215] Under s.547 of the FW Act.
[216] For the reasons set out in para.14 above, that is, a lack of proper evidence as to the actual dates and amounts of the various underpayments, it is not possible to use a more precise date than 24 September 2011.
There will also be an order to change Ms Gurnell’s name as it appears as second respondent in the proceedings to reflect her full and proper name as indicated in Ms Gurnell’s Affidavit.[217]
[217] FCC Rules, r.7.01.
I certify that the preceding one hundred and fifty-one (151) paragraphs are a true copy of the reasons for judgment of Judge Lucev
Associate:
Date: 16 February 2015
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