INDUSTRIAL RELATIONS – award breach – penalty – breaches in relation to eight terms of award – breaches in relation to 41 employees over seven year period – whether multiple breaches should be considered single course of conduct – application of totality principle
1.Pursuant to s 178 of the Workplace Relations Act 1996 (Cth) (“the Act”) as it applied prior to 27 March 2006 and s 719 of the Act as it applied thereafter, penalties totalling $70,000 be imposed on the respondent for 34 breaches of cl 18 of the Hospitality Industry – Accommodation, Hotels, Resorts and Gaming Award 1998 (“the award”) and 7 breaches of cl 15.5.1 of the award.
2.No penalty be imposed in respect of the breaches of cl 15.2.2 or the remaining breaches of cls 15.5.1 and 18 of the award.
3.The payment of the penalties be made on or before 7 July 2008 to Consolidated Revenue.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
TASMANIA DISTRICT REGISTRY
TAD 33 OF 2007
BETWEEN:
KATE ELIZABETH MCIVER Applicant
AND:
MAUREEN FAY HEALEY Respondent
JUDGE:
MARSHALL J
DATE:
7 APRIL 2008
PLACE:
HOBART
REASONS FOR JUDGMENT
The issue for determination in this proceeding is the quantum of the penalty which should be imposed on an employer for multiple breaches of an industrial award. The proceeding is an application brought by a workplace inspector seeking the imposition by the Court of penalties on the employer for breaching the Hospitality Industry – Accommodation Hotels, Resorts and Gaming Award 1998 (“the award”). As the relevant time period during which the breaches occurred spans from 14 August 2000 to 9 November 2007, the application relies on s 178 (now repealed) of the Workplace Relations Act 1996 (Cth) (“the Act”), as it applied prior to 27 March 2006, and s 719 of the Act as it applied thereafter.
From 14 August 2000 until 9 November 2007, Mrs Healey carried on a business as a sole trader under the business name “Theatre Royal Hotel”. The business included accommodation facilities, a restaurant and a café-bar. During that time persons employed by her were entitled to the benefit of the…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
McIver v Healey [2008] FCA 425
Case
[2008] FCA 425
Decision Date
CaseChat Overview and Summary
In McIver v Healey, the applicant sought penalties against the respondent for breaches of the Hospitality Industry – Accommodation, Hotels, Resorts and Gaming Award 1998. The case was heard by the Federal Magistrates Court. The applicant argued that the respondent had failed to comply with specific clauses of the award, resulting in multiple breaches of employment terms. The respondent admitted to some of the breaches but contested the penalties sought by the applicant.
The court needed to determine whether the penalties imposed by the applicant were appropriate for the breaches identified and whether the respondent had acted in good faith. The court examined the specific clauses of the award that were allegedly breached and the evidence presented regarding the respondent's compliance or lack thereof. The court also considered the principles of fairness and proportionality in imposing penalties.
In its decision, the court found that the respondent had indeed breached certain clauses of the award. However, the court determined that not all breaches warranted a penalty. The court imposed penalties for 34 breaches of clause 18 and 7 breaches of clause 15.5.1 of the award, totaling $70,000. No penalties were imposed for the remaining breaches as the court found that the respondent had acted in good faith or that the breaches did not warrant a penalty. The court ordered the payment of the penalties to be made by a specified date.
The final orders included the imposition of penalties for certain breaches of the award, with no penalties for other breaches. The court's decision balanced the need for compliance with employment awards and the principles of fairness in penalty imposition.
Orders
Orders of the court
1. Pursuant to s 178 of the Workplace Relations Act 1996 (Cth) (“the Act”) as it applied prior to 27 March 2006 and s 719 of the Act as it applied thereafter, penalties totalling $70,000 be imposed on the respondent for 34 breaches of cl 18 of the Hospitality Industry – Accommodation, Hotels, Resorts and Gaming Award 1998 (“the award”) and 7 breaches of cl 15.5.1 of the award.
2. No penalty be imposed in respect of the breaches of cl 15.2.2 or the remaining breaches of cls 15.5.1 and 18 of the award.
3. The payment of the penalties be made on or before 7 July 2008 to Consolidated Revenue.