NSW Nurses and Midwives' Association v SOS Nursing and Home Care Service Pty Ltd

The NSW Nurses and Midwives' Association (the Association) sought pecuniary penalties against SOS Nursing and Home Care Service Pty Ltd (SOS Nursing) and its managing director, Ms Hyles, for breaches of a collective agreement and an agreement-based transitional instrument. The dispute concerned the employer's failure to pay employees for travel time between clients, contrary to the terms of these instruments. The matter came before Judge Manousaridis.

The court was required to determine whether a previous imposition of pecuniary penalties on 19 May 2011 for contraventions relating to one employee precluded the court from imposing further penalties for contraventions that occurred before that date in relation to other employees. Additionally, the court had to consider the appropriate approach to assessing pecuniary penalties for approximately 400 contraventions of an agreement-based transitional instrument, particularly in light of a provision that would ordinarily treat such contraventions as a single contravention but for a specific section of the *Fair Work Act 2009* (Cth).

The court found that the previous imposition of penalties for contraventions concerning one employee did not preclude the imposition of penalties for contraventions that occurred prior to that date in relation to other employees. This was because the earlier penalties related to distinct contraventions. Regarding the assessment of penalties for the numerous contraventions, the court determined it was appropriate to treat the approximately 400 contraventions as a single course of contravening conduct. The court applied the considerations typically used for assessing a single contravention to this course of conduct, and the maximum penalty was assessed by reference to the penalty applicable to one of the contraventions forming part of that single course of conduct.