Roberts v A1 Scaffold Group Pty Ltd and Ors (No.2)
[2015] FCCA 2249
•20 August 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| ROBERTS v A1 SCAFFOLD GROUP PTY LTD & ORS (No.2) | [2015] FCCA 2249 |
| Catchwords: INDUSTRIAL LAW – Application for pecuniary penalties pursuant the Fair Work Act 2009 (Cth) – contravention of Fair Work Act 2009 (Cth) – consideration of matters relevant to penalty. |
| Legislation: Fair Work Act 2009 (Cth), ss.45, 343, 345, 536, 539, 546 |
| Roberts v A1 Scaffold Group Pty Ltd & Ors [2015] FCCA 422 Fair Work Ombudsman v Al Hilfi [2015] FCA 313 Fair Work Ombudsman v Fed Up Deli & Catering Pty Ltd (in Liquidation) (ACN 118 143 972) & Anor [2012] FMCA 738 Fair Work Ombudsman v ACN 052 182 180 Pty Ltd & Anor [2013] FCCA 688 Fair Work Ombudsman v Terrence Cyril Thomas (trading as Over The Top Happy Cleaning Services Pty Ltd) [2013] FCCA 536 Fair Work Ombudsman v Tsurc Pty Ltd (ACN 130 749 969) & Anor (No.2) [2014] FCCA 2148 Kelly v Fitzpatrick [2007] FCA 1080; (2007) 166 IR 14 Australian Ophthalmic Supplies Ply Ltd v McAlary-Smith [2008] FCAFC 8; (2008) 165 FCR 560 Fair Work Ombudsman v Taj Palace Tandoori Indian Restaurant Pty Ltd [2012] FMCA 258 Plancor Pty Ltd v Liquor Hospitality and Miscellaneous Union [2008] FCAFC 170; (2008) 171 FCR 357 Gibbs v City of Altona [1992] FCA 374; (1992) 37 FCR 2016 Community and Public Sector Union v Telstra Corporation Ltd [2001] FCA 1364; (2001) 108 IR 228 |
| Applicant: | JOHN THOMAS ROBERTS |
| First Respondent: | A1 SCAFFOLD GROUP PTY LTD |
| Second Respondent: | CHRISTOPHER JAMES DUNSTAN |
| Third Respondent: | JAMES ANTHONY DUNSTAN |
| Fourth Respondent: | ADAM DUNSTAN |
| Fifth Respondent | MAURICE SHIELDS BELL (DISCONTINUED) |
| Sixth Respondent: | DAVID MOORE |
| File Number: | SYG 3047 of 2013 |
| Judgment of: | Judge Nicholls |
| Hearing dates: | 6 May 2015, 12 June 2015 |
| Date of Last Submission: | 12 June 2015 |
| Delivered at: | Sydney |
| Delivered on: | 20 August 2015 |
REPRESENTATION
| Counsel for the Applicant: | Mr I Latham |
| Solicitors for the Applicant: | Construction, Forestry, Mining and Energy Union |
| Respondents: | No Appearance for the First and Second Respondents Third Respondent In Person on 6 May 2015. No Appearance for the Third Respondent on 12 May 2015 |
THE COURT ORDERS THAT:
The first respondent pay an aggregate penalty of $68,850.00 under Section 539 of the Fair Work Act 2009 (Cth) in respect of the contraventions referred to in the declarations and orders made by this Court on 27 February 2015 and 6 May 2015 within 28 days of this order.
The second respondent pay an aggregate penalty of $13,770.00 under Section 539 of the Fair Work Act 2009 (Cth) in respect of the contraventions referred to in the declarations and orders made by this Court on 27 February 2015 and 6 May 2015 within 28 days of this order.
The third respondent pay an aggregate penalty of $12,750.00 under Section 539 of the Fair Work Act 2009 (Cth) in respect of the contraventions referred to in the declarations and orders made by this Court on 27 February 2015 and 6 May 2015 within 28 days of this order.
The fourth respondent pay an aggregate penalty of $12,750.00 under Section 539 of the Fair Work Act 2009 (Cth) in respect of the contraventions referred to in the declarations and orders made by this Court on 27 February 2015 and 6 May 2015 within 28 days of this order.
Pursuant to Section 546(3) of the Fair Work Act 2009 (Cth) that the penalties referred to in Orders 1, 2, 3 and 4 be paid to the Construction, Forestry, Mining and Energy Union.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 3047 of 2013
| JOHN THOMAS ROBERTS |
Applicant
And
| A1 SCAFFOLD GROUP PTY LTD |
First Respondent
| CHRISTOPHER JAMES DUNSTAN |
Second Respondent
| JAMES ANTHONY DUNSTAN |
Third Respondent
| ADAM DUNSTAN |
Fourth Respondent
| MAURICE SHIELDS BELL (DISCONTINUED) |
Fifth Respondent
| DAVID MOORE |
Sixth Respondent
REASONS FOR JUDGMENT
On 9 December 2013 Mr John Thomas Roberts (“the applicant”) commenced proceedings pursuant to the Fair Work Act 2009 (Cth) (“the FWA”) alleging certain contraventions of the Act against the six respondents. On 27 February 2015 the Court handed down default judgment in favour of the applicant as against the first, second, third, fourth and sixth respondents pursuant to r.13.03B(2)(c) of the Federal Circuit Court Rules 2001 (Cth) (“the FCC Rules”) (see Roberts v A1 Scaffold Group Pty Ltd & Ors [2015] FCCA 422 (“Roberts (No.1)”).
The proceedings now concern the question as to whether an appropriate penalty should be imposed on each of the respondents for the various contraventions of the FWA.
At the hearing, in relation to the question of the payment of any penalty by the respondents, only the third respondent appeared. I was satisfied on the evidence (see the affidavit of Mr Michael Andrew Cope of 5 May 2015) that all of the respondents had received reasonable notice of the hearing.
The third responded stated from the bar table that the second respondent who had also appeared at earlier Court events on behalf of the first respondent, was unable to attend because he had been involved in an accident in Melbourne, and was not able to travel to Sydney, as he was in hospital.
This was not put to the Court in any evidentiary context, nor was any corroborating medical evidence proffered. Nor had there been any application or request from the second respondent, on his own behalf, or on behalf of the first respondent, for any adjournment of the hearing on penalty.
The third respondent made no request for an adjournment either on his own behalf, on or on behalf of the first, or second, respondents. I understood his report of the second respondent’s situation to be simply an explanation of his inability to attend.
I note in this context, that on the occasions when the second respondent had appeared before the Court at earlier Court events in this matter, no real attempt was made to respond to the allegations raised against him and the first respondent.
Nonetheless, once the third respondent reported that the second respondent would have liked to attend, but was prevented from doing so, I determined that the penalty hearing be adjourned in relation to the first and second respondents. The third respondent undertook to notify the second respondent. I also gave the third respondent the opportunity to appear again on that adjourned date.
In relation to the fourth and sixth respondents, I was satisfied that both had reasonable notice. Nothing was before the Court, nor was there any communication with the Court’s Registry, to indicate that either of these respondents had requested an adjournment or otherwise explained their absence. The hearing continued in respect of those two respondents pursuant to r.13.0C(1)(e) of the FCC Rules.
When the penalty hearing resumed there was no appearance by the second or third respondents and no appearance on behalf of the first respondent. No request for an adjournment had been made. Nor was there any other communication from any of those parties as to any difficulty in attending. The hearing proceeded pursuant to r.13.03C(1)(e) of the FCC Rules.
As outlined in Roberts (No.1), the applicant discontinued the application against the fifth respondent.
Roberts (No.1) was concerned with the various defaults of the respondents in the proceedings before the Court. Nonetheless, in those circumstances the allegations of fact made in the applicant’s statement of claim are taken to be admitted by the respondents (Fair Work Ombudsman v Al Hilfi [2015] FCA 313 (“Al Hilfi”) at [20]). Further, for current purposes, I accept the applicant’s submissions that that deemed admission is sufficient to make findings as to accessorial liability (Al Hilfi at [41] – [44]).
I note also in this context that this Court, and the Federal Court, have made orders in relation to penalty under the Act as it arises from a default judgment (see Fair Work Ombudsman v Fed Up Deli & Catering Pty Ltd (in Liquidation) (ACN 118 143 972) & Anor [2012] FMCA 738, Fair Work Ombudsman v ACN 052 182 180 Pty Ltd & Anor [2013] FCCA 688 and Fair Work Ombudsman v Terrence Cyril Thomas (trading as Over The Top Happy Cleaning Services Pty Ltd) [2013] FCCA 536).
The evidence before the Court is set out in Roberts (No 1) at
[24] – [25]. I continue to have regard to that evidence to the extent relevant to the question of penalty:
“[24] The evidence before the Court from the applicant was as follows:
1) The affidavit of John Thomas Roberts affirmed on 15 April 2014 (“the Roberts affidavit”).
2) The affidavit of Pamela Lesley Rodney sworn on 14 April 2014, including Exhibits PR1 – PR9 as referred to in the affidavit (“the Rodney affidavit”).
3) The affidavit of Darren John Greenfield affirmed on 10 April 2014 (“the Greenfield affidavit”).
[25] Also before the Court were a number of affidavits of service filed by the applicant in respect of each respondent, in relation to each Court event. I am satisfied that, on the affidavits of service affirmed by Ms Sherri Lee Hayward on 16 September and 19 September 2014, the fourth and sixth respondents were cognisant of the Court event on 19 November 2014. I was satisfied that each of the following respondents were served with the originating application as follows:
1) A1 Scaffold Group was served by prepaid post by David Andrew Holmes, Legal Assistant, on 9 December 2013 (see affidavit of service affirmed on 17 December 2013).
2) Christopher Dunstan was served by hand by Joseph Khoury, Licensed Commercial Agent, on 14 January 2014 (see affidavit of service affirmed on 28 January 2014).
3) James Dunstan was served by hand by Joseph Khoury, Licensed Commercial Agent, on 10 January 2014 (see affidavit of service affirmed on 28 January 2014).
4) Adam Dunstan was served by hand by Joseph Khoury, Licensed Commercial Agent, on 14 January 2014 (see affidavit of service affirmed on 28 January 2014).
5) David Moore was served by hand by Joseph Khoury, Licensed Commercial Agent, on 12 January 2014 (see affidavit of service affirmed on 28 January 2014).”
Also read into evidence before the Court during the hearing on penalty were the following:
1)Affidavit of Service made by Michael Andrew Cope, Legal Assistant, made on 27 May 2015 affirming that the first, second, third, fourth and sixth respondent had been served with the orders of 6 May 2015.
2)Affidavit of Service made by Michael Andrew Cope, Legal Assistant, made on 8 May 2015 affirming that the first, second, third, fourth and sixth respondent had been served with the Schedule of Penalty Orders of 6 May 2015.
3)Affidavit of Service made by Michael Andrew Cope, Legal Assistant, made on 5 May 2015 affirming that the first, second, third, fourth had been served with the applicant’s outline of submissions of 4 May 2015 and that the sixth respondent had been served with the applicant’s outline of submissions of 4 May 2015 and the Court’s Orders of 27 February 2015.
4)Affidavit of Service made by Sherri Lee Hayward, Industrial Officer, made on 13 May 2015 affirming that the first, second, third, fourth and sixth respondent had been served with the “expanded outline of submissions” filed with the Court on 13 May 2015.
5)Affidavit made by Leah Julia Lillian Charlson, Senior Legal Officer, made on 10 June 2015, no objections from the respondents.
The Contraventions
In Roberts (No.1), the relevant contraventions arose from the applicant’s claims as follows:
1)The “adverse action” claim.
2)The “payslip” claim.
3)The “underpayments” claim.
While there is a range within which the penalty may be imposed, I note that the maximum penalty upon an individual for the adverse action breach, which, in the current circumstances involved the termination of the applicants employment, is 60 penalty units (see item 35 of s.539(2) of the FWA). The maximum penalty upon an individual for contravention of a modern award, (s.45 of the FWA) (with reference to items 2 and 3 at [16] above) is 60 penalty units (item 2 at s.539(2) of the FWA).
Given the current definition of a penalty unit is $170 (s.4AA of the Crimes Act 1914 (Cth)), the maximum amount for each of the contraventions in relation to the adverse action, and award breach as they may apply to the second, third, fourth and sixth respondents, is $10,200.00 for each contravention. Noting that s.546(2)(b) of the FWA provides a multiplication of that by a factor of 5 for a body corporate, in this case the first respondent.
There are a number of elements that may be considered on the question of the issues of penalty, as I noted in Fair Work Ombudsman v Tsurc Pty Ltd (ACN 130 749 969) & Anor (No.2) [2014] FCCA 2148 at [8] – [9]:
[8] As is clear, the imposition of a penalty is at the discretion of the Court. In this light, there is no restriction on the matters that the Court may take into account (Sharpe v Dogma Enterprises [2007] FCA 1550 and Australian Ophthalmic Supplies Ply Ltd v McAlary-Smith [2008] FCAFC 8; (2008) 165 FCR 560 at [91] per Buchanan J).
[9] Noting the above, in Kelly v Fitpatrick [2007] FCA 1080; (2007) 166 IR 14 (“Kelly”) at [14], Justice Tracey adopted a non-exhaustive list of relevant factors referred to in Mason v Harrington Corporation Pty Ltd [2007] FMCA 7. These are (Kelly at [14]):
‘…• The nature and extent of the conduct which led to the breaches.
• The circumstances in which that conduct took place.
• The nature and extent of any loss or damage sustained as a result of the breaches.
• Whether there had been similar previous conduct by the respondent.
• Whether the breaches were properly distinct or arose out of the one course of conduct.
• The size of the business enterprise involved.
• Whether or not the breaches were deliberate.
• Whether senior management was involved in the breaches.
• Whether the party committing the breach had exhibited contrition.
• Whether the party committing the breach had taken corrective action.
• Whether the party committing the breach had cooperated with the enforcement authorities.
• The need to ensure compliance with minimum standards by provision of an effective means for investigation and enforcement of employee entitlements and
• The need for specific and general deterrence…’”
The background to the applicant’s relevant employment history is outlined at [27] – [28] of Roberts (No.1). The features to note for current purposes are that the first respondent is the corporate “successor” to a number of previous entities of which the second, third, fourth and sixth respondents were variously, although not always continuously, directors, secretaries or shareholders (see at Roberts (No.1) at [30]).
All those previous entities were at the time of the penalty hearing, either deregistered or in liquidation. On the evidence, the first respondent remains registered and the second respondent is its sole shareholder and director. Plainly, the previous corporate entities are not parties to these proceedings and the consideration of penalty cannot involve any imposition on them. However, I note my findings in relation to “phoenixing” and the continued liability of the “personal” respondents following the deregistration or liquidation of the previous business entities, in consideration of the underpayment issue in Roberts (No.1) (at [56] – [62]), and apply it below also.
The Adverse Action Claim
The termination of the applicant’s employment with the first respondent occurred on 17 May 2013. The claim was that that termination was an “adverse action” as understood under the FWA, because he engaged in industrial activity and exercised a workplace right. Given the default judgment (Roberts (No.1)), this allegation is deemed to be admitted. The consideration of any penalty, therefore, should be directed, at least, to the first respondent.
As to the other respondents, as set out in (Roberts (No.1)), on the evidence, I could only be satisfied that the second and fifth respondents (noting that the application against the fifth respondent has been discontinued) were involved in the act of the termination of the applicant’s employment.
In his application to the Court, the applicant asserted that the adverse action claim arose from the relevant conduct of the first and second respondents, and judgment was entered against them in Roberts (No.1). It is to them, therefore, that the current consideration should be directed.
On the evidence, the conduct involved in the adverse action was deliberate. The involvement of the second respondent was the direct cause of the termination of the employment. The second respondent was, on the evidence, the director and sole shareholder of the first respondent. I accept, on the evidence, that he was, at the relevant times, the driving force in the first respondent’s business.
The circumstances in which the conduct took place involved threats to procure the applicant’s signature to a “letter of offer” of employment which would have resulted in a “diminution” of his employment conditions. Further, it involved the exertion of pressure on the applicant, who was at that time an employee of the first respondent, to enter into an agreement to effect this diminution of his employment conditions. This conduct involved coercion in respect of the proposal to exercise a workplace right. This was in contravention of s.343 of the FWA.
Relevantly, and importantly, the first and second respondents made at least a misleading representation to the applicant in relation to the exercise of a workplace right by stating to the applicant that he would “lose” his accrued annual leave entitlements if he did not “cooperate”. This was in breach of s.345 of the Act.
These deliberate breaches of the Act, given the circumstances of their occurrence, argue for a penalty at the higher range, particularly given the lack of expression of contrition on behalf of the first and by the second respondent. That opportunity was available to the second respondent, who appeared in person, and as director of the first respondent, at any time during his various appearances before the Court. Instead, the second respondent’s approach was, while attending on various occasions, to remain silent in relation to the serious allegations and claims raised against him, and the first respondent.
It is the case that both specific and general deterrence is a relevant factor in the current consideration of this penalty.
As to specific deterrence, on the evidence, both the first and second respondents continue to be involved in the scaffolding business. In my view, the level of threat involved and occasioned upon a vulnerable employee, and the breaches of the FWA, call for a penalty at the higher end of the relevant penalty range to mark disapproval of this type of conduct and to deter it in the future by the two respondents.
As to general deterrence, there is no evidence before the Court as to the occurrence, or rate of, similar conduct in the scaffolding industry generally. In this light, it is not possible to say that general deterrence could assist in the determination of a penalty.
In all, a penalty should be imposed on the first and second respondents. Given the matters set out immediately above, this should be above the mid point of the range of penalty possibilities, and at a level above the mid point to reflect the seriousness of the breach and the lack of contrition.
The first and second respondents should pay a penalty set at 60% of the possible maximum. That is, the first respondent’s penalty will be $30,600 and the second respondent’s will be $6,120.
It is necessary to consider the aggregate penalty to determine whether it is an appropriate response to the conduct which led to the breaches. In particular, to ensure that it is not “oppressive or crushing” (see Kelly v Fitzpatrick [2007] FCA 1080; (2007) 166 IR 14 (“Kelly”) and Australian Ophthalmic Supplies Ply Ltd v McAlary-Smith [2008] FCAFC 8; (2008) 165 FCR 560).
The first and second respondents have not provided any evidence as to their relevant affairs, despite opportunity to do so, such as to say that the penalty is crushing or oppressive. While the second respondent attended Court at directions, and at the hearing which led to the default judgment, he made no substantive attempt to respond to the claims made against him.
While on one occasion he made reference to being diverted from that task by family law proceedings, there was nothing in these “submissions” to say that the proposed penalty is crushing or oppressive. I remain of the view that the proposed penalties are an appropriate response to the conduct leading to the adverse action breach and the nature of that breach.
The Payslip Claim
The background of this claim, further to what is set out above, is at Roberts (No.1) at [52] – [54].
The applicant’s claim in relation to the payslips is directed towards the third, fourth and sixth respondents and is said to relate to the period when they were involved, variously, in the business of the three “predecessor” corporate entities to the first respondent (see Roberts (No.1) at [30]).
On the evidence, at various times, each of these three had direction over the affairs of the various businesses.
The applicant’s claim was that he was not appropriately or regularly provided with payslips as required by s.536(1) of the FWA. Given the default judgment, the third, fourth and sixth respondents are deemed to have engaged in that conduct.
For reasons apparent from Roberts (No.1), there is no evidence from any of these respondents that the Court can consider, in light of the relevant factors, in regard to whether a penalty should be imposed and, if so, at what amount.
I accept that the failure to issue payslips is important and that its “central” importance in industrial matters cannot be underestimated (Fair Work Ombudsman v Taj Palace Tandoori Indian Restaurant Pty Ltd [2012] FMCA 258).
On the evidence, the breaches appear to have been deliberate and to have involved the management of the “predecessor” entities in their occurrence.
Further to what is set out in Roberts (No.1), the sixth respondent has taken no role whatsoever in these proceedings. However, on the evidence of Ms Charlson in her affidavit of 10 June 2015, following the handing down of Roberts (No.1), the sixth respondent paid to the applicant an amount commensurate with the orders made against him.
It is of note that the sixth respondent left the “business” in or about October 2012 (see Roberts (No.1) at [32]).
It appears that the second, third and fourth respondents share a familial relationship. The “transfer” of the business to the second respondent in or around December 2012 was made to him, from, essentially, the fourth respondent. The fifth respondent, against whom the application has been discontinued, appears to have, by that time, taken a lesser role in the management of the business.
It is not for this Court to speculate, in the absence of evidence or submissions, as to the reasons for the sixth respondent’s failure to engage in these proceedings. However, the payment to the applicant, albeit only after an order was made by the Court, may be seen, if not exactly an act of contrition, but certainly an acceptance of responsibility for what had occurred. On this basis, and on balance, it is in my view not appropriate to impose any penalty on the sixth respondent.
The third respondent has, at least, attended Court on each of the Court occasions in this matter other than at the resumed penalty hearing. However, he did not take the opportunity provided to him to provide evidence, or even to make submissions, to explain the circumstances surrounding the contraventions of the FWA, as they applied to him. It may be, as was apparent from his appearances with the second respondent, that he deferred to the second respondent in these matters. However, ultimately, in the absence of evidence, the Court can only proceed on what is presented to it.
As for the fourth respondent, little can be said. Apart from an appearance at an earlier directions event in this matter, he has not participated whatsoever in these proceedings. The Court, therefore, can only proceed on the evidence presented to it.
It is appropriate that penalties be imposed on the third and fourth respondents. While the matter of payslips is serious, I cannot see that it should involve an amount more than the middle of the range, that is at 50%.
Again, it is necessary to consider the aggregate penalty to determine whether it is an appropriate response to the conduct which led to the breaches. In particular, to ensure that it is not “oppressive or crushing” (see [34] above).
Again, there is no evidence from the relevant respondents as to the effect that any penalty would have on them. That is, if the award of a penalty against any of the respondents would be oppressive or crushing is left unanswered, despite opportunities given to provide submissions to the Court, in writing and orally. It is therefore appropriate that a penalty be awarded for the breach of the FWA in relation to the payslips at the mid-range. That is, each of the third and fourth respondents pay $5,100.
The Underpayment Claim
This claim was made against the first, second, third, fourth and sixth respondents, noting again that the application against the fifth respondent has been discontinued.
The details of the underpayments to the applicant were included in the affidavit of Ms Rodney, which was in evidence before the Court. That evidence was not contested, and the orders made in Roberts (No.1) were made with reference to that evidence. Those underpayments were in relation to “fares and travel patterns allowance”, “transfer during work hours”, accrued annual leave, annual leave loading, redundancy, “rostered days off” and superannuation, pursuant to the Building and Construction General Onsite Award 2010 and the Building and Construction Industry (State Award) NAPSA and entitlements to long service leave, pursuant to the Long Service Leave Act 1955 (NSW).
The various underpayments had occurred in relation to differing amounts of time. Plainly, the accrued annual leave and long service leave were due and payable at the time of the termination of employment on 17 May 2013. The other underpayments, as revealed in the evidence of Ms Rodney, and as found in Roberts (No 1), occurred over a lengthy period, on the evidence from 2007.
Nothing has been put by any of the respondents to assist in the matter of the imposition of any penalty, and, if minded to impose any penalty, the calculation of the amount. I note my findings above as to the various respondents’ conduct in the proceedings, with reference to the elements in Kelly and the elements specific to this case. In the circumstances presented, the various underpayments accrued consistently over a long period of time, and were in relation to a number of different entitlements.
In relation to the sixth respondent, I note what is set out above at
[45] – [47], I find that this also applies to the underpayment claim. Therefore, in my view, it is not appropriate to impose a penalty on the sixth respondent for the underpayments.
As for the first, second, third and fourth respondents, further to what is said at [56] above, on the evidence, the underpayments were deliberate. The length of time over which the underpayments were made, the consistency of such underpayment, and their relevance to a range of elements calls for a penalty well above the mid-point. In my view, the penalty should be set at 75% of the maximum. That is, for the first respondent an amount of $38,250. For each of the second, third and fourth respondent’s an amount of $7,650.
As set out above, each of the first, second, third and fourth respondents should pay a penalty as against, variously, two of the three sets of claims made by the applicant (see [16] above).
It is appropriate, therefore, to consider whether the aggregate amounts of the penalties are an appropriate response to the conduct leading to the breaches, in particular whether the aggregate amounts are “oppressive or crushing”.
The totals are as follows:
1)First respondent: $68, 850
2)Second respondent: $13, 770
3)Third respondent: $12, 750
4)Fourth respondent: $12, 750
The difficulty here is, as referred to above, none of these respondents have provided any evidence, or for that matter, submissions, to assist in this assessment. None of these respondents have shown any contrition for these breaches. In the circumstances, on the evidence, it cannot be said that these amounts are crushing or oppressive. I will order the payment of the penalties in these respective amounts.
Payment of Penalty
In the application to the Court and orders sought, the applicant sought that any payment of penalties be made to the Construction, Forestry, Mining and Energy Union (“the CFMEU”). The CFMEU is the organisation, as that term is understood in the FWA, who assisted the applicant in the making of his application.
It is generally the case that any penalty should be paid to the initiating party, here the applicant (see Plancor Pty Ltd v Liquor Hospitality and Miscellaneous Union [2008] FCAFC 170; (2008) 171 FCR 357 at [44]). However, the applicant submitted, with reference to Justice Gray’s exception in Gibbs v City of Altona [1992] FCA 374; (1992) 37 FCR 2016 at [26], that in some circumstances it is appropriate that an organisation receive the penalty amount.
In the current matter, it is clear from the application and the evidence before the Court, that the applicant was assisted in bringing his application to the Court by the organisation. The enforcement of the Awards, and the prosecution of breaches of the FWA, in a workplace with the interests of the CFMEU, is of clear benefit to the CFMEU and its members.
I have taken into account that any penalty award must not “provide a windfall to the organisation” (Community and Public Sector Union v Telstra Corporation Ltd [2001] FCA 1364; (2001) 108 IR 228). I agree with the applicant’s request that the penalty go to the CFMEU.
In all, and taking into account the consideration above in relation to the breaches of the FWA and that any aggregate of penalties, when all the breaches are considered, should not be “oppressive or crushing”, the following penalties should be paid to the CFMEU by the respective respondents:
1)The first respondent should pay the CFMEU $68,850 for the adverse action and underpayments breaches found in Roberts (No.1).
2)The second respondent should pay the CFMEU $13,770 for the adverse action and underpayments breaches found in Roberts (No.1).
3)The third respondent should pay the CFMEU $12,750 for the payslip and underpayments breaches found in Roberts (No.1).
4)The fourth respondent should pay the CFMEU $12,750 for the payslip and underpayments breaches found in Roberts (No.1).
Conclusion
In my view, in all the circumstances, the aggregate penalty set out above is an appropriate response to the contraventions found in Roberts (No.1), in this case. I will make the orders sought by the applicant in light of my decision.
I certify that the preceding sixty-eight (68) paragraphs are a true copy of the reasons for judgment of Judge Nicholls
Associate:
Date: 20 August 2015
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