Roughton v Pinjarra Crane and Access Hire Pty Ltd
[2015] FCCA 481
•5 March 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| ROUGHTON v PINJARRA CRANE AND ACCESS HIRE PTY LTD | [2015] FCCA 481 |
| Catchwords: INDUSTRIAL LAW – Contraventions – minimum notice of termination of employment – employment records – agreed statement of facts and admissions – agreed penalties – relevant principles concerning agreed penalty – factors for assessment of appropriate penalty. |
| Legislation: Evidence Act 1995 (Cth), s.191 Fair Work Act 2009 (Cth), ss.3(b), 44, 50, 52, 117(2)(b) and (3), 535, 546 Fair Work Regulations 2009 (Cth), reg.3.42(1), (3) and (4) |
| Australian Competition and Consumer Commission v Colgate-Palmolive Pty Ltd [2002] FCA 619 Australian Ophthalmic Supplies Pty Ltd v McAlary-Smith (2008) 165 FCR 560; [2008] FCAFC 8 Furlong v Australian Workers Union & Ors (2007) 162 IR 171; [2007] FMCA 443 Kelly v Fitzpatrick (2007) 166 IR 14; [2007] FCA 1080 Liquor, Hospitality and Miscellaneous Union v Cuddles Management Pty Ltd (No. 2) (2009) 188 IR 435; [2009] FMCA 746 Maslen v Core Drilling Services Pty Ltd & Anor (No.2) [2015] FCCA 290 Minister for Industry, Tourism & Resources v Mobil Oil Australia Pty Ltd [2004] FCAFC 72 Olsen v Sterling Crown Pty Ltd (2008) 177 IR 337; [2008] FMCA 1392 Ponzio v B & P Caelli Constructions Pty Ltd & Ord (2007) 158 FCR 543; [2007] FCAFC 65 QR Ltd v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (2010) 204 IR 142; [2010] FCAFC 150 Rojas v Esselte Australia Pty Ltd (No. 2) (2008) 177 IR 306; [2008] FCA 1585 Secretary, Department of Health & Ageing v Pagasa Australia Pty Ltd [2008] FCA 1545 Stuart v Construction, Forestry, Mining and Energy Union and Anor (2010) 185 FCR 308; [2010] FCAFC 65 Workplace Ombudsman v SRS Investments (WA) Pty Ltd & Anor (2009) 191 IR 426; [2009] FMCA 1132 |
| Applicant: | MARK ROUGHTON |
| Respondent: | PINJARRA CRANE AND ACCESS HIRE PTY LTD |
| File Number: | PEG 146 of 2014 |
| Judgment of: | Judge Antoni Lucev |
| Hearing date: | 3 March 2015 |
| Date of Last Submission: | 3 March 2015 |
| Delivered at: | Perth |
| Delivered on: | 5 March 2015 |
REPRESENTATION
| Counsel for the Applicant: | Mr J Nicholas |
| Solicitors for the Applicant: | Justin (Jack) Nicholas, Construction, Forestry, Mining and Energy Union |
| Counsel for the Respondent: | Mr C Clifton |
| Solicitors for the Respondent: | Culshaw Miller Lawyers |
THE COURT DECLARES:
Under s.545(1) of the Fair Work Act 2009 (Cth) (“Fair Work Act”) that Pinjarra Crane and Access Hire Pty Ltd (ABN 71 123 216 820) (“Pinjarra Crane Hire”) contravened:
(a)sections 44 and 50 of the Fair Work Act by failing to pay Mr Roughton in lieu of notice of termination of his employment in accordance with s.117(2)(b) of the FW Act (“NES Minimum Notice Contravention”) and cl. 19.1 of the Pinjarra Crane and Access Hire Pty Ltd - CFMEU - Gorgon Project - Barrow Island Greenfields Agreement 2010 (“Enterprise Agreement Minimum Notice Contravention”); and
(b)regulation 3.42(4) of the Fair Work Regulations 2009 (Cth) by reason of failing to make available Mr Roughton’s employee records within the time required after his request (“Employee Records Contravention”);
AND THE COURT ORDERS:
Under s.546(1) of the Fair Work Act that Pinjarra Crane Hire pay penalties as follows:
(a)$6,600 for its NES Minimum Notice Contravention; and
(b)$3,400 for its Employee Records Contravention.
Under s.546(3)(b) of the Fair Work Act that the penalties be paid to the Construction, Forestry, Mining and Energy Union within 28 days of these orders being made.
Each party bear its own costs of the proceedings.
That written Reasons for Judgment be published electronically from Chambers at a later date.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 146 of 2014
| MARK ROUGHTON |
Applicant
And
| PINJARRA CRANE AND ACCESS HIRE PTY LTD |
Respondent
REASONS FOR JUDGMENT
Introduction
This case concerns contraventions under the Fair Work Act 2009 (Cth)[1] involving a failure by the employer, Pinjarra Crane and Access Hire Pty Ltd[2] to comply with the National Employment Standards[3] under the FW Act by not paying the employee, Mark Roughton[4] pay in lieu of notice or giving Mr Roughton written notice of termination,[5] and a failure by PCH to make employee records available upon request by Mr Roughton.[6]
[1] “FW Act”.
[2] “PCH”.
[3] “NES”.
[4] “Mr Roughton”.
[5] “NES Minimum Notice Contravention”.
[6] “Employee Records Contravention”.
PCH admits the NES Minimum Notice Contravention and the Employee Records Contravention, and there is no dispute as to the facts, and the parties have agreed upon declarations, orders and penalty that they say the Court ought to impose.
At hearing the Court said that it would publish its Reasons for Judgment electronically from Chambers at a later date. These are those Reasons for Judgment.
Issues
The only issue for the Court is whether the agreed penalties are appropriate penalties. This involves:
a)a consideration of the principles concerning the approach to be taken by the Court where an agreed penalty is proposed; and
b)an assessment of whether the penalty proposed is appropriate having regard to relevant considerations.
Statement of Agreed Facts and Admissions
The parties filed a Statement of Agreed Facts and Admissions,[7] the Statement being made for the purposes of s.191 of the Evidence Act 1995 (Cth),[8] setting out the facts that Mr Roughton and PCH have agreed for the purpose of disposing of the proceedings, and admissions by PCH that may be relied upon in the proceedings.
[7] “Statement”.
[8] “Evidence Act”. Section 191 of the Evidence Act provides as follows:
The operative parts of the Statement are as follows:
Parties
1. The Applicant (Mr Roughton):
(a) was employed by the Respondent, Pinjarra Crane and Access Hire Pty Ltd (ABN 71 123 216 820) (PCH), between on or about 3 September 2011 and 23 July 2012;
(b) by reason of the matters in paragraph 1(a), was at all material times a national system employee within the meaning of s. 13 of the Fair Work Act 2009 (FW Act).
2. PCH was at all material times:
(a) a corporation engaged in trade and carrying on a business in the State of Western Australia;
(b) by reason of the matters identified in subparagraph 5(a), a constitutional corporation for the purposes of the FW Act;
(c) by reason of the matters identified in subparagraph 5(a) and (b), a national system employer within the meaning of s. 14 of the FW Act.
The Employment
3. PCH employed Mr Roughton:
(a) as a full time CWS Crane Operator;
(b) at Barrow Island;
(c) to perform construction and/or commissioning work in or in connection with the Gorgon Project.
The Agreement
4. The Pinjarra Crane and Access Hire Pty Ltd - CFMEU - Gorgon Project - Barrow Island Greenflelds Agreement 2010 (the Enterprise Agreement):
(a) is, and was at all material times a single enterprise agreement for the purposes of s. 172(2) of the FW Act;
(b) was approved by the Fair Work Commission on 4 October 2010; and
(c) at all material times applied to:
(i) PCH;
(ii) the Construction, Forestry, Mining and Energy Union (CFMEU); and
(iii) Mr Roughton;
under s. 52 of the FW Act.
Termination
5. On Monday 23 July 2012, the Respondent terminated Mr Roughton’s employment (the Termination).
Minimum Period of Notice
6. On 23 July 2012:
(a) Mr Roughton had 10 months continuous service with PCH;
(b) the minimum period of notice under s.117(2) of the FW Act was 1 week; and
(c) the minimum period of notice under cl. 19.1 of the Enterprise Agreement was 1 week.
7. If Mr Roughton’s employment had continued for 1 week from the date of Termination, PCH would have been liable under the Enterprise Agreement to pay Mr Roughton $5,325.91.
8. PCH did not:
(a) provide Mr Roughton notice of the Termination; or
(b) provide Mr Roughton any pay in lieu of notice until 18 September 2014.
(PCH’s Minimum Notice Failures)
9. Section 117(2)(ii) of the FW Act required PCH to make a payment in lieu of notice to Mr Roughton by 23 July 2012.
Admitted Minimum Notice Contraventions
10. By reason of PCH’s Minimum Notice Failures, PCH admits it contravened:
(a) s.117(2) of the FW Act; and
(b) cl. 19.1 of the Enterprise Agreement.
11. By reason of the matters in paragraph 10, PCH admits it contravened:
(a) s. 44 of the FW Act; and
(b) s. 50 of the FW Act.
12. By reason of the PCH’s Minimum Notice Failures, Mr Roughton suffered a loss of $5,325.91.
13. On 18 September 2014, PCH paid Roughton $6014.91 (being $5,325.91 plus 6% interest from 23 July 2012).
Request and Failure to Make the Employee Records Available
14. PCH was required, under s.535 of the FW Act, to make, and keep for 7 years, employee records in relation to Mr Roughton (the Employee Records).
15. 22 November 2013, Mr Roughton requested PCH make available a copy of the Employee Records for inspection and copying (the Request).
16. The Employee Records were not kept at the premises at which Mr Roughton worked (Premises).
17. PCH did not:
a. make available a copy of the Employee Records for inspection and copying at the Premises; or
b. post a copy of the employee record to Mr Roughton;
as soon as practicable after receiving the request.
(Failure to Make the Employee Records Available).
Admitted Employee Records Contravention
18. By reason of the Request and the Failure to Make the Employee Records Available, PCH admits it contravened reg. 3.42 (4) of the FW Regulations.
19. PCH posted a copy of the Employee Records to Mr Roughton on 18 September 2014.
Agreed Penalties and Orders
20. By reason of the above matters, the parties agree that it is appropriate for the Court to:
(a) declare under s. 545(1) of the FW Act that PCH contravened:
(i) ss. 44 and 50 of the FW Act by failing to pay Mr Roughton in lieu of notice of termination of his employment in accordance with s. 117(2)(b) of the FW Act (NES Minimum Notice Contravention) and cl. 19.1 of the Pinjarra Crane and Access Hire Pty Ltd - CFMEU - Gorgon Project - Barrow Island Greenfields Agreement 2010 (Enterprise Agreement Minimum Notice Contravention); and
(ii) reg. 3.42 (4) of the FW Regulations by reason of failing to make available Mr Roughton’s employee records within the time required after his request (Employee Records Contravention);
(b) order under s. 546(1) of the FW Act that PCH pay penalties as follows:
(i) $6,600 for its NES Minimum Notice Contravention;
(ii) $3,400 for its Employee Records Contravention;
(c) order under s. 546(3)(b) of the FW Act that the penalties be paid to the CFMEU within 28 days of the orders being made;
(d) order that each party bear its own costs of the proceedings.[9]
[9] Transcribed from the Statement as filed. The references to sub-paragraphs 5(a) and (b) in sub-paragraphs (2)(b) and (c) should plainly be read as referring to sub-paragraphs 2(a) and (b), and paragraph 15 should read “On 22 November 2013…”.
Relevant principles concerning agreed penalty
In dealing with proposed agreed penalties the courts have developed certain principles for guidance. They include:
a)that the court bears ultimate responsibility for penalty, is not bound by the parties agreement, and must consider for itself what constitutes an appropriate penalty;[10]
b)determining penalty quantum is not an exact science, and within a permissible range a particular figure is not necessarily more appropriate than another figure;[11]
c)promoting settlement of litigation (particularly lengthy litigation) is in the public interest, and where the parties agree on facts and penalty, they may present a statement of agreed facts, including a view as to the effect of those facts, and submissions on penalty;[12]
d)the view of the regulatory body is relevant, particularly where the view concerns matters within the regulator’s expertise, but not determinative of penalty;[13]
e)in determining appropriate penalty the court will examine all the circumstances, including an agreed statement of facts, and, if appropriate, may act on that statement;[14] and
f)a jointly proposed penalty will not be rejected simply because the court might have chosen a different figure: it is sufficient if the jointly proposed penalty is “within the permissible range”[15] or “broadly speaking” within that range.[16]
[10] Minister for Industry, Tourism & Resources v Mobil Oil Australia Pty Ltd [2004] FCAFC 72 at paras.53(i), 56 and 79 per Branson, Sackville and Gyles JJ (“Mobil Oil”); Furlong v Australian Workers Union & Ors (2007) 162 IR 171 at 173 per Burchardt FM; [2007] FMCA 443 at para.7 per Burchardt FM.
[11] Mobil Oil at para.53(ii) per Branson, Sackville and Gyles JJ.
[12] Mobil Oil at para.53(iii) per Branson, Sackville and Gyles JJ.
[13] Mobil Oil at para.53(iv) per Branson, Sackville and Gyles JJ.
[14] Mobil Oil at para.53(v) per Branson, Sackville and Gyles JJ.
[15] Mobil Oil at para.53(vi) per Branson, Sackville and Gyles JJ.
[16] Australian Competition and Consumer Commission v Colgate-Palmolive Pty Ltd [2002] FCA 619 at para.24 per Weinberg J.
Assessment of appropriate penalty
In assessing whether the proposed penalty is appropriate there are a number of considerations which the Court may consider. They include:
a)the nature of the contravention which occurred;
b)the effect of that contravention action;
c)the deliberateness of the contraventions and the period over which they extended;
d)whether the contraventions arose out of the conduct of senior management;
e)the organisational culture of the contravener;
f)the contravener’s past relevant record of contraventions of civil penalty provisions;
g)the contravener’s co-operation with the prosecuting or regulatory authority;
h)the contravener’s contrition;
i)the contravener’s financial position;
j)the need for deterrence, both general and individual; and
k)the need to give effect to the statutory purposes underlying the relevant legislation.[17]
[17] Kelly v Fitzpatrick (2007) 166 IR 14 at 21-22 per Tracey J; [2007] FCA 1080 at para.30 per Tracey J.
The above considerations are not an exclusive or prescriptive check list.[18] Finally, the penalty must be appropriate in totality.[19]
Contraventions – liability
[18] 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.
[19] Ponzio v B & P Caelli Constructions Pty Ltd and Ors (2007) 158 FCR 543 at 570-571 per Jessup J; [2007] FCAFC 65 at paras.145-146 per Jessup J (“Caelli Constructions”).
Minimum Notice Failure
Section 44 of the FW Act provides that an employer must not contravene a provision of the NES. Section 117(2)(b) of the FW Act is a provision of the NES, which provides that an employer must not terminate an employee’s employment unless it has provided a minimum period of notice. The minimum period of notice is calculated in accordance with s.117(3) of the FW Act by reference to the employee’s period of continuous service or payment made in lieu of notice of at least the amount the employer would have been liable to pay to the employee at the full rate of pay for the hours the employee would have worked had the employment continued until the end of the minimum period of notice. The minimum period of notice applicable in Mr Roughton’s case is one week.
Section 50 of the FW Act provides that a person must not contravene a term of an enterprise agreement. The Pinjarra Crane and Access Hire Pty Ltd – CFMEU – Gorgon Project – Barrow Island Greenfields Agreement 2010[20] applied to Mr Roughton, the CFMEU and PCH by operation of s.52 of the FW Act. Clause 19.1 of the of the Enterprise Agreement required PCH to provide a period of notice of termination of employment or payment in lieu of notice in accordance with a scale determined by the employee’s period of continuous service, in this case, one week.
[20] “Enterprise Agreement”.
The facts set out in the Statement establish a contravention of both:
a)section 117(2)(b), and therefore s.44 of the FW Act; and
b)clause 19.1 of the Enterprise Agreement, and therefore s.50 of the FW Act.
Employee Records Contravention
Section 535 of the FW Act provides for the creation, keeping and inspection of employment records as provided by the Fair Work Regulations 2009 (Cth).[21] Regulation 3.42(1) of the FW Regulations provides that an employer must make a copy of an employee record available for inspection and copying on request by a former employee. Regulation 3.42(4) of the FW Regulations provides that if the employee record is not kept at the premises at which the employee worked, the employer must, as soon as practicable after receiving the request, make the copy available at the premises or post a copy to the former employee.
[21] “FW Regulations”.
The facts set out in the Statement establish a contravention of reg.3.42(4) of the FW Regulations.
Declaration and orders
In addition to making orders it is appropriate in this case to make declarations which reflect the final outcome of the case with certainty and precision.[22]
[22] Stuart v Construction, Forestry, Mining and Energy Union and Anor (2010) 185 FCR 308 at 333 per Besanko and Gordon JJ; [2010] FCAFC 65 at para.89 per Besanko and Gordon JJ.
Penalties
In this case the maximum penalty for each of the admitted contraventions is as follows:
a)for ss.44 and 50 of the FW Act: $33,000; and
b)for reg.3.42(4) of the FW Regulations: $17,000.
In this case the agreed penalties are:
a)$6,600 for the NES Minimum Notice Contravention; and
b)$3,400 for the Employee Records Contravention.
Each agreed penalty is approximately 13% of the maximum penalty for that contravention.
Consideration of penalty factors
Nature and extent of the conduct and circumstances in which it occurred
PCH submits that it believed it had provided notice on 11 July 2012 in accordance with the FW Act when it terminated Mr Roughton’s employment, but now accepts that whatever notice was provided was not in accordance with the FW Act. There is however no evidence before the Court as to any belief held by PCH or any amount that was actually paid to Mr Roughton on termination of his employment. The Court has not infrequently observed that where a party in federal penalty proceedings wishes to deal with a matter which is either in dispute, or outside any agreed facts, it is necessary for evidence to be led of that fact.[23] Whatever justification PCH might have thought that it had for acting as it did is, in the circumstances, not capable of assessment by the Court because of the lack of evidence. What the evidence demonstrates is that there was a contravention, and that that contravention resulted in Mr Roughton not being paid a sum that he was owed on termination for a period of over two years. Although the sum of money concerned is not overly significant, the delay in paying it is significant, and it is relevant to observe that it was not paid until after proceedings were commenced.
[23] See, for example, Olsen v Sterling Crown Pty Ltd (2008) 177 IR 337 at 343-344 per Lucev FM; [2008] FMCA 1392 at para.25 per Lucev FM (and authorities there cited) (“Sterling Crown”); Maslen v Core Drilling Services Pty Ltd & Anor (No. 2) [2015] FCCA 290 at para.52 and fn.87 per Judge Lucev (“Maslen (No. 2)”).
In relation to the Employee Records Contravention PCH admits that it did not provide a copy of the employee records when requested, and provides no justification for doing so. In the circumstances, the failure to provide employee records is significant.
The consequences of the Employee Records Contravention do not immediately impact upon the parties themselves in terms of loss or damage, but they do have the effect of undermining the relevant statutory objectives. In context, this must be considered as being of similar importance as would be the case if loss or damage were suffered.[24] Employees can exercise statutory powers for the purpose of inspecting their employee records,[25] and the provisions of the relevant regulations ultimately go to the observance of entitlements and the objects of the FW Act in relation to ensuring a guaranteed safety net of fair, relevant and enforceable minimum terms and conditions through the NES, modern awards and national minimum wage orders.[26]
[24] Secretary, Department of Health & Ageing v Pagasa Australia Pty Ltd [2008] FCA 1545 at para.56 per Flick J; Workplace Ombudsman v SRS Investments (WA) Pty Ltd & Anor (2009) 191 IR 426 at 439 per Lucev FM; [2009] FMCA 1132 at para.68 per Lucev FM.
[25] FW Regulations, reg.3.42(3) and (4).
[26] FW Act, s.3(b).
The failure to provide employee records upon request to an employee, in breach of reg.3.42(4) of the FW Regulations, means that PCH has engaged in conduct that undermines the utility and effectiveness of a principal object of the FW Act.[27]
[27] FW Act, s.3(b).
Nature and extent of loss or damage
On 18 September 2014 PCH paid Mr Roughton the monies owed on termination of employment and provided a copy of his employee records. The termination pay was paid with interest added.
It is relevant to note that the payment came some two years after it was due, and in circumstances where proceedings were on foot. Overall, the extent of the loss or damage in relation to the NES Minimum Notice Contravention is relatively minimal. For reasons outlined above, although the Employee Records Contravention does not sound in actual loss or damage, it is nevertheless significant in terms of damage done to the relevant statutory objectives.
Course of conduct
Although there are contraventions of s.44 and s.50 of the FW Act in relation to the NES Minimum Notice Contravention, both of those contraventions arise from the same conduct, namely the failure to make payment to Mr Roughton upon termination of employment. PCH ought not be penalised twice for the same conduct.
The Employee Records Contravention arises from a wholly different course of conduct not related to the termination of Mr Roughton’s employment, and related to different subject matter, namely the provision of employee records, rather than payment upon termination of employment. The employee records request was also made some months later, following termination of employment, and was refused by PCH. The Employee Records Contravention involved distinct actions and distinct courses of conduct. In those circumstances the Employee Records Contravention does not arise from the same course of conduct as the NES Minimum Notice Contravention and must be treated as a separate contravention.[28]
[28] QR Ltd v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (2010) 204 IR 142 at 163 per Keane CJ, Gray and Marshall JJ; [2010] FCAFC 150 at paras.47-48 per Keane CJ, Gray and Marshall JJ; Sterling Crown IR at 350 per Lucev FM; FMCA at paras.49-50 per Lucev FM.
Prior relevant record of contraventions
PCH has no known record of prior relevant contraventions of the FW Act or FW Regulations, and, in the circumstances, is entitled to be treated as a first-time contravener, with an appropriate discount (subject to consideration of the other penalty factors).
Whether or not the contraventions were deliberate
PCH asserts that the NES Minimum Notice Contravention was not deliberate and might therefore be described as reckless. As discussed above, there is no evidence with respect to whether or not the NES Minimum Notice Contravention was deliberate or not and an assessment on this factor is therefore made difficult in the absence of that evidence.
With respect to the Employee Records Contravention there is nothing to indicate that that contravention was not deliberate.
Further, there is no evidence of any conduct of PCH by way of endeavouring to obtain advice from lawyers, an employer organisation or even any evidence of an attempt internally within PCH to determine its potential liability in respect of these contraventions, which evidence might have gone to establishing whether or not the contraventions were deliberate or not.[29]
[29] Maslen (No. 2) at para.68(b) per Judge Lucev.
Capacity to pay
There is no dispute that PCH has capacity to pay the agreed penalty.
Contrition, corrective action and cooperation
PCH deserves credit for:
a)eventually paying the minimum period of notice owed to Mr Roughton;
b)eventually making available the employee records to Mr Roughton; and
c)admitting liability.
Each of the above actions is evidence of contrition, and the former two are evidence of corrective action, albeit that that corrective action took more than two years. Overall, there has been evidence of cooperation with Mr Roughton’s lawyers, as evidenced by the admission of liability, and the provision of the Statement, and the agreement as to penalty. Those actions have saved considerable costs to the public purse in the running of a hearing in this matter and have facilitated the proper administration of justice.
Deterrence
The penalty must reflect the need for specific and general deterrence. In Caelli Constructions it was observed that:
… The penalty must recognise the need for deterrence, both personal and general. In regard to personal deterrence, an assessment must be made of the risk of re-offending. In regard to general deterrence, it is assumed that an appropriate penalty will act as a deterrent to others who might be likely to offend: Yardley v Betts (1979) 22 SASR 108. The penalty therefore should be of a kind that it would be likely to act as a deterrent in preventing similar contraventions by like minded persons or organisations. If the penalty does not demonstrate an appropriate assessment of the seriousness of the offending, the penalty will not operate to deter others from contravening the section. However, the penalty should not be such as to crush the person upon whom the penalty is imposed or used to make that person a scapegoat. In some cases, general deterrence will be the paramount factor in fixing the penalty: R v Thompson (1975) 11 SASR 217. In some cases, although hardly in this type of contravention, rehabilitation is an important factor.[30]
[30] Caelli Constructions FCR at 559-560 per Lander J; FCAFC at para.93 per Lander J.
In the Court’s view the penalties agreed upon between the parties reflect the need for specific and general deterrence.
In that regard the Court acknowledges that PCH is likely to have learnt from its error, and that the penalty exceeds what was otherwise owed to Mr Roughton.
Appropriate penalty and consideration of the totality principle
The Court agrees with the submission by Mr Roughton that the contraventions “were constituted by conduct that was serious, extended for a substantial period of time but was limited in scope and effect.”[31]
[31] Applicant’s Submissions on Liability and Penalty, para.37.
In the above circumstances, and having regard to each of the penalty factors discussed above, the Court considers that this is a matter which falls within the lower range of seriousness, and that a penalty of under 20% would have been determined by the Court absent agreement between the parties. In all likelihood, the penalty would have been in the range of 10% to 20%, and therefore the agreed penalties which are approximately 13% of the maximum penalty for each contravention, are within the permissible range.
By reason of the fact that the penalties are agreed, and that PCH has the capacity to pay, and that they otherwise fall within what the Court considers to be the proper and permissible range of penalties, the agreed upon penalties do not offend the totality principle when considered as a whole.
To whom penalties must be paid
In the circumstances of this case, and bearing in mind the agreement between the parties, there will be an order that payment of the penalty be made to the employee organisation which has facilitated the applicant’s application, namely the Construction, Forestry, Mining and Energy Union.[32]
[32] Rojas v Esselte Australia Pty Ltd (No. 2) (2008) 177 IR 306 at 326 per Moore J; [2008] FCA 1585 at para.68 per Moore J; Liquor, Hospitality and Miscellaneous Union v Cuddles Management Pty Ltd (No. 2) (2009) 188 IR 435 at 445 per Lucev FM; [2009] FMCA 746 at para.37 per Lucev FM.
Conclusion
For the above reasons, at hearing, declarations and orders were made as set out in paragraph 20 of the Statement, together with an order for the electronic publication of these Reasons for Judgment at a later date.
I certify that the preceding forty-one (41) paragraphs are a true copy of the reasons for judgment of Judge Antoni Lucev
Associate:
Date: 5 March 2015
(1) In this section:
"agreed fact" means a fact that the parties to a proceeding have agreed is not, for the purposes of the proceeding, to be disputed.
(2) In a proceeding:
(a) evidence is not required to prove the existence of an agreed fact; and
(b) evidence may not be adduced to contradict or qualify an agreed fact;
unless the court gives leave.
(3) Subsection (2) does not apply unless the agreed fact:
(a) is stated in an agreement in writing signed by the parties or by Australian legal practitioners, legal counsel or prosecutors representing the parties and adduced in evidence in the proceeding; or
(b) with the leave of the court, is stated by a party before the court with the agreement of all other parties.
2
18
4