Tyson v Heiko Constructions trading as Heiko Constructions Pty Ltd
[2021] FedCFamC2G 212
•5 November 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Tyson v Heiko Constructions trading as Heiko Constructions Pty Ltd [2021] FedCFamC2G 212
File number(s): BRG 823 of 2018 Judgment of: JUDGE VASTA Date of judgment: 5 November 2021 Catchwords: INDUSTRIAL LAW – assessment of compensation for contravention of s 348 Fair Work Act 2009 (Cth) – pecuniary penalty – worst case – penalty to be paid to the applicant Legislation: Fair Work Act 2009 (Cth), ss 3, 336, 340, 343, 348, 539, 545, 546 Cases cited: Commonwealth of Australia v Director, Fair Work Building IndustryInspectorate [2015] HCA 46
Maritime Union of Australia & Anor v Fair Work Ombudsman [2016] FCAFC 102
Mason & Harrington Corporation Pty Ltd t/as Pangea Restaurant & Bar [2007] FMCA 7
R v Keenan [2009] QCA 236
R v Manson [1974] QR 202
Division: Division 2 General Federal Law Number of paragraphs: 62 Date of last submission/s: 21 October 2021 Date of hearing: 21 October 2021 Place: Brisbane Counsel for the Applicant: Dr Grienke and Mr Mackie Solicitor for the Applicant: Cate & Co Lawyers And Associates Counsel for the Respondents: Mr Martin Solicitor for the Respondents: Chancery Legal Pty Ltd Counsel for the Intervener: Mr Denton Solicitor for the Intervener: Australian Building And Construction Commissioner ORDERS
BRG 823 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: JOHN ROBERT TYSON
Applicant
AND: HEIKO CONSTRUCTIONS TRADING AS HEIKO CONSTRUCTIONS PTY LTD
Respondent
AUSTRALIAN BUILDING AND CONSTRUCTION COMMISSIONER
Intervener
ORDER MADE BY:
JUDGE VASTA
DATE OF ORDER:
5 NOVEMBER 2021
THE COURT ORDERS THAT:
1. Pursuant to s 546(1) of the Fair Work Act 2009 (Cth) (“the FW Act”), the Respondent pay a pecuniary penalty of $60,000.00
2. Pursuant to s 546(3) of the FW Act, the Respondent pay the pecuniary penalty to the Applicant within 28 days of this order.
3. Pursuant to s 545(2)(b) of the FW Act, the Respondent pay to the Applicant compensation in the sum of $7,000.00 within 28 days of this order.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE VASTA
INTRODUCTION
On 12 December 2019, I made an order declaring that the Respondent had contravened s 348 of the Fair Work Act 2009 (Cth) (“the FW Act”) but otherwise dismissed the application. I was ready to hear arguments as to compensation and pecuniary penalty but had yet to set a date for that hearing. The Respondent asked that the matter be adjourned sine die because they wished to seek leave to appeal my decision. A single judge of the Federal Court granted that leave and later in 2020, the Full Court heard the appeal.
The Full Court substituted the wording of the contravention to a more appropriate declaration but otherwise left the orders I had made in place. The Respondent sought leave to appeal to the High Court but abandoned that application days before the matter was to be considered by the High Court.
The matter has now returned to me for a decision as to compensation and pecuniary penalty.
The Contravention
On 25 November 2020, the Full Court made the following declaration in substitution of the declaration I had made.
On 27 April 2018, the respondent, Heiko Constructions Pty Ltd, contravened s 348 of the Fair Work Act 2009 (Cth) (FWA) in that it took action, namely, the making, by Mr Louis Barrios, of a threat to its employee, the applicant, Mr John Robert Tyson, to the effect that, if Mr Tyson re-joined the Construction, Forestry, Mining and Energy Union (CFMEU), he could enjoy, or continue to enjoy, the pay and benefits of an “EBA job” whereas, if he did not, he would have to find another job “for a wage that sucks” (“half the money”), ie half of Mr Tyson’s then EBA job based pay, with intent to coerce Mr Tyson to engage in industrial activity, namely, becoming a member of the CFMEU, an industrial association
Section 348 is headed “coercion” and is a civil remedy provision. The facts of the matter were fully canvassed in the reasons that I published on 12 December 2019, however, it seems that some of these aspects ought to be repeated so that the factual basis of any award that is made, can be better understood.
The Conversation
At paragraph 68 of my judgement I reproduced the relevant conversation. I do so again complete with my underlining:-
MR BARRIOS: In my office.
MR TYSON · ls this when you know when you're really in trouble? No, no.
MR BARRIOS: I thought you were getting along well with the union.
MR TYSON: (indistinct) no. Not really, Louis.
MR BARRIOS: Because of your union dues. And because we have a good relationship with the union and on an EBA job and all that once everyone doesn’t pay and they won't give it up they go up to the employer and they say ''Can you help us out?" and all that. I said, "Well all l can do is talk to the guy cause as you know, we can't force you to join the union."
MR TYSON: Yeah.
MR BARRIOS: It's, fucking (indistinct) I'm just saying is there anything we can do to mediate or anything like that, or anything that we can help in your way to make you feel more comfortable so then you can actually pay the union and be on an EBA job.
MR TYSON: Yeah.
MR BARRIOS: So - - -
MR TYSON: Louis, Multiplex put a poster up in our shed, you know, and they basically said, "Equal opportunity employer; we don't care if there's a union or whatever on site."
MR BARRIOS; (indistinct) because that's what they have to do with that.
MR TYSON: Yeah, yeah, yeah.
MR BARRIOS: You've been around long enough - - -
MR TYSON: Yeah, yeah.
MR BARRJOS: - - - and you know how all the politics work - - -
MR TYSON: Yeah.
MR BARRIOS: - - - and everything like that
MR TYSON: Yeah.
MR BARRIOS: But what the bottom line that it comes down to is: everyone gets a good wage on the job because you've got an EBA and the union thinks to be that because it's an EBA job and the union is involved, then we should be able to pay the union. If you don't want to do that, then you can - you know, there's also other jobs out there. You don't have to pay the union, but, you know, your wage sucks.
MR TYSON: Yeah.
MR BARRIOS: You get fucking, half the money you get now·- -
MR TYSON: Yeah
MR BARRIOS: - - - because of site allowance and everything like that. So, like l said, see what you can do.
MR TYSON: Yeah.
MR BARRIOS: I'll leave that, of course.
MR TYSON: Yep.
MR BARRIOS: It's all up to you.
MR TYSON: Yeah.
MR BARRIOS: We've got nothing. But it's just - you know?
MR TYSON: Yeah.
MR BARRIOS: As far as I'm concerned with your work etiquette or whatever, I've got no problems at all.
MR TYSON: Yeah.
For completeness, the recording continued after the Applicant left the office of Mr Barrios. As he left the office, the Applicant passed other workers who had seen that he had just left the office of Mr Barrios. The Applicant is recorded as saying “Yes Bretto has anyone got, like, a soft swab? My bum is a bit sore”.
The Applicant had a subsequent conversation with officials from the CFMEU. The relevant parts of that conversation was summarised at paragraphs 69 to 76 of my reasons. In short, the union officials said that if the Applicant paid his union dues, he would be guaranteed another 12 months at the Jewel site but that if he didn’t “move forward” then it would be put in (the employer’s) hands and that “I can’t say what Hoss (the employer) won’t do if you don’t move forward, but I think you already know”.
Compensation
Section 545 of the FW Act provides that the Court may make any order the Court considers appropriate if the Court is satisfied that a person has contravened a civil remedy provision. Subsection 545(2)(b) provides that the Court may make “an order awarding compensation for loss that a person has suffered because of the contravention”.
The Applicant claims that he has suffered two forms of loss because of the contravention; loss that affected him generally and loss that affected him economically.
Fear, hurt, distress and anxiety
The Applicant gave evidence that he was emotionally distressed after the conversation with Mr Barrios.
The descriptions he gave in his latest affidavit were of nervousness before going into the office and a general fear of Mr Barrios because of his size and reputation. I am of the view that these descriptions are irrelevant to the assessment of general damages arising out of the contravention. Those emotions would have been felt by the Applicant whatever the topic of the conversation with Mr Barrios. It seems to me that such emotions could not be said to have been suffered “because of the contravention”.
In Maritime Union of Australia & Anor v Fair Work Ombudsman [2016] FCAFC 102, the principles regarding awards of compensation for general damages pursuant to s 545 of the FW Act were discussed. There does need to be some cogent evidence of distress or suffering for there to be an award made by a Court.
The Respondent submits that there is no such evidence and that the Court would have to assume that a person in the position of the Applicant would have felt such distress in order to make an award for compensation. But if there is such evidence, both the Applicant and the Respondent have submitted that, pursuant to the principles in Maritime Union (Supra), the award for compensation would be in the range of $5,000-$7,000. I accept this submission.
In my view there is clearly evidence of distress on the part of the Applicant. When one listens to the recording, after leaving the office of Mr Barrios, the Applicant makes a comment to a person he called “Bretto” where he asks for a soft swab because his “bum” was “a bit sore”.
The Applicant was cross-examined about this comment during the trial. It was put to him that he made a light-hearted comment and that the levity was commensurate with how serious he took the conversation. The Applicant vehemently denied such an interpretation and gave evidence to the effect that he felt that he had been “violated”. I am certainly of the opinion that the Applicant would have felt “crushed” after this conversation given how dismissively Mr Barrios spoke of the Applicant’s rights to freedom of association.
But it also seems to me that the Applicant must have felt helpless. He knew he had rights but who would uphold those rights? He was not in a “David versus Goliath” battle; it was David versus Goliath who was tag-teaming with Leviathan. It is of little wonder that he figuratively felt that his “bum was a bit sore”.
Given the context of the conversation and the findings I made about that conversation in my earlier judgement, I am of the view that the Applicant has suffered distress “because of the contravention” and an award for compensation should be made. I assess this award at $7000.
Economic loss
The Applicant submitted to me that he was dismissed from his employment “because of the contravention”. The logic for such a submission stems from my finding that the Respondent had demonstrated, on the balance of probabilities, that he did not dismiss the applicant because he had “blown the whistle” and complained to the WHS hotline and the CFMEU hotline. The Applicant submits that this means that the Court could safely infer that the cause of the dismissal was that the threat made by Mr Barrios had actually been carried out.
I do not concur. During the course of my reasons, delivered on 19 December 2019, I had followed the simple dictum that an applicant “pleads the facts and not the law”. The facts that the Applicant pleaded were that he was dismissed because he made complaints to the CFMEU hotline and to WHS. The Applicant seemingly wants to now say that the facts include that he was dismissed because he did not join the union.
That conclusion might be thought to be very well be open on the state of the evidence as it is. However, this was not how the case was run and Mr Barrios was not asked as to whether he dismissed the Applicant because the Applicant refused to join the union. Moreover, the CFMEU were not a party to this application and had not made any submission as to whether they were complicit in the dismissal of the Applicant.
It seems to me that it would be a breach of procedural fairness for me to contemplate awarding compensation for any economic loss “because of the contravention”.
But there is an even more fundamental reason why there cannot be any compensation for economic loss. The contravention is a breach of s 348 of the FW Act. That contravention begins and ends with the threat made by Mr Barrios. The next action after the threat has been made is an action by the Applicant. He could have acceded to the threat or he could have, as he did, defy the threat and do what he believed as being proper.
The consequences that flow do not occur “because of the contravention”; the consequences occur because of the choices made by the Applicant. It is not the making of the threat that causes any economic loss; it is the actions of the Applicant and (on the scenario now being put forward by the Applicant) the reactions of others to those actions, which may have caused the economic loss, if one accepted the scenario now being put forward by the Applicant.
For those reasons, I am not of the view that any economic loss has occurred “because of the contravention” and I therefore decline to make any award pursuant to s 545 other than the award for general loss.
Pecuniary penalty – Is the matter properly before the Court?
The Respondent has raised a preliminary issue which goes to the interpretation of the FW Act. The standing of the Applicant to apply for orders in relation to a contravention of either s 343 or s 348 of the FW Act is pursuant to s 539.
The power for a Court to make an order under s 545 comes from s 545(4) which says that a Court can make an order either on its own initiative during proceedings before the Court or on application. However, the power for the Court to order a person to pay a pecuniary penalty seems to be limited to occasions when a person has made an application for a pecuniary penalty. Section 546 says that the Court may, on application, order a person to pay a pecuniary penalty. (My underlining).
The legislation has truly contrasted how compensation orders are made as distinct to how pecuniary penalty orders are to be made. What is clear is that the Court cannot, of its own motion, order that a pecuniary penalty be paid; there must be an actual applicant.
The Respondent argues that the originating application (as amended) has pleaded that there was a contravention of s 340 and s 343 of the FW Act which means that, when the Applicant asked for a pecuniary penalty, the Applicant has only applied for a pecuniary penalty for a contravention of those two sections. The Respondent argues that there is no application for a pecuniary penalty for a breach of s 348.
This is a technical argument and one that the Respondent made in their duty to the Court. The Respondent submitted that this was easily countered by an amendment to the application which could be made even at this late stage.
The application form, that must be completed to launch proceedings in this Court, does not specifically require an Applicant to particularise the pecuniary penalty; it just requires an Applicant to mark a box to indicate that they are asking for a pecuniary penalty. In this case, the Applicant has specified that he wanted the pecuniary penalty to be paid to the Jordan Rice Foundation. I am precluded from ordering this because of the provisions of s 546(3) of the FW Act and what the authorities have said about what constitutes “a particular organisation”. This error by the Applicant in his application does not negate the application for a pecuniary penalty and no party has suggested that it does.
This is a similar argument to that which was advanced on appeal; that because the Applicant had not pleaded “coercion” pursuant to s 348, it was not open for the Court to make such a declaration. The Full Court did not agree with such a submission and instead accepted that such a declaration could be made as long as it was procedurally fair. Of course, the difference is that s 546 distinctly says that there must be “an application”.
It seems to me that the Applicant did make an application for a pecuniary penalty. The application for a pecuniary penalty does not mandate the particularisation of the civil penalty provision under which the pecuniary penalty is sought. Such is clear from a visual examination of the “Form 2” form at “Part H” where all that is required is that the applicant indicate “What are you asking the Court for?” The responses include “Pecuniary Penalty”.
To my mind this is all that is required of an Applicant to illustrate that he has made an application pursuant to s 546. This is consistent with the reasoning of the Full Court and with their order that the matter be remitted back to for “the hearing as to penalty and compensation….in respect of the contravention as declared by this order”.
The application for pecuniary penalty is properly before me.
Pecuniary Penalty – General Principles
The purpose of pecuniary penalties was discussed by the High Court in Commonwealth of Australia v Director, Fair Work Building IndustryInspectorate [2015] HCA 46. At paragraph 55 of that judgment the Court said:
55. No less importantly, whereas criminal penalties import notions of retribution and rehabilitation, the purpose of a civil penalty, as French J explained in Trade Practices Commission v CSR Ltd, is primarily if not wholly protective in promoting the public interest in compliance:
‘Punishment for breaches of the criminal law traditionally involves three elements: deterrence, both general and individual, retribution and rehabilitation. Neither retribution nor rehabilitation, within the sense of the Old and New Testament moralities that imbue much of our criminal law, have any part to play in economic regulation of the kind contemplated by Pt IV [of the Trade Practices Act]. ... The principal, and I think probably the only, object of the penalties imposed by s 76 is to attempt to put a price on contravention that is sufficiently high to deter repetition by the contravenor and by others who might be tempted to contravene the Act.’
I have had regard to the authorities, especially what was said in the Mason & Harrington Corporation Pty Ltd t/as Pangea Restaurant & Bar [2007] FMCA 7. While that case enumerated a number of factors, such should never be used as a checklist or a comparative scale with the other matters so as to arrive at a form of mathematical penalty. I have had regard to all such factors and also to the way in which this matter has been litigated.
It seems to me that the Court should look at the nature of the contravention, and all its surrounding circumstances, and assess the seriousness of the contravention. Having decided that aspect, the Court should then look at the matters in mitigation and thereby arrive at a just penalty.
The Seriousness of this Contravention
To gauge how serious the contravention is, the appropriate starting place is the section of the FW Act that was contravened. Section 348 reads as follows:-
Coercion
A person must not organise or take, or threaten to organise or take, any action against another person with intent to coerce the other person, or a third person, to engage in industrial activity.
What I described in my earlier reasons, at paragraphs 96 – 103, are still particularly apposite.
96.There are a number of disturbing aspects in the conversation that the Applicant had with Mr Barrios. The mere fact that a “boss” would raise with an employee the fact that he (the employee) had not joined the union is sufficient to put pressure upon an employee. It does not matter that Mr Barrios said to the Applicant that he had explained to the union that he cannot make the Applicant join the union; the pressure is still there.
97.Mr Barrios kept referring to the EBA. He kept saying that the EBA was what enabled the Applicant to get a good wage from working at the Jewel site. This is wrong and palpably so. The EBA is not an instrument that covers the Applicant. The EBA is for Heinrich employees and not for Heiko employees.
98.There was no written contract of employment and no EBA that covered the Applicant. It was an implied contract that the Applicant would work for the Respondent for a base rate wage of $41.13 an hour. The continued reference to the EBA was another added pressure upon the Applicant.
99.Mr Barrios also implied that unless the Applicant was a union member, he could not work on an EBA site. This is also incorrect but coming from a person who had the authority of Mr Barrios, it would also create pressure upon the Applicant.
100.When the Applicant raised the poster in the shed that guaranteed his “right of affiliation”, the response from Mr Barrios was that the Applicant had been “around long enough to know how all the politics work”. This is an obvious undermining of the absolute right that the Applicant had to decide whether or not to be a member of a union.
101.Finally, Mr Barrios tells the Applicant that, because it is an EBA job and the union is involved, then “we should be able to pay the union”. Mr Barrios then says that if the Applicant didn’t want to do that then “there is also other jobs out there”. It is quite clear, from what has been said by Mr Barrios, that the consequences of the Applicant not paying his union dues is that he will be working other jobs where his wage will not be as good as it is presently.
102.It seems to me that Mr Barrios was quite clearly threatening the Applicant that if he didn’t want to pay the union, his only choice was to be employed in other jobs out there. Mr Barrios said that the Applicant didn’t have to pay the union but the result would be that he would have a less than ideal wage.
103.Whilst the manner in which Mr Barrios spoke was calm and not overtly threatening, it was, in my view, nevertheless a threat. It is clear, in what Mr Barrios said to the Applicant, that if the Applicant did not comply there would be a detriment to him in that he would be working at another job with far less remuneration.
Coercion of this nature strikes at the heart of the basic principles of industrial relations in this country. The FW Act was enacted to legislatively enshrine these principles for all Australians to clearly understand. Section 3 of the Act is titled “Object of this Act” and relevantly provides (with my underlining):-
The object of this Act is to provide a balanced framework for cooperative and productive workplace relations that promotes national economic prosperity and social inclusion for all Australians by:
(e) enabling fairness and representation at work and the prevention of discrimination by recognising the right to freedom of association and the right to be represented, protecting against unfair treatment and discrimination, providing accessible and effective procedures to resolve grievances and disputes and providing effective compliance mechanisms;
This is further emphasised by s 336 which describes the objects of that particular Part of the FW Act that covers both s 343 and, most relevantly, s 348.
336 Objects of this Part
(1) The objects of this Part are as follows:
(a) to protect workplace rights;
(b) to protect freedom of association by ensuring that persons are:
(i) free to become, or not become, members of industrial associations; and
(ii) free to be represented, or not represented, by industrial associations; and
(iii) free to participate, or not participate, in lawful industrial activities;
(c) to provide protection from workplace discrimination;
(d) to provide effective relief for persons who have been discriminated against, victimised or otherwise adversely affected as a result of contraventions of this Part.
One of the major factors to take into consideration is the maximum penalty. The maximum penalty in this case is $63,000. It is trite to say that the maximum penalty is reserved for the “worst” cases. In this way, the maximum penalty provides a “yardstick”.
In R v Keenan [2009] QCA 236, this principle was followed. At [59], His Honour Keane JA (as His Honour then was) said:-
59. It may be said that the criminality exhibited by the offender in this case might have been significantly worse if the applicant knew that one of his companions in the attack upon the complainant was carrying a gun. The possibility that a gun might be used heightens the probability of serious harm to the intended victim, and raises the possibility of serious injury to innocent bystanders. The first point to be made here was made by Mason CJ, Brennan, Dawson and Toohey JJ in Veen v The Queen [No 2]:
‘that the maximum penalty prescribed for an offence is intended for cases falling within the worst category of cases for which that penalty is prescribed: Ibbs v The Queen ((1987) 163 CLR 447, at pp 451-452). That does not mean that a lesser penalty must be imposed if it be possible to envisage a worse case; ingenuity can always conjure up a case of greater heinousness. A sentence which imposes the maximum penalty offends this principle only if the case is recognizably outside the worst category.’
The Respondent, in their submissions, referred to many other instances where Courts have imposed major penalties and then attempted to differentiate those cases from the present one. Part of the submission of the Respondent was that history of prior contraventions is a factor that has pushed contraventions into the “worst” category and there is no history of prior contraventions on the part of the Respondent.
That may very well be so, however one has to look at the actual conduct itself before one looks at whether the “prior history” aggravates that conduct. The Respondent has also attempted to compare the offending in other cases and then conclude that those cases were worse than this present one. To my mind, the comparison that has been attempted is artificial. One can simply not look at particular circumstances and then compare and contrast as if one were completing some form of mathematical formula. The facts of this case are totally different to any of the cases referred to by the Respondent and any comparison has very little utility.
The Respondent has submitted that the contravention is wholly based on one individual’s conduct. The Respondent has sought to minimise that conduct on the basis that Mr Barrios was not an officer or employee of the respondent. This is an attempt to “rewrite” the evidence.
The evidence of Ms Bennett was that Mr Barrios was in charge of all employees of the Respondent at the Jewel site. Ms Bennett said that the employment was covered by an EBA of Heinrich Constructions and Mr Barrios was the most senior member of Heinrich Constructions at the Jewel site. There is little doubt that the actions of Mr Barrios were the actions of the Respondent. Ms Bennett may be the only person of any seniority in the Respondent but given the true nature of what was occurring at the Jewel site, for all intents and purposes, the contravention was made at the most senior level of the Respondent.
The Respondent also argues that this was not prolonged conduct but a simple five-minute conversation. Again this seeks to minimise the conduct.
The fact of the matter is that the Applicant had the absolute right to freedom of association. The Applicant had the absolute right to decide whether or not he would re-join the CFMEU or pay any union dues. The pressure that was put upon the Applicant by Mr Barrios was frightening. When the Applicant proclaimed that he did have the right to freedom of association, Mr Barrios casually dismissed those concerns. This was quite deliberate conduct. It is clear when one listens to the conversation that the whole purpose of Mr Barrios meeting with the Applicant was for Mr Barrios to coerce the Applicant into paying his union dues and joining the CFMEU.
There is some substance to the submission of the Applicant that it is this very kind of conduct by compliant employers that is the source of the power of the CFMEU. The penalty must be a sufficient deterrent to any employer that this type of conduct will simply not be tolerated by the community as a whole.
The cavalier attitude displayed by Mr Barrios towards a basic human right that is also enshrined in legislation is chilling. According to Mr Barrios, this human right is nothing more than “politics” which can just be overridden.
The Applicant is an honest but simple man. He faced the wrath of the giant CFMEU who were putting pressure on him to pay his union dues because they did not accept his resignation. But his employer should have been accepting of the freedom of association that the Applicant possessed; not just because it was enshrined in legislation but because it was also his inalienable right as a human being.
For the Respondent to deal with the rights of the Applicant in such a peremptory fashion and coerce him to do what he had the absolute freedom not to do, is totally reprehensible. This was a threat against the very foundation of the FW Act. In my view, that puts this contravention into the “worst” category.
It may very well be, as the Respondent has submitted, that one could look at all sorts of other cases, or think of other examples, which might be dissected to try and mathematically show that there is a worse case than the present one. However, when I assess what has occurred in the present case, I am reminded of the words of Wanstall SPJ who said in R v Manson [1974] QR 202:-
I am not in the least attracted by the argument that the maximum penalty should never be imposed because the sentencing court cannot be sure that some day there will not be a worse case. Though that may be true it is irrelevant. This case is bad enough to justify the imposition of the maximum penalty — its evil is sufficient unto this day; let the morrow take thought for the things of itself. If its case should be even more evil the precedent of this case will be relevant and helpful.
Mitigation
It has been submitted by the Respondent that the Respondent has cooperated. It was very difficult for the Respondent to not admit the contents of the conversation that the Applicant had with Mr Barrios because the conversation had been tape-recorded. Nevertheless, there has been a level of cooperation. It is also true that the Respondent has no prior history of any contraventions against the FW Act.
There has certainly been no contrition in this matter on the part of the Respondent. Even in these proceedings, the Respondent has attempted to minimise its conduct.
There is no evidence of any rectification made by the Respondent to ensure that such conduct would not be repeated.
Having looked at all of these matters, it seems to me that the appropriate penalty should only be discounted by a nominal amount when one takes into account all of the matters in mitigation.
Conclusion
I impose a pecuniary penalty of $60,000. I will order, pursuant to s 546 (3) that the penalty be paid to the Applicant.
I order, pursuant to s 545(2)(b), that the Respondent pay the Applicant compensation, because of the contravention, in the sum of $7000.
I order those sums to be paid within 28 days.
I certify that the preceding sixty-two (62) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Vasta. Dated: 5 November 2021
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