United Firefighters Union of Australia v Metropolitan Fire and Emergency Services Board
[2018] FCA 1161
•31 July 2018
FEDERAL COURT OF AUSTRALIA
United Firefighters Union of Australia v Metropolitan Fire and Emergency Services Board [2018] FCA 1161
File number: VID 209 of 2016 Judge: NORTH J Date of judgment: 31 July 2018 Legislation: Fair Work Act 2009 (Cth) s 50 Date of hearing: 30 and 31 July 2018 Registry: Victoria Division: Fair Work Division National Practice Area: Employment & Industrial Relations Category: No Catchwords Number of paragraphs: 10 Counsel for the Applicant: Mr T J Dixon Solicitor for the Applicant: Davies Lawyers Counsel for the Respondent: Ms F O’Brien QC with Mr A Pollock Solicitor for the Respondent: Corrs Chambers Westgarth ORDERS
VID 209 of 2016 BETWEEN: UNITED FIREFIGHTERS UNION OF AUSTRALIA
Applicant
AND: METROPOLITAN FIRE AND EMERGENCY SERVICES BOARD
Respondent
JUDGE:
NORTH J
DATE OF ORDER:
31 JULY 2018
BY CONSENT, THE COURT DECLARES THAT:
1.On and from 28 January 2016, there existed a dispute to which clause 19.4 of the Metropolitan Fire and Emergency Services Board, United Firefighters Union of Australia, UFU Operational Staff Agreement 2010 (the Agreement) applied. The dispute involved an allegation that the MFESB failed to consult in respect of the changes to its recruit selection procedure, including inter alia:
(a)changes to the cut off mark required to pass the Vocational Selection Test (VST);
(b)the introduction of a cap of 700 on the numbers of applications to the recruit selection process, together with a quota of 350 men and 350 women to be considered for selection as recruit firefighters (Quota);
(c)the removal of the Mechanical Reasoning component of the VST;
(d)the removal of the order of merit as the basis upon which candidates would be selected for participation in the Recruit Courses (Order of Merit); and
(e)removal of the policy which had allowed candidates 3 opportunities to pass each stage of the selection process (Three Strikes Policy).
2.Between July 2015 and 2 February 2016, the MFESB had determined it would implement inter alia the following changes to its recruitment selection procedures:
(a)a change to the cut off mark required to pass the VST from 50 to 45 (determined on 11 November 2015);
(b)the application of the Quota (determined on 26 November 2015);
(c)the removal of the Mechanical Reasoning component of the VST (determined in or about July 2015);
(d)the removal of the Order of Merit (determined on 26 November 2015); and
(e)the removal of the Three Strikes Policy (determined on 22 July 2015).
(the Changes).
3.Between 28 January 2016 and 2 February 2016, the MFESB:
(a)took steps to change to the cut off mark required to pass the VST from 50 to 45;
(b)applied the Quota to the recruit selection applications;
(c)took steps to remove the Mechanical Reasoning component of the VST;
(d)took steps to remove the Order of Merit; and
(e)took steps to remove the three strikes policy.
4.By determining to implement the Changes without prior referral to the Consultative Committee in accordance with clause 15 of the Agreement, the MFESB engaged in a course of conduct which:
(a)by taking the steps identified in paragraph 3 above, changed the situation or practice that was in existence prior to the occurrence of the dispute (the status quo), and so failed to comply with clause 19.4 of the Agreement; and
(b)failed to comply with clause 15 of the Agreement –
such course of conduct contravening s.50 of the Fair Work Act 2009 (Cth).
5.A penalty be imposed for the contravention declared at Order 4 above in the amount of $25,000 such penalty be paid to the Applicant within 28 days.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
NORTH J:
Section 50 of the Fair Work Act2009 (Cth) (the Act) prohibits a person contravening an enterprise agreement. The applicant, United Firefighters Union of Australia, claimed that the respondent, Metropolitan Fire and Emergency Services Board, contravened s 50 of the Act. The applicants sought a declaration to that effect and the imposition of civil penalties.
The parties have agreed on the relevant facts. Consequently, evidence of those facts is not required to prove their existence, s 191(2)(a) of the Evidence Act1995 (Cth).
The statement of agreed facts, dated 31 July 2018 (the statement), sets out the matters relevant to the application. They are included in full as follows:
1.This Statement of Agreed Facts is made jointly by the Applicant, the United Firefighters’ Union of Australia (UFU), and the Respondent, the Metropolitan Fire and Emergency Services Board (MFB), under section 191 of the Evidence Act 1995 (Cth), in relation to a single admitted contravention of section 50 of the Fair Work Act 2009 (Cth) (FW Act). That contravention concerns a course of conduct involving obligations under clauses 15 (consultation) and clause 19.4 (maintenance of the status quo in dispute resolution) of the Metropolitan Fire and Emergency Services Board, United Firefighters Union of Australia, Operational Staff Agreement 2010 (Agreement).
2.The agreement as to the facts set out in this document is solely for the purpose of supporting the parties’ proposed consent orders dated 31 July 2018 in this proceeding, and not otherwise.
The parties
3.The Applicant was, at all relevant times:
(a)an organisation of employees registered pursuant to the Fair Work (Registered Organisations) Act 2009 (Cth);
(b)covered by the Agreement, an enterprise agreement approved under the Fair Work Act 2009 (Cth) (the “FW Act”);
(c)able to apply for orders in relation to contraventions pursuant to Division 2 of Part 4-1 of the FW Act.
4.The Respondent was, at all relevant times:
(a)covered by the Agreement;
(b)a body corporate with perpetual succession capable of being sued in its own name pursuant to s.6 of the Metropolitan Fire Brigades Act 1958 (Vic).
The Agreement
5.The Agreement:
(a)was approved by Fair Work Australia on 23 September 2010;
(b)commenced operation on 30 September 2010;
(c)had a nominal expiry date of 30 September 2013;
(d)was, at all material times, on foot and operative.
6.Clause 15 of the Agreement at all material times provided that:
"Where the employer wishes to implement change in matters pertaining to the employment relationship in any of the workplaces covered by this agreement the provisions of clause 13 will apply."
7.Clause 13 of the Agreement at all material times relevantly provided as follows:
"13. Consultative process
13. 1 Consultation
Consultation means the full, meaningful and frank discussion of issues/proposals and the consideration of each party's views, prior to any decision. Committees established for the purpose of implementing aspects of this agreement are part of the consultative process."
8.Clause 19 of the Agreement at all material times relevantly provided as follows:
"19. Dispute resolution
19.1.This dispute resolution process applies to all matters arising under this agreement, which the parties have agreed includes:
19.1.1all matters for which express provision is made in this agreement; and
19.1.2all matters pertaining to the employment relationship, whether or not express provision for any such matter is made in this agreement; and
19.1.3all matters pertaining to the relationship between the MFESB and UFU, whether or not express provision for any such matter is made in this agreement.
The parties agree that disputes about any such matters shall be dealt with by using the provisions in this clause.
…
19.4 While the above procedures are being followed, including the resolution of any dispute by FWA pursuant to clause 19.2.6, work must continue and the status quo must apply in accordance with the existing situation or practice that existed immediately prior to the subject matter of the grievance or dispute occurring. No party shall be prejudiced as to the final settlement by the continuance of work in accordance with this sub- clause.
9.From on or about 2010, the Applicant and the Respondent had established and, at all material times, had in place a Consultative Committee in accordance with clause 13.2 of the Agreement.
MFB Selection Process for Recruits
Process in place prior to current dispute
10.From at least September 2010, the MFB’s recruit selection procedures included the following:
(a)publication on the MFB’s website, as and when the MFB considered appropriate, an advertisement inviting candidates to apply to participate in the MFB’s recruit selection process;
(b)receipt of applications without consideration as to gender or any other attribute;
(c)no quota, based on gender or otherwise, applied to limit the number of applicants to the selection process;
(d)candidates underwent a selection process involving the following stages:
(i)a Vocational Selection Test (“VST”) including the following written test components:
(A)Verbal reasoning;
(B)Quantitative (or numerical) reasoning;
(C)Abstract reasoning (or problem solving);
(D)Mechanical reasoning;
(ii)a Group Assessment;
(iii)a medical assessment to determine fitness to undertake the physical assessments at paragraphs (iv) and (v) below;
(iv)a Shuttle Run or "Beep Test";
(v)a Physical Aptitude Test;
(vi)a Panel Interview; and
(vii)a Psychological Profile questionnaire.
(e)subject to paragraph 10(f) below, candidates needed to pass each stage of the recruit selection process referred to in paragraph 10(d) above in order to progress to the next stage of the process;
(f)there was a policy whereby the MFB gave each candidate three opportunities to pass each stage of the recruit selection process (the “three strikes policy”);
(g)the MFB assigned candidates who passed all stages of the recruit selection process as identified in paragraph 10(d) above, an aggregate score derived from their performance in the VST, the group assessment and the selection interview (“Aggregate Scores”);
(h)the MFB placed candidates who passed all stages of the recruit selection process on a list, known as the order of merit, ranked according to their Aggregate Scores (“Order of Merit”);
(i)an individual candidate’s ranking on the Order of Merit could fluctuate as other candidates were added to or removed from the list;
(j)the MFB made offers to participate in its recruit course to those candidates ranked highest on the Order of Merit;
(k)recruit courses were typically limited to 30 applicants who were chosen from the top 30 places on the Order of Merit.
(the “MFB Selection Process”)
Events in 2015
11.On 28 January 2014, the Strategy Resources and Planning Committee requested that development of a diversity strategy become a goal in the 2014-2015 Business Plan with three to four key themes aimed at significant efforts lifting gender diversity.
12.As at 2 February 2015, discussions began at MFESB Board level concerning a “proposed diversity strategy in response to the 2014-15 business plan goal”.
13.On 24 February 2015, the MFESB diversity strategy was discussed at a board meeting of the MFESB. It was resolved that the Women’s Employment Action Plan (draft) of February 2015 be endorsed and that management would provide the Board an implementation plan to support the Women’s Employment Action Plan at its next meeting.
14.The draft Women’s Employment Action Plan of February 2015 which the Board considered included the following matters:
(a)A review of the VST was identified. It was indicated that the MFESB was working with ACER on “potential modifications to pass rates for all components”; and
(b) A review of the current three strikes policy.
15.The MFESB first commenced considering changes to the following aspects of the mode of selection and recruitment on the following dates:
(a) Changes to the cut off mark required to pass the VST on or about 24 February 2015;
(b) The introduction of:
(i)a cap on the numbers of applications to the recruit selection process on or about 14 October 2015;
(ii)a gender quota on or about 20 November 2015;
(c) The removal of the Mechanical Reasoning component of the VST on or about 2 February 2015;
(d) The removal of the Order of Merit as the basis upon which candidates would be selected for participation in the Recruit Courses on or about 26 August 2015; and
(e) Removal of the three strikes policy which had allowed candidates 3 opportunities to pass each stage of the selection process on or about 24 February 2015.
16.The MFESB determined to make changes to the following aspects of the mode of recruitment on following dates:
(a)Changes to the cut off mark required to pass the VST on or about 11 November 2015;
(b)The introduction of a cap on the numbers of applications to the recruit selection process, together with a specific quota of men and women to be considered for selection as recruit firefighters (the “Quota”) on or about 26 November 2015;
(c)The removal of the Mechanical Reasoning component of the VST on or about on or about 26 August 2015;
(d)The removal of the Order of Merit on or about 26 November 2015; and
(e)Removal of the three strikes policy on or about 22 July 2015.
(the “Changes”)
17.Each of the changes identified in paragraph 16 above was a matter pertaining to the employment relationship for the purposes of clause 15 of the Agreement.
Events from 25 January 2016
18.As at 1 February 2016, there were 36 applicants on the Order of Merit.
19.On or about 25 January 2016, the MFB announced on its website, inter alia, that “the Recruit Firefighter Selection Process is currently under review” (Review).
20.The MFB had not informed the UFU of the Review prior to the time it was announced on the MFB’s website.
21.On 28 January 2016:
(a)the UFU notified the MFB of a dispute under clause 19 of the Agreement concerning the Review (Dispute); and
(b)the UFU made a related application to the Fair Work Commission (Commission) for good faith bargaining orders (proceeding B2016/242).
22.On 29 January 2016:
(a)the UFU’s application in B2016/242 was listed in the Commission before Commissioner Roe; and
(b)the MFB separately wrote to the UFU stating that the MFB did “not agree that a dispute has been properly raised by the UFU under the Enterprise Agreement” on the basis, inter alia, that “the Enterprise Agreement does not, and could not deal with matters concerning prospective employees of the MFB”.
23.In the course of the Commission proceedings before Commissioner Roe on 29 January 2016 it was agreed:
(a)by the Parties that:
(i)no change to the MFB Selection Process would be implemented prior to the parties meeting to resolve the issues at conferences to be held at the Fair Work Commission in the ensuing two weeks (from 29 January 2016);
(ii)participation in the Fair Work Commission process was without prejudice;
(iii)participation in the process before the Fair Work Commission could not be used to affect "any consultation rights, should they exist", and
(b)by the MFB, that it would provide a document to the UFU outlining the changes it proposed to make to the MFB Selection Process and the rationale for them.
24.On 1 February 2016, the MFB published on its website:
(a)an invitation for 700 new applications for the MFB Selection Process, with a quota of 350 male and 350 female applicants.
(b)information about the VST for the upcoming MFB Selection Process. That information did not include reference to the mechanical reasoning test, and stated that the cut off score for the VST would be 45.
25.By 2 February 2016, the MFB had received 350 applications from male applicants and closed applications to further male applicants. By the time applications closed at 5.00pm on 2 March 2016, 290 women had applied to participate in the MFB Selection Process. In 2013, 1310 applicants applied to participate in the MFB Selection Process, comprising 1206 men and 104 women.
26.A Consultative Committee meeting was held on 3 February 2016. The MFB did not place the issue of the Changes on the agenda at that meeting. Consultative Committee meetings were also held on 4 February 2015, 4 March 2015, 1 April 2015, 6 May 2015, 3 June 2015, 1 July 2015, 5 July 2015, 2 September 2015, 7 October 2015, 4 November 2015, 2 December 2015 and 12 January 2016. The MFB did not place the issue of the Changes on the agenda at those meetings.
27.On 4 February 2016, the solicitors for the UFU sought an undertaking from the MFB that it would abide by the requirement in clause 19.4 of the Agreement that “the status quo must apply in accordance with the existing situation or practice that existed immediately prior to the subject matter of the grievance or dispute occurring”. On 5 February 2016, the MFB refused to provide such an undertaking.
28.As at 5 February 2016 the MFB had not consulted with the UFU in accordance with the procedure in clause 13 of the Agreement in relation to the Changes.
29.The Agreement behind Court Book Tab 154 (volume 4) is tendered by consent.
Discussions and other communications about the MFB Selection Process
30.For the purpose of discussions before Commissioner Roe, the MFB provided:
(a)initially, a document entitled “MFB Recruit Firefighter Selection Process – Proposal and Rationale” provided to the UFU on 2 February 2016 for the conference before Commissioner Roe on 3 February 2016;
(b)subsequently, a document entitled “MFB Recruit Firefighter Selection Process: Proposal and Rationale” dated 5 February 2016 (Position Paper), prepared by the MFB and provided to the UFU at a conference before Commissioner Roe on 8 February 2016.
31.The UFU and the MFB discussed the MFB Selection Process at conferences before Commissioner Roe on:
(a)3 February 2016;
(b)8 February 2016;
(c)18 February 2016;
(d)24 February 2016;
(e)26 February 2016;
(f)2 March 2016; and
(g)7 March 2016.
32.The attendance at the conferences before Commissioner Roe, for each party, included employees of the MFB with relevant expertise in the matters discussed, however did not include all of the members who comprised the Consultative Committee.
33.As a result of the discussions before Commissioner Roe, the MFB decided not to remove the mechanical reasoning test from the VST and instructed ACER to include it in the VST for the next recruit course only.
34.In accordance with undertakings given to the Court on 11 March 2016, the MFB and the UFU met on 16 March 2016 to discuss the VST cut off score.
35.On 1 April 2016:
(a)the MFB provided the UFU with some of the further documents requested by it in writing on 11 March 2016 and on 18 March 2016 in relation to the proposed changes to the MFB Selection Process;
(b)the MFB’s solicitors wrote to the UFU’s solicitors to advise the results of the VST and the MFB’s intention to advise the candidates who had met only one of the cut off scores of 50 on the old scale or 45 on the new scale that they had provisionally passed the VST, subject to the outcome of this proceeding.
36.On 14 April 2016 the UFU’s solicitors wrote to the MFB’s solicitors setting out the UFU’s concerns and a proposal inter alia that:
(a)the MFB select 30 recruits for the July 2016 recruit course from those already on the Order of Merit; and
(b)the parties implement a working party in respect of diversity in employment generally, to report to the Consultative Committee, any proposals of which must not impact on minimum crewing or the 10/14 roster arrangements.
37.On 19 April 2016 the MFB’s solicitors wrote to the UFU’s solicitors responding to the UFU’s concerns, and rejected the UFU’s proposal of 14 April 2016, referred to above.
38.The UFU and the MFB met on 20 April 2016 to discuss the proposed changes to the recruit selection process.
39.On 21 April 2016, the chair of the MFB/UFU Consultative Committee at the time, Deputy Chief Officer (DCO) David Youssef, wrote to the secretary of the UFU, Peter Marshall, seeking to convene an extraordinary meeting of the Consultative Committee on one of 29 April 2016, 3 May 2016 or 5 May 2016 to consider some proposed changes to the recruit selection process.
40.On 2 May 2016, Mr Marshall wrote to DCO Youssef declining the proposal to hold an extraordinary meeting of the Consultative Committee on the terms the MFB proposed in its letter, and reiterated the UFU’s proposal of 14 April 2016.
41.On 4 May 2016, DCO Youssef wrote to Mr Marshall inviting the UFU to reconsider its position in relation to the MFB’s proposal to hold an extraordinary meeting of the Consultative Committee.
42.The Consultative Committee met on 19 May 2016 and 20 May 2016, without prejudice to the parties’ rights under the Agreement, in accordance with the directions of the Full Bench of the Commission, in its resolution of the dispute notified by the UFU, referred to in paragraph 39 below.
43.The Consultative Committee also considered the proposed changes to the MFB Selection Process at a meeting on 20 July 2016.
Dispute resolution process in the Commission
44.In parallel to the Federal Court proceedings, on 7 March 2016 the UFU referred its dispute about the Review, referred to as the Second Dispute in the Originating Application to this proceeding, to the Commission under s.739 of the FW Act (matter number C2016/2892).
45.On 15 March 2016 the President of the Commission referred the dispute to a Full Bench under section 615A of the FW Act.
46.On 26 April 2016 and 6 May 2016, the Full Bench heard a preliminary issue in relation to the dispute: being whether each proposed change to the MFB Selection Process was a matter that pertained to the employment relationship.
47.On 12 May 2016, the Full Bench:
(a)published its decision ([2016] FWCFB 2894) on the preliminary issue. The Full Bench found that all of the Changes to the MFB Selection Process, except the Quota, relevantly pertained to the employment relationship;
(b)directed the Consultative Committee to meet in respect of the proposed changes at least twice before 21 May 2016; and
(c)made directions for the final hearing of all outstanding issues in relation to the dispute on 9 and 10 June 2016.
48.On 27 May 2016, the UFU:
(a)withdrew the First Dispute (that it had referred to the Commission), and discontinued the proceeding in the Commission; and
(b)withdrew a second dispute in relation to the Review which it had notified to the MFB on 7 March 2016, referred to as the Second Dispute in the Originating Application to this proceeding.
49.In February 2016, the MFB implemented quotas on applications to participate in the MFB Selection Process (350 male and 350 female).
50.The VST administered by ACER on 12 and 13 March 2016 included the mechanical reasoning test, following a change in position by the MFB as a result of the discussions before Commissioner Roe.
51.ACER marked the VST, on the instructions of the MFB, using both the cut off score of 50 on the old scale and the cut off score of 45 on the new scale.
52.Candidates who passed the VST on either the cut off score of 50 on the old scale, or the cut off score of 45 on the new scale, proceeded to the next stage of the selection process. The MFB advised candidates who had met only one of the cut off scores of 50 on the old scale or 45 on the new scale that they had provisionally passed the VST, subject to the outcome of this proceeding. Of this group, two candidates passed the remaining stages of the selection process but none were selected for the July 2016 recruit training course.
53.Ultimately, there were no female recruits on the July 2016 recruit course.
The parties have also proposed the following declarations and orders by consent to resolve the proceeding:
1.On and from 28 January 2016, there existed a dispute to which clause 19.4 of the Metropolitan Fire and Emergency Services Board, United Firefighters Union of Australia, UFU Operational Staff Agreement 2010 (the Agreement) applied. The dispute involved an allegation that the MFESB failed to consult in respect of the changes to its recruit selection procedure, including inter alia:
(i)changes to the cut off mark required to pass the Vocational Selection Test (VST);
(ii)the introduction of a cap of 700 on the numbers of applications to the recruit selection process, together with a quota of 350 men and 350 women to be considered for selection as recruit firefighters (“Quota”);
(iii) the removal of the Mechanical Reasoning component of the VST;
(iv)the removal of the order of merit as the basis upon which candidates would be selected for participation in the Recruit Courses (“Order of Merit”); and
(v)removal of the policy which had allowed candidates 3 opportunities to pass each stage of the selection process (“Three Strikes Policy”).
2.Between July 2015 and 2 February 2016, the MFESB had determined it would implement inter alia the following changes to its recruitment selection procedures:
(i)a change to the cut off mark required to pass the VST from 50 to 45 (determined on 11 November 2015);
(ii) the application of the Quota (determined on 26 November 2015);
(iii)the removal of the Mechanical Reasoning component of the VST (determined in or about July 2015);
(iv)the removal of the Order of Merit (determined on 26 November 2015); and
(v) the removal of the Three Strikes Policy (determined on 22 July 2015).
(the “Changes”).
3. Between 28 January 2016 and 2 February 2016, the MFESB:
(i)took steps to change to the cut off mark required to pass the VST from 50 to 45;
(ii) applied the Quota to the recruit selection applications;
(iii)took steps to remove the Mechanical Reasoning component of the VST;
(iv) took steps to remove the Order of Merit; and
(v) took steps to remove the three strikes policy.
4.By determining to implement the Changes without prior referral to the Consultative Committee in accordance with clause 15 of the Agreement, the MFESB engaged in a course of conduct which:
(a)by taking the steps identified in paragraph 3 above, changed the situation or practice that was in existence prior to the occurrence of the dispute (“the status quo”), and so failed to comply with clause 19.4 of the Agreement; and
(b) failed to comply with clause 15 of the Agreement –
such course of conduct contravening s.50 of the Fair Work Act 2009 (Cth).
5.A penalty be imposed for the contravention declared at Order 4 above in the amount of $25,000 such penalty be paid to the Applicant within 28 days.
Paragraph 17 of the statement, insofar as it refers to [16(b)] of the statement, expresses a conclusion of mixed fact and law. The question of law it addresses is whether the introduction of the gender quota was a matter pertaining to the relationship between the parties. On its face, the statement seems to contradict the decision of the Fair Work Commission referred to in [47] of the statement. The Fair Work Commission stated:
[38] However we have formed a different view about the quotas of 350 for male and female applicants. The potential effect of this change would only be to the gender mix of person whose application for employment with the MFB will be the subject of consideration. It has nothing to do with the criteria and procedures by which applicants are actually selected for engagement as employees. Neither party submitted, nor could it reasonably be suggested, that any alteration to the gender mix of the pool of applicants to whom the recruitment selection tests and standards are to be applied could ever have any direct effect on the conditions of employees of the MFB. We do not consider that the introduction of the quotas for male and female applicants would, properly characterised, be a change to the mode of recruitment, and consequently the MFB was not required by clause 15 to consult with the UFU about this under clause 13.
I am satisfied that the agreement of the parties at [17] of the statement has been made in light of new facts not before the Fair Work Commission that were revealed following the discovery of documents in this proceeding.
The maximum penalty available for each contravention by the respondent of s 50 of the Act is $54,000. The parties have also agreed to treat each of the elements of the changes in employment conditions as part of a course of conduct for the purpose of the fixing of the penalty. That approach is justified in the circumstances where each of the elements was part of one overall adjustment to the conditions of the employees, and the basis for the contravention of cl 15 and cl 19.4 flow from the same factual basis.
The aim of the imposition of the civil penalty is to act as a deterrent to the respondent and to other parties to enterprise agreements to fail to adhere to the terms of those agreements. There is no evidence that the respondent has contravened the Act on any other occasion.
In setting the penalty, it is also significant that, except as to the gender quota issue, any harm which might otherwise have resulted from the respondent’s failure to consult was limited. The applicant was prompt to commence proceedings and obtained orders to prevent the respondent taking further action unless it complied with the provisions of the enterprise agreement.
The proposed penalty is about 50 per cent of the maximum penalty available. The agreement of the parties properly reflects the seriousness of the conduct of the respondent. The amount proposed is appropriate in all the circumstances. For those reasons, I will make the orders which the parties seek by consent.
I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice North. Associate:
Dated: 6 August 2018
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