United Voice v Berkeley Challenge Pty Limited (No 2)

In United Voice v Berkeley Challenge Pty Limited (No 2), the Fair Work Commission (FWC) sought to determine the appropriate pecuniary penalties for Berkeley Challenge Pty Limited's contraventions of the Fair Work Act 2009 (Cth) (FWA). The matter concerned the termination of employment of workers engaged to provide services to Lend Lease Property Management Pty Ltd at the Sunshine Coast Plaza Shopping Centre. The dispute centred on whether Berkeley had provided valid termination notices and paid redundancy payments to the affected employees. The FWC had previously ruled that Berkeley had contravened sections 117 and 119 of the FWA by failing to provide valid termination notices and by not paying redundancy entitlements, respectively.

The court had to decide the appropriate pecuniary penalties to be imposed under section 546 of the FWA for the contraventions of sections 44(1), 117, and 119. The court also needed to determine whether the successful party should receive the penalty. The relevant principles for imposing civil remedy penalties, the significance of maximum penalties, the grouping of contraventions, and the concept of deliberateness were considered. Additionally, the court assessed whether specific and general deterrence were appropriate in the circumstances.

In its decision, the FWC considered the nature and seriousness of the contraventions, the extent of Berkeley's deliberateness, and the maximum penalties prescribed under section 546 of the FWA. The court noted that the contraventions were serious and deliberate, warranting significant penalties. However, the court also took into account the financial situation of Berkeley. The court ultimately decided to impose a penalty of $9,000 for the notice contraventions and $4,500 for the redundancy contraventions. The court did not order Berkeley to pay the penalties to United Voice.

The FWC issued orders that Berkeley Challenge Pty Limited is to pay United Voice $9,000 for the contraventions of sections 44(1) and 117 of the FWA and $4,500 for the contraventions of sections 44(1) and 119 of the FWA. Entry of orders was governed by Rule 39.32 of the Federal Court Rules 2011.