United Voice v Paisley Park Early Learning Centres (SA) Pty Limited
[2020] FCCA 578
•18 March 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| UNITED VOICE v PAISLEY PARK EARLY LEARNING CENTRES (SA) PTY LIMITED & ANOR | [2020] FCCA 578 |
| Catchwords: INDUSTRIAL LAW – Right of entry – alleged contravention of section 502 of the Fair Work Act 2009 (Cth) – hindering or obstruction of union official’s right to hold discussions in the work place – whether parties failed to reach agreement as to location of such discussions – application of section 492 of the Act – contraventions established – penalty to be imposed. |
| Legislation: Evidence Act 1995 (Cth), s.191 |
| Cases cited: ABBC v Powell (No.2) [2019] FCA 972 AMIEU v Dardanup Butchering Company Pty Ltd [2011] FWAFB 3847; (2011) 209 IR 1 Application/Notification by Aero-Care Flight Support Pty Ltd [2015] FWC 1783 Australian Building & Construction Commissioner v Powell [2017] FCAFC 89; (2017) 251 FCR 470 Australian Opthalmic Supplies Pty Ltd v McAlary-Smith [2008] FCAFC 8; (2008) 165 FCR 560 BGC Pos Pty Ltd v CFMM&EU [2019] FCA 74 Blandy v Coverdale NT Pty Ltd [2008] FCA 1533 CFMEU v Austral Bricks Pty Ltd [2014] FWC 5407 CFM&EU v BGC Pos Pty Ltd [2018] FCCA 1270 CFMM&EU v Victoria International Container Terminal Limited [2019] FWC 5700 Darlaston v Parker [2010] FCA 771 Fair Work Ombudsman v Lifestyle SA Pty Ltd [2014] FCA 1151 FWO v Maclean Bay Pty Ltd (No.2) [2012] FCA 557 Kelly v Fitzpatrick [2007] FCA 1080; (2007) 166 IR 14 Mason v Harrington Corporation Pty Ltd [2007] FMCA 7 Plancor Pty Ltd v Liquor Hospitality & Miscellaneous Union [2008] FCAFC 170; (2008) 171 FCR 357 Ponzio v B & P Caelli Constructions Pty Ltd [2007] FCAFC 65; (2007) 158 FCR 543 Veen v R (No.2) [1988] HCA 14; (1988) 164 CLR 465 |
| Applicant: | UNITED VOICE |
| First Respondent: | PAISLEY PARK EARLY LEARNING CENTRES (SA) PTY LIMITED |
| Second Respondent: | PETER RAUE |
| File Number: | ADG 503 of 2018 |
| Judgment of: | Judge Brown |
| Hearing date: | 9 December 2019 |
| Date of Last Submission: | 9 December 2019 |
| Delivered at: | Adelaide |
| Delivered on: | 18 March 2020 |
REPRESENTATION
| Counsel for the Applicant: | Mr Bull |
| Solicitors for the Applicant: | United Workers’ Union |
| Counsel for the First Respondent: | Mr Powles |
| Solicitors for the First Respondent: | PCC Employment Lawyers |
| Counsel for the Second Respondent: | Mr Powles |
| Solicitors for the Second Respondent: | PCC Employment Lawyers |
ORDERS
PURSUANT TO SECTION 545(1) OF THE FAIR WORK ACT 2009 (CTH) IT IS DECLARED AS FOLLOWS:
The First and Second Respondents contravened section 502(1) of the Fair Work Act 2009 (Cth) “the Act” on 9 October 2018 by intentionally hindering or obstructing Ms Bayer from exercising her right of entry to premises operated by the First Respondent at Playford arising under Part 3-4 of the Act.
The First and Second Respondents contravened section 502(1) of the Act on 9 October 2018 by intentionally hindering or obstructing Ms Bayer from exercising her right of entry to premises operated by the First Respondent at Burton arising under Part 3-4 of the Act.
IT IS FURTHER ORDERED PURSUANT TO SECTION 546 OF THE FAIR WORK ACT 2009 (CTH):
The First Respondent pay to the Applicant pecuniary penalties in an amount of three thousand one hundred and fifty dollars ($3,150.00) within 28 days of the date of these orders for the contraventions of section 502(1) of the Act.
The Second Respondent pay to the Applicant pecuniary penalties in an amount of six hundred and thirty dollars ($630.00) within 28 days of the date of these orders for the contraventions of section 502(1) of the Act.
The proceedings be otherwise dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT ADELAIDE |
ADG 503 of 2018
| UNITED VOICE |
Applicant
And
| PAISLEY PARK EARLY LEARNING CENTRES (SA) PTY LIMITED |
First Respondent
PETER RAUE
Second Respondent
REASONS FOR JUDGMENT
Introduction
These proceedings are concerned with issues arising from the legislative entitlement, granted by provisions within the Fair Work Act 2009,[1] which authorise officials of industrial organisations to enter business premises to consult with members of the union concerned and other employees potentially interested in industrial relations issues. The provisions are contained in Part 3-4 of the Act.
[1] Hereinafter referred to as “the Act” or “the FWA”
In general terms, a union official can be granted a permit enabling entry into business premises, after having provided a prescribed degree of notice. Necessarily, following on from this right of entry, it is necessary for there to be mechanisms provided as to where and when, within particular business premises, these discussions and consultations should take place.
On the one hand, it is an essential prerequisite of the work relations system, prevailing in Australia that employees are aware of their industrial rights in the workplace and are not subject to exploitation within it. On the other hand, the owners of premises are entitled to conduct their business affairs without undue inconvenience.
In an attempt to balance these competing considerations, the legislature has enacted a default mechanism to determine the location for such union/employee discussions within the workplace.
Pursuant to section 492 of the FWA, if the parties concerned cannot agree on the room or areas of the premises where such discussions are to take place, it is to be the place designated for employees to take their meals or work breaks.
The controversies arising in this case centre on the application of these default provisions. The rights granted to permit holders, pursuant to the right of entry provisions of the FWA, are designated as civil remedy provisions under section 539 of the Act.
As such, if it is established that a person has breached such a permit holder’s right of entry such a breach will attract a penalty. In the current matter, the applicant contends that the rights of entry of one of its representatives has been breached by the respondents and therefore the Court should impose a fine.
The respondents deny any such liability has arisen given the factual circumstances prevailing. As a consequence, they contend that the current proceedings need only centre on issues surrounding liability and it will not be necessary for the court to turn to the question of penalty.
The issues thrown up by this case, although important, given the structure of the FWA and the rights which it creates, fall within a small compass. In these circumstances, to their mutual credit, the parties concerned have been able to agree on a statement of agreed facts and so avoid the need for the individuals concerned in the case to give evidence.
It is also common ground between them that there is agreement in the manner in which officials from the Union concerned will conduct future discussions with employees after having exercised its right to enter the premises concerned.
The relevant statement of agreed facts was filed in court on 19 November 2019, along with a schedule of agreed correspondence. Pursuant to section 191 of the Evidence Act 1995 the various matters and occurrences detailed in this document are taken not to be in dispute and, as a consequence, the court can accept and act upon them.
Given the limited and clearly delineated issues arising in the case, it is also agreed between the parties that, in the event the court establishes liability, it should also determine the issue of penalty, without the necessity of further submissions from each of them.
In this context, in its amended statement of claim,[2] the applicant seeks declarations, from the court, that each of the respondents has hindered or obstructed its right of entry to their business premises and as a consequence it seeks the imposition of pecuniary penalties for each such breach.
[2] Amended statement of claim filed 9 May 2019 at [29] – [30]
On the other hand, the respondents in their amended defence,[3] contend that the applicant is not entitled to any of the relief sought in its statement of claim.
[3] Amended defence filed 19 June 2019 at [29]
Background
The applicant in the proceedings is the South Australian branch of the United Workers Union.[4] The UWU is an employee organisation registered pursuant to the provisions of the Fair Work Registered Organisations Act 2009.
[4] Previously the applicant was United Voice but it amalgamated with the National Union of Workers on 11 November 2019 creating a new industrial organisation known as The United Workers Union. In these reasons for judgment, I will refer to it as “the UWU” or “the Union”.
As a consequence, it is entitled to represent the industrial interests of both its members and other employees within industrial areas falling within its remit. In the context of the current matter, these include employees in the early childhood education and care sector employed within South Australia.
The first respondent is Paisley Park Early Learning Centres (SA) Pty Ltd.[5] Given its corporate status, and the fact that it employs individuals to provide its services, the company is classified as a national system employer pursuant to the provisions of the FWA and is subject to the operation of the Act.
[5] Hereinafter referred to as “Paisley Park” or “the company”
Paisley Park is a provider of early childhood education and care services, both in South Australia and throughout Australia generally. Of particular relevance to the current proceedings, it operates a childcare centre at Fording Bridge Road, Davoren Park[6] and one at Springbark Boulevard, Burton.[7]
[6] These premises have been referred to as the Playford premises throughout the pleadings filed in the matter. I will do the same.
[7] Referred to as the Playford premises and the Burton premises respectively in these reasons for judgment
Both of these locations are within suburban Adelaide. Paisley Park employs a number of individuals at each of these premises to provide childcare and early education for infants. It does so for profit. As such, the Union is responsible for providing industrial advice and coverage for the company’s various employees at each of these locations.
The second respondent is Peter Raue. He is the managing director of the Paisley Park group of companies and is responsible for the operations of the company in South Australia. Mr Raue is based in Sydney. This fact will become relevant, in part because of the time difference between South Australia and New South Wales and the fact that he could be involved in relevant discussions only through electronic means.
In late 2016, Paisley Park purchased seventeen early childcare and education centres, including the premises located at Playford and Burton, from G8 Education Limited. It owns other early education centres in New South Wales, Victoria, Queensland and Tasmania, as well as its South Australian centres.
Between May 2016 and May 2017, officials of the Union had regularly visited both the Playford and Burton premises to liaise with employees there in accordance with the Union’s entitlements arising under Part 3-4 of the FWA. This part of the Act is entitled right of entry.
This part of the Act provides for a framework within which Union officials may exercise a right of entry to premises occupied by employers in order to go about their representational responsibilities for both their members and potential members, within the industrial context of the workplace.
In particular, section 480 of the Act provides the following object of this part. The section reads as follows:
“The object of this Part is to establish a framework for officials of organisations to enter premises that balances:
(a)the right of organisations to represent their members in the workplace, hold discussions with potential members and investigate suspected contraventions of:
(i) this Act and fair work instruments; and
(ii) State or Territory OHS laws; and
(b)the right of employees and TCF award workers to receive, at work, information and representation from officials of organisations; and
(c)the right of occupiers of premises and employers to go about their business without undue inconvenience.”
In particular, Division 2 of the relevant part of the Act delineates a number of situations in which Union officials may enter industrial premises, pursuant to the provisions of the Act. In particular, pursuant to section 484, a permit holder may enter premises for the purposes of holding discussions with any employees:
·who perform work on the premises;
·whose industrial interests the permit holder’s organisation is entitled to represent; and
·who wish to participate in such discussions.
In the context of these various types of discussions, it is important to note the provisions contained in section 490(2). This curtails a permit holder’s right to hold such discussions only to the times during which employees are having meals or taking other breaks.
Section 484 is designated a civil remedy provision. Pursuant to the table contained in section 539(2) of the FWA, the maximum penalty prescribed is sixty penalty units[8] for an individual. However, as a consequence of section 546(2), if the contravener concerned is a body corporate, the maximum penalty increases fivefold.
[8] At relevant times a penalty unit was $210.00. Accordingly the maximum penalty for Mr Raue is $12,600.00 and for Paisley Park $63,000.00
Pursuant to section 512 of the Act, Fair Work Australia may issue entry permits, pursuant to the relevant provisions, to union officials. A union official who holds a permit and who wishes to enter premises must give the employer concerned notice of at least 24 hours before exercising such a right of entry [see FWA at section 487].
In October of 2018, Natasha Bayer was employed as an organiser by the Union within its early education childcare team. On 8 January 2018 Ms Bayer was issued with a permit to enter premises by the Fair Work Commission pursuant to the relevant provisions of the FWA and the applicable regulations.
On 4 October 2018, Mr Di Troia, the branch secretary of the Union, wrote to Leah Golding and Rebecca May, who, at the time, were respectively the directors of the Playford and Burton Early Learning Centres operated by Paisley Park.
In each case, enclosed with the letter was a copy of the entry permit issued to Ms Bayer and an entry notice, which indicated Ms Bayer intended to enter the nominated premises – in the case of Playford between 9.30 am & 1.45 am on 9 October 2019 and in the case of Burton between 1.30 pm and 3.15 pm on the same day – for the purpose of holding discussions with employees.
Regulation 3.27 of the Fair Work Regulations 2009 stipulates the format of such entry permits and in particular requires the holder to stipulate the basis on which entry is authorised. In this particular case, Ms Bayer stipulated section 484 of the Act and, as indicated above, her intention to hold discussions with employees of Paisley Park at each of the nominated Centres.
In each of Mr Di Troia’s letters, the venue nominated for these discussions to take place is the Staff Room at each Centre. There is no issue concerning the legitimacy of either such permit. In concert with this correspondence, during the afternoon of 4 October, Tabatha Turton, an administrator employed by the Union, emailed both Ms Golding and Ms May a flyer, which she requested be placed on the staff notice boards at each of the Playford and Burton premises.
The flyer was headed United Voice and indicated that Union Official, Natasha Bayer would be available to meet and discuss some nominated matters. The flyer further indicated that All Educators Are Welcome to Attend. Thereafter the relevant times are endorsed and again the venue provided is the Staff Room.
At this point, it is appropriate to set out comprehensively the provisions contained in section 492 of the FWA, which deals with the location of interviews and discussions sanctified by the Act within the workplace. It reads as follows:
“(1)The permit holder must conduct interviews or hold discussions in the rooms or areas of the premises agreed with the occupier of the premises.
(2)Subsection (3) applies if the permit holder and the occupier cannot agree on the room or area of the premises in which the permit holder is to conduct an interview or hold discussions.
(3)The permit holder may conduct the interview or hold the discussions in any room or area:
(a) in which one or more of the persons who may be interviewed or participate in the discussions ordinarily take meal or other breaks; and
(b) that is provided by the occupier for the purpose of taking meal or other breaks.”
Ms Bayer duly attended at the Playford premises at about 9.30am on 9 October 2018 and was admitted to the Centre’s foyer, where she announced herself and asked to see the director. Shortly afterwards, Ms Golding arrived in the foyer, at which stage she asked Ms Bayer to sign the visitors’ book. Ms Bayer did so.
Thereupon, Ms Golding conducted Ms Bayer to another room within the Centre. It is agreed between the parties that the dimensions of the room were approximately 5 metres by 7 metres and it had a door with a glass panel, which allowed a person outside to view what was occurring in the room when the door was shut.
The room seems to have been some sort of storeroom or utility room. It contained a photocopier, some lockers, a desk and a few chairs. Other items were also stored in the room. Significantly, for the purpose of the current proceedings, it is agreed that the room in question “was not the staff room where the employees of the Playford site routinely took their breaks”.[9]
[9] See Statement of Agreed Facts at [21]
Ms Bayer enquired of Ms Golding whether the room was the staff room. Ms Golding confirmed that it was not. It is agreed that in a conversation between the two, Ms Golding indicated that Ms Bayer had been placed in the room in question because some of the staff were uncomfortable at the prospect of the staff room being used for the purposes envisaged by Ms Bayer.
Ms Bayer indicated her dissatisfaction with this situation and made it clear that she intended to hold her discussions only in the staff room. She further indicated that her right of entry permit authorised her use of the staff room. Ms Golding responded that she was complying with the direction of the owner, who had directed the use of the particular room concerned.
In this context, Ms Bayer requested that Ms Golding contact the owner and indicate that as she (Ms Bayer) was conducting a right of entry visit she had been granted a right to access the staff room. Whilst Ms Golding departed, apparently to pursue this request, Ms Bayer contacted Mr Zammit, a solicitor employed by the Union, on her mobile telephone.
When Ms Golding returned, she informed Ms Bayer that she had contacted the owner, whom she identified as Mr Raue. She further reported that Mr Raue had told her that Ms Bayer was to utilise the room to which she had been brought as the employees have requested that they do not want the union in the staff room.
The next incident of significance was that Ms Golding then telephoned Mr Raue from the room in question, whereupon Ms Golding facilitated Ms Bayer speaking to Mr Raue. The parties agree that Mr Raue said to Ms Bayer words to the following effect:
“I do not authorise Ms Golding to provide you with my contact details and I do not have to speak to your lawyer, we have our own lawyers.”[10]
[10] See Statement of Agreed Facts at [27]
Thereafter, at around 10.16am Mr Zammit sent an email to Ms Golding. In the email, Mr Zammit wrote that it was his understanding that Ms Bayer was told that she could not use the staff room, at the Playford premises, notwithstanding her lack of acquiescence to holding her discussions in another room or area of the Centre.
In this context, after quoting the provisions contained in section 492 of the FWA, Mr Zammit wrote as follows:
“It is our view that our proposed visit to the Staff Room meets the requirements of section 492(3) of the Act. Given this, we wish for the proposed meeting to take place in your employees’ staff room.”[11]
[11] See Court Book (filed 5 December 2019) at page 55
This email received no formal response from Ms Golding other than she indicated to Ms Bayer that she would tell the owner about it. Ms Bayer returned to the room to which she had been allocated and remained there until 10.45am, when she left the Playford premises.
During her stay there, she was visited by one employee, who informed her she was a union member and there was another employee, who wished to speak to the Union. The employee concerned indicated that she was not on a break and was only able to stay briefly in the room. Ms Bayer provided her with a Union Information Pack but was not able to obtain the name of the person who wished to contact the Union.
At 10.45am Mr Raue sent an email to Mr Zammit. Mr Raue alluded to the provisions contained in section 491 of the FWA. The section reads as follows:
“The permit holder must comply with any reasonable request by the occupier of the premises for the permit holder to comply with an occupational health and safety requirement that applies to the premises.”
In this context, Mr Raue wrote as follows:
“We have had requests from staff at our centres that if Union visits occur that they not be conducted in the space where staff are entitled to have their breaks peacefully and without interference. Our WHS obligations requires us to ensure the health and wellbeing of our staff, failure of which not only breaches our WHS obligations but can also put children at risk of harm. Rather than asking your representative to leave after her insistence on being placed in the staff room, and the subsequent scene that followed, which required us to have our Director off the floor when she was in ratio (which also places children at risk of harm), we placed her in an alternative room. Your notice was placed as requested, and staff were aware of your representative’s presence.”[12]
[12] See Court Book (filed 5 December 2019) at page 49
It is an agreed fact that Ms Bayer was copied into this email and was able to read it on her mobile phone which she did so around about the time it was sent by Mr Raue. Mr Zammit, in turn, responded to Mr Raue’s email at around 11:32am.
Mr Zammit disputed that Ms Bayer’s possible use of the staff room could be in contravention of any occupational health and safety requirements applicable to the Playford premises. He further asserted that Ms Bayer would deport herself professionally and her attendance would not otherwise infringe on the capacity of any employees of Paisley Park to utilise the lunch room at the Playford premises.
In this context, Mr Zammit wrote as follows:
“Ms Bayer attempted to obtain your contact details during her visit. However your site Director informed her that you were not willing to discuss this matter with us and refused to provide your contact details.”[13]
[13] See Court Book (filed 5 December 2019) at page 53
During the course of the morning of 9 October 2018, Mr Zammit emailed Ms May in similar terms to his email to Ms Golding in respect of Ms Bayer’s scheduled visit to the Burton premises, at 1:30pm that afternoon.
In his emailed correspondence to Mr Zammit, Mr Raue took exception to this contact. In this context, Mr Raue wrote as follows:
“I have also noticed that you have attempted to contact our centre director at Burton directly. Please refrain from doing so. All correspondence can be addressed to me. The position at Burton is the same as Playford, and you are placed on notice that there are staff there who do not wish to see your representative, nor have their breaks in anything other than the peace and quiet and without interference, to which they are legally entitled. An appropriate alternative space has been made available, and staff are aware of your representative’s upcoming visit.”[14]
[14] See Court Book (filed 5 December 2019) at page 54
In this email, Mr Raue also raised issues relating to the work, health and safety of Paisley Park employees. He wrote as follows:
“You will be aware of section 491 of the Fair Work Act 2009. We have had requests from staff at our centres that if Union visits occur that they not be conducted in the space where staff are entitled to have their breaks peacefully and without interference. Our WHS obligations require us to ensure the health and wellbeing of our staff, failure of which not only breaches our WHS obligations but can also put children at risk of harm. Rather than asking your representative to leave after her insistence on being placed in the staff room, and the subsequent scene which followed, which required us to have our Director of the floor when she was in ratio (which also places children at risk of harm), we placed her in an alternative room. Your notice was placed as requested, and staff were aware of your representative’s presence.”[15]
[15] See Court Book (filed 5 December 2019) at page 54
As I understand the matter, the reference to ratio, in the email, is a reference to the requirement contained within the national regulations applicable to child care centres that there be a prescribed number of child care workers/educators present in areas of the child care centre utilised for providing care for each child utilising that centre.
Ms Bayer attended at the Burton premises as scheduled. It is agreed that she was taken by Ms May to a room there, which was not the staff room. Ms May indicated to Ms Bayer that employees had requested that the Union not use the staff room. In this context, the parties agree as follows:
“Ms Bayer told Ms May that the Burton Authority Documents gave her the right to use the staff room for her discussions, and that she was not prepared to accept using any other room but the staff room for her discussions. Ms May repeated that it was the room in which the First Respondent wanted Ms Bayer to sit in and to let her know if it was too cold. Ms May then walked away and left the door open behind her. Ms Bayer remained in the room.”[16]
[16] See Statement of Agreed Facts at [44]
Thereafter Ms Bayer remained at the Burton premises for around twenty minutes. She was not contacted by any employees of Paisley Park during this period. She left the Burton premises without having any further involvement with Ms May.
As previously indicated, since October 2018, officials of the Union have been able to access the staff rooms at both the Playford and Burton premises, after having given the notice required under Part 3-4 of the FWA.
It is also agreed that neither Paisley Park nor Mr Raue has ever previously contravened any other civil penalty provision of the FWA, particularly any of the provisions relating to the right of entry of Union officials to business premises.
The application of the Union
The Union alleges, in its Amended Statement of Claim filed in this court on 9 October 2018, that Paisley Park and Mr Raue have committed two contraventions of section 502(1) of the Act by virtue of intentionally hindering or obstructing Ms Bayer’s right, as a permit holder under Part 3-4, to enter into the staff room at each of the Playford and Burton premises.
Section 502(1) of the Act reads as follows:
“(1) A person must not intentionally hinder or obstruct a permit holder exercising rights in accordance with this Part.”
As previously indicated, this is a civil penalty provision.
Pursuant to section 793 of the FWA an officer of a body corporate is responsible for the actions of that body corporate if he or she gives directions, within the scope of the actual or apparent authority conferred upon such a person. In this context, the Union alleges that Mr Raue is responsible for the actions of Paisley Park, given that he is its managing director.
It is the position of the applicant that Ms Bayer entered both the Playford and Burton premises lawfully for the purposes of holding discussions with one or more employees of Paisley Park. In this context, it is alleged that Ms Bayer was subject to hindering or obstructing by virtue of the fact that she was directed to hold her discussion in a room other than a meal or break room, thus engaging the provisions of section 502(1).
This direction occurred without any prior discussion or negotiation between her and any other representative of Paisley Park. Rather, Ms Bayer was referred to rooms other than the staff room, at both the Playford and Burton premises, as a fait accompli. Ipso facto, there was no discussion about any alternative location for the discussions Ms Bayer was entitled to hold with Paisley Park employees.
As there was no such discussion, it is alleged that there could be no agreement as to the location of these possible discussions with the employees and therefore the default provisions, provided by section 492 of the Act were engaged and the staff rooms at each of the relevant premises should have been utilised for the discussions Ms Bayer was entitled to conduct with Paisley Park employees.
Mr Bull, counsel for the applicant, submits that the effect of the respondents’ actions – in effect directing Ms Bayer as to where she was to hold the discussions, which she was entitled to hold with Paisley Park employees, pursuant to section 484 of the Act – was to make it more difficult for her to discharge her functions under that section, namely the representation of the industrial interests of these employees.
In his submission, this action satisfies the definition of hindering and obstructing provided by section 502(1) of the FWA. In this context, he relies on the formulation provided by Flick J in Darlaston v Parker in respect of an industrial law precursor to the section:[17]
“it is considered that the reference to ‘intentionally hinder or obstruct’ is a reference to any act or conduct that actually makes it more difficult for the person who is ‘hindered or obstructed’ to discharge his functions, other than an act or conduct which is accidental. The act must be of such a nature that it is an ‘appreciable’ obstruction or interference. A trivial act, or even an act which could not reasonably be regarded as an obstruction or interference, would not fall within [the section].”
[17] Darlaston v Parker [2010] FCA 771 at [52]
It is submitted that Ms Bayer wished to be available to as many employees at Paisley Park as possible – both union members and others who may have had an interest in discussing industrial issues with her. Proximity and accessibility to such employees being central to the discharge of her functions under section 484.
Accordingly, being allocated a room which did not provide such proximity and accessibility to employees made it more difficult for her to go about the business, which she was legally entitled to do at Paisley Park and thus amounted to the obstruction or hindrance of her rights arising under the Act.
In this context, Mr Bull relies on passages from AMIEU v Dardanup Butchering Company Pty Ltd[18] in which the Full Bench of the FWA discussed issues surrounding the utility of a staff or meals room for the use of union discussions, which I will summarise in the following terms:
·For obvious reasons, union officials have a preference to utilise rooms in which employees take their breaks or meals for their discussions;
·Such discussions have to take place in work or meal breaks;
·Ordinarily, employees spend at least some of their meal break in the room designated for such a purpose;
·Employees, whether union members or not, are likely to express a range of attitudes to discussions with a union official;
·Some may embrace the opportunity to have discussions;
·Others may be resistant or express antipathy;
·As a consequence, there is likely to be a real possibility that if a room other than one in which all staff members regularly congregate is designated for union discussions, it will result in the official concerned not being able to reach as many employees as possible.
[18] AMIEU v Dardanup Butchering Company Pty Ltd [2011] FWAFB 3847; (2011) 209 IR 1 at [26]
In Dardanup, the Full Bench said as follows:
“…the practical effect of a request by an employer that the discussions be held in a room other than the meals or other room ordinarily frequented by employees will be to prevent the permit holder having discussions with employees who are not sufficiently motivated to seek out the permit holder or who are indifferent to participating in those discussions… the permit holder has a right to hold discussions with such employees unless and until they affirmatively indicate that they do not wish to participate in the discussions.”
Mr Bull would emphasise the word affirmatively in the passage above. Ms Bayer had the right, arising under the Act, to approach all of the employees working at each of the centres concerned, including those who might be resistant to such an approach, until such time as the employees clearly indicated that they did not wish to be consulted.
Mr Bull characterises the room provided for Ms Bayer, in each case, as being capable of being described as a broom or storage room.[19] The implication being that it was not a room likely to be readily accessed by employees, particularly those with some reticence about meeting with the Union.
[19] Mr Powles objects to this characterisation of each of the rooms in question. The only evidence I have in respect of each room is that provided in the statement of agreed facts. One thing is clear, however, in each case, the room allocated was not one in which staff routinely congregated whilst on their breaks. This, I take it, is the gravamen of Mr Bull’s submission.
Mr Bull also refutes any suggestion that the invocation of health and safety issues,[20] particularly by Mr Raue, can be considered objectively reasonable in the circumstances delineated by the agreed facts and therefore justified the allocation of a room other than the staff room.
[20] Hereinafter referred to as “OH&S”
In this context, it is submitted that it is telling that there is a paucity of evidence available to demonstrate what the OH&S concerns actually were. In particular, no actual evidence was provided by Mr Raue as to how the relevant ratios, at either Playford or Burton, were imperilled by the attendance of Ms Bayer at the staff room. In the same light, no evidence was provided as to the particular sensitivities of the employees alleged to be uncomfortable with Ms Bayer’s use of the staff room.
In these circumstances, it is submitted by Mr Bull that the OH&S issues raised by Ms Golding and Ms May, at the direction of Mr Raue, were a pretext to subvert Ms Bayer’s right of entry and have no reality in objective fact. As such, the nomination of the rooms in question by Ms Golding and Ms May respectively must be considered objectively unreasonable in all the circumstances prevailing.
In this context, Mr Bull relies on the following passage from Dardanup as follows:
“… in the absence of any evidence indicating that it is likely the permit holder will not observe their statutory obligation to hold discussions only with employees who wish to participate in such discussions. It is the impact on the employer that is the relevant consideration … The interests of employees who do not wish to participate in discussions will only ground a reasonable request to the extent that there is a proper evidentiary basis for concluding that this adversely affects the employer’s business or otherwise unduly inconveniences the employer’s business …”[21]
[21] AMIEU v Dardanup Butchering Company Pty Ltd (supra) at [23]
Mr Bull submits that there is no evidence to indicate that Ms Bayer would not desist from engaging with an employee who indicated a lack of desire to speak with her or that there is otherwise any proper evidentiary basis to support the contention that Ms Bayer’s presence in the staff room would adversely affect the respondent’s business or unduly inconvenience it.
In this context, Mr Bull points to the agreed facts which delineate fourteen previous Union visits to the premises concerned, prior to October 2018, which had passed without incident and the similar outcome of subsequent visits. All of which presumably utilised the staff room.
The position of the Respondents
On the other hand, it is the position of the respondents that Ms Bayer was offered a room, at each of the Playford and Burton premises by firstly Ms Golding and then Ms May, which she (Ms Bayer) declined to utilise or to discuss with either Ms Golding or Ms May.
In this context, the respondents submit that Ms Bayer then did not engage in any form of discussion or dialogue with either representative of Paisley Park about the issue of where her potential discussions would take place. Rather, Ms Bayer, in effect, maintained it could only be the staff room.
As a consequence, it is asserted that the applicant has failed to establish an essential pre-condition to the application of the default provision contained in section 492(3) namely, as required by section 492(2), the relevant permit holder and the occupier concerned were unable to agree about the issue.
The respondents assert that there is no evidence of any effective discussion or dialogue between Ms Bayer, on the one hand and Ms Golding and Ms May on the other (and later between Mr Zammit and Mr Raue) about the issue.
Therefore, it has not been established satisfactorily that the parties concerned could not agree, merely that they did not agree. It being submitted that the lack of agreement, in the absence of an effort to reach agreement, is insufficient to trigger section 492(3).
Mr Powles, counsel for the respondents relies on the following formulation provided by CFMEU v Austral Bricks Pty Ltd:[22]
“In my view trying to agree involves more than turning up to the discussion with a fixed view and without a preparedness to consider the other party’s view about the location in which discussion should be held… allowing a permit holder to simply maintain a fixed view about use of a meals room without regard requiring the permit holder to try to reach an agreement would elevate the default room to the status of the primary room in which discussion must be held. Such an outcome is contrary to the scheme established by s. 492.”
[22] CFMEU v Austral Bricks Pty Ltd [2014] FWC 5407 at [38] per Deputy President Gostencnik
In his written submissions to the court, Mr Powles submits that the applicant has failed to establish that there has been any obstruction or hindrance of any right of Ms Bayer arising under the Act. In order to establish such a hindrance, he contends the applicant needs to establish each of the following elements:
·Firstly, that Ms Bayer attempted to agree a location for her discussions with the occupier;
·Secondly, after establishing this attempt, she and the occupier’s representatives could not agree;
·Thirdly, the act or state of not agreeing involved Ms Bayer, the permit holder, providing some form of justification as to why the rooms provided to her were not suitable for her purposes. She did not do so. Rather she asserted that she wanted to utilise the staff room;
·Fourthly and most significantly, it is only after it has been established that the permit holder and occupier cannot agree that the right to use the staff room would have arisen;
·Finally, as this right did not arise, under section 492(3), it cannot have been obstructed.
To paraphrase Mr Powles, Ms Bayer has acted on the assumption that she had the right to use the staff room in advance of her visit and prior to holding any discussion with the occupiers of the Paisley Park premises – as evidenced by the contents of Mr Di Troia’s letters and what was endorsed on the flyer later sent by Ms Turton.
In the alternative, Mr Powles relies on the provisions of section 491 of the FWA. This section reads as follows:
“The permit holder must comply with any reasonable request by the occupier of the premises for the permit holder to comply with an occupational health and safety requirement that applies to the premises.”
The phrase occupational health and safety requirement is not defined. However, pursuant to section 505(1) of the Act, the Fair Work Commission has jurisdiction to resolve any dispute regarding the reasonableness of such a request.
In this context, reliance is placed on the fact that firstly, Ms Golding raised the issue of occupation health and safety in the context of one employee being uncomfortable with the Union using the staff room and, secondly, Ms May used words to the same effect. In this context, it is asserted that both Ms Golding and Ms May made a request of Ms Bayer that she utilise the alternative rooms indicated to her on the basis of OH&S requirements.
Essentially, it is Mr Powles submission that each such request must be considered as having been made on reasonable grounds and as such Ms Bayer was obliged to follow the direction made to her by each of Ms Golding and Ms May.
In his written submissions, Mr Powles contends that the respondents do not have to prove that the OH&S requirement relied upon was objectively necessary. Rather, in order to successfully invoke section 491, the respondents need only to satisfy the court of the following:
·The request was made reasonably;
·It was an actual requirement which applied to the premises; and
·The requirement itself concerned OH&S.
Mr Powles submits that the first respondent was entitled to take into account the views of its employees in respect of any OH&S concerns raised with it. It did not have to prove this to Ms Bayer or satisfy her personally that the concern was reasonable. Rather it need only establish that the concern was objectively reasonable and open to the occupier concerned.
In this context, Mr Powles points to the fact that the court can take judicial notice of the fact that work in the child-care industry is stressful and emotionally demanding; workers in the industry have limited breaks; and issues relating to the ratio of staff to children are significant in the industry.
By extension, it is objectively reasonable to conclude that the possible interruption of an employee on a meal break could, in some incidences, represent a risk to that employee’s OH&S and, if that employee’s OH&S was subsequently compromised, this might in turn have implications for the ratios of child care workers to children in the first respondent’s business.
In his written submissions Mr Powles writes as follows:
“The Respondents submit that it was open to the Respondents to introduce this requirement on OHS grounds, and that the request was therefore reasonable in the meaning given by section 491 of the FW Act. Accordingly, Ms Bayer was obliged to follow this requirement during her visits, and the Respondents did not ‘hinder or obstruct’ her rights under Part 3-4 of the FW Act.”[23]
[23] Respondent’s written submissions filed 20 November 2019 at [83]
Discussion
There is no dispute that Ms Bayer was a permit holder for the purposes of Part 3-4 of the FWA. As such she was entitled to enter the premises of the first respondent for the purpose of holding discussions with employees of the kind envisaged in section 484. There is also no dispute that she had provided the stipulated degree of notice required.
Section 492(1) provides that the permit holder must hold any discussions prescribed by section 484 “in the rooms or areas of the premises agreed with the occupier”. However, section 492(2) & (3) then provide that if the permit holder and occupier “cannot agree on the room or area” then the permit holder may conduct the discussions “in any room or area in which the applicable employees “takes meals or other breaks” and which is designated for such a purpose by the occupier.
There is no dispute between the parties in the current matter that neither of the rooms provided for Ms Bayer satisfied the designation of a room where Paisley Park employees took their meals or other breaks and the staff rooms, at each of the Playford and Burton premises, did.
In BGC Pos Pty Ltd v CFMM&EU[24] Colvin J provided principles for the court to apply in respect of section 492 of the FWA. I will attempt to summarise these principles, as best I can, as follows:
·Section 492(1) requires discussions to be held in a location agreed with the occupier. This does not imply with the occupier’s consent;
·This is because the express object of Part 3-4 is to establish a framework which balances the rights of unions; workers; and the occupiers of business premises.
[24] BGC Pos Pty Ltd v CFMM&EU [2019] FCA 74 at [13]
In these circumstances:
“A right of entry qualified by a power on the part of the occupier to refuse entry by not consenting would not give effect to such a purpose. Further, s 492(2) contemplates a circumstance where the parties have not agreed. So, the statutory context shows it is to be inferred from the terms of s 492(2) (guided by the purpose evident from s 480) that the reference to ‘agreed’ means mutual assent, not just a permission from the occupier.”[25]
[25] Ibid
In effect, it is not open to an occupier to subvert a permit holder’s right of entry by not consenting to the use of a particular area of the premises. This would amount to a subversion of Part 3-4. However, the terms of section 492(2) recognise there will be situations in which a permit holder and an occupier will be unable to reach a common position about the location of discussions. In this context:
“It is not enough that the parties do not reach agreement, they have to be in a position where they cannot agree. Therefore, the provision invites an evaluation of the reasons why agreement has not been reached to determine whether there is, in fact, an impasse.”[26]
[26] Ibid at [14]
In my view, this statement encapsulates my task in the current proceedings. I am required to determine why agreement was not reached between Ms Bayer, on the one hand and the representatives of Paisley Park, including Mr Raue, on the other hand. Clearly, given the agreed facts, there was an impasse between all concerned, I am required to evaluate why that was so.
In this context, Colvin J enumerated a number of circumstances which could lead to parties failing to reach common ground as to whether a particular room should be used for union/worker discussions within the workplace. It does not seem to be the case that he intended the list to be exhaustive. The matters are as follows:
·On objective grounds, the position advocated by one party is not one to which a reasonable person would or should agree;
·One party simply refuses to engage in discussions with a view to reaching an agreement;
·One party seeks to extend discussions rather than advance them to a conclusion;
·One party has an unreasonable subjective view as to the suitability or otherwise of the room in question or some ulterior purpose for refusing the room offered; or
·One party refuses a room offered in order to invoke the application of the default mechanism contained in section 492(3).
In these circumstances, Colvin J reached the conclusion that the issue of whether parties cannot agree is to be evaluated objectively. It would be impractical and contrary to the ethos of the part of the Act concerned, if the issue was to be determined only by reference to the state of mind of the parties concerned. In this context, His Honour said as follows:
“… s 492 is a practical provision governing what is likely to be an everyday occurrence at work sites. It forms part of a group of provisions that should be interpreted ‘practically and with an eye to common sense’ having regard to the context in which it will be applied so that it can be implemented ‘in a clear way on a day-to-day basis at work sites’.”[27]
[27] Ibid at [18]
As the provision is to be applied in a common sense manner, the issue of whether parties cannot agree on a room does not require a complex evaluation. Rather, “as soon as one party has expressed a reason why it will not agree to a room that is objectively justifiable taking account of its interests and there is no other room proposed then the parties cannot agree.”[28]
[28] Ibid at [20]
In this particular case, the agreed facts do not indicate that Ms Bayer provided either Ms Golding or Ms May a reason why the rooms allocated for her were not suitable. The agreed facts read as follows:
“Ms Bayer: ‘I have served my right of entry which enables access to the staff room and I am not prepared to have discussions anywhere else but the staff room’.”[29]
[29] See Statement of Agreed Facts at [23]
In respect of the Burton visit, the agreed facts read as follows:
“Ms Bayer told Ms May that the Burton Authority Documents gave her the right to use the staff room for her discussions, and that she was not prepared to accept using any other room but the staff room for her discussions.”[30]
[30] Ibid at [44]
In my view, it is a misstatement of the provisions contained in section 492 that Ms Bayer had a right to use the staff room for her discussions. The right to use the location designated in section 492(3)(a) arises only when the permit holder and occupier cannot agree.
The reasons subsequently advanced by Mr Bull as to the unsuitability of the so-called broom cupboards allocated for use for union discussions, namely that they were not rooms routinely utilised by staff members, during their breaks, particularly those who might be reticent to talk to a union official about industrial concerns, were not specifically articulated by Ms Bayer.
This is the nub of the respondents’ case. Ms Bayer did not specify a reason why the rooms offered to her were not suitable for her purposes. Rather, she maintained that she wanted to utilise the staff room. On the other hand, it is submitted that the respondents did propose an alternative site for the discussions and proffered reasons as to why the sites preferred by Ms Bayer were not suitable to it: namely some staff members had objected to the Union utilising the staff room.
Necessarily, for a situation to arise in which the parties do not agree, there has to be at least some discussion as to why they cannot reach consensus. This must involve some form of exchange, which given practical exigencies need not be elaborate, as to why proposals put are not suitable. There must be some form of dialogue, even if the dialogue is cursory.
In the BGC Pos case, Colvin J delineated a clear example in which an occupier and a permit holder had demonstrably failed to agree as follows:
“[I]f the occupier refuses to propose a room or area or refuses to engage in discussions or seeks to defer consideration as to whether to agree then the parties cannot reach agreement. The unwillingness of the occupier to participate means that the permit holder cannot agree ‘with the occupier of the premises’. Otherwise, the provision reduces to one where, in effect, consent from the occupier is required. For reasons I have given, that is not the proper construction of the provision.”[31]
[31] BGC Pos (supra) at [21]
In the current matter, the respondents’ position is that they did propose a room for the discussions to take place and provided a reason why the location proposed by the permit holder was not suitable to it. In these circumstances, Mr Powles places significant emphasis on the following passage from BGC Pos:
“The position is different if it is the permit holder who refuses to engage in discussions or is shown to be acting for a collateral purpose other than seeking to agree. The terms of s 492(1) show that it is for the permit holder to agree the rooms or areas for the discussions with the occupier. So, it is for the permit holder to genuinely seek to agree with the occupier. Then, only if the parties cannot agree does s 492(3) apply. The permit holder cannot by a unilateral refusal to participate in discussions or a failure to identify any objective reason why a room or area was unsuitable bring into operation s 492(2) or by a desire to use the crib room irrespective of the circumstances refuse to agree and thereby, in effect, create a statutory entitlement to holds discussions in the crib room in any event.”[32]
[32] Ibid at [22]
It is asserted that Ms Bayer (and subsequently Mr Zammit) withdrew from constructive discussions with the respondents about the rooms allocated and did not identify specifically any objective reason regarding their unsuitability. As such, it is submitted, by necessary implication, on their behalf, that Ms Bayer was attempting to create a statutory entitlement to use the staff rooms for her discussions (or erroneously assumed that she had such an entitlement).
In my view, it is now necessary to delineate the factual circumstances which confronted the trial judge (Judge Kendall) in BGC Pos,[33] which led to the analysis subsequently provided by Colvin J. The business premises concerned in the case was a building site on which the occupier concerned was engaged in constructing an office building. The permit holder was a union official, who wished to enter the site to discuss union matters with members.
[33] CFM&EU v BGC Pos Pty Ltd [2018] FCCA 1270
The case concerned two possible locations where such discussions could take place – a meeting room and the crib room, where staff took meal breaks. The permit holder arrived at the building site in the morning. A representative of the occupier took the permit holder to the meeting room and indicated to him that this was the location allocated for the union discussions.
Thereafter the permit holder inspected the meeting room in order to determine its suitability and after inspection determined that it was not suitable. The permit holder verbally informed the occupier’s representative of his view saying words to the effect of “I don’t agree with using this room. This meeting room is unsuitable. We want to use the crib room.”
After this exchange, the representative escorted the permit holder back to the site office foyer, where he was left for around twenty minutes. This delay was the basis for the allegation that the permit holder had been hindered in respect of his right to enter the relevant premises to hold discussions.
The evidence available to Judge Kendall indicated that the meeting room did not have cups, utensils, a kitchenette, a fridge or a microwave and was approximately 3 metres by 3 metres in dimension. The relevant conversations between the two individuals concerned, which was accepted as being correct by Judge Kendall, was as follows:
“[Permit holder]: I don’t agree with using this room. This meeting room is unsuitable. We want to use the crib room.
[Occupier]: You cannot go to the crib room. We have to go to the foyer so I can get further instructions.
[Permit holder]: If you are refusing to let us go to the crib room you are delaying our exercise of our right of entry. I intend to go the crib room.
[Occupier]: You must come back to the foyer with me.”[34]
[34] Ibid at [62]
Accordingly, prior to the permit holder arriving at the site, there was no expressed or explicit assumption emanating from him, to the occupier concerned, as to where he would hold his various discussions at the premises. Essentially, he went where he was taken by the occupier and examined the location nominated by the occupier for his discussion. At which stage, he found the meeting room to be unsuitable for his purposes – a view which he unequivocally conveyed to the occupier.
It appears clear to me that the permit holder, in BGC Pos followed the statutory pathway provided by section 492 of the Act. Firstly, on his arrival, he remained potentially amenable to holding his discussion in the location nominated by the occupier. He did not rule out the occupier’s preferred location prior to having seen it.
However, on having examined the room concerned and indicating its unsuitability for his purposes, the onus shifted from him to the occupier to initiate some form of discussion as to an alternative location with the implication that such a discussion would be an active process intended to bring about some form of agreement.
By failing to initiate such discussions, implicit in his direction to the permit holder that he was required to return to the foyer, the occupier invoked the provisions of section 492(3) and the permit holder became entitled to hold his discussions in the crib room. Thus, in the case, it was held the direction to return to the foyer represented a hindrance of the permit holder’s right of entry under the Act.
I can understand why, for pragmatic reasons, the parties concerned in this case, have elected to have the court resolve the dispute between them by means of a statement of agreed facts. This, in my view, was a sensible decision designed to minimise costs and perhaps, although I cannot be sure, they also hoped that it would provide a mechanism to reduce tensions between the various actors concerned, given that all have a vested interest in maintaining a workable relationship with one another, particularly given the fact that future entry issues had apparently been consensually resolved.
However, the difficulty with such an approach, is that it is difficult for the court to glean and examine the fine nuances, which are implicit in all human interactions. Rather, the court is required to accept what has factually occurred from the bald statement of facts. As such, I am unaware of any subtle motivations which may or may not have influenced the actions of Ms Bayer on the one hand and Mr Raue on the other.
In my view, from the statement of agreed facts, the situation in this case is markedly different to that which confronted the court in BGC Pos. Firstly, Ms Bayer’s intention to enter each of the premises concerned contained an assumption – her meetings would take place in each of the staff rooms concerned. The notice did not admit of the possibility that such locations may not be suitable to the occupier, for whatever reason.
In my view, Paisley Park was not obliged to accept this assumption without demur. It was entitled to nominate another location, within the workplace, for Ms Bayer to hold her various meetings with interested employees. As Colvin J points out, the regime envisaged under the Act envisages a discussion occurring between permit holder and occupier in order to facilitate, if possible, some form of agreement, based on mutual assent, between them.
The fall-back position envisaged by section 492(3) has application only when the parties concerned fail to reach common ground. As Colvin J put it, there must be an impasse. It is not sufficient that they do not agree or perhaps to put it another way, they agree, perhaps tacitly, not to agree about the location. This latter analysis utilises my terminology rather than His Honour’s.
Whether the parties cannot agree is to be assessed objectively. It is distinct to a situation in which the parties are mutually unwilling to agree. In making this assessment, I am required to examine the everyday practicality of a legislative scheme which envisages union representatives having an entitlement to come into workplaces, on a regular basis, to conduct discussions of the type delineated in section 480, with both union members and potential members, in an environment which is conducive to such discussion. It should not depend on any complex or detailed evaluation.
In this particular case, the agreed facts provide a reason, on Ms Golding’s part, in respect of the Playford premises, as to why the staff room was unsuitable from the employer’s perspective. On its face, it does not appear obviously contrived or outlandish. However, I am not in a position to make a definitive finding in this regard.
I acknowledge that there must be some aspect of general deterrence in respect of the calculation of the penalty to be applied in this case. But I must also bear in mind that neither respondent benefitted financially from their actions; there has been no repetition of the conduct which is to be penalised; and the inconvenience caused to the applicant is at the lower end of the scale.
In addition, I accept that the parties had a genuine disagreement about how the relevant provision was to be applied and the provision itself is not without difficulties in its application. In all these circumstances, I have come to the conclusion that a penalty of 5% of the maximum applicable to each of the respondents is an appropriate one.
Pursuant to section 546(3) of the Act, the court may order that the payment of any penalty imposed be paid to the Commonwealth; a particular organisation; or a particular person.
In Plancor Pty Ltd v Liquor Hospitality & Miscellaneous Union the Full Court of the Federal Court (Gray, Branson and Lander JJ) discussed the principles to be applied in respect of the appropriate recipient of any penalty imposed by the court in respect of a violation of an industrial law provision.
In his separate judgment Gray J said as follows:
“The correct view is that the initiating party is normally the proper recipient of the penalty as part of a system of recognising particular interests in certain classes of persons (now specified in s 718 of the WR Act) in upholding the integrity of awards and agreements the subject of penal proceedings. Where a public official vindicates the law by suing for and obtaining a penalty, it is appropriate that the penalty be paid to the Consolidated Revenue Fund. Otherwise, the general rule remains appropriate, that the penalty is to be paid to the party initiating the proceeding, with the Gibbs exception that the penalty may be ordered to be paid to the organisation on whose behalf the initiating party has acted.”[53]
[53] See Plancor Pty Ltd v Liquor Hospitality & Miscellaneous Union [2008] FCAFC 170; (2008) 171 FCR 357 at [44] per Gray J
The Gibbs exception arises when an industrial organisation, such as a union, commences proceedings on behalf of one of its members, in respect of a breach of an industrial provision or award. The proper prosecution of any such breach has the potential to benefit not only the individual directly affected by it, but also members of the union concerned generally.
In such circumstances, it is appropriate that such an organisation be recompensed, in some way, for the costs incurred in bringing the action, rather than consolidated revenue or the individual concerned. Gray J rejected any notion that for an applicant to receive a penalty imposed, in circumstances not involving a representative group, could potentially be characterised as a windfall and that it was therefore inappropriate for a penalty to be paid to an applicant, who had personally brought an application.
In this particular case, I will order that the penalties imposed in this case be paid to the applicant within 28 days of the date of these orders. I will also make the formal declarations, as sought by the applicant.
For all these reasons, the orders of the court will be as set out at the commencement of these reasons for judgment.
I certify that the preceding two hundred and twenty-nine (229) paragraphs are a true copy of the reasons for judgment of Judge Brown
Associate:
Date: 18 March 2020
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