Vitro-Anastasio v S and M Bode Pty Ltd

[2001] FCA 450

FEDERAL COURT OF AUSTRALIA

Vitro-Anastasio v S & M Bode Pty Ltd  [2001] FCA 450

RITA VITRO-ANASTASIO  v  S & M BODE PTY LTD (ACN 007 182 452)

V405 of 2000

RYAN J
MELBOURNE
18 APRIL 2001

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V405 of 2000

BETWEEN:	RITA VITRO-ANASTASIO Applicant
AND:	S & M BODE PTY LTD (ACN 007 182 452) Respondent
JUDGE:	RYAN J
DATE OF ORDER:	18 APRIL 2001
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1.THAT penalties be imposed on the respondent for breaches of the Shop, Distributive and Allied Employees Association - Victoria Shop Award 1994 and the Shop, Distributive and Allied Employees Roping-in Award No 3 of 1995 (collectively called “the Award”) as follows:

(a)failing to pay to Sarah Angelucci the wages prescribed by the Award - $1,000.00;

(b)failing to pay to Kelly Outjers the wages prescribed by the Award - $1,000.00;

(c)failing to pay to the said Sarah Angelucci the amount to which she was entitled under the Award for annual leave - $250.00;

(d)failing to pay to the said Kelly Outjers the amount to which she was entitled under the Award for annual leave - $250.00;

(e)failing to pay to the said Kelly Outjers the amount to which she was entitled under the Award in respect of Saturday and Sunday work - $500.00.

2.THAT the amounts referred to in paragraph 1 of this Order, totalling $3,000.00, be paid to the Victoria District Registrar of the Court within 60 days of this day.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V405 of 2000

BETWEEN:	RITA VITRO-ANASTASIO Applicant
AND:	S & M BODE PTY LTD (ACN 007 182 452) Respondent

JUDGE:	RYAN J
DATE:	18 APRIL 2001
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

1. In this matter there is an application before the Court by the applicant who is an inspector appointed pursuant to s 84(2)(a) of the Workplace Relations Act 1996 ("the Act"). 

2. The application alleges breaches of two Awards:  the Shop, Distributive and Allied Employees Association (Victoria) Shop Award 1994;  and the Shop, Distributive and Allied Employees Roping-in Award No 3 1995.  I shall refer to those Awards collectively as "the Award".  The claims for payment to the employees concerned of the amounts of alleged underpayments have been resolved by terms of settlement which provide for monetary payments to those employees, together with interest, on agreed amounts of underpayments.

3. The two employees concerned were junior employees and, as Mr Ginnane for the applicant submitted, that circumstance made them particularly vulnerable to exploitation, there being no evidence of any union membership or any intercession by any union official on their behalf.  Mr Ginnane instanced a number of matters which were said to be relevant to the penalty which should appropriately be imposed as part of the relief sought by this application.

4. Mr Ginnane mentioned, as I have already indicated, the fact that the employees were juniors.  He instanced the respondent's failure to respond to inquiries and correspondence from the workplace inspectorate and the fact that no satisfactory explanation has been advanced for failure to pay the amounts due.  In my view it is correct to say that ignorance of award rates cannot be maintained as a mitigating factor, certainly after initial contact was made by the inspectorate.  There also seems to have been a lack of proper record keeping which would have facilitated identification of the amounts due.  It is not irrelevant to take into account the fact that recovery of the underpayments has only occurred after the institution of expensive legal proceedings and the conduct of mediation in the course of that litigation.

5. On the other hand, it is appropriate to take into account in mitigation of the offences the fact that, when forced to the point by the commencement of litigation, the respondent has agreed to restore to the employees concerned the amounts of the acknowledged underpayments together with interest on those amounts.  I accept, as Mr McEachern submitted on its behalf, that the respondent is a purely family company in which the directors work very long hours for comparatively small returns.  I also infer in its favour that it has no previous convictions.  I accept that there may have been a belief in an entitlement to withhold pro rata annual leave from Ms Angelucci, although I stress that there is no evidence at all of misconduct on her part.

6. It may have been true, as Counsel for the respondent contended, that Ms Outjers was taken on initially out of motives of charity and out of a concern to enhance her ability to obtain employment in the general workforce.  However laudable that action may have been, it does not excuse a significant failure to pay award junior rates after the employment was commenced, particularly over the extensive period after which the fact of the underpayment had incontrovertibly been brought to the notice of those controlling the respondent. 

7. The Act imposes a maximum penalty of $5,000 for each breach of an award by a body corporate.  By s 178(2) two or more breaches which arise out of a course of conduct are to be taken to constitute a single breach of the relevant term of the Award.  In the light of all the circumstances I have outlined, I do not regard the respondent's offences as being at the higher end of the scale of gravity on which s 178(4) is predicated.

8. In the circumstances, I propose to impose a penalty of $1,000 for each failure to pay award rates, a penalty of $250 for each of the two breaches in respect of annual leave, and $500 for the breach in respect of weekend work by Ms Outjers.  I impose no penalty in relation to the underpayment of overtime to Ms Outjers.  So in the result, the total penalties payable will be $3,000.

I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Ryan.

Associate:

Dated:             18 April 2001

Counsel for the Applicant:	Mr T J Ginnane
Solicitor for the Applicant:	Australian Government Solicitor
Counsel for the Respondent:	Mr I R McEachern
Solicitor for the Respondent:	Southall Partners
Date of Hearing:	18 April 2001
Date of Judgment:	18 April 2001