WILSON v Nicholson - [2009] FMCA 923

FEDERAL MAGISTRATES COURT OF AUSTRALIA

WILSON v NICHOLSON & ANOR

[2009] FMCA 923

INDUSTRIAL LAW – Workplace Relations – admitted contraventions of Workplace Relations Act 1996 – consideration of matters relevant to penalty.

Workplace Relations Act 1996, ss.337(1), 337(2)

Mason v Harrington Corporation Pty Ltdt/as Pangaea Restaurant & Bar [2007] FMCA 7

Applicant:

JOHN WILSON

First Respondent:

GREGORY WAYNE NICHOLSON

Second Respondent:

DAVID MARK YOUNG

File Number:

BRG 839 of 2008

Judgment of:

Jarrett FM

Hearing date:

11 June 2009

Date of Last Submission:

11 June 2009

Delivered at:

Brisbane

Delivered on:

11 June 2009

REPRESENTATION

Counsel for the Applicant:

Mr Hornman-Wren

Solicitors for the Applicant:

Macrossans Lawyers

Counsel for the Respondents:

Ms Donaghy

Solicitors for the Respondents:

Minter Ellison

ORDERS

Pursuant to s.407 of the Workplace Relations Act 1996 (CTH), a penalty of SIX THOUSAND SIX HUNDRED DOLLARS ($6,600.00) be imposed upon the First Respondent.
Pursuant to s.407 of the Workplace Relations Act 1996 (CTH), a penalty of SIX THOUSAND SIX HUNDRED DOLLARS ($6,600.00) be imposed upon the Second Respondent.
Pursuant to s.841(a) of Workplace Relations Act 1996 (CTH) that the aggregate of the penalties aforesaid be paid to the Commonwealth Consolidate Revenue Fund.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
BRISBANE

BRG 839 of 2008

JOHN WILSON

Applicant

And

GREGORY WAYNE NICHOLSON

First Respondent

DAVID MARK YOUNG

Second Respondent

REASONS FOR JUDGMENT

ex tempore

The Workplace Relations Act 1996 sets out a regime whereby employers and employees can enter into agreements governing the employment of those employees. Those agreements can be arrived at in various ways but one way concerns the production of what is described in the Act as an Australian Workplace Agreement, or an AWA for short. As the applicant in his submissions points out, there are a number of significant procedural steps that need to be complied with when an AWA is brought into existence.
Those procedural steps are, generally speaking, designed to ensure that both the employer and the employer are in, as much as can be generated through the process, an equal bargaining position. One of the procedural requirements relates to the provision by the employer to the employee of access to a copy of the Australian Workplace Agreement proposed and the provision of an information statement in relation to the agreement.
Those requirements are found in s.337(1) and s.337(2) of the Act and s.337(8) and s.337(9) make it clear that it is a contravention of the Act not to provide access to the AWA as required by s.337(1) or to give the information statement required by s.337(2).
In these proceedings the applicant alleges that the first and second respondents were involved in contraventions of s.337(1) and s.337(2). The respondents admit those allegations. The proceedings also related to a number of other alleged breaches of the Workplace RelationsAct but those matters are no longer pursued.
The admitted contraventions arise in this way; the facts that I am about to recite come from the parties’ agreed statement of facts tendered at the commencement of this hearing.
The first and second respondents were, at the relevant time, directors of a company called Australian Recruiting Pty Limited. Australian Recruiting Pty Limited provided services as a recruiter of employment across a large range of industry sectors. The first respondent was the general manager of Australian Recruiting and the second respondent was the sales director of Australian Recruiting.
There is no contest that Australian Recruiting Pty Limited was a corporation and that it was an employer for the purposes of the Workplace Relations Act. Insofar as this case is concerned Australian Recruiting was responsible for providing sponsorship to skilled migrants and in particular five of them from China. By reason of the visa program, five employees from China were permitted to work in Australia. The employees were facilitated into the skilled migration program by Australian Recruiting. Australian Recruiting employed a fluent Mandarin speaker so as to ensure that there was proper liaison between the employer and the workers from China.
In about September and October, 2006 the five Chinese workers whose employment is the subject of these proceedings all entered into Australian Workplace Agreements with Australian Recruiting. There is no contention by the applicant that the processes required to be followed pursuant to the Act were not followed when those agreements were made.
A problem did arise, however, because the Australian Workplace Agreements, once executed by the parties, were not lodged with the office of the Employment Advocate as it then was, within the required timeframe stipulated under the Workplace Relations Act. It is common ground that the failure to lodge the AWAs was due to an administrative oversight within Australian Recruiting offices.
The respondents, I accept, instigated a form of audit by which it was discovered that the 2006 AWAs had not been lodged with the office of the Employment Advocate. Australian Recruiting sought expert advice about how to remedy the problem when it was discovered.
The advice provided to Australian Recruiting was that fresh AWAs needed to be executed and approved and then lodged with the Employment Advocate. No advice, it seems, was given that the procedures, particularly those required by s.337(1) and s.337(2) needed to be repeated.
In May, 2007 the AWAs were presented again to the employees for their signature; they were signed by the employees in early May, 2007 and subsequently lodged with the relevant authority within the relevant statutory time frames.
The new AWAs were not, however, in the same form as the 2006 AWAs. In their submissions the respondents suggest that the differences were insignificant and minor. It is not contended by the applicant that there were any significant differences in the terms of the 2006 AWAs and those signed on the second occasion by each of the employees.
The respondents accept that when the fresh AWAs were signed in May, 2007 s.337(1) and s.337(2) were not complied with. They accept that it was a breach of the Act to have the employees sign the fresh AWAs without first providing to them ready access to the AWA for a period of seven days prior to the AWA being signed by the employee. They accept that it was a breach of the Act not to give to the employees seven days prior to the signing of the fresh AWAs an information notice as the Act required. They each also accept that they were involved with or knowingly concerned with the relevant breaches. The first and second respondents submit, however, that the breaches to which they admit are mere technical breaches.
Both the submissions for the applicant and the submissions for the respondent have referred me to the well known decision of Mason v Harrington Corporation Pty Limited (2007) FMCA 7 in which Mowbray FM set out the factors to be taken into account when he fixing a penalty to be imposed for a breach of the Workplace Relations Act. I will not repeat those factors in these reasons.
The maximum penalty that might be imposed in respect of each of the breaches is 30 penalty units. A penalty unit is $110. Each respondent admits to five breaches of s.337(1) and five breaches of s.337(2) – a total of ten breaches per respondent. The maximum penalty per respondent is therefore $33,000.
The breaches, in my view, are significant and serious. They are not a matter of mere technicality. The particular provisions in the Workplace Relations Act breached in this case are there, as the applicant points out in his submissions, for very good reason. They are there so as to provide an employee with the opportunity to take considered advice and to reflect upon the terms of a proposed employment relationship before he or she enters into it.
These workers were denied that opportunity. It seems to me that it is not to the point to say that there were insignificant differences between the 2006 AWAs and the 2007 AWAs. The question of whether the changes were insignificant is really a matter for the employee and something which from case to case will vary, depending upon the individual circumstances of each employee. It is ultimately a question of degree and a change that may appear insignificant to the employer or to some employees may be of considerable significance to another employee.
The point is that these employees were denied the opportunity to consider one agreement against the other. These employees were in a particularly vulnerable position given that their entitlement to work in Australia was subject to the terms and conditions imposed upon them by their visa. The very fact that the company, Australian Recruiting, had a Mandarin speaking liaison officer with whom the employees dealt, demonstrates in my view, the potential vulnerability of these employees.
I do not share the respondents’ view that these breaches are mere technical breaches. They are much more than that.
The applicant contends that I should impose penalties of $660 per breach (a total of $6,600) on each respondent. In my view they are appropriate penalties, although at the lower end of the range of penalties that might be imposed in this case. The matters that persuade me that I should not interfere with what the applicant proposes and impose a high penalty are these: first of all there is nothing to suggest that these respondents have been found to have breached the Act on any previous occasion. This is apparently their first offence against the Act.
Second, the contraventions have come about through a process initiated by the respondents in the office of Australian Recruiting in the nature of a compliance audit designed to highlight instances of non-compliance with the Act. That proactive approach is to be applauded. Whilst it might be the case that the procedures within the office were wanting in the first place and these initial AWAs were not lodged within the time required by the Act they were subsequently discovered and Australian Recruiting through either the first respondent or the second respondent took immediate steps, I am satisfied, to set things right. That is something that needs to be recognised.
Thirdly, what also needs to be recognised is that Australian Recruiting and the respondents took advice – appropriate professional advice it seems – on what to do given the circumstances in which they found themselves. I accept that since this matter has come to their attention a more sophisticated checking compliance regime was instituted in the office of Australian Recruiting by the respondents.
The written submissions handed up on behalf of the first and second respondents set out very clearly the steps that have been taken by the respondents to ensure that these things will not happen again in any businesses with which they are connected. It is said, and there is nothing to suggest I should not accept it, that Australian Recruiting updated and improved its quality assurance systems. It implemented a series of check lists to ensure compliance with all legislative requirements so as to ensure that accurate and up to date records were kept of the fact that information sheets and copies of the AWAs had been provided to employees within the required timeframes; employees were asked to sign a log which recorded the date they received the required documents.
Following detection of the breaches, employees were asked to sign a declaration which verified that they received and understood the AWA information sheet and employee fact sheet. I accept that that provides an additional opportunity to check employees have been given all the correct documents and fully understand those documents.
I accept that Australian Recruiting put in place staff training so that staff are trained in and understand the administrative requirements involving Workplace Agreements and other requirements under the Workplace Relations Act and I accept that Australian Recruiting established a regular reporting system of procedures as a double checking measure to ensure that all Workplace Agreements were signed, information sheets and employee fact sheets were provided and that the no disadvantage test analysis had been carried out for the Workplace Agreement.
I also accept that the respondents in this case are largely responsible for Australian Recruiting taking those measures. In my view it is appropriate to impose a penalty of six penalty units per contravention or $660 per contravention which for each respondent represents a total penalty of $6600. I do not propose to reduce that, having regard to the totality principle. It seems to me that $6600 having regard to the number of contraventions and the way they came about is an appropriate total penalty in all of the circumstances.

I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Jarrett FM

Associate: B Henderson

Date: 17 September 2009