WESTERN AUSTRALIAN INDUSTRIAL MAGISTRATES COURT

CITATION : 2017 WAIRC 00736

DELIVERED : Thursday, 22 June 2017

FILE NO. : M 107 OF 2016

CLAIMANT

AND

The Commissioner of Police in his capacity of the employing authority of the Police Department

Respondent

Catchwords : Imposition of penalties for breach of sections 49M(1) and 49M(2) of the Industrial Relations Act 1979 and clause 59 of the Public Service Award 1992; whether injunctive relief should ordered; whether costs should be ordered.

Legislation : Industrial Relations Act 1979 (WA)
Sentencing Act 1995(WA)
Public Service Award 1992

Case(s) referred to
in reasons  : Australian Ophthalmic Supplies Proprietary Limited v
    McAlary‑Smith [2008] FCAFC 8

Result : Penalties Imposed

Representation:

Claimant : Mr D Wayda and with him Mr M Finnegan (of Counsel)

Respondent : Mr A Mason (of Counsel)

REASONS FOR DECISION

This is an edited version of the reasons given extemporaneously at the conclusion of the hearing reproduced from the transcript of proceedings as edited by his Honour

1         On 26 April 2016, the claimant notified the respondent that its organisers intended to enter the Police Operations Centre and the Police Assistance Centre at Midland in order to hold discussions with employees.

2         In accordance with the notification given, the claimant’s organisers attended the said premises on 28 April 2016. To facilitate their entry onto the premises they showed the Acting Inspector of Police, then in charge of the premises, a copy of the notice previously sent.

3         Notwithstanding that, they were not give immediate entry into the premises.  After some delay they were conditionally permitted to enter the premises. They were not permitted to walk through the premises and speak to the employees but rather were accompanied to a lunchroom, where they were asked to stay at which place anyone who might be interested in speaking to them could attend.

4         In May 2016, the respondent was again formally notified of the claimant’s intention to further enter the premises.

5         On 18 May 2016, the claimant’s organisers again attended the premises but were informed that access to the call centre area, and a walk through of that area for the purpose of speaking to employees would not be permitted. They were then taken to a lunchroom and asked to remain at that place where they could speak to employees interested in speaking to them.

6         On each occasion the officer in charge of the place took the view that there was a security risk associated with the organisers walking through the premises.  However there had been previous instances where organisers had been permitted entry onto the same premises and had been permitted to walk through the premises to speak to employees.

7         It is apparent that the different approaches were taken because it was left to individual officers to evaluate the request to enter the premises.

8         The respondent concedes that the officers dealing with the situation in April and May 2016 wrongly:

1. Denied the claimant’s officers timely entry onto the premises, and,
2. Obstructed and hindered them from effecting the task which they were permitted to do pursuant to s49H of the Industrial Relations Act 1979 (the IR Act).

9         The officers’ acts were wilful and intentional.

10      Their acts arose from their misguided understanding of the law.  It seems that the claimant’s rights became subservient to their concern that the security of the premises not be put at risk.

11      There were policies in existence at the time that would have prevented any security breaches but, regrettably, the officers did not avail themselves of the available processes aimed at addressing security concerns.

12      There were subsequent events of a similar nature in late August 2016 and in March 2017.  Those events do not form part of this claim and cannot be considered with respect to penalty. They may however be relevant as to whether the injunctive relief sought by the claimant ought to be granted.

13      This proceeding was initiated on 5 August 2016 and proceeded though various interlocutory processes in this court until the respondent admitted the breaches in June 2017.

14      The respondent concedes:

1. breaching s 49M(1) of the  IR Act by delaying organisers entry onto the premises on each of the material occasion, and
2. breaching s 49M (2) of the IR Act by having hindered or obstructed the claimant’s  officers in their function, and
3. breaching cl 59 of the Public Service Award 1992 (the Award), by failing to comply with the rights given to the organisers seeking entry onto the premises.

15      There are six admitted breaches (three on each occurrence).

16      The court is called upon to impose a penalty in respect of the breaches under s 49M of the IR Act and consider whether a caution or a penalty ought to be imposed in respect of the breach of the Award enforced under s 83 of the IR Act.

17      In the past, I have indicated that it may be appropriate in the determination of the appropriate penalty to have consideration to factors such as those contained in the Sentencing Act 1995 (WA) (Sentencing Act).  However, I recognise that the Sentencing Act has no particular application because it only applies to criminal proceedings. In appropriate circumstances, it may be used as a helpful guide.

18      I use it as a guide in this instance.

19      Section 6 of the Sentencing Act states that the starting point with respect to any sentence imposed is that the sentence must be commensurate with the seriousness of the offending behaviour.  Such consideration has equal application in the imposition of civil penalties in this instance.

20      The seriousness of the breach must be determined by considering the statutory penalty and any issues relating to the vulnerability of any victim. The vulnerability of the victim has little relevance here. The court must consider any aggravating factors and mitigating factors that exist.

21      Aggravating factors are factors that the court takes the view increases the culpability of the offender, and mitigating factors are matters that the court takes the view will decrease the culpability of the offender.

22      In this matter, reference has been made to respondent’s “plea of guilty” and the possible application of s 9AA of the Sentencing Act. That provision cannot have a direct application in this matter because it relates to criminal proceedings. Further there is a decision of the Supreme Court of Western Australia which says that the provision is not applicable to fines. It is only in relation to sentences of imprisonment. The principle nevertheless remains being that a penalty can be discounted for an acknowledgement, an admission or plea of guilty at an early opportunity. The earlier the plea, the more the discount.

23      The position in relation to determining the appropriate penalty to be imposed in civil proceedings has been the subject of comment in other jurisdictions. It has been held that in considering the appropriate penalty, the court needs to have regard to:

1.  the nature and extent of the conduct which led to the contraventions,
2.  the circumstances in which the conduct took place,
3. the nature and extent of any loss or damage that may have been sustained or caused by the contraventions,
4. whether there has been any similar previous conduct by the respondent,
5. whether the contraventions were properly distinct or arose out of one course of action or conduct.
6. the size of the enterprise involved,
7. whether the contraventions were deliberate,
8. whether senior management was involved in the contraventions,
9. whether a party committing the contraventions has exhibited any contrition,
10. whether a party committing the contraventions has taken any corrective action,
11. whether the party committing the contraventions has cooperated with the enforcement authorities,
12. the need to ensure that the compliance with minimum standards are an effective means for the investigation and enforcement of employees’ entitlements where such circumstances arise, and
13. the need for a deterrent penalty.

24      As His Honour Buchanan J said in Australian Ophthalmic Supplies Proprietary Limited v McAlary‑Smith [2008] FCAFC 8, the court’s task is to ensure that when it fixes a penalty, that appropriate regard is given to the circumstances of the contravention because it is important to have regard to the need to maintain public confidence in the statutory regime that imposes the obligations.

25      The court will need to consider the conduct which constitutes the breach, the conduct of the respondent in committing the breach and the nature of the breach itself. Some breaches may be more significant than others. Consequently, it is difficult to determine a tariff in relation to matters of this type.  Often, the court will be asked to compare outcomes in cases. That is difficult, if not impossible, to do because the breaches will be of a different nature, they will occur in different circumstances and it is not easy or appropriate that one can point to a tariff as being the appropriate penalty in each situation. Each must be determined on its own merits according to its own circumstances.

26      In determining the outcomes in these matters I note that the denied and delayed entry onto the premises together with the obstruction, were serious events. That is so particularly in light of the fact that previous entry onto the premises had not been an issue.  The respondent should have known that the claimant would have been restricted in its ability to conduct its affairs by reason of the failure to allow it to have ready access to workers at the premises.

27      Notwithstanding that there is no demonstrated particular detriment to the claimant, I accept there was an impact, but there was no demonstrated indication of the particular affect, other than the inability to speak with members.

28      The change in attitude by the respondent, that is the stopping of access to the premises, would have been a matter of concern for the claimant in its ability to carry out its functions for workers. In my view, that is an aggravating factor.

29      I am dealing with two breaches. The alleged subsequent breaches are unproven and cannot form part of my civil penalty considerations. The breaches have occurred over a lengthy period of time from April through to May.

30      In mitigation, the respondent does acknowledge its wrongdoing. The fact that there has been an admission relieves the court and the community of the need for a trial albeit the admission was not made at the first available opportunity. It denotes contrition which the court takes into account.

31      In this instance there is also evidence of rectification which is an important factor to be taken into account. The breaches have not been allowed to continue. The respondent has changed its ways so that similar events will not reoccur.

32      The court, in determining the appropriate penalty, must determine the appropriate penalty having regard to the particular circumstances. His Honour Gilmour J delivered a paper on civil penalty contraventions to the Employment Law Symposium of the Law Society of Western Australia on 30 November 2011 in which he said that the court needs to rely on an instinctive synthesis to determine the appropriate penalty.

33      The claimant in this matter submits that the appropriate penalty is fifty percent of the maximum penalty. I am not sure how that is arrived at, but from what I understand from the submissions, the claimant’s position is that these are significant breaches needing an effective deterrent penalty to ensure that the respondent and others strictly comply with the Act and the Award. One can understand that submission, and that is an appropriate submission, but it does not necessarily mean that the court must impose fifty percent of the maximum penalty to arrive at that particular conclusion.

34      The position is that, usually, in respect of matters that come before the court, where a person is a first offender, the starting point is that a penalty will be fixed ranging anywhere between five and about  twenty percent of the maximum penalty. More often than not it is fixed at about ten per cent. However, as indicated earlier, each case will turn on its own particular circumstances and the court must have regard to the seriousness of the breach in determining what the appropriate starting point is in relation to penalty.

35      In respect of these matters, the claimant suggests that the respondent’s record is not unblemished. However, it has not been suggested that the respondent has committed previous breaches of this type. In my view, it is the nature of the breaches that the court must have regard to, not whether or not the respondent has come before the court previously for some other reason. It is the nature of the breaches that gives rise to the consideration of the importance of both a specific and general deterrent penalty that might be imposed in relation to the particular matter.

36      Having regard to the nature of these matters, which I agree are serious, but taking into account the mitigating factors I have, applying instinctive synthesis, concluded that a penalty fixed at fifty percent of the maximum penalty is too high. I think the more appropriate penalty to be imposed in these circumstances, where there have been no previous breaches of this type, is the penalty fixed at twenty five percent of the maximum penalty. I will accordingly impose penalties which accord with that approach. In my view, the setting of such penalty reflects the seriousness of the offending but takes into account mitigating factors.

37      With respect to the respondent’s admitted breach of s 49M(1) of the IR Act on 28 April 2016 the respondent is ordered to pay a civil penalty of $1,250.00.  Such penalty shall be paid to the claimant as the enforcer of the provision. The respondent is also ordered to pay a penalty to the claimant in the sum of $1,250.00 for its admitted breach of s 49M(2) of the IR Act  which occurred on the same day. The respondent shall also pay a penalty to the claimant in the sum of $500 for its breach of cl 59 of the Award on that day.

38      As to the events that occurred on 18 May 2016 the respondent is ordered to pay to the claimant a penalty of $1,250.00 for its breach of s 49M(1) of the IR Act, a penalty of $1,250.00  for its breach of s 49M(2) of the IR Act and a penalty of $500 for its breach of cl 59 of the Award.

39      The next issue to be determined is whether the injunctive relief sought by the claimant should be granted.

40      I observe that subsequent to the institution of these proceedings, the respondent has rectified his ways. Entry onto the premises has been permitted and there has not been any hindrance in that regard. Such is very significant.

41      Injunctive relief will be necessary where in light of past history there is likely to be a failure to comply with the law. That is not likely here.  The respondent now knows what he has done wrong and has corrected the situation.  Further in view of the penalties just handed down he will know that there will be severe consequences that would flow from any further breaches of the relevant provisions.

42      In those circumstances, it will be inappropriate to grant the injunctive relief sought. An injunctive order to prevent further breaches is unnecessary. I do not propose to make such orders.

43      The only remaining issue is whether or not a costs order ought to be made.

44      In determining whether or not a costs order should be made, the court needs to be concerned with whether there is proof which that establishes that the proceedings have been defended vexatiously. The claimant has complained of the delay in having these proceedings dealt with. Delay, of itself, does not lead to a conclusion that the proceedings have been defended vexatiously. Delay does not fit within such consideration.

45      It seems to me that vexatiousness requires something more than defending the matter without good cause or merit.  It requires that the proceedings have been defended for the purposes of some ulterior motive or, for some reason which is designed to embarrass. There is simply no evidence to that effect. Consequently it is appropriate to refuse the costs sought. There will be no order as to costs.

G. CICCHINI

INDUSTRIAL MAGISTRATE