2022 WAIRC 00713
WESTERN AUSTRALIAN INDUSTRIAL MAGISTRATES COURT


CITATION : 2022 WAIRC 00713

CORAM
: INDUSTRIAL MAGISTRATE E. O'DONNELL

HEARD
:
ON THE PAPERS

DELIVERED : WEDNESDAY, 12 OCTOBER 2022

FILE NO. : M 218 OF 2021

BETWEEN
:
CONSTRUCTION, FORESTRY, MARITIME, MINING & ENERGY UNION
CLAIMANT

AND

OSM AUSTRALIA PTY LTD
RESPONDENT

CatchWords : INDUSTRIAL LAW – Breach of award – inadvertent error on part of employer – acceptance of breach – nominal penalty – public interest
Legislation : Fair Work Act 2009 (Cth)
Instrument : OSM Australia Pty Ltd and MUA Offshore Oil and Gas Enterprise Agreement 2021 (Cth)
Result : Claim allowed
REPRESENTATION:

CLAIMANT : MR M. QUINN (INDUSTRIAL OFFICER) FROM CONSTRUCTION, FORESTRY, MARITIME, MINING & ENERGY UNION
RESPONDENT : MR D. WHITE (OF COUNSEL) FROM MILLS OAKLEY

REASONS FOR DECISION
Introduction
1 On 30 August 2022, the Claimant and the Respondent (the Parties) to this claim filed a Memorandum of Consent asking that the claim be determined on the papers following the filing of an Agreed Statement of Facts.
2 The Agreed Statement of Facts was filed on 2 September 2022.
3 I now proceed to determine the claim on the basis requested by the Parties.
Facts
4 The Parties did not file witness statements or copies of records.
5 In those circumstances, I adopt the Agreed Statement of Facts as an accurate record of the central facts and issues in the claim.
6 I annexe the Agreed Statement of Facts to this decision, Annexure 1.
and I summarise the key facts as follows.
7 From 8 August 2021 to 11 August 2021 (Period of Employment) the Respondent employed two men, Mr Ambrose Tupou and Mr Adam Salotti (Employees), on gangway watch.
8 The instrument applicable to the Period of Employment was the OSM Australia Pty Ltd and MUA Offshore Oil and Gas Enterprise Agreement 2021 (Agreement).
9 Pursuant to cl 24.5(b) of the Agreement, each day worked by the Employees during the Period of Employment was a ‘Duty Day’.
10 Pursuant to cl 3.1 of the Agreement, Duty Day means:
… a day of work on a Vessel that attracts a day’s pay and accrues a day’s leave.
11 Due to inadvertence on the part of an inexperienced payroll employee, the days worked by the Employees during the Period of Employment were recorded as ‘Dead Day’, rather than Duty Days.
12 Pursuant to cl 3.1 of the Agreement, Dead Day means:
… a day’s pay that does not accrue or use leave.
13 As a consequence of the error, the Employees were paid for their hours worked, but were not accorded their leave entitlements.
14 Neither the Claimant nor the Employees brought this error to the Respondent’s attention until this claim was filed in the Industrial Magistrates Court on 16 November 2021.
15 As soon as the Respondent became aware of the error, it rectified the error by making out-of-cycle payments to the Employees in full satisfaction of their entitlements under the Agreement.
16 The Parties agree that the Employees have received their full entitlements under the Agreement.
Determination Of Claim
17 In accordance with the Parties’ Memorandum of Consent, and on my own assessment of the facts, I find that the Respondent contravened the Agreement when it failed to accord the Employees the leave entitlements that attached to their Duty Days.
18 The Respondent therefore contravened s 50 of the Fair Work Act 2009 (Cth), which is a civil remedy provision and attracts the jurisdiction of this Court to remedy any such contravention.
Penalty
19 In my view, there is a public interest served by the bringing of a claim such as this one, even where the contravention that attracts the Court’s jurisdiction was inadvertent.
20 It is appropriate that the Court send a message that any contravention of an industrial instrument has an appreciable impact upon the employees concerned, and that the onus is on employers to ensure that they are always aware of their responsibilities pursuant to such instruments.
21 Having said that, I also consider that the Claimant has made an entirely appropriate concession that the contravention in this case falls at the lowest end of the scale of seriousness, and that any penalty imposed should be nominal. This is because:
a. The contravention was inadvertent;
b. As soon as the Respondent was made aware of the contravention, it rectified it by paying the Employees’ entitlements in full;
c. There was a relatively short time between the contravention and the payment of the Employee’s entitlements.
22 There is no need to set a penalty hearing date in this claim.
Order
23 The claim is allowed.
24 Within 7 days of the date of this decision, the Respondent shall pay to the Claimant a penalty of $1.00.



E. O’DONNELL
INDUSTRIAL MAGISTRATE


ANNEXURE 1 – AGREED STATEMENT OF FACTS