2024 WAIRC 00220
INDUSTRIAL MAGISTRATES COURT OF WESTERN AUSTRALIA


CITATION : 2024 WAIRC 00220

CORAM : INDUSTRIAL MAGISTRATE D. SCADDAN

HEARD : WEDNESDAY, 8 MAY 2024

DELIVERED : FRIDAY, 17 MAY 2024

FILE NO. : M 149 OF 2023

BETWEEN : CONSTRUCTION, FORESTRY AND MARITIME EMPLOYEES UNION
CLAIMANT

AND

QUBE PORTS PTY LTD
RESPONDENT

CatchWords : INDUSTRIAL LAW – FAIR WORK – Assessment of pecuniary penalties for contraventions of Fair Work Act 2009 (Cth) – Failure to pay an intra port transfer allowance for one night in accordance with the terms of an enterprise agreement
Legislation : Fair Work Act 2009 (Cth)
Crimes Act 1914 (Cth)
Industrial Relations Act 1979 (WA)
Industrial Magistrate's Court (General Jurisdiction) Regulations 2005 (WA)
Instrument : Qube Ports Pty Ltd Port of Tasmania Enterprise Agreement 2020
Case(s) referred
to in reasons: : Milardovic v Vemco Services Pty Ltd (Administrators Appointed) (No 2) [2016] FCA 244; 242 FCR 492
Miller v Minister of Pensions [1947] 2 All ER 372
Briginshaw v Briginshaw [1938] HCA 34; 60 CLR 336
Sammut v AVM Holdings Pty Ltd (No 2) [2012] WASC 27
Fair Work Ombudsman v Grouped Property Services Pty Ltd (No 2) [2017] FCA 557
Australian Building and Construction Commissioner v Pattinson [2022] HCA 13; 274 CLR 450
NW Frozen Foods Pty Ltd v Australian Competition and Consumer Commission [1996] FCA 1134; 71 FCR 285
Kelly v Fitzpatrick [2007] FCA 1080; 166 IR 14
Mason v Harrington Corporation Pty Ltd [2007] FMCA 7
Australian Ophthalmic Supplies Pty Ltd v McAlary-Smith [2008] FCAFC 8; 165 FCR 560
Commonwealth v Director, Fair Work Building Inspectorate [2015] HCA 46; 258 CLR 482
Rocky Holdings Pty Ltd v Fair Work Ombudsman [2014] FCAFC 62; 221 FCR 153
Fair Work Ombudsman v South Jin Pty Ltd (No 2) [2016] FCA 832
Sayed v Construction, Forestry, Mining and Energy Union [2016] FCAFC 4; 239 FCR 336
Trade Practices Commission v CSR Ltd [1990] FCA 762;
Result : Pecuniary penalty to be paid
Representation:


Claimant : Mr K. Sneddon (of counsel)
Respondent : Mr R. Boothman (of counsel)

REASONS FOR DECISION
Introduction
1 On 11 December 2023, the Construction, Forestry and Maritime Employees Union (the claimant) lodged a claim alleging that Qube Ports Pty Ltd (the respondent) failed to comply with the Qube Ports Pty Ltd Port of Tasmania Enterprise Agreement 2020 (the Agreement) and contravened s 50 of the Fair Work Act 2009 (Cth) (FWA) by failing to pay an (intra port transfer) allowance to Craig Duncan (Mr Duncan) in accordance with Part B, cl 7.1.3 of the Agreement (Allowance).
2 The claimant applies for a pecuniary penalty in respect of the alleged contravention.
3 On 16 January 2024, the respondent formally admitted it had not paid the Allowance prior to or on the day of the intra port transfer, which was entitled to be paid on 17 January 2022. However, the respondent says the Allowance was paid in full to Mr Duncan on 21 January 2022, and otherwise denies that a pecuniary penalty should be awarded.
4 The parties provided to the court a Statement of Agreed Facts (the Agreed Facts) and an outline of written submissions on the payment of a pecuniary penalty. The parties also made oral submissions.
5 In addition, the respondent relies upon the affidavit of Daniel Ortiz, General Manager – Industrial Relations (Mr Ortiz) affirmed on 28 March 2024 (Ortiz Affidavit).
6 Schedule I of these reasons outline the jurisdiction, standard of proof and practice and procedure of the Industrial Magistrates Court (IMC).
7 Schedule II of these reasons outline the provisions of the FWA and principles relevant in determining an appropriate pecuniary penalty (if any) for the respondent’s contraventions.
The Agreed Facts
8 Schedule III of these reasons annex the Agreed Facts (only). The salient facts from the Agreed Facts are as follows.
9 The Agreement was approved by the Fair Work Commission on 23 December 2020.
10 Mr Duncan was employed by the respondent at the Port of Burnie, Tasmania, four hours’ drive from the Port of Risdon.
11 On 15 January 2022, the respondent requested Mr Duncan to work a 12-hour shift on 17 January 2022 at the Port of Risdon on an intra port transfer. Mr Duncan confirmed his availability to work the shift.
12 On 16 January 2022, the respondent rostered Mr Duncan to work at the Port of Risdon using the respondent’s computer-based roster allocation system (Microster), and Mr Duncan drove to, and accommodated himself at, Risdon.
13 On 17 January 2022, Mr Duncan worked the 12-hour rostered shift.
14 At the completion of the rostered shift, Mr Duncan was unable to return to the Port of Burnie because he would have exceeded the Agreement’s combined maximum travel time and hours worked in any one day.
15 Accordingly, Mr Duncan accommodated himself overnight in Risdon on 17 January 2022.
16 On 19 January 2022, Mr Duncan notified the respondent’s Site Supervisor, Ben Ward (Mr Ward), by email that he had not been paid the Allowance for one of the two nights he had accommodated himself in Risdon.
17 On 20 January 2022, Mr Ward instructed the respondent’s payroll to pay Mr Duncan the Allowance of $229.83.
18 On 21 January 2022, the respondent paid Mr Duncan the Allowance of $229.83.
Other Evidence
19 To the Agreed Facts, I would also add the following facts which were either not in dispute or the subject of uncontroverted evidence deposed to in the Ortiz Affidavit.
20 The respondent employs 2,025 employees and the respondent’s corporate group employs approximately 10,000 employees.
21 The respondent’s payroll team operates Monday to Friday from 9.00 am to 5.00 pm.
22 Mr Ward is no longer employed by the respondent, but enquiries were made with the respondent’s operations team in Tasmania to, relevantly, obtain information about the process for employees who intended to accommodate themselves on intra port transfers.
23 These enquiries demonstrated an informal process existed, which was readily understood by the operations teams, whereby an Operations Manager enquires with an employee whether they are available to work at another port, discusses the combined work and travel time, and inquires whether the employee needs the respondent to arrange accommodation or whether the employee will arrange their own.
24 The employee verbally agrees (or does not agree) to work a shift at another port.
25 If the Operations Manager approaches an employee over a weekend to work at another port on a Monday, requiring the employee to travel on a Sunday, the same discussion occurs, save that the Operations Manager and employee agree to process the Allowance once the respondent’s payroll team have returned to work (after the weekend).
26 The Operations Manager notifies the respondent’s National Labour Centre, which controls and enters the employee’s shift on Microster, and the employee formally accepts or rejects the shift on Microster.
27 Thereafter, the Operations Manager notifies the respondent’s payroll team by email (the preferred option) or verbally about the shift and the payment of any applicable allowances, including the Allowance.
28 Mr Duncan’s intra port transfer was arranged on a Saturday and consequently the respondent’s payroll team would not have been aware of transfer until Monday (17 January 2022).
29 Mr Ortiz looked for, but did not locate any, correspondence between Mr Duncan and the respondent identifying that Mr Duncan intended to arrange his own accommodation or between Mr Ward and the respondent’s payroll team identifying Mr Duncan’s work and travel time on 17 January 2022 would exceed the maximum allowed.
30 Emails between Mr Duncan, Mr Ward and Alisha Bull, Deputy Secretary of the Tasmanian Branch of the Maritime Union of Australia (Ms Bull), indicate the respondent was notified of its obligation to pay the second night of the Allowance at 11.58 pm on 19 January 2022.
31 On 20 January 2022 at 10.55 am, Mr Ward agreed the Allowance should be paid for the second night and informed Mr Duncan the request had been submitted to payroll to be included in the next pay noting the amount to be paid was small.
32 On the same day, Ms Bull emailed Mr Ward requesting immediate payment of the Allowance in accordance with the terms of the Agreement.
33 On 21 January 2022 at 10.59 am, Mr Ward emailed Mr Duncan, Ms Bull and others confirming the Allowance was paid.
34 Mr Ortiz was first aware of the respondent’s noncompliance with payment of the Allowance when the respondent was served with the claim for M 149 of 2023 on 20 December 2023.
35 On 25 March 2024, Mr Ortiz arranged for an email to be sent to all port operation managers, which referred to an operations manager meeting and arrangements for manual payments of the Allowance on the day before or on the day of travel to ensure compliance with the Agreement.
36 In addition, Mr Ortiz has requested any intra port transfers to be added as a standing agenda item to the fortnightly operations meeting so the respondent can monitor the process and payroll’s awareness of payments.
37 Mr Ortiz acknowledges the respondent’s error, has cooperated with the claimant and the respondent’s lawyers to admit the claim, and apologises to Mr Duncan for any inconvenience caused to him.
The Claimant’s Submissions on Penalty
38 In summary, the claimant submits:
· the IMC is empowered to order a person to pay a pecuniary penalty the court considers appropriate if the court is satisfied the person has contravened a civil remedy provision: s 546(1) of the FWA;
· contraventions of s 50 of the FWA are contraventions of a civil remedy provision: s 539(2) of the FWA, where the maximum penalty for the contravention is 300 penalty units or $66,600; The Respondent being a body corporate is liable to a maximum penalty five times that for a natural person – see the table at s 539(2) of the FWA where each contravention is subject to a maximum penalty of 60 units for a natural person and s 546(2).

· Mr Duncan was paid the second night’s Allowance five days after it was due;
· the respondent should have been aware Mr Duncan would have been away from his home port for two nights and was entitled to the Allowance for two days;
· the Allowance should have been paid promptly and not in the next pay, displaying a laissez-faire attitude by the respondent requiring intervention by Mr Duncan’s union;
· there is no evidence the contravention was deliberate, but the respondent did not consider compliance to be particularly important;
· the respondent ought to pay a penalty amount of $49,950 where the only tool to denunciate the contravention is a monetary one;
· the respondent has shown some contrition, but this did not translate to ensuring ongoing compliance in a timely manner, where Mr Ortiz arranged for an e-mail to be sent three months after becoming aware of the issue. The respondent has shown little haste in making sure the contravention did not happen again;
· the respondent has a record of non-compliance with the FWA and their enterprise agreements, referring to another IMC decision, and six other IMC claims involving a breach of s 50 of the FWA. Therefore, the penalty ought to have a cumulative effect on impressing on the respondent the need for compliance;
The claimant provided the following table in support of its submission: M 149 of 2023 is the current proceedings for which the court is determining a pecuniary penalty.
M 119 of 2023 involves the payment for Closed Port Days under a different enterprise agreement the circumstances of which are yet to be determined relevant to the payment of a pecuniary penalty.
M 76 and 91 of 2022 are consolidated proceedings determined by Industrial Magistrate Coleman where part of the claim was admitted, and part of the claim was dismissed. The payment of a pecuniary penalty is yet to be determined.
M 95 of 2023 involved two of 13 leading hands not undertaking First Aid training in six months, a pecuniary penalty of $936 was applied.
M 101 of 2022 involved an underpayment of $159.25 for work performed in a two-week period in May 2022 for which a pecuniary penalty of $11,300 was applied.

MATTER
CONTRAVENTION
STATUS
M 149 of 2023
s. 50 FW Act
Admitted
M 119 of 2023
s. 50 FW Act
Admitted
M 95 of 2023
s. 50 FW Act
Penalty ordered
M 101 of 2022
s. 50 FW Act
s. 323 FW Act
Penalty ordered
M 91 of 2022
s. 50 FW Act
s. 323 FW Act
Admitted
M 76 of 2022
s. 50 FW Act
s. 323 FW Act
Admitted
· the respondent is a large, sophisticated, and profitable company, who should be expected to have sufficient structures in place to ensure compliance with the legislation and (presumably) Agreements to which it is bound.
39 Therefore, the need for specific and general deterrence is great.
40 The penalties should be awarded to the claimant in accordance with decision in Milardovic v Vemco Services Pty Ltd (Administrators Appointed) (No 2) [2016] FCA 244; 242 FCR 492 [40] (Milardovic).
The Respondent’s Submissions on Penalty
41 In summary, the respondent submits:
· any penalty should be nominal and a penalty of $222 (equal to one penalty unit) is appropriate;
· the contravention involved one single failure to pay the Allowance under the Agreement;
· the contravention was inadvertent involving a breakdown in communication involving a request for an intra port transfer on a weekend day when the respondent’s payroll team was not working on the day prior to or the day of transfer to process the Allowance as required by the Agreement;
· payment of the Allowance was rectified quickly;
· this is not a matter in which there was an appreciable role for specific deterrence where prior to the breach it had an informal process for employees advising the respondent of their intention to accommodate themselves on intra port transfers, and there is no evidence this process failed on other occasions;
· however, it has now taken formal steps to ensure the process does not fail in the future;
· while it has been subject to three previous findings of contraventions of the FWA, Namely, in Maritime Union of Australia v Qube No 1 Pty Ltd [2017] SAIRC 5; Construction, Forestry and Maritime Employees Union v Qube Ports Pty Ltd [2023] WAIRC 00976; and Construction, Forestry and Maritime Employees Union v Qube Ports Pty Ltd (Industrial Magistrates Court of Western Australia, Magistrate Coleman, 23 November 2024).
none involve a port in Tasmania or involve the failure to pay an intra port transfer allowance either on the day prior to or the day of transfer. This demonstrates that it is not a recalcitrant employer or has a culture of breaking or disregarding the law;
· the Agreement at cl 23.2 in Part A, contemplates that errors on pay may be made and dealt with promptly, and that any shortfall owed to the employee will be rectified as soon as reasonably practicable, which may include the next pay cycle. In Mr Duncan’s case, the respondent immediately acknowledged it had not paid the Allowance (for the second night) and paid it within two days;
· the contravention involved one employee on one occasion and the respondent has demonstrated early and active cooperation (like the cases referred to by the claimant in its table above);
· a smaller quantum may be imposed in circumstances where a party has inadvertently breached its obligations rather than engaged in a deliberate and calculated breach;
· it has demonstrated remorse, cooperation and taken prompt corrective action;
· consistency of approach in like cases is important;
· there is no evidence of Mr Duncan suffering any or any great prejudice, although the respondent accepts ‘relatively low amounts of money’ is relative and not trivial; and
· while the breach is admitted, the contravention is properly categorised at the lower end of offending.
42 The respondent refers to cases dealing with failures to pay allowances, however for the purposes of consistency, says that these cases mainly deal with multiple contraventions of multiple provisions over a period of years involving more than one employee.
Determination On Penalty
43 The maximum penalty with respect to a contravention of s 50 of the FWA by the respondent is 300 penalty units, given the respondent is a body corporate. The maximum penalty in respect of each contravention is $66,600.
44 The following considerations are significant in assessing the appropriate penalty in this case:
Whether the organisation has engaged in similar conduct:
There is no evidence the respondent has previously failed to pay the Allowance in accordance with the Agreement, either in Tasmania or other ports in Australia operated by the respondent. I will comment on other conduct below, as it has been raised by the parties in their submissions.
Whether the conduct was deliberate:
As accepted by the claimant, I am satisfied the contravention was not deliberate. The respondent is obliged to comply with the terms of the Agreement, although a fair reading of the email communications between Mr Duncan, Mr Ward and Ms Bull demonstrates the respondent never intended to escape its obligation to pay the second night of the Allowance, having paid the first night of the Allowance.
Corrective action:
The respondent paid the Allowance five days after it was due, but initially the Allowance was to be paid in a future pay cycle consistent with cl 23.2 of the Agreement. However, upon being told of its obligation by Ms Bull, the respondent paid the Allowance immediately. The respondent has taken steps commensurate with the contravention to ensure future compliance with the Agreement and the FWA, including making provision for the payments of future allowances on intra port transfer agreements on weekends. It is unlikely this conduct will occur again in the future.
Contrition and avoidance of repetition:
Mr Ortiz has apologised for the respondent’s contravention. Together with corrective action, this demonstrates a willingness to learn from the proceedings and a commitment not to repeat the conduct.
The size of the entity and involvement of senior management:
The respondent is a large well-resourced organisation. While the respondent does not operate a payroll department on weekends, arrangements can be, and have been, made to ensure entitlements are paid even in atypical situations. The respondent is obligated under the law and to its employees to act diligently with respect to employee entitlements.
Loss or damage suffered as a result:
Mr Duncan’s consequential ‘loss’ (being the actual entitlements) is reasonably modest and was addressed within five days after the Allowance was due under the Agreement.
45 To this, I would also add the following comments.
46 The application for a pecuniary penalty was lodged approximately one year and 11 months after contravention. True enough, the claimant has six years to bring the application. However, the relative delay in doing so supports the respondent’s contention that the resolution of the underpayment occurred in accordance with the Agreement. That is, the issue was reported to Mr Ward, he confirmed payment of the Allowance, and steps were taken to rectify the situation all with Ms Bull’s knowledge. In those circumstances, it was reasonable to infer the matter was finalised, from the employer’s, the employee’s and, at the time, the relevant union’s perspective.
47 This casts some light on the respondent’s purported little haste in taking corrective action, which I accept has since been taken by Mr Ortiz. In addition, there is no evidence that, in the meantime, the same issue has arisen.
48 The contravening conduct in all circumstances is properly categorised in the low range.
49 Considering the above, while specific deterrence is important in this case, the need to deter employers more generally in contraventions of the FWA and ensure the public interest in the protection of employee entitlements is of greater importance.
50 While criminal penalties import notions of retribution and rehabilitation, the primary purpose of a civil penalty is to promote the public interest in compliance with the law and not as an additional award of compensation for financial or emotional stress, hurt feelings, inconvenience or legal fees. Commonwealth of Australia v Director, Fair Work Building Industry Inspectorate [2015] HCA 46; 258 CLR 482 [55] (referring to Trade Practices Commission v CSR Ltd [1990] FCA 762; [1991] ATPR 41-076).
This purpose is met by imposing an ‘appropriate penalty’ striking a balance between oppressive severity and the need for deterrence in respect of the particular case. Australian Building and Construction Commissioner v Pattinson [2022] HCA 13; 274 CLR 450 [46].

51 Further, in certain cases a modest penalty, if any, may reasonably be thought to be sufficient to provide effective deterrence against future contraventions where, by way of example, the contravention is a ‘oneoff’ result of inadvertence and not part of a deliberate strategy to circumvent the law, the person responsible for the contravention has been disciplined or counselled, there is genuine remorse, or, the contravention is unlikely to arise again having regard to the reduced risk of future contraventions. Pattinson [46] and [47].

52 I am satisfied, on the evidence, that the respondent’s failure to pay the Allowance was a ‘one-off’ in atypical circumstances where I am further satisfied the respondent had no intention of avoiding its obligation under the Agreement. Consistent with cl 23.2 of the Agreement, once bought to its attention its failure to pay the second night of the Allowance, the respondent took immediate steps to rectify Mr Duncan’s underpayment (or shortfall). The respondent has taken corrective action to ensure the contravention does not occur again in the future.
53 To the extent the claimant says the table in [38] shows a record of non-compliance, I am not satisfied that it does. The claims referred to in the table show discrete, individual episodes of non-compliance, which, save for one disparate outcome, involved the application of a modest penalty or where no penalty has yet been applied as the circumstances have not been determined.
54 Limited guidance is obtained from the claims referred to in the table.
55 For the above reasons, the pecuniary penalty to be applied in respect of the claim is $1,500. I am satisfied this is an appropriate penalty striking a balance between oppressive severity and the need for deterrence in respect of this particular case.
Claimant

Maximum
Penalty applied
Breach of Agreement contravention
$66,600

Total

$1,500
56 The claimant seeks an order pursuant to s 546(3)(c) of the FWA that the penalty be paid to the claimant. An order will be made that the respondent pay the penalty of $1,500 to the claimant.
Orders
57 Pursuant to s 546(1) and (3)(b) of the FWA, the respondent is to pay to the claimant a pecuniary penalty of $1,500.



D. SCADDAN
INDUSTRIAL MAGISTRATE


Schedule I: Jurisdiction, Practice and Procedure of the Industrial Magistrates Court of Western Australia Under the Fair Work Act 2009 (Cth)
Jurisdiction
[1] An employee, an employee organization or an inspector may apply to an eligible state or territory court for orders regarding a contravention of the civil penalty provisions identified in s 539(2) of the FWA. The Industrial Magistrates Court of Western Australia, being a court constituted by an industrial magistrate, is ‘an eligible State or Territory court’: s 12 of the FWA (see definitions of ‘eligible State or Territory court’ and ‘magistrates court’); Industrial Relations Act 1979 (WA) s 81, s 81B.
[2] The application to the IMC must be made within six years after the day on which the contravention of the civil penalty provision occurred: s 544 of the FWA.
[3] The civil penalty provisions identified in s 539 of the FWA include:
· Section 50 – contravention of an enterprise agreement;
[4] An ‘employer’ has the statutory obligation noted above if the employer is a ‘national system employer’ and that term, relevantly, is defined to include ‘a corporation to which paragraph 51(xx) of the [Australian] Constitution applies’: s 14, s 12 of the FWA. The obligation is to an ‘employee’ who is a ‘national system employee’ and that term, relevantly, is defined to include ‘an individual so far as he or she is employed … by a national system employer…’: s 13 of the FWA.
[5] Where the IMC is satisfied that there has been a contravention of a civil penalty provision, the court may make orders for a person to pay a pecuniary penalty: s 546 of the FWA.
Burden and Standard of Proof
[6] In an application under the FWA, the claimant carries the burden of proving the claim. The standard of proof required to discharge the burden is proof ‘on the balance of probabilities’. In Miller v Minister of Pensions [1947] 2 All ER 372, 374, Lord Denning explained the standard in the following terms:
It must carry a reasonable degree of probability but not so high as is required in a criminal case. If the evidence is such that the tribunal can say: “We think it more probable than not,” the burden is discharged, but, if the probabilities are equal, it is not.
[7] In the context of an allegation of the breach of a civil penalty provision of the Act it is also relevant to recall the observation of Dixon J said in Briginshaw v Briginshaw [1938] HCA 34; 60 CLR 336:
The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters “reasonable satisfaction” should not be produced by inexact proofs, indefinite testimony, or indirect inferences. (362)
[8] Where in this decision it is stated that a finding has been made, the finding is made on the balance of probabilities. Where it is stated that a finding has not been made or cannot be made, then no finding can be made on the balance of probabilities.
Practice and Procedure of the Industrial Magistrates Court of Western Australia
[9] Subject to the provisions of the FWA, the procedure of the IMC relevant to claims under the FWA is contained in the Industrial Magistrate's Court (General Jurisdiction) Regulations 2005 (WA) (IMC Regulations). Notably, regulation 35(4) of the IMC Regulations provides the court is not bound by the rules of evidence and may inform itself on any matter and in any manner as it thinks fit.
[10] In Sammut v AVM Holdings Pty Ltd (No 2) [2012] WASC 27, Commissioner Sleight examined a similarly worded provision regulating the conduct of proceedings in the State Administrative Tribunal and made the following observation:
The tribunal is not bound by the rules of evidence and may inform itself in such a manner as it thinks appropriate. This does not mean that the rules of evidence are to be ignored. The more flexible procedure provided for does not justify decisions made without a basis in evidence having probative force. The drawing of an inference without evidence is an error of law. Similarly such error is shown when the tribunal bases its conclusion on its own view of a matter which requires evidence [40]. (citations omitted)


Schedule II: Pecuniary Penalty Orders Under the Fair Work Act 2009 (Cth)
Pecuniary Penalty Orders
[1] The FWA provides that the IMC may order a person to pay an appropriate pecuniary penalty if the court is satisfied that the person has contravened a civil remedy provision: s 546(1) of FWA. The maximum penalty for each contravention by a natural person, expressed as a number of penalty units, set out in a table found in s 539(2) of the FWA: s 546(2) of the FWA. If the contravener is a body corporate, the maximum penalty is five times the maximum number of penalty units proscribed for a natural person: s 546(2) of the FWA.
[2] The rate of a penalty unit is set by s 4AA of the Crimes Act 1914 (Cth): s 12 of the FWA. The relevant rate is that applicable at the date of the contravening conduct:
January 2022
$222
[3] The purpose served by penalties was described by Katzmann J in Fair Work Ombudsman v Grouped Property Services Pty Ltd (No 2) [2017] FCA 557 (Grouped Property Services) in the following terms:
In contrast to the criminal law, however, where, in sentencing, retribution and rehabilitation are also relevant, the primary, if not the only, purpose of a civil penalty is to promote the public interest in compliance with the law. This is achieved by imposing penalties that are sufficiently high to deter the wrongdoer from engaging in similar conduct in the future (specific deterrence) and to deter others who might be tempted to contravene (general deterrence). The penalty for each contravention or course of conduct is to be no more and no less than is necessary for that purpose [388]. (citations omitted)
[4] In Australian Building and Construction Commissioner v Pattinson [2022] HCA 13; 274 CLR 450 (Pattinson), the plurality confirmed that civil penalties ‘are not retributive, but rather are protective of the public interest in that they aim to secure compliance by deterring repeat contraventions’. However, ‘insistence upon the deterrent quality of a penalty should be balanced by insistence that it “not be so high as to be oppressive”’: [40], citing NW Frozen Foods Pty Ltd v Australian Competition and Consumer Commission [1996] FCA 1134; 71 FCR 285.
[5] In Kelly v Fitzpatrick [2007] FCA 1080; 166 IR 14 [14], Tracey J adopted the following ‘nonexhaustive range of considerations to which regard may be had in determining whether particular conduct calls for the imposition of a penalty, and if it does the amount of the penalty’ which had been set out by Mowbray FM in Mason v Harrington Corporation Pty Ltd [2007] FMCA 7:
· The nature and extent of the conduct which led to the breaches.
· The circumstances in which that conduct took place.
· The nature and extent of any loss or damage sustained as a result of the breaches.
· Whether there had been similar previous conduct by the respondent.
· Whether the breaches were properly distinct or arose out of the one course of conduct.
· The size of the business enterprise involved.
· Whether or not the breaches were deliberate.
· Whether senior management was involved in the breaches.
· Whether the party committing the breach had exhibited contrition.
· Whether the party committing the breach had taken corrective action.
· Whether the party committing the breach had cooperated with the enforcement authorities.
· The need to ensure compliance with minimum standards by provision of an effective means for investigation and enforcement of employee entitlements and
· The need for specific and general deterrence.
[6] In Australian Ophthalmic Supplies Pty Ltd v McAlary-Smith [2008] FCAFC 8; 165 FCR 560 (Australian Ophthalmic Supplies) Buchanan J said this list is not:
a rigid catalogue of matters for attention. At the end of the day the task of the Court is to fix a penalty which pays appropriate regard to the circumstances in which the contraventions have occurred and the need to sustain public confidence in the statutory regime which imposes the obligations [91].
[7] Although these factors provide useful guidance, the task of assessing the appropriate penalty is not an exact science: Commonwealth v Director, Fair Work Building Inspectorate [2015] HCA 46; 258 CLR 482 [47]. The Court must ultimately fix a penalty that pays appropriate regard to the contraventions that have occurred: Pattinson [19]. ‘[A] court empowered by s 546 to impose an “appropriate” penalty must act fairly and reasonably for the purpose of protecting the public interest by deterring future contraventions of the Act:’ Pattinson [48].
[8] ‘Multiple contraventions’ may occur because the contravening conduct done by an employer:
(a) resulted in a contravention of a single civil penalty provision or resulted in the contravention of multiple civil penalty provisions;
(b) was done once only or was repeated; and
(c) was done with respect to a single employee or was done with respect to multiple employees.
[9] The fixing of a pecuniary penalty for multiple contraventions is subject to s 557 of the FWA. It provides that two or more contraventions of specified civil remedy provisions (including contraventions of an enterprise agreement and a contravention on s 323 of the FWA on the payments) by an employer are taken be a single contravention if the contraventions arose out of a course of conduct by the employer. Subject to proof of a ‘course of conduct’, the section applies to contravening conduct that results in multiple contraventions of a single civil penalty provision whether by reason of the same conduct done on multiple occasions or conduct done once with respect to multiple employees: Rocky Holdings Pty Ltd v Fair Work Ombudsman [2014] FCAFC 62; (2014) 221 FCR 153; Fair Work Ombudsman v South Jin Pty Ltd (No 2) [2016] FCA 832 [22] (White J) The section does not to apply to cases where the contravening conduct results in the contravention of multiple civil penalty provisions (example (a) above): Grouped Property Services Pty Ltd [411] (Katzmann J).
[10] The totality of the penalty must be re-assessed in light of the totality of the offending behaviour. If the resulting penalty is disproportionately harsh, it may be necessary to reduce the penalty for individual contraventions. Australian Ophthalmic Supplies [47] - [52].
[11] Section 546(3) of the FWA also provides:
Payment of penalty
(3) The court may order that the pecuniary penalty, or a part of the penalty, be paid to:
(a) the Commonwealth; or
(b) a particular organisation; or
(c) a particular person.
[12] In Milardovic [40] - [44], Mortimer J, in light of Sayed v Construction, Forestry, Mining and Energy Union [2016] FCAFC 4; 239 FCR 336, summarised the law:
[T]he power conveyed by s 546(3) is ordinarily to be exercised by awarding any penalty to the successful applicant. … [T]he initiating party is normally the proper recipient of the penalty as part of a system of recognising particular interests in certain classes of persons … 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 [Gibbs v The Mayor, Councillors and Citizens of City of Altona [1992] FCA 553; 37 FCR 216] … exception that the penalty may be ordered to be paid to the organisation on whose behalf the initiating party has acted. (original emphasis) (omitting citations)

Schedule III: Statement of Agreed Facts
PRELIMINARY
[1] For the purpose of these proceedings only, the parties agree the following facts.
CLAIMANT
[2] The Claimant was at all material times:
a. a registered organisation under the Fair Work (Registered Organisations) Act 2009 (Cth) (RO Act);
b. a body corporate able to be sued in its registered name by reason of section 27 of the RO Act;
c. an ‘employee organisation’ as defined in section 12 of the Fair Work Act 2009 (Cth); and
d. an employee organisation to which the Qube Ports Pty Ltd Port of Tasmania Enterprise Agreement 2020 applied within the meaning of section 52 of the Act.
RESPONDENT
[3] The Respondent was at all material times:
a. a 'constitutional corporation' within the meaning of that term in section 12 of the Act;
b. a 'national system employer' within the meaning of that term in section 14 of the Act;
c. a corporation able to sue and be sued; and
d. an employer to which the Agreement applied within the meaning of section 52 of the Act.
THE AGREEMENT
[4] The Agreement was approved by the Fair Work Commission on 23 December 2020. A copy of the Commission’s decision is annexed and marked “SOAF-1”.
THE AFFECTED WORKER
[5] At all material times Craig Duncan was:
a. a national system employee;
b. employed by the Respondent;
c. a member of the Claimant; and
d. entitled to the terms of the Agreement.
[6] Mr Duncan’s usual place of work is the Port of Burnie in Tasmania, which is approximately four-hours’ drive from the Port of Risdon.
[7] On Saturday, 15 January 2022, the Respondent verbally requested Mr Duncan to work a 12- hour shift on 17 January 2022 at the Port of Risdon, which constituted an intra port transfer within the meaning of the Agreement.
[8] On Saturday, 15 January 2022, Mr Duncan confirmed his availability and accepted the Respondent’s request.
[9] On Sunday, 16 January 2022, the Respondent rostered Mr Duncan to work at the Port of Risdon by sending him a notification via “Microster”, the Respondent’s computer-based roster allocation system.
[10] On Sunday, 16 January 2022, Mr Duncan drove to, and accommodated himself in, Risdon.
[11] On Monday, 17 January 2022, Mr Duncan worked a 12-hour shift at the Port of Risdon.
[12] On Monday, 17 January 2022, Mr Duncan was restricted from returning to his usual place of work because:
a. Part A, Clause 26.5 of the Agreement provides that the maximum travel time and actual hours worked in any one day must not exceed 14 hours; and
b. Mr Duncan’s travel time and actual hours worked would have accumulated to 16 hours.
[13] Following the shift referred at paragraph 11 above, and for the reasons outlined at paragraph 12 above, Mr Duncan accommodated himself overnight in Risdon.
[14] On 19 January 2022, Mr Duncan notified Mr Ben Ward, who at the relevant time was the Site Supervisor for the Respondent, by email that he had only been paid an intra port transfer allowance for one of the two nights he had accommodated himself in Risdon.
[15] On 20 January 2022, Mr Ward instructed the Respondent’s payroll to pay to Mr Duncan an additional intra port transfer allowance of $229.83.
[16] On 21 January 2022, the Respondent paid Mr Duncan an additional intra port transfer allowance of $229.83.

[signatures and annexures removed]