2024 WAIRC 00792
INDUSTRIAL MAGISTRATES COURT OF WESTERN AUSTRALIA

CITATION
:
2024 WAIRC 00792



CORAM
:
INDUSTRIAL MAGISTRATE D. SCADDAN



HEARD
:
WEDNESDAY, 14 AUGUST 2024



DELIVERED
:
FRIDAY, 30 AUGUST 2024



FILE NO.
:
M 119 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) - Contravention of Modern Award – Failure to pay for Closed Port Day and National Public Holidays
Legislation : Fair Work Act 2009 (Cth)
Industrial Relations Act 1979 (WA)
Crimes Act 1914 (Cth)
Industrial Magistrate's Court (General Jurisdiction) Regulations 2005 (WA)
Instrument : Qube Ports Pty Ltd Port of Port Hedland Enterprise Agreement 2020
Qube Ports Pty Ltd Port of Port Hedland Enterprise Agreement 2016
Case(s) referred
to in reasons: : Construction, Forestry and Maritime Employees Union v Qube Ports Pty Ltd [2024] WAIRC 220
Milardovic v Vemco Services Pty Ltd (No 2) [2016] FCA 244; 242 FCR 492
Australian Building and Construction Commissioner v Pattinson [2022] HCA 13; 274 CLR 450
Fair Work Ombudsman v Priority Matters Pty Ltd (No 5) [2020] FCCA 901
Fair Work Ombudsman v Grouped Property Services Pty Ltd (No 2) [2017] FCA 557
Heal v Sydney Flames Basketball Pty Ltd (No 2) [2024] FCA 794
Construction, Forestry, Mining and Energy Union v Hail Creek Coal Pty Ltd (No 2) [2018] FCA 480
Commonwealth v Director, Fair Work Building Industry Inspectorate [2015] HCA 46; 258 CLR 482
Trade Practices Commission v CSR Ltd [1990] FCA 762; [1991] ATPR 41-076
Miller v Minister of Pensions [1947] 2 All ER 372
Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336
Sammut v AVM Holdings Pty Ltd [No2] [2012] WASC 27
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
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
Sayed v Construction, Forestry, Mining and Energy Union [2016] FCAFC 4; 239 FCR 336
Gibbs v The Mayor, Councillors and Citizens of City of Altona [1992] FCA 553; 37 FCR 216
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 29 September 2023, the claimant lodged M 119 of 2023 alleging the respondent contravened the Qube Ports Pty Ltd Port of Port Hedland Enterprise Agreement 2020 (EA 2020) as it related to Robert Sells (Mr Sells), a Variable Salaried Employee (VSE) employed at the port of Port Hedland, by failing to pay him for identified public holidays and Closed Port Days (CPD) not worked (the Claim).
2 The respondent initially denied the Claim.
3 Following a pre-trial conference, the Clerk of the Industrial Magistrates Court (IMC or Court) made programming orders to list the Claim for trial (the Programming Orders).
4 On 27 March 2024, the respondent applied to the IMC for the vacation of the Programming Orders where the respondent now accepted that upon a proper construction it had contravened EA 2020. There was conferral between the parties concerning dates the claimant alleged were not paid and dates the respondent maintained it had paid Mr Sells.
5 On 24 May 2024, the respondent lodged an amended response partially admitting the Claim where it admitted between 25 December 2017 to 25 April 2023, it did not pay Mr Sells for five public holidays not worked and seven CPD not worked. The respondent further admitted that by failing to pay Mr Sells, it had contravened s 50 of the Fair Work Act 2009 (Cth) (FWA).
6 Other dates continued to be disputed until around 30 July 2024 when the respondent admitted it had incorrectly deducted a day of annual leave from Mr Sells relevant leave balance and paid Mr Sells for the leave taken. However, what the respondent should have done was to have paid Mr Sells for seven hours at the Grade 2 cl 11 rate for a public holiday not worked and not deducted leave from his leave balance for the days not worked.
7 Further programming orders were made in relation to hearing and determining the claimant’s application for the imposition of pecuniary penalties in respect of the admitted contraventions.
8 Schedule I of these reasons outlines the jurisdiction, standard of proof and practice and procedure of the IMC.
9 Schedule II of these reasons outlines the provisions of the FWA and principles relevant in determining an appropriate pecuniary penalty (if any) for the respondent’s contraventions.
The Agreed Facts
10 The parties filed an Amended Statement of Agreed Facts on 17 June 2024 and a further Amended Statement of Agreed Facts on 1 August 2024.
11 The salient facts include that the Qube Ports Pty Ltd Port of Port Hedland Enterprise Agreement 2016 (EA 2016) and EA 2020 covered and applied to the respondent and Mr Sells, as an employee of the respondent.
12 The claimant is an employee organisation with standing to commence M 119 of 2023.
13 The respondent is a national system employer and constitutional corporation and is engaged in the business of stevedoring.
14 EA 2016 and EA 2020 both provide for the employment classification of VSE and define a VSE in cl 2.1(p) as an employee ‘who is irregularly engaged to work and is paid a minimum salary in accordance with cl 9.5 of this Agreement’.
15 Clause 33.3.2(d) of Part A of EA 2016 and EA 2020 provides a ‘VSE or PVSE will be paid seven hours at the Grade 2 clause 11 rate’ and cl 33.3.4(d) of Part A of EA 2016 and EA 2020 provides a ‘VSE or PVSE will be paid seven hours at the Grade 2 clause 11 rate’.
16 Mr Sells was employed as a permanent VSE at the port of Port Hedland and entitled to the terms of EA 2016 and EA 2020.
17 Mr Sells did not work, was not paid, and was entitled to be paid seven hours at the Grade 2 cl 11 rate for the following public holidays:
· 2 March 2020
· 1 June 2020
· 1 March 2021
· 25 April 2021
· 25 December 2021
· 3 January 2022
· 15 April 2022
· 25 April 2022
· 22 September 2022
· 26 January 2023; and
· 25 April 2023
18 Mr Sells took annual leave, personal leave or long service leave on other public holidays where the respondent incorrectly deducted a day of annual leave from his leave balance and paid him for the leave taken. The respondent should have paid Mr Sells for seven hours at the Grade 2 cl 11 rate for a public holiday not worked. These dates include:
· 25 and 26 December 2017
· 28 January 2019
· 4 March 2019
· 25 December 2019
· 27 January 2020
· 25, 26 and 28 December 2020
· 1 and 26 January 2021
· 5 April 2021
· 26 December 2021
· 1 March 2022
· 7 March 2022; and
· 26 December 2022
19 At the penalty hearing, the respondent’s counsel informed the Court that Mr Sells had been paid the amounts owed pursuant to cl 33.3.2(d) and cl 33.3.4(d) of EA 2016 and EA 2020, and had his deducted leave credited to his leave balance.
Other Evidence
20 The claimant relies upon a witness statement signed by Mr Sells on 25 June 2024 (the Sells Statement).
21 In the Sells Statement, Mr Sells identified dates in dispute (now no longer in dispute) referred in paragraph [18] above. Sells Statement at [9].

22 The respondent relies upon an affidavit affirmed by Andrew Rattery (Mr Rattery), Operations Manager, on 31 July 2024 (the Rattery Affidavit).
23 Mr Rattery attests to being employed by the respondent as Operations Manager since December 2017. His role includes the ‘safe, efficient, smooth and profitable delivery of the daily operational activity at the ports that Qube has operations at in the Pilbara region’. Rafferty Affidavit at [5].

24 His inquiries reveal the respondent employs 2,025 employees and approximately 10,109 employees are employed by the respondent and related bodies corporate. Rafferty Affidavit at [6].

25 The relevant Superintendent is responsible for manually uploading public holidays or CPD to Microster, the software system used by the respondent and the respondent’s payroll department Rafferty Affidavit at [7].

26 At the time of the underpayments (to presumably Mr Sells), the parties were in dispute over interpretations under EA 2016 and EA 2020 as it related to the entitlement to pay for employees not available to work on a public holiday or CPD. Rafferty Affidavit at [8].

27 The respondent’s view was that employees who were not available to work on these days were not entitled to payment, whereas the claimant’s view was to the contrary. Rafferty Affidavit at [8].

The Claimants’ Submissions on Penalty
28 Both parties refer to the law in respect of the determination of an appropriate pecuniary penalty for contraventions of the FWA.
29 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;
· the respondent has shown some contrition in making the admissions, although the admissions came late after the Claim was well advanced;
· the respondent has a history of non-compliance and has a ‘habit of treating their obligations with no small measure of disdain’; and
· 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. Ignorance is not an excuse for well-resourced employers.
30 The claimant reproduced the table presented to the Court in Construction, Forestry and Maritime Employees Union v Qube Ports Pty Ltd [2024] WAIRC 220 at [38] in support of its submission that ‘the [r]espondent does not have a company culture that is conducive to compliance with its obligations’.
31 Therefore, the need for specific and general deterrence is great.
32 A substantial, personal deterrent penalty is also called for as the respondent to deter future contraventions. The claimant submits a penalty of 75% of the maximum penalty, or $70,425, is an appropriate penalty.
33 The penalties should be awarded to the claimant in accordance with the decision in Milardovic v Vemco Services Pty Ltd (Administrators Appointed) [No 2] [2016] FCA 244; 242 FCR 492 [40].
The Respondent’s Submissions on Penalty
34 In summary, the respondent submits:
· it contravened EA 2016 and EA 2020 where Mr Sells was on approved annual and personal leave on days designated a public holiday or a CPD, and it deducted accruals for those periods of leave instead of paying Mr Sells seven hours at the Grade 2, cl 11 rate;
· the contravention should be considered a single course of conduct for the purposes of s 557 of the FWA where the contravention arose from a breach of identical terms of EA 2016 and EA 2020;
· the parties were in dispute over the interpretation of the relevant terms of EA 2016 and EA 2020 with each party holding opposing views and the dispute resolution process was used in two other similar claims;
· while not determinative, the claimant has not adduced evidence that Mr Sells suffered prejudice because of the delay in rectifying the leave and making the correct payment;
· the maximum penalty for a contravention of s 50 of the FWA (a civil remedy provision) relevant to a body corporate is 300 penalty units or $66,600; The value of a penalty unit at 22 December 2022 is $222.

· there is no appreciable role for specific deterrence in this claim, where a dispute arose over the interpretation of a term of EA 2016 and EA 2020 with the parties holding opposing views. The dispute was resolved using the dispute resolution procedures in the enterprise agreements when the respondent accepted that an employee who was not available to work on a public holiday or CPD was entitled to the relevant payment;
· the time taken to resolve the dispute should not be taken as the respondent engaging in a ‘deliberate’ course of action but indicative of the respondent holding a different view to the claimant;
· following the filing of this claim, the respondent admitted the breaches at the earliest possible stage;
· the respondent had been subject to four previous findings of contraventions of the FWA (three in this Court);
· two similar claims (M 76 and M 91 of 2022) are also before the Court to determine penalty involving: the ports of Dampier and Port Hedland; similar non-payments for public holidays or CPD not worked; similar date ranges; and a dispute as to the interpretation of the same clauses;
· where the respondent employs 2,025 employees and its varying groups employs 10,000 employees, the contraventions, when viewed in perspective, ‘belies the need for specific deterrence to any appreciable degree’;
· general deterrence also has a limited role where the respondent’s contravention affected (now) three employees, and the respondent has demonstrated early and active cooperation. This is not a case where the respondent has contumeliously failed to pay employees their lawful entitlement;
· there must be some reasonable relationship between the theoretical maximum and the final penalty imposed referrable to the circumstances of the conduct and the respondent. Having regard to all the circumstances, the contravention has a ‘low degree of objective seriousness’;
· the conduct was not deliberate, and the respondent never intended to escape its obligation to pay entitlements owed;
· it has apologised to Mr Sells and taken corrective action, demonstrating a willingness to learn from the proceedings and not to repeat the conduct;
· it has audited its payroll relating to the port of Port Hedland and will continue to do so to reduce future occurrences and has automated public holidays and CPD via the National Labour Centre to decrease the risk of future non-payments; and
· consistency of approach is an important consideration.
35 The respondent says that applying the principles in Australian Building and Construction Commissioner v Pattinson [2022] HCA 13; 274 CLR 450 (Pattinson), a significant penalty would be unreasonably oppressive and severe in the circumstances.
Determination On Penalty
36 The effect of s 557(1) of the FWA is that two or more contraventions of the FWA referred to in subsections (2) are taken to constitute a single contravention if they are committed by the same person and arose out of a course of conduct by that person.
In addition to the statutory course of conduct provision, it is open to the Court to consider the application of common law course of conduct principles where the contraventions contain common elements or can be said to overlap with each other… It may be appropriate for the Court to group contraventions where, if they were treated separately, this would potentially penalise a respondent twice … Fair Work Ombudsman v Priority Matters Pty Ltd (No 5) [2020] FCCA 901 [28] (other citations omitted).

37 Having regard to the parties’ submissions and to the Agreed Facts, I am satisfied that the contraventions, having been committed by the respondent against the one employee and arising from a breach of the same terms of EA 2016 and EA 2020, are properly taken to constitute a single contravention. The parties appear to accept this in their submissions.
38 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.
39 I note the claimant seeks 75% of the maximum penalty and calculates this as $70,425, which means the claimant’s theoretical maximum penalty is $93,900 (based on the value of a penalty unit being $313). The value of a penalty increased from $275 to $313 on 1 July 2023 via the Crimes (Amount of Penalty Unit) Instrument 2023, and thus the claimant's theoretical maximum penalty is not applicable in this claim.
40 However, the respondent’s theoretical maximum penalty may also not be theoretically correct, where two of the breaches occurred between 1 January and 30 June 2023 when the value of the penalty unit was $275. There is no doubt that most breaches occurred when the penalty unit's value was $222.
41 Where a contravention spans two or more penalty periods, the Court will generally apply the higher penalty unit for the purpose of determining the maximum penalty, but, when assessing the penalty, take into account whether the contravening conduct had occurred during a period or periods in which the value of the penalty unit was lower: Fair Work Ombudsman v Grouped Property Services Pty Ltd (No 2) [2017] FCA 557 at [396]  [401] (Katzmann J) and also referred to in Heal v Sydney Flames Basketball Pty Ltd (No 2) [2024] FCA 794.
42 Therefore, the theoretical maximum is $82,500, although of the 27 dates where the payment was not made, only two of those dates occurred when the penalty unit was $275 with the remainder of the dates (approximately 92.5%) occurring when the penalty unit was $222.
43 Therefore, the following considerations are significant in assessing the appropriate penalty in this case:
Whether the organisation has engaged in similar conduct
44 There are three similar claims before the IMC, being M 76 of 2022, M 91 of 2022 and M 119 of 2023. Arguably, the respondent has engaged in similar conduct, but I note that the disputes involve similar issues with two of the three claims being over a similar time period. This claim has a historical component. I also note that the claims involve the ports of Dampier and Port Hedland.
45 The claimant also refers to other claims against the respondent. In Construction, Forestry and Maritime Employees Union v Qube Ports Pty Ltd 2024 WAIRC 220 at [38] (including footnote 2), I outlined claims referred to by the same claimant. At [53], I commented on the claimant’s submission regarding the respondent’s history of purported non-compliance. I do not resile from that comment. The difference with respect to M 76 of 2022 and M 91 of 2022 and this claim is that the respondent’s contraventions extend across three employees, albeit its genesis is rooted in the same erroneous view. I am not persuaded this means the respondent is a recalcitrant contravener who displays contemptuous disregard for employment law. However, the respondent or the respondent’s management should adopt a more cautious and timely approach as it relates to employee entitlements, even if invoking the dispute resolution procedure.
Whether the conduct was deliberate
46 The payments for public holidays and CPDs not worked were in issue in similar claims, M 76 of 2022 and M 91 of 2022, where employees contested the respondent’s reason for non-payment and the proper construction of EA 2016 and EA 2020 was far from certain, such that the respondent can be characterised as having ‘taken the odds’: Construction, Forestry, Mining and Energy Union v Hail Creek Coal Pty Ltd (No 2) [2018] FCA 480 (Hail Creek) at [17]. That is, in M 76 of 2022 and M 91 of 2022, in invoking the dispute resolution process, the respondent must have been aware of, and elected to, take the risk that its conduct if not would, then might, contravene s 50 of the FWA. This is relevant in this claim because the respondent should have been on notice that there was an issue at the port of Port Hedland.
47 I accept that, unlike in Hail Creek, there is no evidence the respondent should have had a heightened awareness of the risk it took from an erroneous construction because it had previously been found to have contravened EA 2016 or EA 2020 and had pecuniary penalties imposed: Hail Creek at [18].
48 However, there is no clear explanation, save for the checking of dates, why this claim was not resolved earlier when a similar issue had been admitted by the respondent in M 76 of 2022 and M 91 of 2022 at end of 2022.
49 There is no evidence that in not making the payments to Mr Sells, the respondent obtained, or sought to obtain, any financial benefit.
50 Notwithstanding this, where the construction of terms of EA 2016 and EA 2020 were squarely in issue, a more cautious and timely approach was prudent.
51 I do not necessarily conclude from the above that the conduct was to deliberately evade employee obligations. However, what is not clearly explained is the reason for the lack of consistency of approach. I resist drawing adverse inferences against the respondent because, simply, the lack of evidence all round invites speculation rather than an evidentiary basis upon which an inference should be drawn.
Corrective action
52 Mr Sells has been paid for public holidays and CPDs consistent with the obligations under EA 2016 and EA 2020 and has been credited to his leave balance the leave taken by the respondent. The respondent has automated public holidays and CPDs via its National Labour Centre reducing the risk of future repetition in respect of non-payment of these days.
Contrition and avoidance of repetition
53 The respondent has apologised and there is no evidence that indicates the apology is not genuine. The claimant accepts there has been some contrition by the respondent. The respondent has cooperated in the legal proceedings. However, I note my comments above, and unlike in M 76 of 2022 and M 91 of 2022 where the respondent was quick to make appropriate admissions (the delay in the proceedings being attributable to the resolution of an unrelated issue in favour of the respondent), the respondent has not provided a clear explanation for the delay in making similar admissions in this claim, beyond checking dates of payment.
The size of the entity and involvement of senior management
54 The respondent is a large business in Australia and can reasonably be expected to have in place systems that reduce the risk of underpayments to employees. True enough, mistakes can happen, and there may be differences in opinion in interpreting industrial instruments. However, it is also reasonable to infer that the respondent is well resourced and, as stated, could have sought timely advice.
Loss or damage suffered as a result
55 Mr Sell’s consequential ‘loss’ (being the actual entitlements) is reasonable and for a time affected his leave balance, although, albeit after the proceedings commenced. There is no evidence he otherwise suffered loss or damage or prejudice.
56 While I am satisfied the contravening conduct in all circumstances is properly categorised in the low range, any discount for cooperation and contrition should be less than that in M 76 of 2022 and M 91 of 2022. A percentage discount of 20% is appropriate taking into account some contrition, rectification by the respondent and the respondent’s cooperation in the proceedings.
57 Further, a discount is also appropriate where 92.5% of the contravening conduct occurred when the value of the penalty unit was $222. I attribute a 15% discount to contravening conduct predominantly occurring in the period where a lower penalty unit value applied. $66,600 is approximately 80% of the theoretical maximum and a percentage difference is attributed.

58 Considering the above, specific deterrence is important in this case although the need to deter employers more generally in contraventions of the FWA and ensure the public interest in the protection of employee entitlements assumes more importance.
59 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].

60 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 ‘one-off’ 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].
This is not such a case.
61 For these reasons, the penalty to be applied is:

Maximum
Penalty applied
Breach of Agreement contravention
$82,500




One single contravention (s 557(1) and (2))
with discount applied

$6,000

62 In my view, no reduction for totality is required, where $6,000 is an appropriate penalty ‘that strikes a reasonable balance between oppressive severity and the need for deterrence in respect of the particular case.’ Pattinson [46].
This would also be consistent with the principle that the penalty must not be excessive and be just and appropriate in all the circumstances of the case.
63 The claimant seeks an order pursuant to s 546(3)(c) of the FWA that the penalties be paid to the claimant. An order will be made that the respondent pay the penalty of $6,000 to the claimant.
Orders
64 In respect of M 119 of 2023, the respondent is to pay to the claimant a pecuniary penalty of $6,000.



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 (IMC or Court), 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 obligations 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; (1938) 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 (citations omitted):
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]

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:
December 2020
January 2022
December 2022
January – April 2023
$ 222
$ 222
$ 222
$ 275
[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) [388] in the following terms (omitting citations):
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.
[4] In Pattinson [42], 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] The 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.’ (Buchanan J in Australian Ophthalmic Supplies Pty Ltd v McAlary-Smith [2008] FCAFC 8; 165 FCR 560 [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 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 apply to cases where the contravening conduct results in the contravention of multiple civil penalty provisions (example (a) above): Grouped Property Services Pty Ltd (No 2) [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 Pty Ltd v McAlary-Smith [2008] FCAFC 8 (2008); 165 FCR 560 [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 v Vemco Services Pty Ltd (No 2) [2016] FCA 244 [40] - [44], Mortimer J, in light of Sayed v Construction, Forestry, Mining and Energy Union [2016] FCAFC 4; 239 FCR 336, summarised the law: (omitting citations)
[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)