Western Australian Industrial Relations Commission

Penalty to be paid for contraventions

The Industrial Magistrate's Court has issued supplementary reasons for decision in relation to an application made by the claimant that sought orders for a pecuniary penalty and an award for costs. This application follows a determination that the first respondent had engaged in contraventions that arose from a dispute concerning the applicability of the Banking, Finance and Insurance Award 2010 (the Award) to the claimant's employment (the substantive decision can be found here). The first respondent is the company that had employed the claimant. The second respondent is a company director of the first respondent the first instance claim against them was not found to be proven.

In order to assess pecuniary penalties, Industrial Magistrate Scaddan considered that the first respondent's contraventions in failing to pay ordinary pay, overtime and penalty rates, annual leave and annual leave loading and associated superannuation will be treated as a single contravention. This was because they were committed by the same person and arose out of a course of conduct by that person in accordance with section 557(1) of the Fair Work Act 2009 (Cth) (the Act).

Scaddan IM then treated the other two contraventions, for failing to provide copies of the National Employment Standards and the Award and failing to keep and maintain employment records, as two separate single contraventions.

Scaddan IM found that in all of the circumstances the first respondent's conduct is properly categorised as low range. The circumstances that were considered by Scaddan IM were that:

  1. The determination of the claim required consideration and construction of the Award and its applicability to the claimant,
  2. The first respondent's failure to pay entitlements was not a gross failure and did not deprive an employee of an entitlement often seen by the court,
  3. No evidence was raised about the size of the company and the claimant did not satisfy the court of the second respondent's involvement in the contraventions,
  4. The emails between the claimant and second respondent do not suggest that the second respondent is taking advantage of the claimant or being oppressive or threatening,
  5. The claimant had overstated his evidence about the impact of the first respondent's actions,
  6. The claimant was not found to be in a position of particular vulnerability,
  7. A lack contrition is not an aggravating circumstance that can increase a penalty,
  8. There was no evidence that the first respondent had exploited or profited from exploiting the claimant,
  9. The first respondent has not previously contravened the Act, and
  10. The first respondent did not attempt to hide any of its contraventions.

The primary purpose of a civil remedy 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. Scaddan IM awarded the claimant a pecuniary sum for the contraventions that was proportionate to the gravity of the contravening conduct.

Scaddan IM next dismissed the application for costs because the parties had conducted the litigation in an efficient manner and her Honour was not satisfied that there was no substantial prospect of success that would warrant an award for costs.

The decision can be read here.

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