Western Australian Industrial Relations Commission

Quantum and penalties determined

The Industrial Magistrate's Court has issued a decision about a claimant's claim for a pecuniary penalty and an amount for underpayments following a determination by the Court that the employer had contravened the Fair Work Act 2009 (Cth) (the Act) and did not pay the claimant the amount owed under the Long Service Leave Act 1958 (WA) (the substantive decision can be found here). The claimant had been unsuccessful in his claim against a second respondent who is a company director of the employer.

The parties reached an agreement on the quantum of the underpayment claim and Scaddan IM made orders that the first respondent pay the total agreed amount within 28 days.

As to the penalties to be paid, Scaddan IM considered that section 557(1) of the Act would apply to several of the first respondent's contraventions and cause them to be treated as a single contravention because there was either a commonality in the conduct or the contravention flowed from a course of conduct.

Her Honour found that punishment and specific deterrence are less important than the need to deter employers from generally contravening the Act. Scaddan IM held that, in all the circumstances, the conduct was properly categorised as low range and ordered that a pecuniary penalty be paid to the claimant for each contravention.

Scaddan IM considered the first respondent's application for costs and found that the claimant had held out for the payment of a civil penalty in circumstances where the first respondent had previously made a reasonable offer. Her Honour determined that not accepting this offer was unreasonable. This caused the respondent to incur further costs. Scaddan IM concluded that the claimant should pay 50% of the respondents' costs on a solicitor/client basis, which were incurred from the date that the reasonable offer was rejected until the date that the Court facilitated the claimant's reconsideration of the offer to settle, because the claimant was partly successful in his claim.

The decision can be read here.

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