2025 WAIRC 00913
INDUSTRIAL MAGISTRATES COURT OF WESTERN AUSTRALIA


CITATION
:
2025 WAIRC 00913



CORAM
:
INDUSTRIAL MAGISTRATE D. SCADDAN



HEARD
:
WEDNESDAY, 13 AUGUST 2025



DELIVERED
:
FRIDAY, 7 NOVEMBER 2025



FILE NO.
:
M 2 OF 2024



BETWEEN
:
CONSTRUCTION, FORESTRY AND MARITIME EMPLOYEES UNION


CLAIMANT





AND





QUBE PORTS PTY LTD


RESPONDENT

CatchWords : INDUSTRIAL LAW – FAIR WORK – Determination of an amount required to be paid under industrial instrument - Assessment of pecuniary penalties for contraventions of Fair Work Act 2009 (Cth) – Contravention of an enterprise agreement
Legislation : Fair Work Act 2009 (Cth)
Crimes Act 1914 (Cth)
Instrument : Qube Ports Pty Ltd Port of Dampier Enterprise Agreement 2020
Cases referred
to in reasons: : Construction, Forestry and Maritime employees Union v Qube Ports Pty Ltd [2024] WAIRC 01031
Australian Building and Construction Commissioner v Pattinson [2022] HCA 13; (2022) 274 CLR 450
Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Telstra Corporation Ltd [2007] FCA 1607
Australian Rail, Tram and Bus Industry Union v Qube Logistics (Rail) Pty Ltd [2020] FCA 1520
Construction, Forestry, Mining and Energy Union v Hail Creek Coal Pty Ltd (No 2) [2018] FCA 480
Construction, Forestry and Maritime Employees Union v Qube Ports Pty Ltd [2024] WAIRC 00789; (2024) 104 WAIG 1866
Construction, Forestry and Maritime Employees Union v Qube Ports Pty Ltd [2024] WAIRC 00792; (2024) 104 WAIG 1857
Construction, Forestry and Maritime Employees Union v Qube Ports Pty Ltd [2025] FCA 208
Construction, Forestry and Maritime Employees Union v Qube Ports Pty Ltd [2023] WAIRC 00976; (2024) 104 WAIG 121
Construction, Forestry and Maritime Employees Union v Qube Ports Pty Ltd [2024] WAIRC 00220; (2024) 104 WAIG 660
Construction, Forestry and Maritime Employees Union v Qube Ports Pty Ltd (Industrial Magistrates Court of Western Australia, Magistrate Coleman, 23 November 2023)
Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (No 2) [2018] FCA 1211; (2018) 70 AILR 102-975
Australian Building and Construction Commissioner v Powell (No 2) [2019] FCA 972
Auimatagi v Australian Building and Construction Commissioner [2018] FCAFC 191
Result : Quantum Determined. Penalty Imposed.
Representation:
Claimant : Mr K. Sneddon (of counsel)
Respondent : Mr J. McLean (of counsel)



REASONS FOR DECISION (PENALTY AND QUANTUM)
1 On 12 December 2024, the Industrial Magistrates Court of Western Australia (the Court, or IMC) published reasons for decision in respect of the preferred construction of the application and payment of overtime for Provisional Full-Time Salaried Employees (PFSE) under the terms of the Qube Ports Pty Ltd Port of Dampier Enterprise Agreement 2020 (EA 2020) (the Liability Decision). CFMEU v Qube Ports Pty Ltd [2024] WAIRC 01031 (Liability Decision).

2 As foreshadowed in the hearing on 10 October 2024 and in the Liability Decision, it was anticipated that further argument would follow in respect of the calculation of any amount that may be liable to be paid to the affected worker, Wayne Gordon (Mr Gordon), and the imposition of an appropriate civil penalty. These are the reasons in respect of quantum and the imposition of a penalty.
3 In the Liability Decision, the Court found that Qube Ports Pty Ltd (Qube) had breached Part A, cl 23.1, when read with Part B, cl 6, of EA 2020, and, therefore, contravened s 50 of the Fair Work Act 2009 (Cth) (FWA), by failing to pay Mr Gordon in accordance with Part B, cl 2 of EA 2020.
Quantum
4 Based on the claimant’s oral submissions on 10 October 2024, the Court’s understanding was that there was a Disputed Period See the Liability Decision at [11] and [12].
from 16 April 2022 to 14 May 2022 where Mr Gordon was not paid the relevant Supplementary Employee (SE) rate. It was never the case that Mr Gordon was not paid at all, as evidence tendered by Qube for the quantum and penalty hearing confirms. Exhibit 1 - Witness Statement of Anthony James Stone dated 1 August 2025 at TS2.

5 What has emerged since is that there are two possible methods of computing the amount owed to Mr Gordon with two possible amounts liable to be paid to him. Unsurprisingly, the claimant prefers the method that yields the higher of the two amounts, while Qube favours the method that results in the lower amount. The Court is now tasked with determining which of the two methods is the preferred method in light of the findings in the Liability Decision and having regard to the terms of EA 2020.
6 To that end, Qube relies on a witness statement of Anthony James Stone (Mr Stone) dated 1 August 2025 with attachments TS2 to TS5, which are four spreadsheets of calculations using the two methodologies and includes all payments made to Mr Gordon. Mr Stone summarises the two methodologies in a table. The table is reproduced below:
Approach
Approach to Annualised Accumulated Hours (AAH) target
Approach to overtime hours
First Approach
(TS2)
Hours worked by the Affected Worker as a Guaranteed Wage Employee (GWE)/Variable Salary Employee (VSE) are counted towards the AAH target of 1,820 hours upon converting to a PFSE, converting 1:1.
Once the AAH target of 1,820 hours is reached, the Affected Worker is entitled to the continued benefit of the PFSE base rate for the rest of the year and the supplementary (overtime) rate.
Second Approach
(TS3)
Hours worked by the Affected Worker as a GWE/VSE are counted towards the AAH target of 1,820 hours upon converting to a PFSE, converting 1:1.
Once the AAH target of 1,820 hours is reached, the Affected Worker is entitled to the continued benefit of the PFSE base rate but only in respect of any hours that have been worked but not yet paid as a PFSE under the AAH target of 1,820 hours (in this case, that figure is 63 hours, which is calculated by reference to the period between 24 January 2022 and 15 April 2022 in which the Affected Worker worked 473 hours but was paid for 410 hours). In addition, the Affected Worker is entitled to the benefit of the supplementary (overtime) rate in respect of all hours worked above the AAH target of 1,820 hours.

7 The claimant does not cavil with Qube’s computations accepting Qube has all of the necessary source information to populate the four spreadsheets. The claimant says the preferred methodology is the first approach. Qube says that the preferred methodology is the second approach.
8 At its core, the issue concerns the payment of the PFSE base rate of pay.
9 The first method is set out in Exhibit 1 at TS2 and TS4 resulting in the amount required to be paid by Qube being $18,750.32.
10 The second method is set out in Exhibit 1 at TS3 and TS5 resulting in the amount required to be paid by Qube being $2,188.80.
11 Both methods use the total number of hours (2,334 hours) worked by Mr Gordon from 1 July 2021 to 30 June 2022 (a ‘Year’). ‘Year’ is defined in EA 2020 to mean 1 July to 30 June.
Both methods provide a comparator of the hypothetical worker who is employed as a PFSE for the entire Year. Mr Gordon converted from a GWE and VSE to PFSE in January 2022.
12 As noted during the hearing, EA 2020 does not address how to treat employees who transition mid-Year between employment categories within the EA 2020 hierarchy of employment categories. There are a series of largely immutable terms more designed to apply to each category of employment on a year-by-year basis. The simple application of which is to transition employees at the beginning of the Year rather than midway through.
13 For the purpose of these reasons, I adopt paragraph [25] and Schedules I and II referred to in the Liability Decision.
14 Schedule I to these reasons are the principles relevant to the imposition of a civil pecuniary penalty.
15 Schedule II to these reasons are copies of Exhibit 1, TS4 and TS5.
The Preferred Method
16 The preferred method for calculating the amount to be paid to Mr Gordon, both in relation to the Dispute Period and for the period 1 July 2021 to 30 June 2022, is the second method (as set out in Exhibit 1 at TS3).
17 The over-arching factor underpinning the amount paid to employees in wages or salaries and the payment of overtime is the requirement to work a minimum of 1,820 hours, whether it be as annualised hours or hours worked. Part A, cl 11.4 of EA 2020 provides an explanation for 1,820 hours.
One thousand eight hundred and twenty (1,820) hours is predicated on a 35-hour working week averaged over 12 months where an employee may be required to work 30 hours one week and 40 hours the next week taking into account industry and commercial conditions.
18 Save for only in a limited circumstance in cl 9.3.4 of EA 2020, Full-Time Salaried Employees (FSE) and PFSE hours worked over the annualised hours cannot be rolled over to the next Year’s hours. Unless cl 9.3.4 of EA 2020 applies, any short fall in annualised hours in one Year ceases to exist in the following Year. There is also provision for economic conditions in Part A, cl 13 to operate on shortfall hours.

19 The salaries for FSE and PFSE are set out in the table in Part B, cl 2.1 of EA 2020, which is predicated on the employee working a minimum of 1,820 hours per Year. While the payment of minimum fortnightly payments for FSE and PFSE is 1/26 of the relevant salary in this table, Part A, cl 23 and Part B, cl 2.1.1 of EA 2020 also provides for the payment of salaries or wages on a fortnightly basis.
the intended application of this works when the employee is employed as a FSE or PFSE for the Year. For want of a better expression, it is ‘salary smoothing’, but it does not alter the fundamentals of what the employer is required to pay in terms of the salary and the hours of work for that salary.
20 Once 1,820 hours have been worked, either as annualised hours or worked hours, then overtime is applicable to hours worked over 1,820 hours, albeit there is no obligation on any employee to work overtime.
21 Therefore, payment for hours worked as overtime (that is, hours worked over 1,820 hours) is not payment for hours worked as part of an employee’s base rate of pay.
22 Where an employee is employed as a PFSE and works over a Year, and the same employee works 1,820 hours before the Year’s end, they will not have been paid the annual salary for the Year. This employee will have the choice of not working for the remainder of the year and receiving the remaining annual salary on a fortnightly basis until Year’s end or working additional hours and receive overtime rates for those hours worked. In this scenario there is no duplication of salary and overtime rates, or a ‘double dipping’ effect, because the employee has not received all of the relevant annual salary for the 1,820 hours worked at the time they chose to do overtime work.
23 Similarly, if an employee is employed as a VSE, Provisional VSE (PVSE) or GWE and works over a Year, the employee is essentially paid for the hours they actually worked (see Exhibit 1 at TS2 or TS3). While there is a fortnight guarantee payment, if the actual earnings do not meet the minimum, it can be deducted from actual earnings in any subsequent periods in which earnings exceed the minimum payment. Part A, cl 9.6.4(a) and (b) and cl 9.7.4(a) and (b) when read with Part B, cl 2.2.2 of EA 2020.

24 However, for an employee transitioning to PFSE during the Year, the ‘double dipping’ effect is genuine and, as a matter of commercial logic, it is improbable that this was the drafters’ intent. Equally, it seems unlikely the drafters intended a PFSE to be disadvantaged compared to an employee in a lower classification, despite working the same annualised and overtime hours
25 That is, where an employee transitions to PFSE during the Year, all hours worked count toward the 1,820 annual hours – both for salary and overtime purposes. To conclude otherwise, in my view, would be to construct an artificial scenario unsupported by the terms of EA 2020. I note that Qube attempted to address this ‘gap’ by applying a pro rata approach to hours worked as a PFSE.
26 This means that for an employee transitioning to PFSE during the Year there may come a point where the payment of the base rate of pay referred to in Part B, cl 2.1 of EA 2020 may phase out where the employee has worked 1,820 hours and has been paid the required annualised salary. Thereafter, if the same employee continues to work, they are eligible to be paid the applicable SE hourly rate provided in the table in Part B, cl 2.3.1 for overtime work, Part B, cl 6.2 of EA 2020.
but not the base rate of pay.
27 If the employee was paid both the overtime hourly rate and the base rate of pay, as suggested by the claimant, they are being paid twice for the same work. I do not accept this was intended by the drafters or by having regard to the whole of EA 2020.
28 The comparison between GWE/VSE and PFSE in Exhibit 1 TS2 to TS3 shows the ‘double dipping’ effect in continuing to pay the base rate of pay.
Application of the Preferred Method
29 The effect of this for Mr Gordon was that on 23 January 2022, his wages had exceeded the annual minimum for a VSE/PVSE employee but he had worked 1,346.5 hours before transitioning to a PFSE. Thereafter, there were 473.5 hours to be worked before overtime rates applied, following which, had he remained a VSE/PVSE, he would have been entitled to be paid the applicable SE hourly rate.
30 However, Mr Gordon did not remain employed as a VSE/PVSE, nor was he a PFSE from 1 July 2021.
31 Mr Gordon completed 1,819.5 hours (rounded to 1,820 hours) on 15 April 2022, and he had been employed as a PFSE from 24 January 2022, during which time he was paid the base rate of pay as a PFSE provided in the table in Part B, cl 2.1 of EA 2020. Due to the system of credits and debits used by Qube and its employees, Mr Gordon had worked 473 hours in this time but had been paid for 410 hours, which meant he had 63 hours of annualised salary to be paid for Qube to acquit its obligations under Part B, cl 2.1.
32 According to the analysis in Exhibit 1 – TS3 and TS5, Qube’s acquittal of the credit of 63 hours of annualised salary ended part way through 28 April 2022. This was the point that Qube had discharged its obligation to pay Mr Gordon’s salary for all 1,820 hours, noting that because Mr Gordon was now working overtime hours, Qube was also required to pay the applicable SE hourly rate.
33 From partway through 28 April 2022 to 30 June 2022, Qube’s requirement was to pay the SE hourly rate for any hours worked.
34 The outcome of this analysis is that in accepting the second method suggested by Qube, I also accept, and I find that for the period 16 April 2022 to 30 June 2022 (which includes the Disputed Period), Qube paid Mr Gordon $37,720.57 whereas Qube should have paid Mr Gordon $39,909.38. That is, the amount required to be paid to Mr Gordon by Qube under the terms of EA 2020 is $2,188.80 on account of overtime payments not paid.
35 I also observe that in reaching this finding, not only is the hypothetical PFSE employed in that position for a Year no worse off, neither is Mr Gordon in transitioning to the same position.
Penalty
Evidence
36 Qube relied upon a witness statement of Daniel Raul Ortiz (Mr Ortiz) dated 1 August 2025. Exhibit 2 – Witness Statement of Daniel Raul Ortiz dated 1 August 2025.

37 Mr Ortiz is employed by Qube Holdings Limited as the Group General Manager – Industrial Relations and he has held this position since February 2025, prior to which he was employed as General Manager – Industrial Relations since July 2022. He is authorised to give evidence on behalf of Qube. Exhibit 2 at [2].

38 In summary, Mr Ortiz is responsible for negotiating and drafting enterprise agreements relating to the respondent’s businesses, employee engagement, and ensures that the respondent and its entities comply with requirements under applicable industrial instruments. Exhibit 2 at [6].

39 In addition to stevedoring operations at the Port of Dampier, Qube has stevedoring operations at 18 other ports in Australia, where the employees are covered by port-specific enterprise agreements containing similar terms to EA 2020. Exhibit 2 at [16].

40 Mr Ortiz refers to his witness statement prepared for the first hearing in this claim and explains the reason why Qube applied a pro rata formula to an employee transitioning from GWE/VSE to PFSE for the purpose of calculating the hours worked towards the annualised hours required of a PFSE (or FSE). Qube’s approach, which was not accepted by the Court, did not necessarily result in Qube being better off, albeit the claimant’s approach resulted in Mr Gordon being better off, but it was more favourable for employees with fewer working hours at the time of their appointment as a PFSE. Exhibit 2 at [12].

41 Mr Ortiz says Qube dedicates significant resources to ensuring compliance with its industrial obligations. The complexity of its industrial arrangements can result in inadvertent errors, but Qube attempts to work through these errors to ensure employees receive their full entitlements. Qube appreciates that any error, even inadvertent errors based on a misconstruction of a term of an enterprise agreement, is unacceptable, and continues to invest heavily in its systems to minimise the risks of errors occurring. Exhibit 2 at [15].

42 Mr Ortiz sets out Qube’s community commitments as a responsible corporate citizen. Exhibit 2 at [17] and [18].

Submissions 
43 Both parties refer to the law in respect of the determination of an appropriate pecuniary penalty for contraventions of the FWA. I do not intend to recite the parties’ references to the applicable law. Schedule I to these reasons sets out a summary of those principles.
Claimant 
44 In summary, the claimant submits that: 
(a) 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;
(b) contraventions of s 50 of the FWA are contraventions of a civil remedy provision: s 539(2) of the FWA;
(c) the applicable rate of the penalty unit is $222, and the maximum penalty applicable is $66,600;
(d) the maximum penalty should be awarded in this case so as to meet the single objective of deterrence mandated in Australian Building and Construction Commissioner v Pattinson [2022] HCA 13; (2022) 274 CLR 450 (Pattinson);
(e) Qube has not shown contrition in breaching EA 2020 and the claimant was put to a contested hearing. Qube is unable to claim anything in mitigation that might otherwise have been available had they chose to admit the contravention at an early stage;
(f) Qube has a history of non-compliance and has a ‘habit of treating their obligations with no small measure of disdain’; and
(g) Qube is a large, sophisticated, and profitable company, who should be expected to have sufficient structures in place to ensure compliance with the legislation.
45 The claimant tabulates the prior claims where the respondent has contravened s 50 (and s 323) of the FWA. The claimant’s table is extracted below.
MATTER
CONTRAVENTION
M 76 of 2022
s. 50 FWA
s. 323 FWA
M 91 of 2022
s. 50 FWA
s. 323 FWA
M 101 of 2022
s. 50 FWA
s. 323 FWA
M 73 of 2023
s. 50 FWA
M 95 of 2023
s. 50 FWA
M 119 of 2023
s. 50 FWA
M 149 of 2023
s. 50 FWA
M 2 of 2024
s. 50 FWA
M 137 of 2024
s. 50 FWA
M 161 of 2024
s. 50 FWA
s. 323 FWA

46 The claimant submits that the maximum penalty will barely cause ‘a ripple’ for an organisation of Qube’s size and resources, and anything less will not be the ‘sting in the tail’ to achieve deterrence.
47 A failure to sanction contraventions ‘adequately’ de facto punishes all those who do the right thing.
48 Mr Gordon has not yet received the wages to which he is entitled and has been denied the benefit of this. Qube’s incorrect interpretation means other works across their operation have suffered similar loss.
Respondent
49 Qube says the claimant relies on two reasons for the imposition of a maximum penalty: (1) a supposed lack of contrition; and (2) what the claimant characterises as Qube’s ‘record of non-compliance with the [FWA] and various enterprise agreements’. Qube says neither reason is a fair characterisation of Qube’s position. Qube contends that no penalty is appropriate, or, if a penalty is imposed, a penalty at the lower end of the range.
50 Qube refers to two cases, Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Telstra Corporation Ltd [2007] FCA 1607 (Telstra) at [18] and Australian Rail, Tram and Bus Industry Union v Qube Logistics (Rail) Pty Ltd [2020] FCA 1520 (ARTBU) at [50], in support of its submission for no penalty to be imposed.
51 Qube refers to the Liability Decision and notes the Court identified the contravention as a product of it adopting a competing construction of EA 2020. Qube says that while the Court did not accept its construction, Qube’s construction was reasonably arguable and it adopted a construction with a genuine and bona fide belief that it was correct.
52 Further, Qube’s construction did not result in it being better off, albeit Mr Gordon was better off on the claimant’s construction. However, for employees with fewer working hours at the time of their appointment as a PFSE, Qube’s construction of pro-rating hours would be more favourable and may result in them achieving the worked hours target earlier than the construction contended by the claimant.
53 It cannot be said this was a case where an employer adopted a self-serving construction of an enterprise agreement to secure a financial advantage, but there were two genuinely available competing constructions of a provision of a complex industrial instrument, neither of which favoured Qube.
54 Qube further submits:
(a) the contravention was not deliberate but was because it adopted an arguable construction of Part B, cl 6.1 of EA 2020. Qube’s construction did not deliver it any particular financial benefit;
(b) there is no suggestion senior management was involved in the contravention;
(c) the claimant’s suggestion that Qube has not shown contrition is not correct. Qube adopted a genuinely held view on the construction of Part B, cl 6.1, and worked cooperatively with the claimant to have the construction resolved, including preparing a statement of agreed facts and adopting a cooperative approach to the litigation;
(d) since the Liability Decision, Qube has undertaken extensive analysis to identify the amount owed to Mr Gordon, where the claimant’s position on quantum evolved over the course of proceedings, the claimant has not provided Qube with any detailed explanation of its own suggested figure, and the terms of EA 2020 do not sit neatly for an employee commencing as a PFSE part way through the year;
(e) while Qube genuinely considered its construction the better one, this does not mean it does not regret Mr Gordon was not paid the (previously unknown and disputed) amount he is entitled to;
(f) Qube takes its industrial obligations seriously, and can still defend claims; and
(g) Qube intends on paying Mr Gordon once it is known what the correct amount to be paid is.
55 Qube suggests there is limited, if any, need for specific deterrence in the circumstances, where there is no reason to consider Qube will not now abide by the Court’s decision and how Part B, cl 6.1 of EA 2020 should be applied.
56 The claimant’s reliance on other proceedings is misplaced. In part, the number of proceedings is a consequence of the claimant’s disaggregate claims concerning the same issue and does not support a submission that Qube is not committed to its industrial obligations.
57 Qube relies on observations in Telstra and ARTBU and suggest that a penalty will do little to serve the ends of general deterrence.
58 Qube submits that if a penalty is imposed, at the lower end, it should be paid to Mr Gordon, rather than the claimant deriving a windfall.
The Nature, Extent and Circumstances of the Conduct
59 The claimant submits that the respondent is a ‘persistent offender’ and only the maximum penalty might deter the respondent from engaging in the same or similar conduct.
60 There is no evidence before the Court as to the extent of the effect of Qube’s construction of Part B, cl 6.1 of EA 2020.
61 What is known is that Qube adopted a pro rata method for employees who transitioned from GWE/VSE to PFSE (that is, transitioned from non-salaried to salaried employees) during a Year to calculate when an employee would be eligible for the relevant SE hourly rate. Notably, while EA 2020 did not provide for this type of pro rata arrangement, EA 2020 was also unclear on both the arrangement for transitioning employees and on how they would be paid in relation to overtime. Therefore, this was not a claim involving an employer misapplying an obvious term of an enterprise agreement but misapplying an unclear or non-existent term. As a result, the Court determined liability and quantum.
62 Further, there is no evidence that in not making the payments to Mr Gordon, Qube obtained, or sought to obtain, any financial benefit.
63 Notably, consistent with its erroneous construction of Part B, cl 6.1 of EA 2020, Qube did pay Mr Gordon the SE hourly rate from 22 May 2022 to 30 June 2022.
Course of Conduct
64 There does not appear to be any dispute between the parties that Mr Gordon’s underpayment forms one breach of Part B, cl 6.1 of EA 2020 and is, therefore, one contravention of s 50 of the FWA.
Deliberate Conduct
65 There is no evidence Qube engaged in deliberate conduct to circumvent industrial laws or deprive Mr Gordon of his entitlements. EA 2020 was unclear on how to treat overtime for an employee transitioning from GWE/VSE to PFSE, and how to pay this employee when they worked overtime.
66 There were competing interpretations and, ultimately, the Court found the claimant’s construction was the preferred construction on how to treat overtime, in this case, for an employee transitioning from GWE/VSE to PFSE. However, the Court found that Qube’s methodology for payment of the overtime as the preferred approach for doing so. Qube’s construction of Part B, cl 6.1 was arguable, and its interpretation underlies its honest and reasonable belief.
67 Unlike in Construction, Forestry, Mining and Energy Union v Hail Creek Coal Pty Ltd (No 2) [2018] FCA 480 (Hail Creek) there is no evidence Qube should have been on notice or have had a heightened awareness of the risk it took from an erroneous construction because it had previously been found to have contravened the same term of EA 2020 and had pecuniary penalties imposed. Hail Creek at [18].

68 Unlike in other claims, CFMEU v Qube Ports Pty Ltd [2024] WAIRC 00789 and CFMEU v Qube Ports Pty Ltd [2024] WAIRC 00792.
there is no evidence the claimant had invoked the dispute resolution process in EA 2020 and attempted to resolve the parties’ competing construction of the application of overtime hours and Part B, cl 6.1 of EA 2020. In that sense, Qube cannot have been said to have taken the risk that its conduct if not would, then might, contravene s 50 of the FWA.
69 In those circumstances, I am not satisfied Qube engaged in any deliberate conduct in underpaying Mr Gordon for overtime worked during the Year when he transitioned from GWE/VSE to PFSE, and consequently it did not deliberately contravene s 50 of the FWA.
Similar Previous Conduct of the Respondents
70 In Construction, Forestry and Maritime Employees Union (CFMEU) v Qube Ports Pty Ltd [2025] FCA 208 (CFMEU v Qube), at [68], Feutrill J in imposing a pecuniary penalty on 18 March 2025, summarises Qube’s then other contraventions of s 50 of the FWA.
71 The dates a penalty was imposed in relation to those contraventions are:
(a) 6 December 2023 in CFMEU v Qube Ports Pty Ltd [2023] WAIRC 976; (2024) 104 WAIG 121 (M 101 of 2022) (referred to at [68b]) for failing to pay an allowance to one employee at the Port of Dampier;
(b) 17 May 2024 in CFMEU v Qube Ports Pty Ltd [2024] WAIRC 220; (2024) 104 WAIG 660 (M 149 of 2023) (referred to at [68(c)]) for failing to pay an allowance to one employee at the Port of Tasmania; and
(c) 23 November 2023 in CFMEU v Qube Ports Pty Ltd (Industrial Magistrates Court of Western Australia, Magistrate Coleman, 23 November 2023) (M 95 of 2023) (referred to at [68(d)]) for failing to train employees to the level required at the Port of Port Hedland.
72 Of the tabulated claims referred to by the claimant at [45] above, five of the claims relate to the erroneous construction of the same clause of two enterprise agreements (M 76 and M 91 of 2022, which were consolidated, M 119 of 2023, M 137 of 2024 and M 161 of 2024).
73 For these five claims, the Court imposed a pecuniary penalty on 30 August 2024 (M 76 and M 91 of 2022 and M 119 of 2023) and 27 August 2025 (M 137 of 2024 only as no penalty was imposed in M 161 of 2024).
74 Pecuniary penalties for contraventions of s 50 of the FWA were imposed on Qube on 23 November 2023, 6 December 2023, 17 May 2024, 30 August 2024, 18 March 2025 and, more recently, on 27 August 2025.
75 That is, at the time of the breach of EA 2020 relevant to Mr Gordon, no pecuniary penalty had been imposed on Qube for contravening s 50 of the FWA. However, it is also the case that since then there have been a number of occasions where pecuniary penalties have been imposed for contraventions of s 50 of the FWA.
Applicable Maxima
76 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 penalty unit value at the time of the contravention was $222. Therefore, the theoretical maximum is $66,600.
Size of the Respondent
77 Comments made by Feutrill J, at [71] and [95], in CFMEU v Qube are relevant to the Claim, save that Mr Ortiz’s evidence is that the respondent employs approximately 2,245 employees of which many are covered by one of 19 different enterprise agreements.
78 I adopt his Honour’s comments where there is little else that can meaningfully be added in these reasons.
79 There is no evidence of the involvement of senior management in the contravention.
Cooperation, Contrition and Corrective Action
80 Qube cooperated in the legal proceedings. The parties prepared a statement of agreed facts.
81 Unlike in Hail Creek, and as stated above, there is no evidence Qube elected to take the risk its conduct would contravene s 50 of the FWA and could have mitigated the risk by seeking some other form of dispute resolution. There were competing constructions of a term/s of EA 2020 and nothing before the Court suggests Qube was on notice of the issue prior to the proceedings being commenced in 2024.
82 In these circumstances, contrition is less relevant. There was a dispute before the Court. The basis for the dispute was not unreasonably held. The Court resolved the dispute. Qube has said it will abide by the Court’s decision. It will pay any outstanding entitlement to Mr Gordon once it is known what it is (see below and [16] to [34] of this decision).
Loss of Damage Suffered
83 Mr Gordon’s consequential ‘loss’, being his entitlements, is modest. There is no evidence that he otherwise suffered loss or damage, or prejudice.
84 Mr Gordon has not received his entitlement because the issue of quantum arose, and the Court was required to determine an amount payable under EA 2020. Notably, Qube provided significant assistance to aid the Court, and the Court accepted Qube’s preferred methodology, albeit that both methodologies were reasonably capable of argument.
Deterrence
85 The claimant calls for the maximum penalty describing the respondent as a recalcitrant and persistent offender.
86 Qube says, consistent with comments made by the High Court in Pattinson at [55], the conduct the subject of the contravention does not bear a reasonable relationship to the maximum penalty where the conduct arose out of the respondent’s genuine belief about its construction of Part B, cl 6.1 of EA 2020, the contravention was not deliberate.
87 In Pattinson, at [71], the majority judgment concluded that a court’s ‘real task under s 546’ is ‘fixing the penalty which it considers fairly and reasonably to be appropriate to protect the public interest from future contraventions of the Act’ where, at [58], ‘the maximum penalty is intended by the Act to be imposed in respect of a contravention warranting the strongest deterrence within the prescribed cap’. To that end, both the circumstances of the contravention(s) and the respondent’s circumstances may be relevant to the assessment as to whether the maximum level of deterrence is required.
88 In Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (No 2) [2018] FCA 1211; (2018) 70 AILR 102-975 (also referred to in Pattinson at [26]), Tracey J stated:
[T]he maximum penalty may be appropriate for a person who has repeatedly contravened the same or similar legislative provisions despite having been penalised regularly over a period of time for such misconduct. The gravity of the offending, in such cases, is to be assessed by reference to the nature and the quality of the recidivism rather than by comparison of individual instances of offending: see Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union (No 2) [2015] FCA 1462 at [8] (Jessup J). Relevant matters will include the number of contraventions which have occurred over a period, whether the ongoing misconduct is the result of conscious decisions, whether the repeated contravenor has treated the payment of penalties as a cost of doing business and whether any attempt has been made to comply with the law as declared by the Court.
The Respondent’s Circumstances
89 Unlike in Pattinson, there is no discernible policy by Qube to not pay overtime at the relevant SE hourly rate. A dispute arose between the parties regarding the interpretation and application of the SE hourly rate in Part B, cl 6.1 of EA 2020, as it relates to an employee who transitioned from a GWE/VSE to PFSE during the Year.
90 Exhibit 1 at TS5 shows that Qube paid the SE hourly rate consistent with its interpretation of the payment of overtime, but Qube’s interpretation of Part B, cl 6.1 of EA 2020 did not accord with the preferred construction determined by the Court.
91 Further, this was not a case of carelessness or negligence by Qube.
The Circumstances of the Contraventions
92 There is overlap between the circumstances of the contraventions and Qube’s circumstances.
93 That is, there is no evidence the contravention was an industrial strategy pursued without regard for the law.
94 The consequence of considering the above factors is that I am not satisfied in relation to the contravention that the maximum penalty ‘is reasonably necessary to deter further contraventions of a like kind.’ Pattinson at [61].

Determination
95 To my mind specific deterrence has less, but not no, role to play with respect to Qube’s contravention. That is, the contravention arose because of a dispute about the interpretation and application of a term of an enterprise agreement. Qube’s interpretation was based on its genuine belief on how the relevant term was to apply to an employee who transitioned from GWE/VSE to PFSE in a Year. EA 2020 was unclear on the application of overtime hours and hourly payment applicable to an employee within that category.
96 Qube, in fact, paid the SE hourly rate to Mr Gordon but not in a manner determined by the Court. There was no carelessness attached to Qube’s methodology in interpreting the relevant term. Qube held a different view to the one held by the Court and, ultimately, determined by the Court in accepting the claimant’s construction (on liability, not on quantum).
97 This leaves the issue of general deterrence.
98 Comments made by Feutrill J, at [94], in CFMEU v Qube have some relevance:
Contraventions are not only the consequence of intentional or deliberate conduct but carelessness, oversight and inadvertence. Part of deterrence involves encouraging employers to implement and maintain systems, policies, procedures and a culture aimed at preventing careless, unintentional or ignorant contraventions of the Act. Therefore, the size and spread of an employer’s operation is not a reason for diminishing corporate responsibility for historical contraventions as these may be indicative of systemic or underlying failings in corporate systems, policies, procedures and culture and, therefore, of an ongoing and enhanced risk of future contraventions.
99 However, while his Honour’s comments may have been directed to specific deterrence, the tenure of these comments is applicable to any employer so as to ensure compliance with industrial laws and ensuring employees are fairly and correctly paid.
100 Some care is needed with respect to the application of the ‘no penalty cases’ relied upon by Qube, Telstra and ARTBU, as they were both determined prior to Pattinson.
101 In Telstra, there were no relevant ‘prior convictions’.
102 In ARTBU, there was limited commentary at [50].
103 Further guidance may be derived from Australian Building and Construction Commissioner v Powell (No 2) [2019] FCA 972 at [28] to [30] in which Bromberg J refers to Allsop CJ, Collier and Rangiah JJ in Auimatagi v Australian Building and Construction Commissioner [2018] FCAFC 191 (at [176]):
It is a fundamental principle, at the core of judicial power to impose a penalty, that the imposition is for the contravention in question. Prior contraventions, even so many and often so serious as the Union may have engaged in in the past, is a factor which may be taken into account in determining the appropriate quantum for the contravention: it cannot be taken to lead to a penalty that is disproportionate to the gravity of the instant contravention. The maximum is for the worst of category of cases.
104 Further, his Honour stated, at [30]:
The well settled principles most recently expressed in [Parker v Australian Building and Construction Commissioner [2019] FCAFC 56] call for a structured approach to the imposition of a penalty on a contravener with a history of contraventions, the object of which is to ensure that the contravener does not ‘suffer the fact of being sanctioned anew for past contraventions’ (at [341]). First, the Court must identify the applicable range of penalties for that contravention without regard to the contravener’s prior history of contraventions. Having done that, the Court should then take into account that history in assessing where, within the applicable range, the penalty should fall. (original emphasis)
105 His Honour later agreed with the ABCC’s contention and stated, at [34] and [35]:
[T]here is no general principle that, if a person contravenes a civil penalty provision on a genuine but mistaken view on an arguable question of law, there should be no penalty. Whether or not a penalty should be imposed will always depend on all of the circumstances considered principally by reference to the need for specific and general deterrence.
It is well settled and not in contest that an honest and reasonable belief may be a relevant mitigating or ameliorating factor in determining whether or not a penalty is to be imposed and, if so, the extent of the penalty imposed. (citations omitted)
106 I am not satisfied this is an occasion where imposing no penalty is appropriate. However, I am satisfied that given all the factors referred to this is a contravention at the lower end of the scale and that a penalty at the lower end of the scale is appropriate.
Penalty to be Imposed
107 Taking all of these factors into account, the appropriate penalty aimed to secure compliance by deterring repeat contraventions, if not of this type, then of future different contraventions, is $3,000.
108 I do not consider any further reduction to be warranted to account for an imbalance between oppression and deterrence.
109 I note Qube’s submission regarding to who the payment of any pecuniary penalty should be paid. I do not consider that there is anything before the Court which suggests it should award a penalty other than in accordance with that ordinarily to be exercised by awarding any penalty to the successful applicant. Accordingly, the payment of the pecuniary penalty should be paid to the claimant.
Conclusion
110 Pursuant to s 545(3) of the FWA, the Court is satisfied there is an amount required to be paid by Qube to Mr Gordon and that this amount is $2,188.80.
111 Pursuant to s 546(1) of the FWA, where the Court is satisfied that the respondent has contravened a civil penalty provision, the respondent is to pay a pecuniary penalty in the amount of $3,000.
112 Pursuant to s 546(3)(b) of the FWA, the pecuniary penalty is to be paid to the claimant.


D. SCADDAN
INDUSTRIAL MAGISTRATE

Schedule I: 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:
Date of Contravening Conduct
Penalty Unit
April to June 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) at [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; (1996) 71 FCR 285. 
[5] In Kelly v Fitzpatrick [2007] FCA 1080; (2007) 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: 
(a) The nature and extent of the conduct which led to the breaches. 
(b) The circumstances in which that conduct took place. 
(c) The nature and extent of any loss or damage sustained as a result of the breaches. 
(d) Whether there had been similar previous conduct by the respondent. 
(e) Whether the breaches were properly distinct or arose out of the one course of conduct. 
(f) The size of the business enterprise involved. 
(g) Whether or not the breaches were deliberate. 
(h) Whether senior management was involved in the breaches. 
(i) Whether the party committing the breach had exhibited contrition. 
(j) Whether the party committing the breach had taken corrective action. 
(k) Whether the party committing the breach had cooperated with the enforcement authorities. 
(l) The need to ensure compliance with minimum standards by provision of an effective means for investigation and enforcement of employee entitlements. 
(m) 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; (2008) 165 FCR 560 (Australian Ophthalmic Supplies) [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; (2015) 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 Limited 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 [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 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; (2016) 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 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) 

Schedule II: Exhibit 1, TS4 and TS5