The Full Bench has unanimously found that the $2,000 maximum penalty in s 83(4) of the Industrial Relations Act 1979 (WA) (IR Act) for the contravention of industrial instruments should apply to each individual contravention rather than the maximum applying regardless of the number of contraventions.
The appellant, an industrial inspector, appealed against the decision of the Industrial Magistrate on the following grounds:
(1) The learned Industrial Magistrate made an error of law in holding that on the proper construction of s 83(4)(a) of the IR Act, the maximum penalty that can be imposed by the Court for multiple proven contraventions of an instrument to which s 83 applies is $2,000, regardless of the number of proven contraventions;
(2) The penalty of $1,700 for the 282 proven contraventions imposed by the learned Industrial Magistrate was manifestly inadequate; and
(3) The learned Industrial Magistrate made an error of law in holding that the costs incurred by the appellant for a process server and Landgate search fees were costs “for the services of any … agent” of the appellant within the meaning of s 83C(2) of the IR Act.
The learned Industrial Magistrate considered that in the context of s 83(1), which her Honour viewed as contemplating multiple contraventions or failures, because of the expression “contravenes” and “fails” in that subsection, s 83(4) should be construed as referable to multiple contraventions attracting a maximum penalty of $2,000. Her Honour, therefore, imposed a single penalty for the 282 admitted contraventions.
The Full Bench considered this approach to the construction of s 83(4) was wrong, having regard to the natural and ordinary meaning of the words in the section. The Full Bench considered the alternative and correct construction, that the maximum applied to each contravention, was consistent with the objects of the enforcement regime of the IR Act and the context generally including the legislative history.
The Full Bench reconsidered the penalty to be imposed, including the application of course of conduct principles. The Full Bench assessed the individual penalties for each of the 282 contraventions and considered whether any adjustment should be made to ensure that, to the extent of any overlap between separate contraventions that can be considered part of a single course of conduct, there is no double penalty imposed. The Full Bench was satisfied that the contraventions were part of a single course of conduct, and as such, it was appropriate to make an adjustment, but as a separate stage after individual penalties are assessed.
The Full Bench upheld the appeal and set aside the decision of the Industrial Magistrates Court, substituting an increased penalty.
The Full Bench also confirmed that the disbursements claimed by the industrial inspector were recoverable costs and not excluded from recovery as costs of an “agent”.
The decision can be read here.
Due to Government guidelines, the Ceremonial Sitting of the Commission for the presentation of Commission by Chief Commissioner Stephen Kenner and speeches of welcome for Senior Commissioner Rachel Cosentino has been cancelled.
The Ceremonial sitting will be rescheduled when it is safe to do so.
The Commission in Court Session has delivered its decision in the 2021 State Wage Case. The Commission increased the State Minimum Wage and award rates of pay in the State industrial relations system by 2.5% effective from 1 July 2021.
In its decision, the Commission noted that, given the unique circumstances of last year's State Wage Case and the case this year, the economic consequences of the COVID-19 pandemic had been a most important consideration in terms of the damaging impact of the outbreak of the pandemic and the subsequent recovery in this State and nationally. The Commission concluded that the Western Australian economy overall has recovered much more strongly that was anticipated in last year’s State Wage Case and that the most recent data before the Commission, points to ongoing recovery and growth.
The Commission’s reasons for decision and minutes of proposed order were handed down at 9.15AM, Thursday 24 June 2021.
The Commission’s statement in relation to its decision can be read here.
A full copy of the Commission’s decision can be read here.
The hearing will commence at 9:15 AM. Watch below or click here.
The Commission in Court Session will deliver its decision in the 2021 State Wage Case at 9:15 AM on Thursday, 24 June 2021.