Archive: Mar 26, 2021, 12:00 AM
The Industrial Magistrate has imposed penalties totalling $53,000 on a finance company and its director for a failure to pay an employee entitlements under the Banking, Finance and Insurance Award 2010 (Cth) (Award).
On 13 June 2019, Industrial Magistrate Scaddan found that the First Respondent, the finance company, contravened the Fair Work Act 2009 (Cth) (Act) by:
- failing to pay the claimant, the employee, an amount under the Award; and
- failing to comply with the National Employment Standards (NES), and in doing so, contravening a civil remedy provision in failing to pay the amount.
Further, the First Respondent was found to have contravened the Award by failing to provide copies of the Award and the NES to the claimant, as well as failing to comply with the Fair Work Regulations 2009 (Cth) by not keeping and maintaining certain prescribed records of employment.
On appeal, the Second Respondent, the director, was found to be involved in, and liable for, the First Respondent’s contraventions of the Act comprising of the failures to pay the claimant his entitlements under the Award and NES. However, he was not found to be involved in, or liable for, the First Respondent’s failure to provide copies of the Award and the NES, and its failure to keep certain employment records.
Following the claimant’s successful appeal to the Federal Court of Australia, the question of penalties was remitted back to the Industrial Magistrates Court for further hearing and determination.
Further Reasons for decision
The claimant contended that the respondents’ conduct was a deliberate exploitation of a young employee, that they lacked contrition, failed to cooperate with the claimant when he raised concerns, and that they profited from the contraventions. He proposed a penalty of $115,000 for the First Respondent and $17,000 for the Second Respondent.
The respondents contended that they did not profit from its contraventions, have no prior contraventions, that the contraventions were not deliberate, that they had demonstrated contrition, and had made a payment for the sum ordered following the decision at first instance. They proposed a penalty of $25,000 for the First Respondent and $5,000 for the Second Respondent.
Industrial Magistrate Scaddan noted that the following considerations were significant in assessing penalties in this case. These included:
- Her Honour did not accept the sinister character of the failures attributed by the claimant, and there was no evidence that the respondents profited from its contraventions;
- The respondents have not been found to have previously contravened the Act;
- The circumstances surrounding the respondents’ failures demonstrate some reliance by the Second Respondent on the erroneous advice of others;
- The business remains in a poor, albeit improving, financial state;
- The Second Respondent has expressed contrition and has taken steps to ensure that, as the First Respondent’s business improves and expands, the contraventions will not occur again; and
- The Claimant overstated the impact of the First Respondent’s actions.
Scaddan IM was of the view that the conduct in all circumstances is properly categorised in the low range.
Her Honour found that imposing a penalty of $44,800 on the First Respondent, and $8,800 on the Second Respondent, was appropriate.
The decision can be read here.
The Commission has issued an interim order to stay the relocation of a 3-4 Urban Tanker Firefighting Appliance (Urban Tanker) to Cockburn Career Fire and Rescue Station (Cockburn) and consequential transfer of staff to enable the parties to resolve a dispute concerning the industrial impacts of the relocation of the Urban Tanker through conciliation.
The United Professional Firefighters Union of Western Australia (Union) applied to the Commission to assist in the resolution of a dispute concerning the industrial impacts of the relocation of the Urban Tanker from the Canning Vale Career and Fire Rescue Station to Cockburn.
The construction of Cockburn is anticipated to be completed soon and once commissioned, the Department of Fire and Emergency Services (DFES) wishes to move the Urban Tanker to Cockburn along with at least 12 firefighters to crew the appliance.
The applicant, the Union, contended that the DFES has not engaged in genuine consultation and challenged the merits of the decision to relocate the Urban Tanker. The applicant also challenged the management of associated employment and industrial matters arising from the decision. It submitted that the flawed consultation process can be cured by providing a further period of time for further consultation, conciliation or arbitration.
The respondents, the DFES and the FES Commissioner, submitted that consultation has occurred. The respondents contended that the issues of the merits of the relocation and the process for managing the impacts to the employees have been adequately canvassed. It submitted that an interim order to stay the decision is not required and would be an unwarranted intervention in the functions and responsibilities of the FES Commissioner.
Commissioner Walkington found that the FES Commissioner had made a definite decision in October 2020 that the Urban Tanker would be relocated to Cockburn and that he would not reconsider this decision. She found that the respondents’ responses to issues raised by the Union thereafter were cursory, dismissive and flawed.
Walkington C also found that documentation of the outcomes of the consultation and of industrial relations considerations were almost non-existent, and those which exist were dismissive of the Union’s concerns. She noted that there was a deterioration of industrial relations between the Union and the respondents.
Walkington C concluded that the consultation process to date has been flawed and the management of industrial issues, including the impact on firefighters, have not been adequately considered. She found that further discussions, conciliation or arbitration would assist in the resolution of the matters in question and prevent the further deterioration of the relationship between the parties.
An interim order has been issued in the terms above.
The decision can be read here.