Full Bench clarifies penalty provisions
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.