The Industrial Magistrate has awarded penalties to a restaurant owner for contravening the Industrial Relations Act 1979 (the Act) by failing to produce records to the Department of Mines, Industry Regulation and Safety (DMIRS).

Background

The respondent purchased a restaurant around October 2019 and started trading in or about November 2019.

In December 2019 and July 2020, the claimant attended the restaurant. On each occasion, the claimant issued the respondent with a notice that required the respondent provide to DMIRS specified records relating to all employees of the restaurant.  The purpose was to ascertain whether the respondent had observed the provisions of the Act and the Restaurant, Tearoom and Catering Workers’ Award (WA). The respondent failed to provide the records.

In failing to produce records in respect to the two notices, the Industrial Magistrate made orders stating that the respondent had contravened s 102(1)(a) of the Act. The claimant sought payment of a penalty under s 83E(1)(a) of the Act for each of the two contraventions.

Both parties appeared at a hearing on 2 September 2021. The respondent indicated that the relevant documents would be provided by 3 September 2021. The decision of the Industrial Magistrate was reserved to enable the respondent to provide the documents, however the respondent did not comply.

Contentions 

The claimant submitted that the respondent was uncooperative with industrial inspectors and had failed to demonstrate contrition and take corrective action. The claimant contended that the respondent’s actions were repeated and deliberate in that he was in communication with industrial inspectors in respect of the notices and was aware of what was required. The claimant submitted that the respondent had ‘demonstrated … disregard for his obligations as an employer under the Act’.

The respondent did not lodge any submissions and confirmed in the hearing on 2 September 2021 that he did not wish to be heard in respect to the issue of penalty and costs. 

Findings 

In determining whether the respondent’s conduct warranted the imposition of a penalty, and if so, the appropriate amount, the Industrial Magistrate considered a range of factors. These included:

• the nature and extent of the conduct which led to the breaches;
• the circumstances in which the conduct took place;
• the nature and extent of any loss or damage sustained as a result of the breaches;
• whether there had been any similar previous conduct by the respondent;
• whether the breaches are properly distinct or arose out of one course of conduct;
• the size of the business involved;
• whether or not breaches were deliberate;
• whether senior management was involved in breaches;
• whether the party committing the breach had exhibited contrition;
• whether the party committing the breach had taken corrective action;
• whether the party committing the breach had cooperated with enforcement authorities;
• the need to ensure compliance with minimum standards by the provision of an effective means for investigation, enforcement of employee entitlements; and
• the need for specific and general deterrence.

The Industrial Magistrate determined that the appropriate penalty for each contravention was $3,250 per breach. The Industrial Magistrate determined that the separate contraventions could be considered as a single course of conduct. Applying the totality principle, and considering the conduct as a whole, the Industrial Magistrate determined that an aggregate penalty of $3,900 was appropriate and proportionate. The Industrial Magistrate additionally ordered the respondent pay the claimant costs of $187.

The decision can be read here.