The Industrial Magistrate has imposed a penalty of $4,280 on an employer for underpayment of wages.

Background

The employee commenced a claim for underpayment of wages against his employer on 10 February 2021. Upon the employee’s application for default judgement, orders were made on 16 April 2021 that the employer pay him $4,927.58 plus interest. As part of this claim, the employee also sought payment of a pecuniary penalty. That part of the claim was adjourned to hear from the parties in respect to penalty.

Submissions on Penalty

The employees’ claim for pecuniary penalty relates to the failure of the employer to pay him in the role of a ‘Security Officer Level 1’ in accordance with Security Services Award 2010 (Cth) (the Award). The underpayments are alleged to have occurred between 6 January 2020 and 30 August 2020, being a total of 107 underpayments. The total of underpayments amounted to $4,927.58. In his submissions, the employee alleged that this was a contravention of s 45 of the Fair Work Act 2009 (Cth) (FW Act).

Allowing for issues of totality, the employee submitted that a penalty of $5,000 was proportionate to the overall offending and should be payable to him.

The employee argued that the contraventions were not for an insignificant period of time and amounted to 107 contraventions; the loss suffered was not insignificant for an employee at his level; there had been no evidence of previous similar conduct by the employer; the contraventions arose from a consistent course of conduct; the employer’s director was involved in the breaches; the employer acted deliberately; and the employer did not engage in the court process nor was there any evidence that the employer has changed their ways.

The employer did not appear in the proceedings or lodge any submissions in respect to the claim for a pecuniary penalty.

Industrial Magistrate Hawkins noted that the following considerations were significant in assessing penalties in this case. These included:

• In the absence of any comment from the employer, the contraventions in respect to underpayment of wages could be characterised as a disregard for the law;

• The contraventions could be properly characterised as a single contravention which flowed throughout the term of employment arising from the same course of conduct in weekly underpayment to the employee;
• Lack of evidence that the employer exploited or profited from that underpayment; and
• Specific deterrence is not a significant factor as the employer had advised that it lacks the funds to make any payments and will be pursuing deregistration soon.

Hawkins IM was of the view that the conduct in all circumstances is properly categorised as falling at the lower end of offending. Her Honour found that imposing penalties in the sum of $4,280 for the failure to pay wages in full pursuant to s 45 of the FW Act, was the appropriate penalty.

The decision can be read here.

The Industrial Magistrate has imposed penalties totalling $2,500 on an employer for failure to pay untaken annual leave and payment in lieu of notice.

Reasons for decision

By reasons for decision delivered on 23 April 2021, part of the claim against the respondent was dismissed, however the parties agreed to a portion of the claim being paid to the employee by consent. It was therefore ordered by consent that the respondent pay the employee a total of $2,826.91, a sum made up of agreed annual leave and agreed wages minus a disputed deduction of two weeks’ wages which was the subject of final determination.

The decision can be read here.

Supplementary reasons for decision

The supplementary reasons for decision relate to the employee’s application for payment of pecuniary penalties, interest and costs. The claim for pecuniary penalties relates to the failure of the employer to pay one week’s wages at termination of employment, being a contravention of s 323 of the Fair Work Act 2009 (Cth) (FW Act). Further, the employer failed to pay untaken annual leave at the end of the employment relationship, being a contravention of s 90(2) of the FW Act.

The employee submitted that a total of $2,500 in penalties was proportionate to the contraventions and should be payable to him.

The employee argued that the employment was for a short period of time; the loss suffered by him was not insignificant; there had been no evidence of previous similar conduct by the employer; the actions of the employer were deliberate; and that the employer’s director had been involved in the breaches. The employee conceded that the employer had shown contrition, given the concession in respect to payment of the entitlements at the commencement of trial.

The employer submitted that its conduct could be characterised as falling at the lowest level of seriousness and conceded that the penalties sought by the employee were within the lower range.

Industrial Magistrate Hawkins noted that the following considerations were significant in assessing penalties in this case. These included:

• Her Honour found that the contraventions could be characterised as the respondent’s ignorance of the law, however noted that ignorance and complacency of the law are not mitigating factors;
• The two contraventions could be characterised as a single contravention flowing from the respondent’s ignorance and complacency of the law, as well as events that occurred between the parties, which have been set out in Ryan v WA Pallets Pty Ltd [2021] WAIRC 00111;
• The respondent did not exploit or profit from the non-payment to the claimant;
• The director of the respondent business has learned from the court process and as such, specific deterrence is low;
• The offending can be characterised as falling in the lower range and the respondent has shown remorse; and
• The amounts unpaid to the applicant are not insignificant, and therefore it is not appropriate to impose a caution or no penalty whatsoever.

Hawkins IM was of the view that the conduct in all circumstances is properly categorised in the low range. Her Honour found that imposing penalties in the sum of $2,500 was appropriate. She also awarded a sum of $110.60 in interest and made no order as to costs.

The decision can be read 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.

The hearing will commence at 9:00 AM. Watch below or click here.

The Public Service Appeal Board (Board) has unanimously dismissed an appeal by a government officer on the basis that the Board has no jurisdiction to hear and determine the matter.

Background

The appellant was employed by the respondent, the Director General of the Department of Education, as a Public Service Officer.

On 23 September 2020, the Director General made the appellant an offer of voluntary severance by letter. If the appellant wished to accept the offer, he was required to sign and return it by 16 November 2020.

The appellant subsequently contacted the Department of Education to clarify by what date his resignation should be effective in order to receive the full incentive payment of 12 weeks. The Department informed him that his acceptance would need to be dated and returned on 5 October 2020.

The appellant signed the offer for voluntary severance on 5 October 2020 but claimed that the advice concerning the date of response given by the Department of Education was contrary to the date given in the original offer by the Director General.

The appellant contended that he was ‘pushed into having to accept this advice [from the Department of Education] … and missed out on several weeks of pay between 5 October and 16 November 2020’.

Contentions

The Board noted that it was not in dispute that the appeal centred around a ‘section 94 decision’ and whether the Public Sector Management (Redeployment and Redundancy) Regulations 2014 (WA) (Regulations) were fairly and properly applied to him.

The Director General argued that the Board does not have jurisdiction to hear and determine an appeal against a decision made under s 94 of the Public Sector Management Act 1994 (WA) (PSM Act). She claimed the Commission has exclusive jurisdiction to review s 94 decisions.

The appellant contended that the Board has jurisdiction ‘to hear and determine any appeal against a s 94 decision if the regulations referred to in s 94(4) of the PSM Act were not fairly and properly applied to, thereby allowing the Board jurisdiction by way of s 80I of the Industrial Relations Act 1979 (WA) (Act).’

Findings

The Board noted that it was clear from the appellant’s submission that his appeal related to whether the Regulations were fairly and properly applied to him. In effect, the appellant appealed a s 94 decision to the Board.

The Board found that, fundamentally, the appellant did not appear to appreciate the distinction between the Commission and the Board. It noted that the appellant did not understand that the Board is not the Commission, but rather a constituent authority of the Commission.

The Board set out its jurisdiction under s 80I and found that it was clear that this section does not confer jurisdiction on the Board to hear appeals of s 94 decisions.

The appeal was dismissed for want of jurisdiction.

The decision can be read here.