100421335

WESTERN AUSTRALIAN INDUSTRIAL MAGISTRATE’S COURT

PARTIES AUSTRALIAN LIQUOR, HOSPITALITY AND MISCELLANEOUS WORKERS UNION, WESTERN AUSTRALIAN BRANCH

CLAIMANT

 -v-

 ROSE VALLEY CHEESE CO PTY LTD

RESPONDENT

CORAM MAGISTRATE G CICCHINI IM

DATE WEDNESDAY, 21 JANUARY 2004

FILE NO M 166 OF 2003

CITATION NO. 2004 WAIRC 10665

_______________________________________________________________________________ 

Representation

Claimant  Mr M Swinbourn.

Respondent Mr D Meredith (of Counsel).

_______________________________________________________________________________

Reasons for Decision

(as edited by His Worship from the transcript of reasons delivered extemporaneously at the conclusion of the hearing)

1         I am dealing with a claim made by the Australian Liquor, Hospitality and Miscellaneous Workers Union, Western Australian Branch against Rose Valley Cheese Co Pty Ltd.  The particulars of claim as filed show that the claim relates to two breaches of the Industrial Relations Act 1979, but the claim is expressed in the alternative.  That is as a breach of section 49M(2) or, in the alternative, a breach of section 102(2) or both.  The claim does not make it clear on its face that what is being alleged is two separate breaches of the Act because the way it is expressed.  In my view the expression "in the alternative" is most unhelpful.

2         Having said that, the Claimant has now made it clear that what the Claimant is alleging here is two separate breaches.  The Respondent has been given an opportunity to clarify its position in relation to the matter and indicate whether its “consent to the Court making all of the orders sought in this claim” was in relation to one breach or two breaches.  After having obtained instructions, the Respondent’s Counsel has now conceded that the Respondent has breached the Act in respect of both section 49M and also section 102.  The Respondent had the opportunity to dispute one or both of the alleged breaches but has not taken the opportunity to do so.

3         There was also a submission made by Counsel for the Respondent that the alleged breaches are duplicitous.  I invited argument on that issue but the Respondent chose not to take the argument any further and consented to the claim in respect of two separate breaches.  The Respondent does not now take issue that the claims are duplicitous.  Given that the Respondent has not taken issue in that regard, I simply proceed on the basis that the claims are not duplicitous because the matter has not been fully argued, or ventilated, before me so I simply leave it at that.  Of course, the Respondent had the opportunity to pursue that issue if it wanted to but has chosen not to.

4         The claim alleges two separate breaches, as I have stated.  The first breach alleges that Mr Lee, who is an authorised representative of the union, attended Lot 2 Wungong Road, Brookdale, and that on the 27th of August 2003 the Respondent through its employees or representatives told Mr Lee that he had to leave the premises.  Further the Respondent through its employees or representatives physically removed Mr Lee from the premises.  It is said that the breaches are constituted by those acts.  It is the case that the acts are intertwined, there can be no doubt about that, and the course of conduct must be looked at as a whole.

5         The Claimant says that I should impose the maximum penalty of $5000.00 as against the Respondent for each of the breaches.  Since I have been sitting in this jurisdiction, which has been for some years now, I have noticed the mindset is for those practising in this jurisdiction is one to seek the maximum penalty.  In my view, the maximum penalty is to be reserved for matters of the most serious type where there is simply nothing in mitigation.  In my view the same sorts of considerations as set out in the Sentencing Act 1995 for criminal matters are to be considered appropriate for the imposition of civil penalties in this jurisdiction.  Indeed, the dicta of the Supreme Court in respect of sentencing generally, in my view, ought to be applied notwithstanding that I am dealing with breaches of provisions of the Industrial Relations Act 1979 that relate to the imposition of civil penalties.

6         What I need to take into account in considering what penalty to impose is the nature of the conduct and any mitigatory circumstances that have been put to me by the Respondent and, indeed, I need to consider whether the Respondent has breached these particular provisions of the Act or any other relevant provisions.  In this case it has not been put to me that the Respondent has any prior record.  That must be taken into account by the Court.

7         I also take into account that the two breaches are constituted by the one course of conduct.  Having said all of that, it is a serious matter for there to be a breach of the Industrial Relations Act 1979 and it is important that not only the Respondent in this case, but any other employer who is so inclined, be aware of the fact that there are serious consequences for acting in this way.  In other words, there should be both a personal and deterrent penalty in the penalty imposed, but having said that, the Court still should have regard to the overriding principles in the sentencing.  If one does, then it becomes patently obvious that the maximum penalty is simply not appropriate.  Maximum penalties are simply not routinely imposed for first offences.  It is as simple as that, even in worst case scenarios if there is no prior record and some mitigatory circumstances.  The maximum is simply not appropriate where there has not been any prior breach of the law by the Respondent.

8         As I said earlier, the Supreme Court on a number of occasions has made it clear that the appropriate penalty to be handed down for first offences is generally somewhere between one-tenth and one-fifth of the maximum penalty.  In my view, I should not derogate from that position.  I accept that the breaches are serious.  I accept that the penalties should reflect the seriousness of the offence and I accept that the penalties should act as a general deterrent as well.  The imposition of the penalties that I am about to impose, in my view, will bring home to the Respondent and others who might be like-minded to act in this way that they simply cannot.  For the reasons that I have stated it seems to me that the appropriate way of dealing with these matters is to impose a $1000.00 penalty, being one-fifth of the maximum penalty in each of the matters.  The totality of the penalty will be $2000.00.

9         Accordingly I propose to make the following orders.  The Respondent is to pay a civil penalty to the Claimant of $1000.00 for the breach of section 49M(2) of the Act, and further, that the Respondent pay a civil penalty to the Claimant of $1000.00 for the breach of section 102(2) of the Act.  The third order is that the claim be otherwise dismissed.

G Cicchini

Industrial Magistrate