100424949

WESTERN AUSTRALIAN INDUSTRIAL MAGISTRATES’ COURT

PARTIES REBEKAH LEE LOTHIAN, DEPARTMENT OF CONSUMER AND EMPLOYMENT PROTECTION

CLAIMANT

 -v-

 ANDREW ROBERT MACKAY

RESPONDENT

CORAM MAGISTRATE G CICCHINI IM

DATE WEDNESDAY, 1 SEPTEMBER 2004

FILE NO M 196 OF 2004

CITATION NO. 2004 WAIRC 12772

_______________________________________________________________________________

Representation

Claimant Mr W Milward (of Counsel) appeared for the Claimant.

Respondent No appearance by or on behalf of the Respondent.

_______________________________________________________________________________

Reasons for Decision

(Given extemporaneously at the conclusion of the hearing, extracted from the transcript of proceedings and edited by His Worship)

1         I have before me an application for default judgment with respect to a claim made by Rebekah Lee Lothian, an industrial inspector of the Department of Consumer and Employment Protection.  The Claimant seeks the imposition of a penalty pursuant to the provisions of the Industrial Relations Act 1979 (the Act) for the failure by the Respondent to comply with section 102(1)(a) of the Act.  The Claimant also seeks other orders.

2         It is the case that the Claimant, by virtue of the Claimant's powers in section 98(3) of the Act sought from the Respondent, the sole director and secretary of Time Gold Corporation (the company) trading as Etto Restaurant Cafe, the production of certain records of the company.  The Respondent failed to produce such records.  The allegation is that the Respondent is therefore liable pursuant to sections 102 (1) and 83 E of the Act for his failure to produce those records.  The Claimant accordingly seeks a penalty against him for the failure to produce the records.  The Claimant also seeks, in addition to the imposition of a civil penalty pursuant to section 83E(1), orders against the Respondent aimed at preventing further contravention of section 102(1)(a) of the Act.

3         In determining this matter, it is clear that service of the Claim and this interlocutory application upon the Respondent is proved.  It is appropriate therefore given that the claim and the default judgment application have been served and there has not been response by the Respondent that there be default judgment entered. Consequently judgement will be entered and the following orders will be made.

4         Firstly, there is a finding that the Respondent has breached section 102(1)(a) of the Act.  Secondly, in view of that finding it is appropriate that there be a civil penalty imposed for the breach of that provision.  It is appropriate that a penalty pursuant to section 83E(1)(b) of the Act be imposed.  The maximum penalty available in this instance is one of $1000.00 given that the Respondent is not the employer of the employees, the subject of the Claimant’s requirements.

5         I am asked by the Claimant's representative to impose a penalty close to the maximum penalty.  Although I accept that the breach in this matter is serious, it is nevertheless the case that I am dealing with the Respondent as a first offender (if one can use that word accepting that he is only subject to civil penalties).  The normal sentencing principles apply.  The maximum penalty should only be imposed in worst-case scenarios where there have been prior breaches of the law.  In other words, it is not appropriate and it is not usual for the maximum penalty to be handed down for a first offence.   Accordingly the imposition of the maximum penalty in this matter is entirely inappropriate.  Having said that however, I recognise that there has been, it seems, a deliberate failure by the Respondent to comply with the requirements made by the Claimant.  The Respondent’s acts were aimed at frustrating the attempts of the Claimant in pursuing matters on behalf of employees.  The Respondent did frustrate the Claimant.  Accordingly the appropriate penalty in my view is a substantial penalty but not being the maximum.  In the circumstances a $650.00 penalty is imposed.  The Respondent must pay the civil penalty to the Department of Consumer and Employment Protection and I nominate that body pursuant to section 83F of the Act.  It is also appropriate that the Respondent pay to the Department the disbursements incurred in bringing this claim in the sum of $72.16. 

6         Further other orders in addition to the orders previously made ought to be made pursuant to section 83E(2) of the Act.  It is appropriate therefore that, in view of the factual circumstances of this case, the following orders also be made:

That the Respondent shall within 28 days of the personal service of this order produce to the Claimant the following:

(a)  Records issued by the Office of the Employment Advocate confirming registration of Australian Workplace Agreements for staff members employed in the business, Etto Restaurant/Cafe, (the business) owned by Time Gold Corporation Pty Ltd (the company) for the period 1 October 2002 to 31 October 2003;

(b)  The employment records for the period 1 October 2002 to

31 October 2003 for any employees employed by the company for the purpose of conducting the business, not covered by the registered Australian Workplace Agreements; and

(c)  The employment records for Way Clemesha for the period of his employment by the Company in the business, including the following;

• Time and Wages Records;
• Tax declaration forms;
• Group certificates;
• Time sheets; and
• Rosters.

7         There will be orders accordingly.

G Cicchini

Industrial Magistrate