2025 WAIRC 00724
INDUSTRIAL MAGISTRATES COURT OF WESTERN AUSTRALIA


CITATION
:
2025 WAIRC 00724



CORAM
:
INDUSTRIAL MAGISTRATE D. SCADDAN



HEARD
:
WEDNESDAY, 25 JUNE 2025 & FRIDAY, 15 AUGUST 2025



DELIVERED
:
WEDNESDAY, 27 AUGUST 2025



FILE NO.
:
M 161 OF 2024



BETWEEN
:
CONSTRUCTION, FORESTRY AND MARITIME EMPLOYEES UNION


CLAIMANT





AND





QUBE PORTS PTY LTD


RESPONDENT

CatchWords : INDUSTRIAL LAW – FAIR WORK – Assessment of pecuniary penalties for contraventions of Fair Work Act 2009 (Cth) – Contravention of an enterprise agreement – Failure to pay for Closed Port Days and Identified Public Holidays not worked
Legislation : Fair Work Act 2009 (Cth)
Industrial Relations Act 1979 (WA)
Crimes Act 1914 (Cth)
Instrument : Qube Ports Pty Ltd Port of Port Hedland Enterprise Agreement 2016
Qube Ports Pty Ltd Port of Port Hedland Enterprise Agreement 2020
Cases referred
to in reasons: : Construction, Forestry and Maritime Employees Union v Qube Ports Pty Ltd [2024] WAIRC 00789; (2024) 104 WAIG 1866
Construction, Forestry and Maritime Employees Union v Qube Ports Pty Ltd [2024] WAIRC 00792; (2024) 104 WAIG 1857
Construction, Forestry and Maritime Employees Union v Qube Ports Pty Ltd [2025] FCA 208
Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Telstra Corporation [2007] FCA 1607; (2007) 168 IR 368
Australian Rail, Tram and Bus Industry Union v Qube Logistics (Rail) Pty Ltd [2020] FCA 1520; (2020) 300 IR 198
Construction, Forestry and Maritime Employees Union v Qube Ports Pty Ltd [2023] WAIRC 00976; (2024) 104 WAIG 121
Construction, Forestry and Maritime Employees Union v Qube Ports Pty Ltd [2024] WAIRC 220; (2024) 104 WAIG 660
Patrick Stevedores Holdings Limited v Construction, Forestry, Maritime, Mining and Energy Union (No 4) [2021] FCA 1481
Construction, Forestry and Maritime Employees Union v Qube Ports Pty Ltd [2025] WAIRC 00722
Construction, Forestry and Maritime Employees Union v Qube Ports Pty Ltd (Industrial Magistrate’s Court of Western Australia, Magistrate Coleman, 23 November 2023)
Fair Work Ombudsman v Construction, Forestry, Maritime, Mining and Energy Union [2019] FCAFC 69
Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union [2019] FCAFC 59; (2019) 269 FCR 262
Fair Work Ombudsman v Grouped Property Services Pty Ltd (No 2) [2017] FCA 557
Heal v Sydney Flames Basketball Pty Ltd (No 2) [2024] FCA 794
Australian Building and Construction Commissioner v Pattinson [2022] HCA 13; (2022) 274 CLR 450
Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (No 2) [2018] FCA 1211; (2018) 70 AILR 102-975
Result : No penalty imposed
Representation:
Claimant : Mr K. Sneddon (of counsel) and with him, Ms S. Sayed (Industrial Officer)
Respondent/s : Mr J. McClean (of counsel), and with him, Mr S. Jackson (solicitor) as instructed by Allens



REASONS FOR DECISION
1 On 13 December 2024, the Construction, Forestry and Maritime Employees Union (CFMEU or, the claimant) lodged a claim against Qube Ports Pty Ltd (the respondent) alleging the respondent contravened the Qube Ports Pty Ltd Port of Port Hedland Enterprise Agreement 2016 (Port Hedland EA 2016) and the Qube Ports Pty Ltd Port of Port Hedland Enterprise Agreement 2020 (Port Hedland EA 2020) as it related to Russell Gibson (Mr Gibson), a Variable Salaried Employee (VSE) employed at the Port of Port Hedland, by failing to pay him for identified public holidays (NPH) and Closed Port Days (CPD) not worked (the Claim).
2 The Claim is identical to M 137 of 2024 save that it relates to a different employee. The penalty hearing for M 137 of 2024 and the Claim were heard at the same time.
3 Much of what was written in the penalty reasons for M 137 of 2024 applies equally to the Claim. This includes consideration of the same terms of Port Hedland EA 2016 and Port Hedland EA 2020, namely:
33.3.2 Public holiday not worked
…
d. A VSE or PVSE will be paid seven hours at the Grade 2 clause 11 rate…
33.3.4 Closed Port Days not worked
…
d. A VSE or PVSE will be paid seven hours at the Grade 2 clause 11 rate.
(VSE Clauses)
4 The Claim alleges that the respondent failed to pay Mr Gibson for NPHs and CPDs (identified in an attachment to the originating claim) not worked between 25 December 2020 and 3 June 2024, and in doing so contravened the VSE Clauses and s 50 and s 323 of the Fair Work Act 2009 (Cth) (FWA).
5 Further, the Claim alleges, pursuant to s 557A(1) of the FWA, that the respondent’s contraventions are serious contraventions.
6 The claimant seeks orders that the respondent pay:
(a) ‘compensation’ of $4,417 to Mr Gibson and pre-judgment interest on this amount; and
(b) a civil penalty in respect of the contraventions and any penalty be paid to the claimant.
7 Schedule I of these reasons is the chronology of the various claims relevant to the VSE Clauses adopted and, where relevant, modified from the penalty reasons in M 137 of 2024.
8 On 16 January 2025, the respondent admitted the contraventions in the Claim relating to certain dates but denied that it contravened other dates alleged. It denied that the contraventions were serious contraventions pursuant to s 557A(1) of the FWA.
9 Schedule II of these reasons outlines the jurisdiction, standard of proof and the practice and procedure of the Industrial Magistrates Court of Western Australia (IMC or Court).
10 Schedule III of these reasons outlines the provisions of the FWA and principles relevant in determining an appropriate pecuniary penalty (if any) for the respondent’s contraventions.
Evidence
Agreed Facts
11 The parties lodged a Statement of Agreed Facts on 30 April 2025 (the Agreed Facts). Exhibit 1 – Statement of Agreed Facts.

12 The Agreed Facts are along similar lines to that in M 76 of 2022, M 91 of 2022, M 119 of 2023 and M 137 of 2024 in that the Port Hedland EA 2016 and Port Hedland EA 2020 covered and applied to the respondent and Mr Gibson, as an employee of the respondent.
13 The claimant is an employee organisation with standing to commence M 161 of 2024.
14 The respondent is a national system employer and constitutional corporation and is engaged in the business of stevedoring.
15 The Port Hedland EA 2016 operated from 25 April 2017 and applied to the respondent’s employees employed at the Port of Port Hedland from 18 April 2017 to 15 August 2021.
16 The Port Hedland EA 2020 operated from 16 August 2021 and applied to the respondent’s employees employed at the Port of Port Hedland from 16 August 2021 with a nominal expiry date of 30 June 2024.
17 The Port Hedland EA 2016 and Port Hedland EA 2020 both provide for the employment classification of VSE and define a VSE in cl 2.1(p) as an employee ‘who is irregularly engaged to work and is paid a minimum salary in accordance with clause 9.5 of this Agreement.’
18 Mr Gibson was employed as a VSE Grade 2 at the Port of Port Hedland and entitled to the terms of the Port Hedland EA 2016 and Port Hedland EA 2020.
19 Mr Gibson did not work, was not paid, and was entitled to be paid seven hours at the Grade 2 cl 11 rate for the following NPHs or CPDs: CPDs and NPHs are terns defined in cl 33.2.1 of the Port Hedland EA 2016 and Port Hedland EA 2020.

(a) 25 December 2020
(b) 1 January 2021
(c) 1 March 2021
(d) 2 April 2021
(e) 25 April 2021
(f) 2 August 2021
(g) 25 December 2021
(h) 3 January 2022
(i) 15 April 2022
(j) 25 April 2022
(k) 1 August 2022
(l) 26 January 2023.
20 Mr Gibson took annual or personal leave on the following NPHs or CPDs:
(a) 5 April 2021
(b) 7 June 2021
(c) 7 March 2022
(d) 9 April 2023
(e) 31 March 2024
(f) 3 June 2024.
21 Mr Gibson did not work and was paid for the public holiday not worked in accordance with the Port Hedland EA 2020 on 7 April 2023.
22 The dates in [20] (as agreed in paragraph 13 of the Agreed Facts) do not form part of the Claim or contravening conduct but are dates the respondent has self-reported that were incorrectly deducted and it has now remedied those dates by re-crediting Mr Gibson the leave.
Other Evidence
The claimant
23 The claimant relied upon a witness statement of Joel Vincent O’Brien (Mr O’Brien) dated 14 May 2025. Mr O’Brien is the Northwest Regional Organiser for the Maritime Union of Australia Division of the claimant (MUA). Exhibit 2 – Witness Statement of Joel Vincent O’Brien dated 15 May 2025 at [4].

24 Mr O’Brien states he first became aware that the respondent ‘were not paying workers for public holidays’ during the early part of 2021. Unspecified members of the MUA contacted him and informed him they were attempting to resolve the issue with the respondent. Exhibit 2 at [7].

25 In February 2022, Mr O’Brien states that he contacted the respondent and requested they deal with the issue as a matter of urgency. Exhibit 2 at [8].
Mr O’Brien further states he commenced the dispute resolution procedure in cl 48 of Port Hedland EA 2020 in mid-February 2022, which was escalated by 31 March 2022 when he told Michael Kranendonk, the respondent’s manager in Western Australia (Mr Kranendonk), the claimant’s next step was referral to the Fair Work Commission (FWC). Exhibit 2 at [9].

26 I note this evidence is inconsistent with Mr O’Brien’s evidence in M 76 of 2022, as stated in CFMEU v Qube Ports Pty Ltd [2024] WAIRC 789; (2024) 104 WAIG 1866 (CFMEU v Qube (1)) at [31] to [34], where Mr O’Brien’s evidence related to the VSE Clauses at the Port of Dampier under the Qube Ports Pty Ltd Port of Dampier Enterprise Agreement 2020 (Port of Dampier EA 2020). Mr O’Brien did not give evidence in M 119 of 2023.
27 Mr O’Brien states that a decision was made not to escalate the dispute to the FWC because the respondent was to be prosecuted in the Court for ‘contravening the same clauses in the agreement covering workers at the Port of Dampier’. Exhibit 2 at [10].
Noting the above comments in relation to Mr O’Brien’s evidence, the decision not to proceed to the FWC related to the Port of Dampier only. There has been no indication in any evidence in any subsequent proceedings that the claimant had raised the issue with the respondent relevant to the Port of Port Hedland prior to lodging M 119 of 2023.
28 Mr O’Brien further states that during 2023 and 2024, he continued to receive complaints from (unspecified) members of the MUA that ‘their public holidays were still not being paid correctly’. Exhibit 2 at [11].
I note the respondent objected to this evidence where the exact nature of any complaints, if made, was unspecified. The claimant accepted, in part, this objection. On 1 May 2025, Mr O’Brien says that he sent an email to Anthony Stone requesting an update and as at the date of his witness statement, he had not received a response. Exhibit 2 at [12].

The respondent
29 The respondent relied upon witness statements of Daniel Raul Ortiz (Mr Ortiz) lodged on 18 June 2025 Exhibit 3 – Witness Statement of Daniel Raul Ortiz lodged on 18 June 2025.
and Anthony James Stone (Mr Stone) also lodged on 18 June 2025, Exhibit 4 – Witness Statement of Anthony James Stone dated 18 June 2025, including the annexed Witness Statement of Anthony James Stone lodged 31 March 2025 for M 137 of 2024.
which were tendered into evidence and Mr Ortiz and Mr Stone were cross-examined on their evidence.
30 Mr Ortiz is employed by Qube Holdings Limited as the General Manager – Industrial Relations and he has held this position since July 2022. He is authorised to give evidence on behalf of the respondent.
31 In summary, Mr Ortiz is responsible for negotiating and drafting enterprise agreements relating to the respondent’s businesses, employee engagement, and ensures that the respondent and its entities comply with requirements under applicable industrial instruments.
32 In addition, to stevedoring operations at the Port of Port Hedland, the respondent has stevedoring operations at 18 other ports in Australia, where the employees are covered by port-specific enterprise agreements containing similar terms to the Port Hedland EA 2016 and Port Hedland EA 2020, being the VSE Clauses.
33 Based on his enquiries, Mr Ortiz states that the first time it was suggested the respondent failed to properly administer employee entitlements on a public holiday was when a claim was made concerning the entitlements of Daniel Miller on 1 January 2022 (an NPH not a CPD) in M 76 of 2022. At the time of responding to this claim, the respondent understood the issue to have arisen as a one-off administrative error and did not appreciate there was a broader issue from its interpretation of relevant enterprise agreements. Exhibit 3 at [11]. As observed in M 137 of 2024, the alleged and admitted contravention in M 76 of 2022 was cl 33.3.4(d) when the contravened date of 1 January 2022 was a contravention of cl 33.3.2(d).

34 Similarly, he says this then extended to Rebecca Macdonald in M 91 of 2022 in respect of three public holidays on 25, 26 and 28 December 2020. Exhibit 3 at [12], note that 25 December 2020 is a CPD whereas 26 and 28 December 2020 are NPHs.

35 From his enquiries, Mr Ortiz states that the first time the respondent became aware that there may have been a broader issue in relation to its administration of the VSE Clauses was around October 2023 after it was served with, and responded to, M 119 of 2023. Exhibit 3 at [13].

36 Mr Ortiz says M 119 of 2023 exposed the fundamental difference in interpretation of how the VSE Clauses operated, and it was the difference in interpretation which led to the underpayments. Exhibit 3 at [13].

37 The respondent’s position at the time was that VSEs who declared themselves to be unavailable to work on NPHs and CPDs were not entitled to payment under the relevant enterprise agreements. The claimant had a different view and the claimant’s view was accepted to be the better interpretation. Exhibit 3 at [14].

38 The respondent did not appreciate at the time that its obligation to pay VSEs who did not work on NPHs or CPDs extended to circumstances where the employee was not available to work. The respondent continued to approach NPHs and CPDs with how those days had been approached under predecessor agreements, by paying VSEs for NPHs and CPDs not worked only if the VSE was available to work that day. That is, the respondent did not pay VSEs on an NPH or CPD if the VSE had made themselves unavailable to work that day. Exhibit 3 at [15].

39 Up until March 2025, the respondent thought its construction was consistent with M 119 of 2023. Exhibit 3 at [16].
In addition, in explanation of the respondent’s position, Mr Ortiz gave evidence in cross-examination that a recently discovered ‘bargaining minute’ from 2016 may have cast a different light on the claimant’s interpretation, but the respondent elected not to pursue this.
40 After M 119 of 2023, Mr Ortiz states he received a request from the claimant for rostering information for a number of employees, including timesheets and data from Microster. See M 137 of 2024 at [38] for an explanation of the respondent’s payroll system.
Although he did not know the purpose of the request, in the ‘spirit of cooperation’, he agreed to provide this information to the claimant. However, after doing so, the claimant lodged M 137 and M 161 of 2024. Exhibit 3 at [16].

41 Following the lodging of M 76 and M 91 of 2022, and notwithstanding the respondent held a genuine belief that its interpretation of the VSE Clauses was correct, the respondent commenced compiling a brief for internal teams to review the VSE Clause issue. Exhibit 3 at [17].

42 After the lodgement of M 119 of 2023, when it became apparent that there was a clear disagreement between the respondent and the claimant as to the proper interpretation of the VSE Clauses across its ports, the respondent’s Group Manager – Employee Relations and Mr Ortiz went through raw payroll data identifying pay periods that included one or more public holidays over a six year period, and mapping their findings on a spreadsheet with the purpose of understanding how many times the ‘VSE public holiday payment code’ had not appeared on a VSE payslip when it should have been. Exhibit 3 at [18].
This required the cross-check of data from two systems, which were not integrated. The number of datasets and coverage across 19 ports meant the process took time and effort. Exhibit 3 at [19].

43 The VSE Clauses issue was escalated to Mr Stone in about October 2024, whereupon Mr Ortiz did not have any further direct involvement in the day-to-day investigation. Exhibit 3 at [20].
To that end, Mr Ortiz does not know how much is owed to employees, how many employees are involved or when they will be paid.
44 Mr Ortiz further states that the respondent has already undertaken a review across its 19 ports and is currently developing and introducing enhanced processes and procedures to improve oversight of payroll compliance. Exhibit 3 at [24].
Mr Ortiz understands from his conversations with Mr Stone that as part of this remediation process, the National Labour Centre is now responsible for entering all public holidays into the payroll systems, rather than the on-site managers at the 19 ports. Exhibit 3 at [24].

45 Mr Ortiz advises the respondent has paid Mr Gibson his relevant entitlements and re-credited the leave incorrectly deducted from his leave balance. The total amount of the underpayment to Mr Gibson was approximately $2,794.54 (not $4,417 as claimed).
46 The respondent is continuing to work on making remediation payments to all other employees who have been identified as having been affected by the VSE Clauses issue. This continues to be time consuming so as to resolve claims accurately. Exhibit 3 at [26].

47 Mr Ortiz is aware that Mr O’Brien sent an email to Mr Stone on 1 May 2025 requesting an update on the amounts owed to 763 current and former employees. Mr Ortiz states the enterprise agreements set out a process for raising and resolving issues of this type, which does not include direct communication between the claimant’s officials and the respondent’s managers. Mr Stone forwarded the email to Mr Ortiz, and Mr Ortiz says he instructed Mr Stone not to respond. Mr Ortiz states that the respondent’s protocols exist to ensure the respondent’s employees do not make written commitments they are not authorised to make, which is important in the current matters where there is an ongoing investigation and remediation process. Exhibit 3 at [27].

48 The respondent regrets that it has not afforded the relevant entitlements to employees, which is why the respondent is approaching the remediation process thoroughly and is committed to ensuring ongoing compliance with its industrial obligations. Exhibit 3 at [28].

49 Mr Ortiz sets out the respondent’s community commitments as a responsible corporate citizen. Exhibit 3 at [29] to [31].

50 In M 137 of 2024, the respondent relied upon the witness statement of Mr Stone dated 28 March 2025 (Stone March Statement). This witness statement is annexed to Mr Stone’s witness statement lodged for the purposes of this Claim (Stone June Statement). I do not intend to restate the Stone March Statement, which is set out in the penalty reasons in M 137 of 2024 at [36] to [53], and I adopt for these reasons.
51 Further, I only intend summarising those parts of the Stone June Statement which casts new information or evidence not previously before the Court as part of the collective VSE Clauses issue.
52 Based on Mr Stone’s enquiries and review of the Court documents for the Claim, he understands: Exhibit 4 at [18].

(a) Mr Gibson received the correct entitlements on one of the NPHs listed in the Claim;
(b) the respondent admitted it contravened 12 dates relevant to VSE Clauses and underpaid Mr Gibson as a result; and
(c) the Claim alleged Mr Gibson was not paid for six NPH dates, but the respondent says it did pay Mr Gibson for those dates and volunteered that it incorrectly deducted a day of leave from Mr Gibson’s leave balance, notwithstanding this does not form part of the Claim or any alleged contravention.
53 The respondent has since re-credited Mr Gibson’s leave dates where these were deducted for CPDs or NPHs not worked. Exhibit 4 at [20].

54 Since the Stone March Statement, Mr Stone provides an update to the investigative and remediation process where he says the investigation is largely complete and he has sent his findings to the respondent’s payroll to confirm and validate. Once payroll confirm the findings, which he expects to take place by 27 June 2025, he will be able to provide the respondent with the amounts owed to each employee affected by the VSE Clause issue. Exhibit 4 at [28].

55 Mr Stone recognises the delay in providing the respondent with confirmation of the amounts owed and that he was unable to provide the respondent’s management with the final amounts owed to each employee in May 2025 as previously stated in the Stone March Statement. He says the reasons for this are because various site managers had difficulties in validating the outcome of the investigation (which involved manually reviewing personnel files) and the respondent has been involved in bargaining with the claimant for replacement enterprise agreements for each of the 19 ports it operates. Since the replacement agreements have been finalised, Mr Stone has been involved in updating the respondent’s systems to reflect the terms of the replacement agreements. Exhibit 4 at [29].

56 The respondent remains committed to making remediation payments as a ‘matter of priority’, although Mr Stone cannot say with certainty how long this process will take. However, the respondent has already begun making remediation payments to certain employees. Exhibit 4 at [31] and [32].

57 Mr Stone confirmed that the investigation included all past and current employees from 2018 who may be affected by the VSE Clauses, and while he did not have the exact number of affected employees, it was about 763. He could not confirm the total amount of underpayment that may be outstanding. However, he reiterated that the final amount to be paid would go to the respondent’s directors for sign-off and approval to pay.
58 Based on other enquiries and investigations made by Mr Stone, he says the respondent held a bona fide belief it was interpreting the VSE Clauses correctly up to mid-2024. There was a long-standing practice at the ports concerning entitlements on public holidays not worked, and he is not aware the claimant had previously suggested this was inconsistent with the respondent’s obligations. Since the VSE Clause issue emerged in 2022, and even though the respondent remained of the view that its interpretation of the VSE Clauses was correct, the respondent has dedicated time and resources to investigate the issue, and from mid-2024, the respondent has invested time and resources in remediation and rectifying payroll practices. Exhibit 4 at [33].

59 Since the Stone March Statement, Mr Stone has spoken further with senior management from the respondent, who are taking the VSE Clause issue, the investigation, and future remediation seriously. Mr Stone apologises to Mr Gibson for any inconvenience or stress caused. Exhibit 4 at [38] to [40].

60 In addition to the corrective action explained in the Stone March Statement, on 5 June 2025, the National Labour Centre schedule an online training session for managers at all of the respondent’s ports to walk through a payroll file for site payments to ensure managers have a clear understanding of the file, the information to be checked and the necessary communications with payroll to resolve any issue prior to the fortnightly processing into employee bank accounts. Exhibit 4 at [42].

61 Mr Stone explains he received an email from Mr O’Brien on 1 May 2025 requesting an update on the VSE Clause issue. He says it is unusual for him to receive emails from the claimant directly and he is not sure how Mr O’Brien found his email address. He forwarded the email to Mr Ortiz who instructed him not to respond to the email. Exhibit 4 at [43] to [45].

Submissions
62 Both parties refer to the law in respect of the determination of an appropriate pecuniary penalty for contraventions of the FWA. I do not intend to recite the parties’ reference to the applicable law. Schedule III to these reasons set out in summary those principles.
Claimant
63 In summary, the claimant submits that:
(a) the Industrial Magistrate’s Court is empowered to order a person to pay a pecuniary penalty the Court considers appropriate if the Court is satisfied the person has contravened a civil remedy provision: s 546(1) of the FWA;
(b) contraventions of s 50 and s 323 of the FWA are contraventions of a civil remedy provision: s 539(2) of the FWA;
(c) the applicable rate of the penalty unit from 1 July 2023 is $313, and the maximum penalty applicable is $93,900;
(d) however, pursuant to s 557A of the FWA, where a contravention is a ‘serious contravention’, which the claimant says the contraventions are, the maximum penalty is $939,00;
(e) a penalty of 35% of the maximum should be awarded in this case, where the respondent has previously been found to have contravened the same provisions of the same enterprise agreement; CFMEU v Qube Ports Pty Ltd [2024] WAIRC 792; (2024) 104 WAIG 1857 (CFMEU v Qube (2)).

(f) the contraventions in the Claim date back to 2020, with the last admitted contravention being 3 June 2024, after the date the originating claim in CFMEU v Qube Ports Pty Ltd [2024] WAIRC 792; (2024) 104 WAIG 1857 (CFMEU v Qube (2)) was lodged and after the respondent admitted the contraventions in that case. Simply put, the respondent has not heeded the warnings delivered in that case;
(g) the respondent has not shown contrition in the Claim and continues to deny claimed dates unnecessarily, the clear implication being that any benefit of the doubt previously afforded to the respondent no longer applies;
(h) the respondent has a history of non-compliance and has a ‘habit of treating their obligations with no small measure of disdain’; Claimant’s penalty submissions lodged 16 May 2025 (claimant’s submissions) at [15.4].
and
(i) the respondent is a large, sophisticated, and profitable company, who should be expected to have sufficient structures in place to ensure compliance with the legislation.
64 The claimant tabulates the prior claims where the respondent has contravened s 50 (and s 323) of the FWA. Claimant’s submissions at 7.
The claimant’s table is extracted below.
MATTER
CONTRAVENTION
M 76 of 2022
s. 50 FWA
s. 323 FWA
M 91 of 2022
s. 50 FWA
s. 323 FWA
M 101 of 2022
s. 50 FWA
s. 323 FWA
M 73 of 2023
s. 50 FWA
M 95 of 2023
s. 50 FWA
M 119 of 2023
s. 50 FWA
M 149 of 2023
s. 50 FWA
M 2 of 2024
s. 50 FWA
M 137 of 2024
s. 50 FWA
M 161 of 2024
s. 50 FWA
s. 323 FWA
65 Notably, of the tabulated claims, two related to the Port of Dampier (M 76 and 91 of 2022 which were consolidated) and three relate to the Port of Port Hedland and five of the claims tabulated above relate to the same VSE Clauses issue.
66 The claimant submits that the suggested penalty will barely cause ‘a ripple’ for an organisation of the respondent’s size and resources, Claimant’s submissions at [15.8].
and anything less will not be the ‘sting in the tail’ to achieve deterrence. Claimant’s submissions at [15.7].

67 The Claim is an almost ‘identical repeat of a previous matter [M 119 of 2023] and of another claim currently on foot [M 137 of 2024]’ Claimant’s submissions at [16].
and only a significant penalty can deter a recalcitrant and persistent ‘offender’. Claimant’s submissions at [17].

68 The claimant expanded its submissions orally by contending that, consistent with the decision in CFMEU v Qube Ports Pty Ltd [2025] FCA 208 (CFMEU v Qube (3)), there are eight contraventions for which a penalty ought to be imposed separately. That is, there are four contraventions of the Port Hedland EA 2016 and four contraventions of the Port Hedland EA 2020.
69 The claimant reiterated that the respondent continues to contravene the VSE Clauses after the admissions made in M 76 of 2022 and M 119 of 2023. There is no evidence of when the issue will be finalised. The respondent continues to give the same commitment to resolution, but the VSE Clause issue remains outstanding for employees.
Respondent
70 The respondent submits that the appropriate penalty is no penalty, where the source of contraventions was in the same disputed construction of the VSE Clauses, the contraventions were not deliberate (the same erroneous construction was adopted), there is no evidence of the entitlement being raised with the respondent prior to the institution of proceedings, and the legislative purpose is not met by the imposition of a penalty in this case.
71 The respondent referred to two cases in support of the imposition of no penalty in the Claim: Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Telstra Corporation [2007] FCA 1607; (2007) 168 IR 368 and Australian Rail, Tram and Bus Industry Union v Qube Logistics (Rail) Pty Ltd [2020] FCA 1520; (2020) 300 IR 198. Caution needs to be exercised when considering these cases, as both were decided prior to the High Court decision in Australian Building and Construction Commissioner v Pattinson [2022] HCA 13; (2022) 274 CLR 450 (Pattinson).
72 Alternatively, the respondent submits that having regard to the common law principles related to course of conduct and totality, if a penalty is imposed, it should be a penalty at the lower end.
73 In summary, the respondent submits that:
(a) it has arranged to fully reimburse Mr Gibson for any amounts owing in connection with its admitted contraventions of the Port Hedland EA 2016 and Port Hedland EA 2020, which includes re-crediting him for any annual or personal leave that was incorrectly deducted;
(b) it is undertaking a comprehensive investigation of the VSE Clauses, and is doing so in the broader context of this being a challenging, complex, and time-consuming payroll and compliance issue;
(c) it has admitted the contraventions, and has adopted a cooperative approach to rectification in these proceedings;
(d) the contraventions were not deliberate, and there was no malice, design, or deception involved in failing to pay Mr Gibson his relevant entitlements;
(e) the assessment of the respondent’s circumstances and the conduct complained of does not have a reasonable relationship with the imposition of the maximum penalty; and
(f) it has spent considerable time, energy, effort and cost to address the issue raised by the claimant in the Claim and to ensure that its systems and processes are compliant.
74 The respondent also expanded on its submissions orally by reiterating that it admitted most of the dates alleged and there were no outstanding or disputed dates. The respondent has expressed remorse and invested time and resources to address the payroll issues. However, the scope of the investigation and the respondent’s approach to it has developed over time. The respondent is being careful to get it right.
75 The respondent said the claimant’s approach to the litigation was unusual where the VSE Clause issue was identical.
Course of conduct
76 The first issue of significant dispute between the parties is how to treat the respondent’s purported course of conduct in the Claim having regard to the contraventions. While not fully developed in the claimant’s written submissions, as I understood the claimant’s oral submissions, because the claimant alleges breaches of s 50 and s 323 of the FWA, the claimant says there are eight contraventions for which it seeks the imposition of a pecuniary penalty.
77 The respondent presumed in its written submissions that the claimant was not advancing this submission. The respondent did not contest that there were four contraventions for which the Court was to impose a penalty (if any).
78 That is, on the claimant’s oral submissions, the eight contraventions are:
Section 50 of the FWA
(a) Clause 33.3.2(d) of the Port Hedland EA 2016;
(b) Clause 33.2.2(d) of the Port Hedland EA 2020;
(c) Clause 33.3.4(d) of the Port Hedland EA 2016; and
(d) Clause 33.3.4(d) of the Port Hedland EA 2020.
Section 323 of the FWA
(a) Clause 33.3.2(d) of the Port Hedland EA 2016;
(b) Clause 33.2.2(d) of the Port Hedland EA 2020;
(c) Clause 33.3.4(d) of the Port Hedland EA 2016; and
(d) Clause 33.3.4(d) of the Port Hedland EA 2020.
79 Like that in M 137 of 2024, in oral submissions, the claimant submitted that it was misguided to rely on common law principles in respect of course of conduct. Otherwise, the claimant had little to say in relation to the application of s 557(1) of the FWA in the context of the previous decisions, save for referring to the decision in CFMEU v Qube (3), which did not consider the dual application of s 323 of the FWA.
80 The respondent referred to comments by Lee J in Patrick Stevedores Holdings Limited v Construction, Forestry, Maritime, Mining and Energy Union (No 4) [2021] FCA 1481 at [152] to [153] (Patricks) referred to below.
Determination on s 557 of the FWA
81 In the penalty reasons for M 137 of 2024, CFMEU v Qube Ports Pty Ltd [2025] WAIRC 722.
set out at [79] to [88] is the Court’s understanding of the interaction between s 557(1) and (3) of the FWA.
82 Thereafter, the Court concludes that s 557(1) of the FWA applies to the contraventions in M 137 of 2024 provided that a penalty has not been imposed for any prior contraventions of s 50 of the FWA.
83 Adopting that same reasoning, and using Feutrill J’s summary of the respondent’s other contraventions of s 50 of the FWA in CFMEU v Qube (3), at [68], the dates a penalty was imposed in relation those contraventions are:
(a) 6 December 2023 in CFMEU v Qube Ports Pty Ltd [2023] WAIRC 976; (2024) 104 WAIG 121 (M 101 of 2022) (referred to at [68b]) for failing to pay an allowance to one employee at the Port of Dampier;
(b) 17 May 2024 in CFMEU v Qube Ports Pty Ltd [2024] WAIRC 220; (2024) 104 WAIG 660 (M 149 of 2023) (referred to at [68(c)]) for failing to pay an allowance to one employee at the Port of Tasmania; and
(c) 23 November 2023 in CFMEU v Qube Ports Pty Ltd (Industrial Magistrate’s Court of Western Australia, Magistrate Coleman, 23 November 2023) (M 95 of 2023) (referred to at [68(d)]) for failing to train employees to the level required at the Port of Port Hedland.
84 In addition, at [69], his Honour also briefly summarises the admitted contraventions forming M 76, M 91 of 2022 and M 119 of 2023. A penalty was imposed in M 76 and M 91 of 2022 and in M 119 of 2023 on 30 August 2024 and in CFMEU v Qube (3) on 18 March 2025.
85 The effect of the summaries at [68] and [69] is that, at [70], Feutrill J accepts that at the time of the contraventions in CFMEU v Qube (3) no pecuniary penalty had been imposed on the respondent for breach of s 50 of the FWA.
86 There are no contraventions in the Claim where a pecuniary penalty has previously been imposed on the respondent for breach of s 50 of the FWA.
87 That is, all dates upon which the respondent admits it contravened s 50 of the FWA occurred prior to the imposition of any pecuniary penalty for contravening s 50 of the FWA.
88 No evidence was led by the claimant regarding any prior breaches of s 323 of the FWA, therefore, there are no contraventions in the Claim where a pecuniary penalty has previously been imposed on the respondent for breach of s 323 of the FWA.
89 Accordingly, in my view, s 557(1) of the FWA is capable of application to all dates in relation to both s 50 and s 323 of the FWA. See s 557(2) of the FWA.

90 That is, in relation to:
(a) Clause 33.3.2(d) of the Port Hedland EA 2016, the one date where this clause was contravened is a single contravention;
(b) Clause 33.2.2(d) of the Port Hedland EA 2020, the two dates where this clause was contravened are taken to be a single contravention;
(c) Clause 33.3.4(d) of the Port Hedland EA 2016, the five dates where this clause was contravened are taken to be a single contravention; and
(d) Clause 33.3.4(d) of the Port Hedland EA 2020, the four dates where this clause was contravened are taken to be a single contravention.
91 Furthermore, these contraventions can be broken down as follows:
(a) Clause 33.3.2(d) of the Port Hedland EA 2016 – the last date of a contravention of this clause occurred on 1 January 2021, which was approximately 18 months prior to the lodging of M 76 of 2022 and approximately 19 months prior to the lodging of M 91 of 2022, and over two and a half years prior to the lodging of M 119 of 2023;
(b) Clause 33.3.2(d) of the Port Hedland EA 2020 – the last date of a contravention of this clause was on 26 January 2023, which was approximately eight months before the lodging of M 119 of 2023;
(c) Clause 33.3.4(d) of the Port Hedland EA 2016 – the last date of a contravention of this clause occurred on 2 August 2021, which was 11 months prior to the lodging of M 76 of 2022, 12 months prior to the lodging of M 91 of 2022, and approximately two years prior to the lodging of M 119 of 2023; and
(d) Clause 33.3.4(d) of the Port Hedland EA 2020 – the last date of a contravention of this clause occurred on 1 August 2022, which was 7 days after the lodging of M 76 of 2022 and the same day as the lodging of M 91 of 2022, and approximately 13 months prior to the lodgement of M 119 of 2023.
Application of the Common Law
92 Section 557 of the FWA does not otherwise exclude the operation of the common law. Patrick Stevedores Holdings Limited v Construction, Forestry, Maritime, Mining and Energy Union (No 4) [2021] FCA 1481 at [152] (Patricks).
In Patricks, Lee J in referring to comments made by the Full Court in the Fair Work Ombudsman v Construction, Forestry, Maritime, Mining and Energy Union [2019] FCAFC 69 (Hutchison Ports Appeal) at [183] to [184] (per Rangiah J), also stated, at [152]:
However, beyond the application of s 557 of the [FWA], the common law operates to ensure that multiple contraventions of different obligations may be treated as arising out of a single course of conduct if they have a common element in the action that led to the contraventions, as was explained in the [Hutchison Ports Appeal]:
[183] As I have said, s 557(1) of the [FWA] was regarded in Rocky Holdings at [18] as a protection against double punishment. Seen in that context, s 557(3) withholds from a contravener a protection that would otherwise be conferred by s 557(1). However, s 557(3) does not remove the protection against double punishment conferred under the course of conduct principle. The primary judge held that where s 557(1) does not apply because of s 557(3), the course of conduct principle would apply, and I respectfully agree. If s 557(1) does not apply, a court is left with the instruction of s 546(1) to impose a pecuniary penalty that ‘the court considers is appropriate’. Where there are multiple contraventions, assessment of an appropriate penalty must take into account whether the factual or legal circumstances overlap to an extent that there is a risk of multiple punishments for what is essentially the same contravention. In other words, the course of conduct principle must be considered.
[184] Section 557(3) of the [FWA], having withheld the absolute protection against more than one penalty conferred by s 557(1), leaves the contravener with the same protection as a person who commits, within a single course of conduct, multiple contraventions of a civil penalty provision not set out in s 557(2). That protection is the course of conduct principle. That does not automatically or necessarily mean that a single penalty must be imposed, but, rather, that the sentencing court is left to decide what penalty is, or penalties are, appropriate.
93 Further comments by Lee J in Patricks, at [153], are apposite to the Claim:
This is a case that engages the broad discretion to ensure penalties are appropriate to the conduct in a given case and to ensure that the respondents are not penalised twice for the same or substantially similar conduct.
94 In the same paragraph, his Honour goes on to recite the summary of Rangiah J in Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union [2019] FCAFC 59; (2019) 269 FCR 262 at [123] to [124].
95 I accept the respondent’s submissions, consistent with the evidence, that each of the contraventions arose from the same error and that the construction error infected the VSE Clauses across both enterprise agreements. I am satisfied that this common element led to the contravention of s 50 of the FWA (arising from contravening the terms of the enterprise agreements) and the contravention of s 323 of the FWA (arising from failing to pay an amount in full). I am satisfied that imposing separate penalties for the four contraventions of s 50 and s 323 of the FWA will punish the respondent twice for contraventions arising from the same offending conduct.
96 However, even if I was wrong about that, the principle of totality could be called upon to reduce any penalty.
The Nature, Extent and Circumstances of the Conduct
97 The claimant submits that the respondent was found to have contravened the same provisions of the same enterprise agreements and refers to the last admitted contravention being 3 June 2024 (which is, in fact, incorrect). Herein lies a difficulty with the claimant’s submission, and the question posed in M 137 of 2024 is more focused. That is, what conduct is the Court seeking to deter?
98 When the dates of the contraventions relevant to CPDs are looked at closely, there was no failure to comply with cl 33.3.4(d) of either the Port Hedland EA 2016 or the Port Hedland EA 2020 after 1 August 2022.
99 The last failure to comply with cl 33.3.2(d) of the Port Hedland EA 2016, as it relates to NPHs, was on 1 January 2021.
100 The last failure to comply with cl 33.3.2(d) of the Port Hedland EA 2020, as it relates to NPHs, was on 26 January 2023. Conversely, the respondent complied with cl 33.3.2(d) of the Port Hedland EA 2020 on 7 April 2023.
101 There was no contravention on 3 June 2024 as part of the Claim. This was a date where Mr Gibson took annual leave on a NPH and was paid, and the respondent credited this day of leave outside of the proceedings.
102 Further, the contravening conduct is identical, and the contravening dates are also almost identical, to that in M 76 and M 91 of 2022, M 119 of 2023 and M 137 of 2024. That is, not only does the VSE Clauses issue giving rise to the contravening conduct permeate in the same way through all claims in the cohort of similar claims, but the same contravening dates recur in the Claim.
103 The claimant submits that the respondent’s admission of the contraventions in M 76 and M 91 of 2022 on 23 December 2022 is the key moment the respondent ought to have been aware of its obligation with respect to the VSE Clauses, and payments remain outstanding to employees who may be affected by the respondent failure to comply with its obligations.
104 The respondent has self-reported that the conduct, or potential underpayments, is more widespread than originally thought. That is, the number of potentially affected employees may be more than 750 across all ports operated by the respondent.
105 From the respondent’s perspective, what started out as an issue isolated to one port, the Port of Dampier, has morphed resulting in the respondent carrying out an investigation across all its ports in Australia and its enterprise agreements to reconcile potential underpayments to employees under the VSE Clauses. It is committed to paying any underpayments. However, it has not completed the process as fast as the claimant would like, or as it had hoped. I noted in M 137 of 2024, at [111], the issue belatedly identified in CFMEU v Qube (1) (relating to M 76 of 2022) which highlights the difficulties associated with investigating the possible contravened dates in the VSE Clauses.
Similar Previous Conduct of the Respondent
106 Pecuniary penalties for contraventions of s 50 of the FWA were imposed on the respondent on 23 November 2023, 6 December 2023, 17 May 2024, 30 August 2024 and, most recently, on 18 March 2025. CFMEU v Qube (3).
No pecuniary penalty had been imposed on the respondent for breaches of s 50 or s 323 of the FWA at the time of the relevant contraventions. In CFMEU v Qube (3), Feutrill J made a similar observation at [68] to [70].

107 The imposition of pecuniary penalties on 30 August 2024 in M 76 and M 91 of 2022, M 119 of 2023 and M 137 of 2024 concerned the following contravened dates:
· M 91 of 2022 - 25, 26 and 28 December 2020; CFMEU v Qube (1) at the Port of Dampier.

· M 76 of 2022 - 1 January 2022; CFMEU v Qube (1) at the Port of Dampier.

· M 119 of 2023 - 25 December 2017 to 25 April 2023; CFMEU v Qube (2) at the Port of Port Hedland.
and
· M 137 of 2024 – 27 January 2020 to 26 January 2023. CFMEU v Qube Ports Pty Ltd [2025] WAIRC 722 at the Port of Port Hedland.

108 The contravening dates in the Claim fall within the same date range of M 119 of 2023 and M 137 of 2024 at the same port concerning the same VSE Clauses.
109 The observations I made in M 137 of 2024, relating to CFMEU v Qube (3), become starker in this Claim. The claim in CFMEU v Qube (3) involved the Port of Fremantle and the respondent’s failure to train 49 employees in compliance with four separate terms of two enterprise agreements relevant to the Port of Fremantle, for which a civil penalty was imposed.
110 If s 557(1) of the FWA is regarded as a protection against ‘double punishment’ and where the application of s 557(3) of the FWA on current authorities is not confined to cases in which the prior penalty has been imposed for a contravention forming part of the same course of conduct before the court, Hutchison Ports Appeal at [46] per Ross J.
then the observations made by Ross J in the Hutchison Ports Appeal at [43] are in even sharper focus in the Claim. That is, in response to observations made by the primary judge in respect of the application of s 557(3) of the FWA, Ross J, at [43], stated:
With respect, contrary to her Honour’s observation, it seems to me that it would be a very unusual case where a person commenced a course of conduct in contravention of the [FWA], had a penalty imposed for that contravention, and continued to engage in the same course of conduct, resulting in further civil remedy proceedings. The fact that such an occurrence is unlikely tells against the construction of s 557(3) adopted by her Honour.
111 The failure to interpret the same VSE Clause is replicated in multiple agreements applicable to multiple ports run by the respondent but the evidence does not demonstrate that the respondent continues to engage in the same course of conduct after the imposition of civil penalties for that course of conduct. Further, in the Claim, the failure pre-dates M 119 of 2023 and M 137 of 2024 as it relates to the Port of Port Hedland and save for one date which pre-dates M 91 of 2022.
112 Had the Claim been consolidated with M 137 of 2024 (as my colleague sensibly did in M 76 and M 91 of 2022), the respondent’s position may be different. This in no way should be taken to diminish the industrial obligations of employers, but the concept of ‘double punishment’ is a live issue.
Applicable Maxima
113 The maximum penalty with respect to a contravention of s 50 of the FWA by the respondent is 300 penalty units, given the respondent is a body corporate.
114 The claimant says that the maximum penalty for each contravention is $93,900. This is incorrect.
115 The dates of the contraventions cut across different penalty unit values as follows: See s 4AA of the Crime Act 1914(Cth) and s 12 of the FWA.

Date of Contravening Conduct
Penalty Unit
December 2020
$ 222
January 2022
$ 222
December 2022
$ 222
January 2023 – April 2023
$ 275
116 Where a contravention spans two or more penalty periods, the Court will generally apply the higher penalty unit for the purpose of determining the maximum penalty, but, when assessing the penalty, take into account whether the contravening conduct had occurred during a period or periods in which the value of the penalty unit was lower: Fair Work Ombudsman v Grouped Property Services Pty Ltd (No 2) [2017] FCA 557 (Grouped Property Services) at [396]  [401] (Katzmann J) and also referred to in Heal v Sydney Flames Basketball Pty Ltd (No 2) [2024] FCA 794.
117 Consistent with Feutrill J in CFMEU v Qube (3), where there are four contraventions, the applicable theoretical maximum in each case is:
· Clause 33.3.2(d) of the Port Hedland EA 2016 - $ 66,600.
· Clause 33.3.2(d) of the Port Hedland EA 2020 - $ 82,500.
· Clause 33.3.4(d) of the Port Hedland EA 2016 - $ 66,600.
· Clause 33.3.4(d) of the Port Hedland EA 2020 - $ 66,600.
118 The maximum potential aggregate penalty is $282,300.
119 The claimant further submits that the Court should treat the contraventions as serious contraventions, increasing the maximum to $939,000 (again, this amount is incorrect for the reason given above) for each contravention.
Serious Contravention
120 Unsurprisingly, the parties are also at odds over whether the respondent’s contravening conduct should be characterised as ‘serious contraventions’ pursuant to s 557A(1) of the FWA.
121 A contravention of civil remedy provision by a person (the respondent) is a serious contravention if the person knowingly contravened the provision or the person was reckless as to whether the contravention would occur. For the purposes of s 557A(1) of the FWA, a person is reckless as to whether a contravention would occur if the person is aware of a substantial risk that the contraventions would occur and having regard to the circumstances known to the person, it is unjustifiable to take the risk.
122 The claimant submits that the respondent’s contraventions in the Claim was ‘reckless’ pursuant to s 557A(2) of the FWA.
123 The respondent resists the finding of a serious contravention where ‘recklessness’ has been relied on as a basis for a finding of a serious contravention in respect to conduct engaged in after 27 February 2024. Explanatory Memorandum, Fair Work Legislation Amendment (Closing Loopholes) Bill 2023 (Cth) at [1626].
Contrary to the assertion by the respondent that there are two dates in the Claim which occur after 27 February 2024 (31 March 2024 and 3 June 2024), neither of these dates are contraventions subject to the Claim. Thus, there are no dates in the Claim that are capable of being considered a serious contravention for the purposes of s 557A(2) of the FWA.
124 However, if the respondent’s submissions were not accepted, the Agreed Facts, the evidence and the claimant’s submission on the significance of the admitted contravention on 23 December 2022 (in M 76 and M 91 of 2022) do not support a finding of serious contravention on any of the dates the subject of the Claim.
125 Save for 26 January 2023 (as it relates to cl 33.3.2(d) of the Port Hedland EA 2020), all contravened dates in the Claim were prior to the lodgement of M 76 or M 91 of 2022, where the date of the admitted contraventions for the Port of Dampier was 23 December 2022. There is no evidence indicating the respondent knowingly contravened the Port Hedland EA 2016 or Port Hedland EA 2020 after that date or should have been aware of a substantial risk the contravention would occur. By that time, save for 26 January 2023, the contraventions had already occurred.
126 The highest the situation got in M 76 of 2022 was a disagreement in March 2022 between the affected worker and Mr Kranendonk over the interpretation of the VSE Clauses at the Port of Dampier with Mr Kranendonk inviting the affected worker to continue invoking the dispute resolution clause under Port of Dampier EA 2020. CFMEU v Qube (1) at [31] to [32].
The dispute resolution clause was not continued and proceedings in the Court were commenced in July and August 2022. This is consistent with Mr Ortiz’s evidence of the evolving nature of the respondent’s (mis)understanding of the VSE Clauses.
127 Notwithstanding the last contravened date was 26 January 2023, one month after the admitted contraventions in M 76 and M 91 of 2022, one date, of itself, does not persuade me the respondent knowingly contravened cl 33.3.2(d) of the Port Hedland EA 2020 or is/was aware of a substantial (broader) risk beyond the Port of Dampier and that the known circumstances rendered it unjustifiable to take the risk.
Size of the Respondent
128 Comments made by Feutrill J, at [71] and [95], in CFMEU v Qube (3) are relevant to the Claim, save that Mr Stone’s further evidence is that the respondent employs approximately 2,245 employees of which 1,072 are covered by one of 19 different enterprise agreements. The enterprise agreements are similar but have differences relevant to the local port. Exhibit 4 at [34] and [35].
The enterprise agreements are similar but have differences relevant to the local port, including different CPDs and NPHs.
129 Again, I adopt his Honour’s comments where there is little else to add on this point.
Cooperation, Contrition and Corrective Action
130 The respondent has cooperated in the legal proceedings and admitted the substance of the Claim within a month of its lodgement. It has not put in the fact of the contraventions in issue. There was some dispute over alleged contravened dates which resolved with seven of the alleged 19 dates no longer part of the Claim and the remaining dates accepted by the respondent. The parties prepared the Agreed Facts.
131 The respondent, following M 119 of 2023, automated its payroll to reduce the risk of similar VSE Clause errors. CFMEU v Qube (2) at [34].
Mr Stone expanded on this in his evidence in the Claim.
132 The respondent commenced a large-scale investigation to rectify the payroll practices associated with the VSE Clauses. Once the investigation is completed, the respondent will make remediation payments to the current and former employees affected. The respondent has commenced making remediation payments where it is certain of the relevant dates. Mr Stone originally attested to this process being completed by the end of May 2025 but said in his oral evidence that it would take longer than that, possibly by the end of July 2025.
133 The respondent has implemented further remediation processes to reduce the risk of similar issues occurring in the future. Exhibit 4 at [41] and [42].

134 Mr Stone apologised to Mr Gibson for any inconvenience or stress caused to him and says the respondent has arranged to pay him for the contravened dates. Exhibit 4 at [38] and [39].

Deliberate Conduct
135 The payments for NPHs and CPDs not worked were in issue in similar claims, M 76 of 2022 and M 91 of 2022, M 119 of 2023 and M 137 of 2024.
136 Therefore, my comments in CFMEU v Qube (2) remain relevant:
The payments for public holidays and CPDs not worked were in issue in similar claims, M 76 of 2022 and M 91 of 2022, where employees contested the respondent’s reason for non-payment and the proper construction of EA 2016 and EA 2020 was far from certain, such that the respondent can be characterised as having ‘taken the odds’: Construction, Forestry, Mining and Energy Union v Hail Creek Coal Pty Ltd (No 2) [2018] FCA 480 (Hail Creek) at [17]. That is, in M 76 of 2022 and M 91 of 2022, in invoking the dispute resolution process, the respondent must have been aware of, and elected to, take the risk that its conduct if not would, then might, contravene s 50 of the FWA. This is relevant in this claim because the respondent should have been on notice that there was an issue at the port of Port Hedland.
I accept that, unlike in Hail Creek, there is no evidence the respondent should have had a heightened awareness of the risk it took from an erroneous construction because it had previously been found to have contravened EA 2016 or EA 2020 and had pecuniary penalties imposed: Hail Creek at [18]. CFMEU v Qube (2) [46] and [47].

137 The respondent complied with its obligations under the VSE Clauses on 7 April 2023, Exhibit 1 at [15].
which indicates its conduct was not deliberate.
138 There is no evidence that in not making the payments to Mr Gibson, the respondent obtained, or sought to obtain, any financial benefit.
Loss of Damage Suffered
139 Mr Gibson’s consequential ‘loss’, being his entitlements, is reasonable The original claimed amount was $4,417. However, seven of the 19 dates were abandoned with the resultant amount being $2,794.54.
and, for a time, affected his leave balance. There is no evidence that he otherwise suffered loss or damage, or prejudice.
Deterrence
140 The third issue where there is significant dispute between the parties is the role of deterrence in the Claim, which also goes back to the question posed earlier in these reasons, which in essence is what conduct is being deterred?
141 The claimant calls for a significant penalty describing the respondent as a recalcitrant and persistent offender.
142 The claimant further describes the Claim as ‘an almost identical repeat of a previous matter and of another currently on foot’, submitting the respondent must be deterred from ‘continuing its slapdash approach to compliance’. Claimant’s submissions at [16].

143 The respondent says, consistent with comments made by the High Court in Pattinson, at [55], the conduct the subject of the contravention does not bear a reasonable relationship to the maximum penalty where the conduct arose out of the respondent’s mistaken belief about the same VSE Clauses, the contravention was not deliberate, there has been no exploitation of employees, and the respondent has arranged to remediate the breach to Mr Gibson and, shortly, to any other employee similarly affected.
144 The respondent provides a comparative analysis of penalties in, arguably similar, circumstances.
145 The respondent also says that it has been sufficiently penalised in M 76 and M 91 of 2022, and M 119 of 2023 pertaining to the same VSE Clause, albeit at two different ports involving different employees. In addition, the respondent has expended considerable effort and cost to address the issue, including undertaking an investigation across all ports and enterprise agreements, automating and streamlining its payroll and rostering processes, and incorporating the interpretation of the VSE Clauses into Microster.
146 At the time of the parties’ submissions, the penalty reasons in M 137 of 2024 had not been published and a civil pecuniary penalty had not been imposed.
147 The respondent poses the question of, what an additional penalty would achieve by way of deterrence.
148 In Pattinson, at [71], the majority judgment concluded that a court’s ‘real task under s 546’ is ‘fixing the penalty which it considers fairly and reasonably to be appropriate to protect the public interest from future contraventions of the Act’ where, at [58], ‘the maximum penalty is intended by the Act to be imposed in respect of a contravention warranting the strongest deterrence within the prescribed cap’. To that end, both the circumstances of the contravention(s) and the respondent’s circumstances may be relevant to the assessment as to whether the maximum level of deterrence is required.
149 In Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (No 2) [2018] FCA 1211; (2018) 70 AILR 102-975 (also referred to in Pattinson at [26]), Tracey J stated:
[T]he maximum penalty may be appropriate for a person who has repeatedly contravened the same or similar legislative provisions despite having been penalised regularly over a period of time for such misconduct. The gravity of the offending, in such cases, is to be assessed by reference to the nature and the quality of the recidivism rather than by comparison of individual instances of offending: see Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union (No 2) [2015] FCA 1462 at [8] (Jessup J). Relevant matters will include the number of contraventions which have occurred over a period, whether the ongoing misconduct is the result of conscious decisions, whether the repeated contravenor has treated the payment of penalties as a cost of doing business and whether any attempt has been made to comply with the law as declared by the Court.
The Respondent’s Circumstances
150 I repeat many of the comments I made in M 137 of 2024.
151 Unlike in Pattinson, there is no discernible policy by the respondent to not pay employees in accordance with the VSE Clauses. A dispute arose between the parties regarding the interpretation of the VSE Clauses at the Port of Dampier, which was (erroneously) thought to be isolated. This was not the case, as CFMEU v Qube (2) made clear. The respondent conceded and continues to concede that its interpretation was incorrect. I note in his oral evidence Mr Stone made reference to some information that came to light during the investigation that may have changed the respondent’s position with respect to the interpretation of the VSE Clauses (from bargaining in 2016). Notwithstanding this information, whatever it might be, the respondent has not sought to challenge the interpretation.

152 Since the lodgement of M 119 of 2023 and admissions made by the respondent, relevant to the Port of Port Hedland, there has been one contravened date in M 137 of 2024, which was prior to the imposition of a penalty in similar cases (cf prior contraventions of s 50 of the FWA).
153 All other contravened dates were prior to the lodgement of M 76 and M 91 of 2022 and M 119 of 2023 and are within the same date range and prior to any penalties being imposed on the respondent for any contravention of s 50 of the FWA.
154 However, it is the case that the respondent has contravened s 50 of the FWA and civil penalties have been imposed, as outlined in [83] and also in M 76 and M 91 of 2022 and M 119 of 2023.
155 The respondent has invested financial and human resources to correct the issue and its payroll system more broadly. Thus, this is not a case where it can reasonably be said the respondent is seeking to have its way in the workplace or adhering to a strategy of non-compliance or that failure to pay employees in accordance with the VSE Clauses and accept a pecuniary penalty for doing so, is the cost of doing business. If that was the case, why invest in ‘getting it right’?
156 To that end, the respondent has self-reported to the Court the potential extent of the same issue and professed its commitment to remediate the issue by paying current and former affected employees. A civil penalty is not being imposed for other conduct in which the respondent self-reported the erroneous deduction of leave.
The Circumstances of the Contraventions
157 There is overlap between the circumstances of the contraventions and the respondent’s circumstances.
158 That is, there is no evidence the contraventions were an industrial strategy pursued without regard for the law.
159 There is also overlap between the circumstances of the contraventions and the contraventions in M 119 of 2023 and now in M 137 of 2024 with a civil penalty imposed for the same overall contravening conduct but for different employees.
160 The consequence of considering the above factors is that I am not satisfied in relation to the four contraventions that the maximum penalty ‘is reasonably necessary to deter further contraventions of a like kind’. Pattinson at [61].

Determination
161 To my mind, specific deterrence has limited role to play with respect the respondent’s contraventions. That is, the respondent has remedied the contravention as it relates to Mr Gibson, self-reported to the Court the potential extent of the VSE Clauses issue and initiated its own investigation to make good any underpayments and improved its payroll systems to mitigate the risk of future similar conduct.
162 Further, the contraventions the subject of the Claim cut across the dates of the prior similar claims, and, in fact, save for one date all were before the lodgement of the similar claims on the VSE Clauses.
163 There have been no similar contraventions since the imposition of the civil penalties in respect of the same issue. Further, on the evidence, there have been no contraventions since the imposition of any penalty for contravening s 50 of the FWA. To the extent the claimant refers to the respondent’s non-compliance since admissions made in December 2022, the evidence demonstrates that this relates to one NPH date (26 January 2023), which was also one of the contravening dates in CFMEU v Qube (2) (M 119 of 2023) and M 137 of 2024.
164 This leaves the issue of general deterrence.
165 Again, comments made by Feutrill J, at [94], in CFMEU v Qube (3) are relevant to the Claim:
Contraventions are not only the consequence of intentional or deliberate conduct but carelessness, oversight and inadvertence. Part of deterrence involves encouraging employers to implement and maintain systems, policies, procedures and a culture aimed at preventing careless, unintentional or ignorant contraventions of the Act. Therefore, the size and spread of an employer’s operation is not a reason for diminishing corporate responsibility for historical contraventions as these may be indicative of systemic or underlying failings in corporate systems, policies, procedures and culture and, therefore, of an ongoing and enhanced risk of future contraventions.
166 While his Honour’s comments may have been directed to specific deterrence, the tenure of these comments are applicable to any employer, including the respondent, so as to ensure compliance with industrial laws and ensuring employees are fairly and correctly paid.
167 However, if deterrence is the primary function of civil penalties, then what room is left for general deterrence in the Claim? What more can be achieved by the further imposition of a civil penalty for the same contraventions that have already been the subject of a civil penalty, not once but twice, albeit now in relation to a separate employee?
168 The claimant says that the respondent should not be ‘indemnified’ in some way by continuing to contravene the VSE Clauses and (still) not paying workers their entitlements.
169 The evidence demonstrates the respondent does not continue to contravene the VSE Clauses. The VSE Clauses have been contravened, for which the respondent has been the subject of a civil penalty. The delay in remediating any underpayments to the VSEs may be an aggravating factor, or at least not a mitigating one, but it is difficult to see how the delay in the circumstances of this case is a basis for imposing a deterrent penalty.
170 Imposing continuing civil penalties in similar individual cases may appear retributive rather than acting as a deterrent for future contraventions, undermining efforts to encourage employers to comply voluntarily.
171 Further, repeatedly imposing civil penalties on the same employer for similar, if not identical contraventions, stemming from the same error arguably constitutes double punishment.
Penalty to be Imposed
172 The Court retains a discretion to order the payment of a pecuniary penalty it considers appropriate in the circumstances of the particular case.
173 With respect to the contraventions in the Claim, I do not consider the payment of any pecuniary penalty is appropriate in the circumstances of this case.
174 Having regard to the factors discussed above, I am not satisfied that the imposition of a (further) penalty is what is necessary to deter the respondent from future non-compliance with industrial laws, much less non-compliance with the VSE Clauses.
Conclusion
175 Pursuant to s 546(1) of the FWA, notwithstanding the Court is satisfied that the respondent has contravened a civil penalty provision, the appropriate civil penalty to be imposed is no penalty.




D. SCADDAN
INDUSTRIAL MAGISTRATE


SCHEDULE 1: Chronology (adapted from M 137 of 2024)
[1] The genesis of the issue is in the application of two terms of two enterprise agreements relevant to the Port of Dampier and the Port of Port Hedland. Relevant to the Claim, the Port Hedland EA 2016 and EA 2020 provide for the payment for time not worked on CPDs and NPHs by VSEs. These terms are the VSE Clauses.
[2] The dispute between the same parties commenced in the Court in July 2022 and concerned the Port of Dampier. The same dispute between the same parties extended to the Port of Port Hedland in September 2023.
[3] On 21 July 2022, the claimant lodged M 76 of 2022 where it was alleged that the affected worker was not paid for a CPD not worked on 1 January 2022 pursuant to cl 33.3.4(d) of the Qube Ports Pty Ltd Port of Dampier Enterprise Agreement 2020 (Dampier EA 2020). As noted in the penalty reasons in M 137 of 2024, 1 January 2022 is an NPH, not a CPD, and therefore the alleged and admitted contravention is not of cl 33.3.4(d) but of cl 33.3.2(d).
[4] On 1 August 2022, the claimant lodged M 91 of 2022 where it was alleged that the affected worker was not paid for public holidays not worked on 26 and 28 December 2020 pursuant to cl 33.3.2(d) of the Qube Ports Pty Ltd Port of Dampier Enterprise Agreement 2016 (Dampier EA 2016) and Dampier EA 2020.
[5] On 7 December 2022, M 76 of 2022 and M 91 of 2022 were consolidated (M 76 and M 91 of 2022).
[6] On 23 December 2022, following the lodgement of amended statements of claim, the respondent admitted all contraventions, save for one part of M 91 of 2022 relating to long service leave (the Disputed Claim). The Disputed Claim was determined by another Industrial Magistrate on 9 February 2024, and the Disputed Claim was dismissed.
[7] On 29 September 2023, the claimant lodged M 119 of 2023, where it was alleged that the affected worker was not paid pursuant to cl 33.3.2(d) and cl 33.3.4(d) of the Port Hedland EA 2016 and the Port Hedland EA 2020 for NPHs and CPDs not worked.
[8] On 27 March 2024, the respondent requested vacation of programming orders in M 119 of 2023 where it accepted the contravention alleged, although there was a residual dispute regarding certain alleged contravened dates.
[9] On 25 May 2024, the respondent partially admitted contraventions in M 119 of 2023.
[10] On 9 August 2024, the penalty hearing for M 76 and M 91 of 2022 was heard.
[11] On 14 August 2024, the penalty hearing for M 119 of 2023 was heard.
[12] On 30 August 2024, reasons for decision and determination of penalties were published for M 76 and M 91 of 2022 and M 119 of 2023. These are CFMEU v Qube (1)) and CFMEU v Qube (2) respectively. Penalties were imposed in each of M 76 and M 91 of 2022 and M 119 of 2023.
[13] M 137 of 2024 was lodged on 7 October 2024.
[14] On 1 November 2024, the respondent admitted contraventions in M 137 of 2024, but some dates remained in dispute.
[15] On 13 December 2024, M 161 of 2024 was lodged in the Court.


SCHEDULE II: Jurisdiction, Practice and Procedure of the Industrial Magistrates Court of Western Australia Under the Fair Work Act 2009 (Cth)
Jurisdiction
[1] An employee, an employee organisation or an inspector may apply to an eligible state or territory court for orders regarding a contravention of the civil penalty provisions identified in s 539(2) of the FWA. The Industrial Magistrates Court of Western Australia (IMC or Court), being a court constituted by an industrial magistrate, is ‘an eligible State or Territory court’: s 12 of the FWA (see definitions of ‘eligible State or Territory court’ and ‘magistrates court’); Industrial Relations Act 1979 (WA) s 81, s 81B.
[2] The application to the IMC must be made within six years after the day on which the contravention of the civil penalty provision occurred: s 544 of the FWA.
[3] The civil penalty provisions identified in s 539 of the FWA include:
· Section 50 – contravention of an enterprise agreement
· Section 323 – failure to pay in full for the performance of work
[4] An ‘employer’ has the statutory obligations noted above if the employer is a ‘national system employer’ and that term, relevantly, is defined to include ‘a corporation to which paragraph 51(xx) of the [Australian] Constitution applies’: s 14, s 12 of the FWA. The obligation is to an ‘employee’ who is a ‘national system employee’ and that term, relevantly, is defined to include ‘an individual so far as he or she is employed … by a national system employer…’: s 13 of the FWA.
[5] Where the IMC is satisfied that there has been a contravention of a civil penalty provision, the Court may make orders for a person to pay a pecuniary penalty: s 546 of the FWA.
Burden and Standard of Proof
[6] In an application under the FWA, the claimant carries the burden of proving the claim. The standard of proof required to discharge the burden is proof ‘on the balance of probabilities’. In Miller v Minister of Pensions [1947] 2 All ER 372, 374, Lord Denning explained the standard in the following terms:
It must carry a reasonable degree of probability but not so high as is required in a criminal case. If the evidence is such that the tribunal can say: ‘We think it more probable than not,’ the burden is discharged, but, if the probabilities are equal, it is not.
[7] In the context of an allegation of the breach of a civil penalty provision of the Act it is also relevant to recall the observation of Dixon J said in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336:
The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters “reasonable satisfaction” should not be produced by inexact proofs, indefinite testimony, or indirect inferences. (362)
[8] Where in this decision it is stated that a finding has been made, the finding is made on the balance of probabilities. Where it is stated that a finding has not been made or cannot be made, then no finding can be made on the balance of probabilities.
Practice and Procedure of the Industrial Magistrates Court of Western Australia
[9] Subject to the provisions of the FWA, the procedure of the IMC relevant to claims under the FWA is contained in the Industrial Magistrate's Court (General Jurisdiction) Regulations 2005 (WA) (IMC Regulations). Notably, regulation 35(4) of the IMC Regulations provides the Court is not bound by the rules of evidence and may inform itself on any matter and in any manner as it thinks fit.
[10] In Sammut v AVM Holdings Pty Ltd [No 2] [2012] WASC 27, Commissioner Sleight examined a similarly worded provision regulating the conduct of proceedings in the State Administrative Tribunal and made the following observation (citations omitted):
The tribunal is not bound by the rules of evidence and may inform itself in such a manner as it thinks appropriate. This does not mean that the rules of evidence are to be ignored. The more flexible procedure provided for does not justify decisions made without a basis in evidence having probative force. The drawing of an inference without evidence is an error of law. Similarly such error is shown when the tribunal bases its conclusion on its own view of a matter which requires evidence. [40]

SCHEDULE III: Pecuniary Penalty Orders Under the Fair Work Act 2009 (Cth)
Pecuniary Penalty Orders
[1] The FWA provides that the IMC may order a person to pay an appropriate pecuniary penalty if the Court is satisfied that the person has contravened a civil remedy provision: s 546(1) of FWA. The maximum penalty for each contravention by a natural person, expressed as a number of penalty units, set out in a table found in s 539(2) of the FWA: s 546(2) of the FWA. If the contravener is a body corporate, the maximum penalty is five times the maximum number of penalty units proscribed for a natural person: s 546(2) of the FWA.
[2] The rate of a penalty unit is set by s 4AA of the Crimes Act 1914 (Cth): s 12 of the FWA. The relevant rate is that applicable at the date of the contravening conduct:
December 2020
January 2022
December 2022
January – April 2023
$ 222
$ 222
$ 222
$ 275
[3] The purpose served by penalties was described by Katzmann J in Fair Work Ombudsman v Grouped Property Services Pty Ltd (No 2) [2017] FCA 557 (Grouped Property Services) [388] in the following terms (omitting citations):
In contrast to the criminal law, however, where, in sentencing, retribution and rehabilitation are also relevant, the primary, if not the only, purpose of a civil penalty is to promote the public interest in compliance with the law. This is achieved by imposing penalties that are sufficiently high to deter the wrongdoer from engaging in similar conduct in the future (specific deterrence) and to deter others who might be tempted to contravene (general deterrence). The penalty for each contravention or course of conduct is to be no more and no less than is necessary for that purpose.
[4] In Pattinson [42], the plurality confirmed that civil penalties ‘are not retributive, but rather are protective of the public interest in that they aim to secure compliance by deterring repeat contraventions’. However, ‘insistence upon the deterrent quality of a penalty should be balanced by insistence that it “not be so high as to be oppressive”’: [40], citing NW Frozen Foods Pty Ltd v Australian Competition and Consumer Commission [1996] FCA 1134; 71 FCR 285.
[5] In Kelly v Fitzpatrick [2007] FCA 1080; 166 IR 14 [14], Tracey J adopted the following ‘nonexhaustive range of considerations to which regard may be had in determining whether particular conduct calls for the imposition of a penalty, and if it does the amount of the penalty’ which had been set out by Mowbray FM in Mason v Harrington Corporation Pty Ltd [2007] FMCA 7:
· The nature and extent of the conduct which led to the breaches.
· The circumstances in which that conduct took place.
· The nature and extent of any loss or damage sustained as a result of the breaches.
· Whether there had been similar previous conduct by the respondent.
· Whether the breaches were properly distinct or arose out of the one course of conduct.
· The size of the business enterprise involved.
· Whether or not the breaches were deliberate.
· Whether senior management was involved in the 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 the enforcement authorities.
· The need to ensure compliance with minimum standards by provision of an effective means for investigation and enforcement of employee entitlements and
· The need for specific and general deterrence.
[6] The list is not ‘a rigid catalogue of matters for attention. At the end of the day the task of the Court is to fix a penalty which pays appropriate regard to the circumstances in which the contraventions have occurred and the need to sustain public confidence in the statutory regime which imposes the obligations.’ (Buchanan J in Australian Ophthalmic Supplies Pty Ltd v McAlary-Smith [2008] FCAFC 8; 165 FCR 560 (Australian Ophthalmic Supplies) [91]).
[7] Although these factors provide useful guidance, the task of assessing the appropriate penalty is not an exact science: Commonwealth v Director, Fair Work Building Inspectorate [2015] HCA 46; 258 CLR 482 [47]. The Court must ultimately fix a penalty that pays appropriate regard to the contraventions that have occurred: Pattinson [19]. ‘[A] court empowered by s 546 to impose an “appropriate” penalty must act fairly and reasonably for the purpose of protecting the public interest by deterring future contraventions of the Act:’ Pattinson [48].
[8] ‘Multiple contraventions’ may occur because the contravening conduct done by an employer:
(a) resulted in a contravention of a single civil penalty provision or resulted in the contravention of multiple civil penalty provisions;
(b) was done once only or was repeated; and
(c) was done with respect to a single employee or was done with respect to multiple employees.
[9] The fixing of a pecuniary penalty for multiple contraventions is subject to s 557 of the FWA. It provides that two or more contraventions of specified civil remedy provisions by an employer are taken be a single contravention if the contraventions arose out of a course of conduct by the employer. Subject to proof of a ‘course of conduct’, the section applies to contravening conduct that results in multiple contraventions of a single civil penalty provision whether by reason of the same conduct done on multiple occasions or conduct done once with respect to multiple employees: Rocky Holdings Pty Ltd v Fair Work Ombudsman [2014] FCAFC 62; (2014) 221 FCR 153; Fair Work Ombudsman v South Jin Pty Ltd (No 2) [2016] FCA 832 [22] (White J) The section does not apply to cases where the contravening conduct results in the contravention of multiple civil penalty provisions (example (a) above): Grouped Property Services [411] (Katzmann J).
[10] The totality of the penalty must be re-assessed in light of the totality of the offending behaviour. If the resulting penalty is disproportionately harsh, it may be necessary to reduce the penalty for individual contraventions. Australian Ophthalmic Supplies [47] - [52].
[11] Section 546(3) of the FWA also provides:
Payment of penalty
(3) The court may order that the pecuniary penalty, or a part of the penalty, be paid to:
(a) the Commonwealth; or
(b) a particular organisation; or
(c) a particular person.
[12] In Milardovic v Vemco Services Pty Ltd (No 2) [2016] FCA 244 [40] - [44], Mortimer J, in light of Sayed v Construction, Forestry, Mining and Energy Union [2016] FCAFC 4; 239 FCR 336, summarised the law: (omitting citations)
[T]he power conveyed by s 546(3) is ordinarily to be exercised by awarding any penalty to the successful applicant. … [T]he initiating party is normally the proper recipient of the penalty as part of a system of recognising particular interests in certain classes of persons … in upholding the integrity of awards and agreements the subject of penal proceedings. Where a public official vindicates the law by suing for and obtaining a penalty, it is appropriate that the penalty be paid to the Consolidated Revenue Fund. Otherwise, the general rule remains appropriate, that the penalty is to be paid to the party initiating the proceeding, with the Gibbs [Gibbs v The Mayor, Councillors and Citizens of City of Altona [1992] FCA 553; 37 FCR 216] … exception that the penalty may be ordered to be paid to the organisation on whose behalf the initiating party has acted. (original emphasis)