2025 WAIRC 00722
INDUSTRIAL MAGISTRATES COURT OF WESTERN AUSTRALIA


CITATION
:
2025 WAIRC 00722



CORAM
:
INDUSTRIAL MAGISTRATE D. SCADDAN



HEARD
:
FRIDAY, 11 APRIL 2025, WEDNESDAY, 25 JUNE 2025 & FRIDAY, 15 AUGUST 2025



DELIVERED
:
WEDNESDAY, 27 AUGUST 2025



FILE NO.
:
M 137 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)
Instruments : Qube Ports Pty Ltd Port of Port Hedland Enterprise Agreement 2016
Qube Ports Pty Ltd Port of Port Hedland Enterprise Agreement 2020
Qube Ports Pty Ltd Port of Dampier Enterprise Agreement 2016
Qube Ports Pty Ltd Port of Dampier Enterprise Agreement 2020
Cases referred
to in reasons: : Australian Building and Construction Commissioner v Pattinson [2022] HCA 13; (2022) 274 CLR 450
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
Fair Work Ombudsman v Construction, Forestry, Maritime, Mining and Energy Union [2019] FCAFC 69
Rocky Holdings Pty Limited v Fair Work Ombudsman [2014] FCAFC 62; (2014) 221 FCR 153
Patrick Stevedores Holdings Pty Ltd v Construction, Forestry, Maritime, Mining and Energy Union (No 4) [2021] FCA 1481
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 00220; (2024) 104 WAIG 660
Construction, Forestry and Maritime Employees Union v Qube Ports Pty Ltd (Industrial Magistrate’s Court of Western Australia, Magistrate Coleman, 23 November 2023)
Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union [2019] FCAFC 59; (2019) 269 FCR 262
Fair Work Ombudsman v Priority Matters Pty Ltd (No 5) [2020] FCCA 901
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 Construction, Forestry, Maritime, Mining and Energy Union (No 2) [2018] FCA 1211; (2018) 70 AILR 102-975
Result : Penalty imposed
Representation:
Claimant : Mr K. Sneddon (of counsel) and with him, Ms S. Sayed (of counsel)
Respondent : Mr J. McClean (of counsel) and with him, Mr S. Jackson (solicitor) as instructed by Allens



REASONS FOR DECISION
1 On 7 October 2024, the Construction, Forestry and Maritime Employees Union (CFMEU or, the claimant) lodged a claim against Qube Ports Pty Ltd (the respondent) alleging that 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 Aroha Panga (Ms Panga), a Variable Salaried Employee (VSE) employed at the Port of Port Hedland, by failing to pay her for identified public holidays (NPH) and Closed Port Days (CPD) not worked (the Claim).
2 In determining a pecuniary penalty in respect of the admitted contravention, a question arose about what conduct the Industrial Magistrate’s Court (IMC, or Court) is imposing a deterrent penalty upon the respondent for? This question goes to the heart of the purpose of the imposition of civil penalties, that being the deterrence of future contraventions of a like kind by the contravenor and by others. Australian Building and Construction Commissioner v Pattinson [2022] HCA 13; (2022) 274 CLR 450 at [10] referring to NW Frozen Foods Pty Ltd v Australian Competition and Consumer Commission [1996] FCA 1134; (1996) 71 FCR 285 at 293 and at [15].

3 The Claim commenced on the heels of three other similar claims (M 76 and M 91 of 2022 and M 119 of 2023), all determined by the Court. Three months after the lodgement of the Claim, another similar claim (M 161 of 2024) was lodged by the claimant in the Court.
4 Typically, a claim involving multiple employees alleging the same contravention is litigated as one claim. In this case, there are now multiple individual claims involving the same parties litigating the same thing albeit at two different Pilbara ports, the Port of Dampier and the Port of Port Hedland. During the hearing, counsel for the parties were unable to provide any authorities where a similar situation had been considered by a superior court. That is not to say there are not decisions involving similar situations, just that (limited) research did not turn them up.
5 It was agreed that the penalty hearing for the Claim and M 161 of 2024 would be heard at the same time after the first hearing date.
6 Schedule I of these reasons outlines the jurisdiction, standard of proof and the practice and procedure of the Court.
7 Schedule II of these reasons outlines the provisions of the Fair Work Act 2009 (Cth) (FWA) and principles relevant in determining an appropriate pecuniary penalty (if any) for the respondent’s contraventions.
Background to the Claim
Chronology
8 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 Port Hedland EA 2020 provides for the payment for time not worked on CPDs and NPHs by VSEs. The terms are identically expressed in each enterprise agreement as:
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)
9 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.
10 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 1 January 2022 is, in fact not a CPD, but a NPH pursuant to cl 33.2.1(a)(i) of the Dampier EA 2020.
pursuant to cl 33.3.4(d) of the Qube Ports Pty Ltd Port of Dampier Enterprise Agreement 2020 (Dampier EA 2020).
11 On 1 August 2022, the claimant lodged M 91 of 2022 where it was alleged that the affected worker was not paid for NPHs 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.
12 On 7 December 2022, M 76 of 2022 and M 91 of 2022 were consolidated (M 76 and M 91 of 2022).
13 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.
14 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.
15 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.
16 On 25 May 2024, the respondent partially admitted contraventions in M 119 of 2023.
17 On 9 August 2024, the penalty hearing for M 76 and M 91 of 2022 was heard.
18 On 14 August 2024, the penalty hearing for M 119 of 2023 was heard.
19 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 Ports Pty Ltd [2024] WAIRC 789; 104 WAIG 1866 (CFMEU v Qube (1)) and CFMEU v Qube Ports Pty Ltd [2024] WAIRC 792; 104 WAIG 1857 (CFMEU v Qube (2)) respectively. Penalties were imposed in each matter.
20 As already stated, the Claim was lodged on 7 October 2024.
21 On 1 November 2024, the respondent admitted to some contraventions in the Claim, but some dates remained in dispute.
22 On 13 December 2024, M 161 of 2024 was lodged in the Court.
Evidence
Agreed Facts
23 The parties lodged a Statement of Agreed Facts on 20 February 2025 (the Agreed Facts). Exhibit 1 – Statement of Agreed Facts.

24 The Agreed Facts are along similar lines to that in M 76 and M 91 of 2022 and M 119 of 2023 in that the Port Hedland EA 2016 and Port Hedland EA 2020 covered and applied to the respondent and Ms Panga, as an employee of the respondent.
25 The claimant is an employee organisation with standing to commence M 137 of 2024.
26 The respondent is a national system employer and constitutional corporation and is engaged in the business of stevedoring.
27 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.
28 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.
29 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.’
30 Ms Panga 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.
31 Ms Panga did not work, was not paid, and was entitled to be paid seven hours at the Grade 2 cl 11 rate for the following ‘public holidays’: The dates listed by the parties in the Agreed Facts are in fact a mix of CPDs and NPHs, as those terms are defined in cl 33.2.1 of the Port Hedland EA 2016 and Port Hedland EA 2020.

(a) 27 January 2020
(b) 2 March 2020
(c) 25 April 2020
(d) 1 June 2020
(e) 25 December 2020
(f) 28 December 2020
(g) 1 March 2021
(h) 2 April 2021
(i) 7 June 2021
(j) 2 August 2021
(k) 7 March 2022
(l) 18 April 2022
(m) 26 January 2023
(n) 3 June 2024
32 Ms Panga took annual or personal leave on the following public holidays, and the respondent incorrectly deducted a day of annual leave from her leave balance and paid her for the leave taken, instead of paying her seven hours at the Grade 2 cl 11 rate for the public holiday not worked:
(a) 28 December 2021
(b) 1 January 2022
(c) 3 January 2022
(d) 6 June 2022
(e) 1 August 2022
33 Ms Panga worked and was paid in accordance with the Port Hedland EA 2016 and Port Hedland EA 2020 on 24 April 2021 and 17 April 2022.
34 Ms Panga did not work and was paid for the public holiday not worked in accordance with the Port Hedland EA 2016 and Port Hedland EA 2020 on 27 December 2021 and 12 August 2024.
35 The dates in [32] (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 recrediting Ms Panga the leave.
Other Evidence
36 The respondent relied upon a witness statement of Anthony James Stone (Mr Stone) signed 28 March 2025, Exhibit 2 – Witness Statement of Mr Stone signed 28 March 2025.
which was tendered into evidence and Mr Stone was cross-examined on his evidence.
37 Mr Stone is the respondent’s National Labour and Systems Manager, as part of the respondent’s National Labour Centre (NLC). The NLC is responsible for rostering employees across the respondent’s sites in Australia and New Zealand, and he is responsible for managing the NLC team. Exhibit 2 at [6].

38 The respondent uses the Microster Workplace Management System (Microster) to allocate shifts to stevedores and to integrate rostering and associated employee wage information into its payroll system. Exhibit 2 at [7] to [8].

39 Mr Stone’s role involves ensuring that rostering and allocation complies with the terms of the respondent’s various enterprise agreements, including the Port Hedland EA 2016 and Port Hedland EA 2020, as well as ensuring Microster is correctly configured with payment rules. Exhibit 2 at [9].

40 Mr Stone states that the dates of public holidays and CPDs need to be manually entered into Microster prior to the commencement of each financial year. The superintendent or delegate at each port is responsible for providing a list of all their relevant public holidays or CPDs to the NLC, which may be different across the ports. The NLC configures Microster to reflect these dates once they are received. However, this process is changing because of the respondent’s investigation into the extent of the contravention across its ports. Exhibit 2 at [13].

41 In terms of the Claim, Mr Stone reviewed why the respondent did not admit the whole of the Claim originally. In summary, there were dates, consistent with the Agreed Facts, where the respondent maintained it had complied with the Port Hedland EA 2016 and Port Hedland EA 2020, and two other disputed dates. These disputed dates were withdrawn by the claimant. However, the respondent admitted 19 of the 25 dates within the Claim. Exhibit 2 at [17] to [19].
However, as noted above, five of the ‘admitted’ dates do not involve a contravention in the Claim but are dates the respondent self-reported its error in deducting leave.
42 Mr Stone states the respondent commenced an investigation into its failure to properly implement the VSE Clauses in 2022 when the issue was raised by the affected worker in M 119 of 2023. Mr Stone in cross-examination said he was not aware of M 76 or M 91 of 2022. Exhibit 2 at [22].

43 Mr Stone became involved in the investigation in October 2023 where the respondent’s potential liability was investigated separately, and a manual process of reconciling figures still needed to be undertaken. Exhibit 2 at [23].

44 Mr Stone’s current role from February 2025 is to assist with the final stage of the investigation and to implement the changes necessary to ensure compliance, which he details in his witness statement. Exhibit 2 at [24].

45 In terms of the scope of the investigation, Mr Stone states that the respondent is committed to ensuring all current and former employees receive the correct payment for public holidays and CPDs, which has required a review of previous practices, and also mitigating any risk associated with any future underpayments. Exhibit 2 at [25].

46 The investigation involves reviewing 763 current and former employees to ensure they have been paid their entitlement under the VSE Clauses dating back to 2018. The investigation is difficult because it involves 19 ports, each of which has different public holidays and different processes for paying employees on public holidays. Mr Stone states that he has to manually confirm the relevant dates of public holidays for each port, the process each port has in place and the application of the VSE Clauses at each port. He says that this has taken time to complete. He further says this complexity is compounded by the different approaches ports have of how they recognise certain public holidays. Exhibit 2 at [26] to [29].

47 Mr Stone says he is investigating any and all inconsistencies after checking the respondent’s payroll information and employee records. He also notes that the respondent has on some occasions retrospectively paid employees for dates that do not coincide with public holidays or CPDs to rectify missed payments raised by employees.
48 As of 28 March 2025, Mr Stone said that he had not completed this part of the investigation, which at that time he anticipated would be completed by May 2025. However, in cross-examination, Mr Stone admitted that he had not completed the investigation by May 2025. He did not have the final liability figure in Court although he said payment to employees was imminent once the final amount was approved by the respondent’s directors and he obtained approval to make the payments. Exhibit 2 at [30] to [31].

49 Mr Stone also stated that where the respondent was able to do so with certainty, it had begun to make remediation payments to employees, including Ms Panga. Exhibit 2 at [32].

50 As the person with the carriage of the investigation, he understood that the respondent held an honest belief it was correctly interpreting the VSE Clauses up until the issued was raised in 2022, since becoming aware of the issue in 2022, the respondent had invested considerable time and resources to investigate the issue, and since ‘the determination by the Industrial Magistrate in July 2024’, the respondent had employed considerable time and resources in investigating its impact and rectifying its payroll systems. Exhibit 2 at [33].

51 Mr Stone said the respondent acknowledged certain processes and systems need improvement, and the respondent is actively working to do so. The respondent believes its employees should be paid their entitlements in a timely manner. He apologises for any inconvenience or stress in the respondent failing to do so. Exhibit 2 at [36].

52 In terms of corrective action, Mr Stone states the respondent is in the process of implementing additional procedures to provide greater oversight in relation to payroll compliance. Previous manual processes are being automated to reduce the risk of similar errors, this includes automating the receipt of payroll spreadsheets across 110 sites, including the 19 ports operated by respondent. This, he says, will minimise the opportunity for future errors. Mr Stone also states that his team is looking for ways to configure rules in Microster to ensure employees automatically receive all entitlements under the various enterprise agreements with minimal need for manual intervention. Exhibit 2 at [40] to [41].

53 Specific to the VSE Clauses, the NLC team now request confirmation of all NPHs and CPDs in the next financial year one month before the end of the financial year, configure the respective NPHs and CPDs in Microster, configure the relevant calendar in Microster with the relevant payment rules and as part of the fortnightly extract , manually report and review the payroll to confirm the NPHs and CPDs have been correctly administered. Exhibit 2 at [42].

54 The respondent also conducts regular and random audits of the payroll to ensure employee entitlements are compliant with the various enterprise agreements and check this with the various operations managers at site. Exhibit 2 at [43].

Submissions
55 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 II to these reasons sets out a summary of those principles.
Claimant
56 In summary, the claimant submits:
(a) the IMC 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 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) the maximum penalty 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 (2).

(e) 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 (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;
(f) 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;
(g) 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 6 March 2025 (claimant’s submissions) at [12.5].
and
(h) 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.
57 The claimant tabulates the prior claims where the respondent has contravened s 50 (and s 323) of the FWA. Claimant’s submissions at 6.
The claimant’s table is extracted below. Three of the 10 claims referred to by the claimant include M 76 and M 91 of 2022 and M 119 of 2023. Three of the claims include the Claim, M 161 of 2024 (heard together with the Claim) and M 2 of 2024 (penalty has yet to be determined). Of the 10 claims referred to be the claimant, five involve consideration of the VSE Clauses (M 76 and M 91 of 2022, M 119 of 2023, the Claim and M 161 of 2024).
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
58 The claimant submits that the maximum penalty will barely cause ‘a ripple’ for an organisation of the respondent’s size and resources, Claimant’s submissions at [12.9]
and anything less will not be the ‘sting in the tail’ to achieve deterrence. Claimant’s submissions at [12.8].

59 The Claim is an almost ‘identical repeat of a previous matter [M 119 of 2023] and of another claim currently on foot [M 161 of 2024]’ Claimant’s submissions at [13].
and only the maximum penalty can deter a recalcitrant and persistent ‘offender’. Claimant’s submission at [14].

60 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 four contraventions for which a penalty ought to be imposed separately. That is, there are two contraventions of the Port Hedland EA 2016 and two contraventions of the Port Hedland EA 2020.
61 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
62 The respondent submits that the appropriate penalty is no penalty or a penalty at the lower end of the range of between $5,000 to $10,000. The respondent requests the Court keep in mind that the Claim is the fourth out of five claims concerning essentially the same issue, namely application of the VSE Clause.
63 In summary, the respondent submits that:
(a) it has arranged to fully reimburse Ms Panga 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 her 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 by arranging to fully reimburse Ms Panga (including by re-crediting her leave), and similarly doing so in earlier proceedings brought by the claimant in relation to the same issue;
(d) the contraventions were not deliberate, and there was no malice, design, or deception involved in failing to pay Ms Panga her 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;
(f) the penalty imposed in similar cases where an employer has failed to pay an employee for public holidays not worked has generally been, at most, nominal; and
(g) 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.
64 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.
65 The respondent said the claimant’s approach to the litigation was unusual in respect of four out of five claims where the VSE Clause issue was identical.
Course of Conduct
66 There are two issues where there is significant dispute between the parties; the first concerns how the Court is to treat the respondent’s purported course of conduct in the Claim having regard to the contraventions in M 76 and M 91 of 2022 and M 119 of 2023.
Application of s 557 of the FWA
67 The claimant submits that the decision in CFMEU v Qube (1) is not relevant to any penalty to be imposed in the Claim, where the subject matter involved a different port and a different agreement, albeit the same VSE Clause.
68 Similarly, the claimant submits that the decision in CFMEU v Qube (2) is not relevant to any penalty to be imposed in the Claim, where the decision misapplied the law following CFMEU v Qube (3), and the Claim involves a different employee involving different dates that occurred after CFMEU v Qube (2) and is a separate proceeding.
69 The claimant says the respondent should not be protected from ‘reoffending’ without fear of ramifications. The respondent should not be ‘indemnified’ from ‘other breaches’ of the same VSE Clause in the same enterprise agreement.
70 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(3) of the FWA in the context of the previous decisions.
71 For the purposes of s 557(1) of the FWA, the respondent accepts the decision in CFMEU v Qube (3) and, thus, accepts that there are four contraventions capable of attracting a pecuniary penalty. That is, cl 33.3.2(d) and cl 33.3.4(d) of the Port Hedland EA 2016 and cl 33.3.2(d) and cl 33.3.4(d) of the Port Hedland EA 2020.

72 However, the respondent says that the course of conduct provisions (s 557(1) of the FWA) when properly applied mean the respondent’s failure to pay Ms Panga arises out of a course of conduct committed by the respondent, which has already been the subject of a penalty. The respondent points to the penalty decisions in M 76 and M 91 of 2022 and M 119 of 2023 and contends that no penalty should be imposed in respect of the Claim.
73 The respondent supports its contention with three submissions, two of which, in my view, are largely uncontroversial. The third submission is arguably where the controversy lies.
74 First, the respondent says that the contravention arises out of the same erroneous interpretation of the same terms of two enterprise agreements at two ports, where the same error has carried through the respondent’s practice over an extended period affecting multiple employees. At least it should be accepted that M 119 of 2023 and the Claim are identical, save for the employee affected.
75 Secondly, where a contravention relates to multiple employees, s 557 of the FWA applies so that the conduct is taken to constitute a single contravention.
76 Thirdly, s 557(3) of the FWA is not applicable because the date of the last contravention in the Claim is 3 June 2024 and the Court imposed a pecuniary penalty for a contravention of the same provision of the same enterprise agreement on 30 August 2024 (in CFMEU v Qube (2)). The respondent refers to Fair Work Ombudsman v Construction, Forestry, Maritime, Mining and Energy Union [2019] FCAFC 69 (the Hutchison Ports Appeal).
77 The respondent queries the claimant’s purpose in commencing separate proceedings for the same issue, where each proceeding involves one employee. The respondent says that the claimant is aware the respondent has taken steps to remediate the issue, and the claimant’s approach deprives the respondent of running a ‘course of conduct’ argument under s 557(1) of the FWA. The respondent says the more common approach involving an underpayment for multiple employees is for a single proceeding.
78 The respondent further says that this is not a case where the respondent has re-offended after having been penalised by a court for the same contravention, and the respondent has been actively investigating the issue to make payments to employees and to mitigate future risks of such an issue occurring again. The respondent’s investigation reveals that there are 763 current and former employees who may be affected. If the claimant’s current approach continues, then the absurd situation arises where the claimant may seek to litigate in excess of 750 individual claims on the same issue.
Determination on s 557 of the FWA
79 If I understand the respondent’s submissions correctly, it says it should have the benefit of s 557(1) of the FWA because s 557(3) of the FWA does not apply where a penalty in M 76 and M 91 of 2022 and M 119 of 2023 was imposed after the date of the last contravention in the Claim.
80 Leaving aside M 76 and M 91 of 2022 involves a separate port to M 119 of 2023 and the Claim, and with respect to the respondent, I do not understand the authorities (in particular, the Hutchison Ports Appeal) to support the respondent’s interpretation of how or when to apply s 557(3) of the FWA to s 557(1). However, I do accept that the issue could be clearer.
81 The respondent’s submissions appear consistent with Flick J’s reasons in the Hutchison Ports Appeal, where his Honour departed company with Ross and Rangiah JJ, and considered that the primary Judge’s construction of s 557 was correct. Hutchison Ports Appeal at [7] and [8].

82 However, Ross and Rangiah JJ did not accept the primary judge’s interpretation of s 557(3) of the FWA, albeit they gave separate reasons for not doing so. There is commonality in their separate reasons.
83 Ross J at [46] states:
In my view a plain reading of the text compels the conclusion that in order to enliven the operation of s 557(3) the prior contravention must be of the same civil remedy provision and the Court’s order imposing a penalty for that contravention must have occurred before the contraventions found in the present matter. Further, s 557(3) is not confined to cases in which the prior penalty has been imposed for a contravention forming part of the same course of conduct that is before the Court. (emphasis altered)
84 Thereafter, at [47] to [51], his Honour explains how he came to this view having regard to the purpose of the FWA and the need to deter non-compliance with civil remedy provisions. That is, I do not understand his Honour to be saying that s 557(3) also applies to contraventions involving the same offending conduct where a penalty has been applied after the imposition of a civil pecuniary penalty, where his Honour, at [50], refers to the undesirability of an expansion of the leniency afforded by s 557(1) and, at [51], refers to the section heading, but says this does not enable the importation of words at the end of s 557(3).
85 His Honour goes on to consider other cases where s 557(3) was not squarely considered, including in Rocky Holdings Pty Limited v Fair Work Ombudsman [2014] FCAFC 62; (2014) 221 FCR 153, although his Honour also indicates that the application of the principles in Rocky Holdings was not argued on appeal. Hutchison Ports Appeal at [78].

86 Similarly, Rangiah J at [185] and [188] in the Hutchison Ports Appeal, states:
These matters are consistent with a legislative intention that s 557(3) of the [FWA] will be engaged where a pecuniary penalty has been imposed for an earlier contravention of a civil remedy provision set out in s 557(2) and the same person later contravenes the same provision, even if the later contravention is unrelated to the earlier one. That this is the intention is unsurprising. On the construction favoured by the primary judge, no matter how many times a recidivist has contravened the same civil remedy provision in the past, and no matter how wilful, harmful or extensive the contravening conduct presently under consideration may be, the court would be restricted to imposing only a single pecuniary penalty. That would be inconsistent with the primary (probably, only) object of a pecuniary penalty as a deterrent: cf Commonwealth v Director, Fair Work Building Industry Inspectorate [2015] HCA 46; (2015) 258 CLR 482 at [55].
…
Where a court has imposed a pecuniary penalty for an earlier contravention of a civil remedy provision set out in s 557(2), s 557(3) of the [FWA] is engaged where the same person again contravenes the same civil remedy provision, even if the contraventions are unrelated.
87 Since the Hutchison Ports Appeal, in Patrick Stevedores Holdings Pty Ltd v Construction, Forestry, Maritime, Mining and Energy Union (No 4) [2021] FCA 1481 (Patricks), Lee J, at [150], referred to Rangiah J’s comments at [188] (above) and applied similar reasoning in his judgment at [151].
88 In the more recent case, CFMEU v Qube (3), Feutrill J, at [12], does not directly refer to s 557(3) of the FWA, but summarises the effect of prior contraventions of, relevantly, s 50 of the FWA, consistent with Ross and Rangiah JJ’s application of s 557(3) of the FWA.
89 Therefore, applying the reasoning in the above judgments, s 557(1) of the FWA applies to the contraventions in the Claim provided a penalty has not been imposed for any prior contraventions of s 50 of the FWA.
90 In CFMEU v Qube (3), at [68], Feutrill J summarises the respondent’s other contraventions of s 50 of the FWA.
91 The dates a penalty was imposed in relation to 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.
92 In addition, at [69], his Honour also briefly summarises the admitted contraventions forming M 76 and M 91 of 2022 and M 119 of 2023. The penalty hearing in CFMEU v Qube (3) was heard on 17 September 2024, 18 days after the penalty decisions in M 76 and M 91 of 2022 and M 119 of 2023 were published.
93 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.
94 Of the contraventions in the Claim, there is one date where a pecuniary penalty has previously been imposed on the respondent for breach of s 50 of the FWA, that being 3 June 2024.
95 That is, this one contravention of cl 33.3.2(d) of the Port Hedland EA 2020 occurred on 3 June 2024, which was after the imposition of pecuniary penalties for contraventions of s 50 of the FWA on 23 November 2023, 6 December 2023 and 17 May 2024 (summarised at [91] above).
96 All other 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.
97 Therefore, in my view, s 557(1) of the FWA is capable of application to all dates, save for 3 June 2024 as it relates to cl 33.3.2(d) of the Port Hedland EA 2020.
98 That is, in relation to:
(a) Clause 33.3.2(d) of the Port Hedland EA 2016, the four dates where this clause was contravened are taken to be a single contravention;
(b) Clause 33.2.2(d) of the Port Hedland EA 2020, two of the three 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 six 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 one date contravened is a single contravention.
99 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 7 June 2021, which was approximately 13 months prior to the lodging of M 76 of 2022 and approximately 15 months prior to the lodging of M 91 of 2022, and over two years prior to the lodging of M 119 of 2023;
(b) Clause 33.3.2(d) of the Port Hedland EA 2020 – while the last date of a contravention of this clause was on 3 June 2024, the other two dates occurred before the lodging of M 119 of 2023 with one of those two dates before the lodging of M 76 of 2022 and M 91 of 2022;
(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) the Port Hedland EA 2020 – the last date of a contravention of this clause occurred on 7 March 2022, which is approximately four months prior to the lodging of M 76 of 2022 and four and half months prior to the lodging of M 91 of 2022, and approximately 18 months prior to the lodgement of M 119 of 2023.
Application of the Common Law
100 Section 557 of the FWA does not otherwise exclude the operation of the common law. Patricks at [152].
In Patricks, Lee J referred to comments made by the Full Court in the Hutchison Ports Appeal at [183] to [184] (per Rangiah J):
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.
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.
101 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.
102 As is the following reference by Lee J, at [155], to Rangiah J’s statement in Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union [2019] FCAFC 59; (2019) 269 FCR 262:
The course of conduct principle exists to ensure that where that conduct results in more than one contravention, an offender is not punished more than once for what is effectively the same offending conduct. A finding that multiple contraventions are connected by a single course of conduct raises a question as to what is the appropriate penalty for those contraventions that avoids double punishment, but does not answer that question. The question is answered by evaluating the conduct and its course and assessing what penalty is, or what penalties are, appropriate for the contraventions. (emphasis added)
103 Where I am satisfied that the contravention on 3 June 2024 arose out of the same conduct at the same port because of the same failure to interpret the same VSE Clause involving the same parties (albeit a different employee), this contravention should be treated as a course of conduct under common law principles with the other relevant contraventions of cl 33.3.2(d) of the Port Hedland EA 2020. To find otherwise would risk ‘double punishment’ for the same conduct.
104 Of course, this does not abrogate the need to impose a pecuniary penalty that ‘the Court considers appropriate’.
The Nature, Extent and Circumstances of the Conduct
105 The claimant submits that the respondent is a ‘persistent offender’ and only the maximum penalty might deter the respondent from engaging in the same or similar conduct.
106 However, with respect to the claimant, this submission does not address the question posed at the outset, that is, what conduct is the Court seeking to deter?
107 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 7 March 2022. Further, the respondent complied with cl 33.3.4(d) of the Port Hedland EA 2020 on 12 August 2024, before the Court imposed penalties in M 76 and M 91 of 2022 and M 119 of 2023.
108 The last failure to comply with cl 33.3.2(d) of the Port Hedland EA 2016, as it relates to NPHs, was on 7 June 2021.
109 The last failure to comply with cl 33.3.2(d) of the Port Hedland EA 2020 was on 3 June 2024, although the date prior to that was 26 January 2023. Further, the respondent complied with cl 33.3.2(d) of the Port Hedland EA 2020 on 27 December 2021.
110 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 many workplaces.
111 The respondent has carried 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 it or the claimant would like. Consistent with Mr Stone’s evidence of the difficulties of manually checking the CPD and NPH dates for the investigation, a review of the decision in CFMEU v Qube (1) (relevant to M 76 of 2022) reveals the contravention alleged and admitted is not the contravention which occurred. That is, the admitted contravention was on 1 January 2022, which is an NPH, not a CPD, and which is a contravention of cl 33.3.2(d) of the Dampier EA 2020, not a contravention of cl 33.3.4(d). The dates in dispute across the claims further highlight this difficulty.
Similar Previous Conduct of the Respondent
112 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)
Save for the contravention on 3 June 2024 relating to cl 33.3.2(d) of the Port Hedland EA 2020, no pecuniary penalty had been imposed on the respondent for breaches of s 50 of the FWA at the time of the remainder of the relevant contraventions. In CFMEU v Qube (3), Feutrill J made a similar observation at [68] to [70].

113 The imposition of pecuniary penalties on 30 August 2024 in M 76 and M 91 of 2022 and M 119 of 2023 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.
and
· M 119 of 2023 - 25 December 2017 to 25 April 2023. CFMEU v Qube (2) at the Port of Port Hedland.

114 That is, save for 3 June 2024, the contravening dates in the Claim fall within the same date range of M 119 of 2023 at the same port concerning the same VSE Clauses.
115 There are some observations arising out of CFMEU v Qube (3). 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. The offending contraventions took place between September 2017 and April 2023. In that sense, the claim in CFMEU v Qube (3) has some similarities to the Claim, where the contraventions straddled two enterprise agreements relevant to the same port, Qube Ports Pty Ltd Port of Fremantle Enterprise Agreement 2016 and Qube Ports Pty Ltd Port of Fremantle Enterprise Agreement 2020 and involved similar breaching conduct across four agreement terms.
116 The way the litigation was conducted in CFMEU v Qube (3) was readily amendable to the application of s 557 of the FWA, notwithstanding the number of employees effected and the number of breaches of each term. See CFMEU v Qube (3) at [76] and at [31] to [33].
Similar observations can be made in Fair Work Ombudsman v Priority Matters Pty Ltd (No 5) [2020] FCCA 901 and in the Hutchison Ports Appeal.
117 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 sharper focus in the Claim and in a subsequent matter, M 161 of 2024. 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.
118 What we now know is that there has been, in essence, a failure to interpret the same VSE Clauses replicated in multiple agreements applicable to multiple ports run by the respondent. In the Claim this failure relates to the Port of Port Hedland. However, to date, 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, beyond one isolated date, the respondent has not contravened beyond 26 January 2023, approximately one month after the admissions made in M 76 and M 91 of 2022.
119 However, the respondent has previously contravened s 50 of the FWA and had civil penalties imposed prior to its contravention of cl 33.3.2(d) of the Port Hedland EA 2020 on 3 June 2024, but not in relation to any prior date referred to in the Claim.
Applicable Maxima
120 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.
121 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
January 2020
$ 210
June 2020
$ 210
December 2020
$ 222
January 2022
$ 222
December 2022
$ 222
January 2023 – April 2023
$ 275
July 2023 – June 2024
$ 313
122 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.
123 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 - $ 93,900.
· 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.
124 However:
(a) two of the four dates which contravened cl 33.3.2(d) of the Port Hedland EA 2016 occurred during the time when the value of the penalty unit was $210;
(b) five of the seven dates which contravened cl 33.3.2(d) of the Port Hedland EA 2020 occurred during the time when the value of the penalty unit was $222, and one of the seven dates occurred during the time when the value of the penalty unit was $275; and
(c) two of the six dates which contravened cl 33.3.4(d) of the Port Hedland EA 2016 occurred during the time when the value of the penalty unit was $210.
125 The maximum potential aggregate penalty is $293,700.
Size of the Respondent
126 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, including different CPDs and NPHs. Exhibit 2 at [34] and [35]. See also the definitions of NPH and CPD at cl 33.2.1(a) and (b) of the Port Hedland EA 2016 and Port Hedland EA 2020.

127 I adopt his Honour’s comments where there is little else that can meaningfully be added in these reasons.
Cooperation, Contrition and Corrective Action
128 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 six of the alleged 25 dates no longer part of the Claim and the remaining dates accepted by the respondent. The parties prepared the agreed facts.
129 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.
130 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.
131 The respondent has implemented further remediation processes to reduce the risk of similar issues occurring in the future. Exhibit 2 at [41] and [42].

132 Mr Stone apologised to Ms Panga for any inconvenience or stress caused to her and says the respondent has arranged to pay her for the contravened dates. Exhibit 2 at [38] and [39].

133 I would reduce any penalty by 25% for the cooperation and efforts made to mitigate future risk and by 10% to account for the date range of the contravening conduct across the penalty unit amounts.
Deliberate Conduct
134 The payments for NPHs and CPDs not worked were in issue in similar claims, M 76 of 2022 and M 91 of 2022 and M 119 of 2023.
135 The difficulty is that save for 3 June 2024, all the remaining 13 contravened dates were prior to the lodgement of these three prior claims. In particular, 12 of the 14 contravened dates were prior to the lodgement of M 76 and M 91 of 2022 and concerned the Port of Port Hedland not the Port of Dampier. One of the contravened dates occurred before the lodgement of M 119 of 2023.
136 Therefore, save for 3 June 2024, 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) at [46] and [47].

137 The respondent complied with its obligations under the VSE Clauses on 27 December 2021 and 12 August 2024, Exhibit 1 at [15].
which indicates that its conduct on 3 June 2024 was unlikely to be deliberate. That is, it complied before and after the contravened date. Accordingly, I am not satisfied to the requisite standard that the failure to comply with cl 33.3.4(d) of the Port Hedland EA 2020 on 3 June 2024 was deliberate. Having regard to the evidence, there was continued manual entry of local dates on to Microster and it appears more likely the failure to comply on 3 June 2024 was due to carelessness.
138 There is no evidence that in not making the payments to Ms Panga, the respondent obtained, or sought to obtain, any financial benefit.
Loss of Damage Suffered
139 Ms Panga’s consequential ‘loss’, being her entitlements, is reasonable The original claimed amount was $5,751.90. However, six dates of 25 dates were abandoned with the resultant amount being $4,370.87.
and, for a time, affected her leave balance. There is no evidence that she otherwise suffered loss or damage, or prejudice.
Deterrence
140 The second 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, being what is the Court deterring the respondent for?
141 The claimant calls for the maximum 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 [13].

143 The respondent says, consistent with comments made by the High Court in Australian Building and Construction Commissioner v Pattinson [2022] HCA 13; (2022) 274 CLR 450 (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 Ms Panga 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 Clauses, 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 The respondent poses the question of, what an additional penalty, including the maximum penalty, would achieve by way of deterrence.
147 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.
148 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
149 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 demonstrated in CFMEU v Qube (2). 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.

150 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, which was prior to the imposition of a penalty in similar cases (cf prior contraventions of s 50 of the FWA).
151 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.
152 However, it is the case the respondent has contravened s 50 of the FWA and civil penalties have been imposed, as outlined in [91] and also in M 76 and M 91 of 2022 and M 119 of 2023.
153 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’?
154 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.
The Circumstances of the Contraventions
155 There is overlap between the circumstances of the contraventions and the respondent’s circumstances.
156 That is, there is no evidence the contraventions were an industrial strategy pursued without regard for the law.
157 Even the contravention on 3 June 2024, I found to be borne out of carelessness rather than part of a deliberate strategy to circumvent the respondent’s industrial obligations.
158 There is also overlap between the circumstances of the contraventions and the contraventions in M 119 of 2023 with a civil penalty imposed for the same overall contravening conduct but for a different employee.
159 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
160 To my mind specific deterrence has less, but not no, role to play with respect the respondent’s contraventions. That is, the respondent has remedied the contravention as it relates to Ms Panga, self-reported to the Court the potential extent of the VSE Clause issue and initiated its own investigation to make good any underpayments and improved its payroll systems to mitigate the risk of future similar conduct.
161 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.
162 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, save for 3 June 2024, 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 two NPH dates (26 January 2023 and 3 June 2024).
163 This leaves the issue of general deterrence.
164 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.
165 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.
166 However, again it needs to be noted, the respondent has taken and is continuing to take steps to ensure that any underlying failings in its systems are mitigated, noting how the VSE Clauses issue commenced.
167 What deterrence does not include, however, is some form of de facto ‘punishment’ for a reason unrelated to ensuring the compliance with industrial laws or to reimburse a party for costs incurred in prosecuting a claim.
Penalty to be Imposed
168 Taking all of these factors in to account, the appropriate penalty aimed to secure compliance by deterring repeat contraventions, if not of this type, then of future different contraventions, are:
· Clause 33.3.2(d) of the Port Hedland EA 2016 - $ 3,900.
· Clause 33.3.2(d) of the Port Hedland EA 2020 - $ 5,850.
· Clause 33.3.4(d) of the Port Hedland EA 2016 - $ 3,900.
· Clause 33.3.4(d) of the Port Hedland EA 2020 - $ 3,900.
169 However, while an individual penalty is imposed for the contraventions of cl 33.3.4(d) of the Port Hedland EA 2016 and Port Hedland EA 2020, the contravention arises from the same erroneous interpretation and failure to pay an employee for a CPD not worked where there was a single contravened date relevant to the Port Hedland EA 2020 (7 March 2022, which was prior to the date of the admission relied upon by the claimant). Accordingly, by application of totality, I would reduce the pecuniary penalty to $1,000 for the contravention of cl 33.3.4(d) of the Port Hedland EA 2020.
170 The total of the penalties is $14,650 where the maximum potential penalty is $293,700. I do not consider any further reduction to be warranted to account for an imbalance between oppression and deterrence.
Conclusion
171 Pursuant to s 546(1) of the FWA, where the Court is satisfied that the respondent has contravened a civil penalty provision, the respondent is to pay a pecuniary penalty in the amount of $14,650.
172 Pursuant to s 546(3)(b) of the FWA , the pecuniary penalty is to be paid to the claimant.

D SCADDAN
INDUSTRIAL MAGISTRATE
Schedule I: 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 IMC, 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
[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 II: 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:
Date of Contravening Conduct
Penalty Unit
January 2020
$ 210
June 2020
$ 210
December 2020
$ 222
January 2022
$ 222
December 2022
$ 222
January 2023 – April 2023
$ 275
July 2023 – June 2024
$ 313
[3] The purpose served by penalties was described by Katzmann J in 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; (1996) 71 FCR 285.
[5] In Kelly v Fitzpatrick [2007] FCA 1080; (2007) 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:
(a) The nature and extent of the conduct which led to the breaches.
(b) The circumstances in which that conduct took place.
(c) The nature and extent of any loss or damage sustained as a result of the breaches.
(d) Whether there had been similar previous conduct by the respondent.
(e) Whether the breaches were properly distinct or arose out of the one course of conduct.
(f) The size of the business enterprise involved.
(g) Whether or not the breaches were deliberate.
(h) Whether senior management was involved in the breaches.
(i) Whether the party committing the breach had exhibited contrition.
(j) Whether the party committing the breach had taken corrective action.
(k) Whether the party committing the breach had cooperated with the enforcement authorities.
(l) The need to ensure compliance with minimum standards by provision of an effective means for investigation and enforcement of employee entitlements.
(m) 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; (2008) 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; (2015) 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; 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; (2016) 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)