2025 WAIRC 00779
INDUSTRIAL MAGISTRATES COURT OF WESTERN AUSTRALIA


CITATION
:
2025 WAIRC 00779



CORAM
:
INDUSTRIAL MAGISTRATE C. TSANG



HEARD
:
MONDAY, 9 JUNE 2025



DELIVERED
:
MONDAY, 15 SEPTEMBER 2025



FILE NO.
:
M 32 OF 2025



BETWEEN
:
CHRISTOPHER APLIN, DEPARTMENT OF ENERGY, MINES, INDUSTRY REGULATION AND SAFETY


CLAIMANT





AND





LEE DOUGLAS ELLIOTT T/A LEESON PLUMBING (ABN 64 136 757 710)


RESPONDENT

CatchWords : INDUSTRIAL LAW – Application for default judgment – Proper construction of s 83A(1), s 83A(3) and s 83F(2) of the Industrial Relations Act 1979 (WA) – Whether s 83A(1) requires the court to issue an order for the respondent to remedy the underpayments by payment to the employees, or whether the court may issue an order for the respondent to remedy the underpayments by payment to the industrial inspector
Legislation : Industrial Relations Act 1979 (WA)
Industrial Relations Legislation Amendment Act 2021 (WA)
Industrial Magistrates Courts (General Jurisdiction) Regulations 2005 (WA)
Interpretation Act 1984 (WA)
Labour Relations Reform Act 2002 (WA)
Instrument : Building Trades (Construction) Award 1987
Cases referred
to in reasons : CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 141 ALR 618
Cody v JH Nelson Pty Ltd (1947) 74 CLR 629
Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28
Re Minister for Heritage; Ex Parte City of Fremantle [2000] WASCA 156
SZTAL v Minister for Immigration and Border Protection [2017] HCA 34
The Ombudsman v Laughton (2005) 64 NSWLR 114
Thorman v Dowgate Steamship Company Ltd [1910] 1 KB 410
Result : Application granted in part; orders to be made for payment to employees
Representation:
Claimant : Ms E Mills (of counsel)
Respondent : On his own behalf



REASONS FOR DECISION
1 These reasons concern the proper construction of ss 83A(1), 83A(3) and 83F(2) of the Industrial Relations Act 1979 (WA) (Act). Specifically, whether s 83A(1) requires the court to issue an order for the respondent to remedy the underpayment of employees by payment of the underpaid amounts to the employees; or permits the court to issue an order for the respondent to remedy the underpayment of employees by payment of the underpaid amounts to the claimant, an industrial inspector.
2 By Amended Particulars of Claim filed on 27 June 2025, the claimant clarified that the claim regarding the respondent’s failure to comply with the Building Trades (Construction) Award 1987 (Award) is made pursuant to s 83(1) of the Act, current from 31 January 2025, i.e. version 16I000. Accordingly, in these reasons, references to the Act refer to version 16I000 unless otherwise stated.
3 Sections 83A of the Act states: (emphasis added)
83A. Underpayment of employee, orders to remedy
(1) Where in any proceedings brought under section 83(1) against a person it appears to the industrial magistrate’s court that an employee has not been paid the amount which the employee was entitled to be paid under an entitlement provision, the industrial magistrate’s court must, subject to subsection (2), order that person to pay to that employee the amount by which the employee has been underpaid.
(2) An order may only be made under subsection (1) –
(a) in respect of any amount relating to a period not being more than 6 years prior to the commencement of the proceedings; or
(b) if the person concerned appears to the industrial magistrate’s court, or has been found under section 83E, to have contravened section 102(1)(a) or (b) by reason of having failed –
(i) to produce or exhibit a record relevant to the proceedings; or
(ii) to allow such a record to be examined; or
(iii) to answer a question relevant to the proceedings truthfully to the best of the person’s knowledge, information and belief, as the case requires,
in respect of any amount relating to a period not being more than 6 years prior to that failure.
(3) When an order is made under subsection (1), the amount stated in the order is taken to be a penalty imposed under this Act and may be recovered accordingly, but on recovery must be paid as stated in the order under section 83F.
(4) Nothing in this section limits the operation of section 83.
[Section 83A inserted: No. 20 of 2002 s. 155(1); amended: No. 30 of 2021 s. 48 and 76(2) and (3).]
4 Section 83F of the Act states: (emphasis added)
83F. Costs and penalties, payment of
(1) Where the industrial magistrate’s court, by an order made under section 83, 83A, 83B or 83E, imposes a penalty or costs the industrial magistrate’s court must state in the order –
(a) the name of the person liable to pay the penalty or costs; and
(b) the name of the person to whom the penalty is, or costs are, payable.
(2) An industrial magistrate’s court imposing a penalty by order under section 83, 83A, 83B or 83E may order that the amount of the penalty, or part of that amount, be paid to –
(a) a person directly affected by the conduct to which the contravention relates; or
(b) the applicant; or
(c) the Treasurer.
(3) In making an order for payment to a person referred to in subsection (2)(a) the court must take into account any other compensation that the person has received or is likely to receive in respect of the conduct concerned.
[Section 83F inserted: No. 20 of 2002 s. 157; amended: No. 30 of 2021 s. 76(2).]
Background
5 On 21 March 2025, the claimant filed an Originating Claim, outlining his employment with the Department of Energy, Mines, Industry Regulation and Safety and designation as an industrial inspector pursuant to s 98(1) of the Act; and seeking the following orders: (emphasis added)
a) an order that the Respondent pay the Claimant a penalty for each of the four contraventions of the Award, such penalties to be determined and imposed by the Court pursuant to section 83(4)(a)(ii) of the Act;
b) an order pursuant to section 83A(1) of the Act that the Respondent pay to the Claimant $6,501.38 for outstanding annual leave and annual leave loading entitlements of Mitchell Hosking under the Award;
c) an order pursuant to section 83A(1) of the Act that the Respondent pay to the Claimant $4,837.63 for outstanding annual leave and annual leave loading entitlements of Justin Hosking under the Award;
d) orders that the Respondent pay to the Claimant pre-judgment interest on the Award entitlements of Mitchell Hosking and Justin Hosking, pursuant to regulation 12(1) of the Industrial Magistrates Courts (General Jurisdiction) Regulations 2005 [(Regulations)];
e) an order pursuant to section 83E(1)(b) of the Act that the Respondent pay the Claimant a penalty for the contraventions of section 102(1)(a) of the Act;
f) an order pursuant to sections 83C(1) and 83E(11) of the Act that the Respondent pay to the Claimant any disbursements incurred by the Claimant in relation to the proceedings; and
g) an order pursuant to section 83E(2) of the Act requiring the Respondent to produce to the Claimant within 14 days of the order the following records held, controlled or capable of being accessed by the Respondent for Mitchell Hosking:
i. original records or all hours worked, such as time and wages records, timecards or rosters;
ii. details of all annual leave taken (amounts and dates taken);
iii. details of all sick leave taken (amounts and dates taken);
iv. details of any periods of unpaid leave (amounts and dates taken);
v. original payroll records, such as payroll reports or payslips for each pay period;
vi. bank records detailing payment of wages to Mitchell Hosking via electronic funds transfer (EFT);
vii. employment contract for Mitchell Hosking;
viii. all evidence, including receipts, relating to the payment of tools made by Leeson Plumbing for Mitchell Hosking.
6 On 14 May 2025, the claimant, upon the default of the respondent filing a Response within 21 days of service of the Originating Claim as prescribed by reg 14(1) of the Regulations, filed an application for default judgment seeking for the court to make the orders at [5] above (Application).
7 On 14 May 2025, the Clerk of the Court issued Orders for the claimant to serve the Application on the respondent, and required the respondent, if he opposes the Application, to file a Response to Claimant’s Application by 4 June 2025. The respondent did not file a Response to Claimant’s Application by 4 June 2025 or at all.
8 The Application was listed for hearing on 9 June 2025. At the hearing, the respondent agreed that Mitchell Hosking and Justin Hosking were entitled to be paid their accrued but untaken annual leave entitlements and annual leave loading on the termination of their employment; that he had not paid these entitlements to them; and that he would remedy the underpayments by making payment of the underpaid amounts.
9 Consequently, the court issued the following orders in relation to the Application, and ordered the remainder of the Originating Claim for penalties and costs to be adjourned and listed for a halfday penalty hearing:
Having heard from the parties at the hearing of the claimant’s application for default judgment on 9 June 2025, and the respondent agreeing that he is in default of lodging a Response to the Originating Claim and consenting to the Industrial Magistrates Court issuing the orders sought in the claimant’s application for default judgment that arise under ss 83A(1) and 83E(6) of the [Act] and regulation 12 of the [Regulations], the Court hereby orders that:
2. The claimant provide the respondent with a Form 17 – Memorandum of Consent to Order or Judgment [(Consent Orders)], of the form of the orders that the parties consent to being issued on the claimant’s application for default judgment and lodge it with the Court.
3. The claimant file and serve a written outline of submissions relevant to:
(a) Section 83A(1) of the Act and whether an order should issue requiring the respondent to remedy the underpayment by payment to the employees or to the claimant; and
(b) Regulation 12 of the Regulations including whether an order should issue under reg 12(1) or reg 12(4), the rate of interest, whether it may be expressed as a lump sum, and the relevant calculation.
10 On 10 June 2025, in accordance with Order 2 of the Orders made on 9 June 2025 (at [9] above), the claimant filed the parties’ Consent Orders, in which the parties recorded their consent for the court to issue orders in the form of the orders set out in the Originating Claim and replicated in the Application (at [5] above).
11 On 10 June 2025 and 8 July 2025, in accordance with Order 3(a) of the Orders made on 9 June 2025 (at [9] above), the claimant filed submissions stating:
Statutory interpretation
(a) The current method of statutory interpretation in Australia is the ‘contextual or constructional choice’: CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 141 ALR 618, 635; Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28 [69] (Project Blue Sky); SZTAL v Minister for Immigration and Border Protection [2017] HCA 34 [14], [37]–[39].
(b) The rule of ejusdem generis is not a rule of law; it refers to instances ‘where there are general words following particular or specific words the general words should be confined to things of the same kind as those specified’: Cody v JH Nelson Pty Ltd (1947) 74 CLR 629, 639. It ‘is subordinate to the real intention of the parties, and does not control it; that is to say, that the canon of construction is but the instrument for getting at the meaning of the parties, and that the parties, if they use language intimating such intention, may exclude the operation of this or, I suppose, any other canon of construction’: Thorman v Dowgate Steamship Co Ltd (1910) 1 KB 410, 419.
(c) In any event, the rule of ejusdem generis is not relevant, as s 83A is not framed in a way that the rule applies. While s 83F provides a ‘list’ of sections to which it applies, it offers no limitation of which section applies when. Given s 83A(3) expressly refers to s 83F, then s 83A is always applicable in the context of s 83F.
(d) The approach of generalia specialibus non derogant, was summarised by Spigelman CJ in The Ombudsman v Laughton (2005) 64 NSWLR 114 [19]:
The maxim of statutory construction generalia specialibus non derogant reflects an underlying principle that a legislature, which has created a detailed regime for regulating a particular matter, intends that regime to operate in accordance with its complete terms. Where any conflict arises with the general words of another provision, the very generality of the words of which indicates that the legislature is not able to identify or even anticipate every circumstance in which it may apply, the legislature is taken not to have intended to impinge upon its own comprehensive regime of a specific character.
(e) Section 83A(1) is the general provision, modified by the specific provisions in ss 83A(3) and 83F(2). Section 83F explicitly refers to orders under s 83A(1) and makes provision for what the orders must state and who the court may order that the amount be paid to.
(f) In any event, the general rule that ‘where possible, all words in an Act should be given effect’ is an express limitation on the generalia specialibus non derogant principle (citing Dennis C Pearce, Statutory Interpretation in Australia (LexisNexis, 9th ed, 2019) [4.52]).
Construction of ss 83A and 83F of the Act
(g) Section 6 sets out the principal objects of the Act. Industrial inspectors and organisations have a longstanding and important role in the enforcement of minimum entitlements, recognising that individual employees, particularly vulnerable employees, may not have the resources or ability to practically pursue underpayments themselves. Sections 83(1), 83A and 83F are collectively intended to facilitate the enforcement of minimum entitlements, furthering the principal objective in s 6(d):
[T]o provide for the observance and enforcement of agreements, awards, the LSL Act, the MCE Act and other entitlement provisions…
(h) A primary purpose of s 83F is to allow an applicant with the resources and expertise, such as an industrial inspector or union, to take the primary enforcement proceedings, and if necessary, to enforce any orders obtained under s 81CB.
(i) Section 83F(2) is complementary to s 83(2), which provides for enforcement of an entitlement provision by, inter alia, an industrial inspector or union named as a party to an award or industrial agreement.
(j) Therefore, the only interpretation of s 83A(1) that allows for a contextual or purposive interpretation is one that allows for an order made under s 83A(1) to be made payable to the applicant.
(k) Numerous prior proceedings brought by an industrial inspector under s 83 involving migrant workers have resulted in the court ordering the underpayment to be made payable to an applicant industrial inspector pursuant to s 83F(2)(b).
(l) Any interpretation of s 83A must be consistent with the Act as a whole. An order under s 83A is a penalty for noncompliance under the Act. Part of the enforcement process is compliance and recovery.
(m) If s 83A is read to restrict the court in making orders for payments of penalty exclusively to an employee, then:
(i) An industrial inspector loses their power to recover the debt in the Magistrates Court.
(ii) Section 83F(1)(b), requiring an order imposing a penalty under s 83A, to state the name of the person to whom the penalty is payable, has no work to do.
(n) Therefore, the interpretation more consistent with the Act as a whole is that the express reference to s 83F in s 83A(3) and the express reference to s 83A(1) in s 83F, demonstrate that ss 83A and 83F are designed to work together.
(o) Section 83F(2)(b) provides that the court, imposing a penalty by order under s 83A, may order the amount of the penalty, or part of that amount, be paid to the applicant. The only ‘penalty’ the court can impose under s 83A, is the amount of the underpayment that s 83A(3) deems to be a penalty. Therefore, a more consistent interpretation sees s 83A(3) as directing the court to s 83F for the options available when drafting a s 83A order.
(p) Applying the contextual approach to interpretation of s 83A(1) requires an interpretation that is consistent and in harmony with other provisions of Part III Division 2, specifically s 83F.
Meaning of ‘must’ in s 83A(1) of the Act
(q) The use of the word ‘must’ in s 83A(1), is intended to require the court to issue an order where it appears an employee has not been paid an amount to which the employee is entitled.
(r) Applying a contextual or purposive approach requires taking into account the words of ss 83A(3) and 83F(1) and (2); and when read in context, leads to the conclusion that the order may be made payable to the applicant.
(s) Furthermore, the ‘obligation’ must be applied taking into account the ordinary principles of interpretation. As noted in Statutory Interpretation in Australia [11.1]:
It could be assumed that, for interpretation purposes, the presence in legislation of words such as ‘shall’, ‘must’ or ‘is required’ suggest some kind of obligation… However, the courts have not adopted any rule to that effect… Instead, the courts have treated the resolution of obligatory/discretionary issues as having to be dealt with by reference to the ordinary principles of interpretation previously discussed.
(t) Consequently, applying the ordinary principles of interpretation to s 83A(1), the court is empowered to, in accordance with s 83F(2) which applies by virtue of s 83A(3), make an order remedying an underpayment that is payable to the applicant.
Consent Orders
(u) The claimant does not press for orders that are on different terms to those in the Originating Claim and Application. The claimant does not seek orders payable to the employees; nor orders the claimant cannot enforce. Therefore, if the court considers that it does not have jurisdiction to make orders relating to underpayments payable to the claimant, the court should dismiss the Application.
Consideration
Principles for statutory construction
12 The principles for statutory construction (at [11(a)] above) provide that:
(a) The focus of statutory construction is upon the text of the provision, having regard to its context and purpose;
(b) The context includes the legislative history and extrinsic materials which a court may have regard to in ascertaining the mischief which a statutory provision is intended to remedy; and
(c) The primary object of statutory construction is to construe the provision so that it is consistent with the language and purpose of all the provisions of the statute: Project Blue Sky [70]–[71]: (footnotes omitted)
70 A legislative instrument must be construed on the prima facie basis that its provisions are intended to give effect to harmonious goals. Where conflict appears to arise from the language of particular provisions, the conflict must be alleviated, so far as possible, by adjusting the meaning of the competing provisions to achieve that result which will best give effect to the purpose and language of those provisions while maintaining the unity of all the statutory provisions. Reconciling conflicting provisions will often require the court ‘to determine which is the leading provision and which the subordinate provision, and which must give way to the other’. Only by determining the hierarchy of the provisions will it be possible in many cases to give each provision the meaning which best gives effect to its purpose and language while maintaining the unity of the statutory scheme.
71 Furthermore, a court construing a statutory provision must strive to give meaning to every word of the provision. In The Commonwealth v Baume Griffith CJ cited R v Berchet to support the proposition that it was ‘a known rule in the interpretation of Statutes that such a sense is to be made upon the whole as that no clause, sentence, or word shall prove superfluous, void, or insignificant, if by any other construction they may all be made useful and pertinent’.
13 The Interpretation Act 1984 (WA) (Interpretation Act) came into operation on 1 July 1984. Section 3(1) of the Interpretation Act provides that the provisions of the Interpretation Act apply to every written law, whether the law was enacted, passed, made or issued before or after the commencement of the Interpretation Act, unless express provision is made to the contrary; or the intent and object of an Act, or something in the subject or context of an Act, is inconsistent with such application.
14 Section 19 of the Interpretation Act states:
19. Extrinsic material, use of in interpretation
(1) Subject to subsection (3), in the interpretation of a provision of a written law, if any material not forming part of the written law is capable of assisting in the ascertainment of the meaning of the provision, consideration may be given to that material –
(a) to confirm that the meaning of the provision is the ordinary meaning conveyed by the text of the provision taking into account its context in the written law and the purpose or object underlying the written law; or
(b) to determine the meaning of the provision when –
(i) the provision is ambiguous or obscure; or
(ii) the ordinary meaning conveyed by the text of the provision taking into account its context in the written law and the purpose or object underlying the written law leads to a result that is manifestly absurd or is unreasonable.
(2) Without limiting the generality of subsection (1), the material that may be considered in accordance with that subsection in the interpretation of a provision of a written law includes –
(a) all matters not forming part of the written law that are set out in an official version of the law under the Legislation Act 2021; and
(b) any relevant report of a Royal Commission, Law Reform Commission, committee of inquiry or other similar body that was laid before either House of Parliament before the time when the provision was enacted; and
(c) any relevant report of a committee of Parliament or of either House of Parliament that was made to Parliament or that House of Parliament before the time when the provision was enacted; and
(d) any treaty or other international agreement that is referred to in the written law; and
(e) any explanatory memorandum relating to the Bill containing the provision, or any other relevant document, that was laid before, or furnished to the members of, either House of Parliament by a Minister before the time when the provision was enacted; and
(f) the speech made to a House of Parliament by a Minister on the occasion of the moving of a motion that the Bill containing the provision be read a second time in that House; and
(g) any document (whether or not a document to which a preceding paragraph applies) that is declared by the written law to be a relevant document for the purposes of this section; and
(h) any relevant material in any official record of proceedings in either House of Parliament.
(3) In determining whether consideration should be given to any material in accordance with subsection (1), or in considering the weight to be given to any such material, regard shall be had, in addition to any other relevant matters, to –
(a) the desirability of persons being able to rely on the ordinary meaning conveyed by the text of the provision taking into account its context in the written law and the purpose or object underlying the written law; and
(b) the need to avoid prolonging legal or other proceedings without compensating advantage.
[Section 19 amended: No. 13 of 2021 s. 50.]
History of ss 83A and 83F of the Act
15 Section 83A of the Act was inserted by s 155(1) of the Labour Relations Reform Act 2002 (WA) [No. 20 of 2002] (Amending Act No. 20 of 2002), and amended by ss 48, 76(2) and (3) of the Industrial Relations Legislation Amendment Act 2021 (WA) [No. 30 of 2021] (Amending Act No. 30 of 2021).
16 Section 83F of the Act was inserted by s 157 of the Amending Act No. 20 of 2002 and amended by s 76(2) of the Amending Act No. 30 of 2021.
17 The following table sets out ss 83A and 83F with the terms that were amended by the Amending Act No. 30 of 2021 emphasised in bold and underlined: The section headings were changed with the fourteenth reprint of the Act on 24 August 2012, as an editorial amendment made under the Reprints Act 1984 (WA) (since repealed and replaced with the Legislation Act 2021 (WA)).

Sections 83A and 83F of the Act (as introduced by the Amending Act No. 20 of 2002)
Sections 83A and 83F of the Act (as amended by the Amending Act No. 30 of 2021)
83A. Underpayment of employee
(1) Where in any proceedings brought under section 83(1) against an employer it appears to the industrial magistrate’s court that an employee of that employer has not been paid by that employer the amount which the employee was entitled to be paid under an instrument to which that section applies the industrial magistrate’s court shall, subject to subsection (2), order that employer to pay to that employee the amount by which the employee has been underpaid.
(2) An order may only be made under subsection (1) –
(a) in respect of any amount relating to a period not being more than 6 years prior to the commencement of the proceedings; or
(b) if the employer concerned appears to the industrial magistrate’s court, or has been found under section 83E, to have contravened section 102(1)(a) or (b) by reason of having failed –
(i) to produce or exhibit a record relevant to the proceedings;
(ii) to allow such a record to be examined; or
(iii) to answer a question relevant to the proceedings truthfully to the best of the employer’s knowledge, information and belief, as the case requires,
in respect of any amount relating to a period not being more than 6 years prior to that failure.
(3) When an order is made under subsection (1), the amount stated in the order shall be taken to be a penalty imposed under this Act and may be recovered accordingly, but on recovery shall be paid as stated in the order under section 83F.
(4) Nothing in this section limits the operation of section 83.
83A. Underpayment of employee, orders to remedy
(1) Where in any proceedings brought under section 83(1) against a person it appears to the industrial magistrate’s court that an employee has not been paid the amount which the employee was entitled to be paid under an entitlement provision the industrial magistrate’s court must, subject to subsection (2), order that person to pay to that employee the amount by which the employee has been underpaid.
(2) An order may only be made under subsection (1) –
(a) in respect of any amount relating to a period not being more than 6 years prior to the commencement of the proceedings; or
(b) if the person concerned appears to the industrial magistrate’s court, or has been found under section 83E, to have contravened section 102(1)(a) or (b) by reason of having failed –
(i) to produce or exhibit a record relevant to the proceedings;
(ii) to allow such a record to be examined; or
(iii) to answer a question relevant to the proceedings truthfully to the best of the person’s knowledge, information and belief, as the case requires,
in respect of any amount relating to a period not being more than 6 years prior to that failure.
(3) When an order is made under subsection (1), the amount stated in the order is taken to be a penalty imposed under this Act and may be recovered accordingly, but on recovery must be paid as stated in the order under section 83F.
(4) Nothing in this section limits the operation of section 83.
83F. Payment of costs and penalties
(1) Where the industrial magistrate’s court, by an order made under section 83, 83A, 83B or 83E, imposes a penalty or costs the industrial magistrate’s court shall state in the order –
(a) the name of the person liable to pay the penalty or costs; and
(b) the name of the person to whom the penalty is, or costs are, payable.
(2) An industrial magistrate’s court imposing a penalty by order under section 83, 83A, 83B or 83E may order that the amount of the penalty, or part of that amount, be paid to –
(a) a person directly affected by the conduct to which the contravention relates;
(b) the applicant; or
(c) the Treasurer.
(3) In making an order for payment to a person referred to in subsection (2)(a) the court must take into account any other compensation that the person has received or is likely to receive in respect of the conduct concerned.
83F. Costs and penalties, payment of
(1) Where the industrial magistrate’s court, by an order made under section 83, 83A, 83B or 83E, imposes a penalty or costs the industrial magistrate’s court must state in the order –
(a) the name of the person liable to pay the penalty or costs; and
(b) the name of the person to whom the penalty is, or costs are, payable.
(2) An industrial magistrate’s court imposing a penalty by order under section 83, 83A, 83B or 83E may order that the amount of the penalty, or part of that amount, be paid to –
(a) a person directly affected by the conduct to which the contravention relates;
(b) the applicant; or
(c) the Treasurer.
(3) In making an order for payment to a person referred to in subsection (2)(a) the court must take into account any other compensation that the person has received or is likely to receive in respect of the conduct concerned.
18 The table above indicates that the Amending Act No. 30 of 2021 amended ss 83A and 83F by:
(a) Replacing the references to ‘employer’ with ‘person’;
(b) Replacing the references to ‘shall’ with ‘must’;
(c) Replacing the reference to ‘shall be’ with ‘is’;
(d) Replacing the reference to ‘of that employer has not been paid by that employer’ with ‘has not been paid’; and
(e) Replacing the reference to ‘instrument to which that section applies’ with ‘entitlement provision’, upon the insertion of the definition of ‘entitlement provision’ in s 7(1) of the Act, by s 5(2) of the Amending Act No. 30 of 2021:
entitlement provision means –
(a) a provision of any of the following –
(i) an award;
(ii) an industrial agreement;
(iii) an employer-employee agreement;
(iv) an order made by the Commission, other than an order made under section 23A, 32(8), 44(6) or 66; or
(b) a provision of the LSL Act Part III; or
(c) a minimum condition of employment; or
(d) a local government long service leave provision;
19 It appears from [17]–[18] above, that the more material amendments are at [18(a) and (e)] above.
20 The amendment at [18(a)] above, is explained by the Explanatory Memorandum, Industrial Relations Amendment Bill 2021 (WA) (Explanatory Memorandum to the 2021 Bill) [392]–[393]:
392. Clause 48 amends existing s 83A, consequential to amendments made to s 83.
393. The references to ‘employer’ in s 83A have been replaced with ‘person’, to reflect that a person who is not the employer may be held accessorily liable under s 83(2) and may be jointly and severally liable for any underpayment. For example, if a director of a company is held accessorily liable for a contravention of the LSL Act by the company, they may be ordered to rectify any underpayment of long service leave.
21 Given the differences in ss 83A and 83F between their introduction by the Amending Act No. 20 of 2002 and amendment by the Amending Act No. 30 of 2021 appear limited to the matters outlined at [18] above, ss 19(1) and (2) of the Interpretation Act (at [14] above) provide that the following extrinsic material may be considered in the interpretation of ss 83A and 83F of the Act:
(a) Section 155 of the Labour Relations Reform Bill 2002 [Bill] as introduced to the Assembly on 19 February 2002:
155. Sections 83E and 83F inserted
Before section 84 the following sections are inserted –
…
83F. Payment of costs and penalties
(1) Where the industrial magistrate’s court, by an order made under section 83, 83A, 83B or 83E, imposes a penalty or costs the industrial magistrate’s court shall state in the order –
(a) the name of the person liable to pay the penalty or costs; and
(b) the name of the person to whom the penalty is, or costs are, payable.
(2) An industrial magistrate’s court imposing a penalty under section 83, 83A, 83B or 83E may order that the amount of the penalty, or part of that amount, be paid to –
(a) a person directly affected by the conduct to which the contravention relates;
(b) the applicant; or
(c) the Treasurer.
(3) In making an order for payment to a person referred to in subsection (2)(a) the court must take into account any other compensation that the person has received or is likely to receive in respect of the conduct concerned.
(b) Outline of the Labour Relations Reform Bill 2002 (WA) dated 18 January 2002 (Ministerial Outline of the Bill) [57]: (emphasis added)
57. Where the Industrial Magistrate fines the employer for failure to comply with the reinstatement order, the Magistrate can determine to whom ever the fine is paid including the affected party.
(c) Explanatory Memorandum, Labour Relations Reform Bill 2002 (WA) (Explanatory Memorandum to the Bill), introduced to the Assembly on 19 February 2002, [49] and [174]–[176]: (emphasis added)
PART 2 - AMENDMENTS TO PROVIDE FOR EMPLOYER-EMPLOYEE AGREEMENTS
…
Certain Conduct Prohibited
…
49. Contravention of civil penalty provisions may attract pecuniary penalties, which may in turn be payable to the aggrieved party. The Court is additionally empowered to make compliance orders, including interim orders. Contravention of compliance orders is punishable as an offence.
…
PART 9 - AMENDMENTS ABOUT PROCEDURE AND ENFORCEMENT
…
Penalties
174. The new enforcement regime increases the penalties that can be applied in relation to breach of industrial instruments, breach of unfair dismissal orders of the Commission and civil penalty provisions.
175. Breach of compliance orders and orders for specific performance in respect to unfair dismissal constitutes an offence. The penalty able to be imposed for offences is up to $25,000 and $2500 per day in respect of a body corporate and $5000 and $500 per day in the case of an individual.
176. Where penalties are imposed by order, the penalties may be made payable to the affected party.
(d) Second Reading speech of the Bill in the Assembly on 19 February 2002, 7514, 7520: (emphasis added)
The Bill establishes civil penalty provisions to deal with unlawful conduct that may affect employees, prospective employees and employers. … [I]ndustrial inspectors from [the Department of Consumer and Employment Protection] will be empowered as a matter of right to investigate alleged contravention of civil penalty provisions and commence proceedings in the Industrial Magistrates Court.
The Bill provides meaningful remedies when unlawful conduct is proven. The Bill does not focus solely on punishing the party found guilty of unlawful conduct. Importantly, it seeks to undo the wrong so that the innocent party is meaningfully redressed. Contravention of civil penalty provisions may attract pecuniary penalties, which may in turn be payable to the aggrieved party. The court will be additionally empowered to make orders to prevent the continuation of any unlawful conduct.
…
Penalties
When penalties are imposed, they may be made payable to the affected party. The Government believes this will ensure greater fairness as those affected can be compensated. The improved enforcement regime will provide the mechanism necessary to ensure the rights of all parties in the system are adequately protected. The proposed enforcement provisions aim to provide an increased deterrent to noncompliance and significant penalties for those parties who consistently contravene industrial laws.
(e) Consideration of the Bill in detail before the Assembly on 28 March 2002, 9127, 9129: (emphasis added)
Mr KOBELKE: … However, by moving to the civil penalty provisions we are ensuring not only that there is a penalty but also that it is easier to obtain a conviction and get the penalty paid.
The other issue is that if someone continued to contravene, the person would face even higher penalties under the enforcement provisions. We are ensuring that the Act has real teeth.
…
Mr KOBELKE: I move –
Page 179, line 28 – To insert after ‘penalty’ the words ‘by order’.
This amendment has been introduced to clarify that penalties imposed for orders under proposed sections 83A, 83B(10) and 83E(9) are not payable to an affected party. This amendment clarifies that only penalties imposed by order will be subject to proposed section 83F(2), allowing the magistrate the discretion to award the penalties to the affected parties.
(f) Explanatory Memorandum to the 2021 Bill [730], [734]: (emphasis added)
PART 5 – MINIMUM CONDITIONS OF EMPLOYMENT ACT 1993 AMENDED
…
730. Section 17BA(2) provides that a prospective employer must not directly or indirectly require another person (the prospective employee) to spend, or pay to the prospective employer or any other person, an amount of the prospective employee’s money if:
a) the requirement is in connection with employment or potential employment of the prospective employee by the prospective employer; and
b) the requirement is unreasonable in the circumstances; and
c) in the case of a payment, the payment is directly or indirectly for the benefit of the prospective employer or a party related to the prospective employer.
734. … In proceedings under s 83E for a contravention of s 17BA(2), the IMC may instead determine that there has been a contravention of an entitlement provision (the award) for the purposes of s 83. The IMC may then, under s 83A, also order that the employer pay the employee the amount that has been underpaid.
Meaning of s 83A of the Act
22 For the reasons to follow, I find that s 83A has an ordinary meaning, and requires the court to issue orders requiring the respondent to remedy the underpayments by paying the underpaid amounts to the employees. Furthermore, that this ordinary meaning is confirmed by the extrinsic material at [21] above.
23 The section heading to s 83A is ‘Underpayment of employee, orders to remedy’. While s 32(2) of the Interpretation Act states that section headings do not form part of the written law, they may be extrinsic material which may be taken into account of pursuant to s 19(1) of the Interpretation Act by virtue of s 19(2)(a) of the Interpretation Act (see [14] above).
24 That section headings are ‘extrinsic material’ which may be taken into account of pursuant to s 19(1) of the Interpretation Act was confirmed in Re Minister for Heritage; Ex Parte City of Fremantle [2000] WASCA 156 (City of Fremantle) [62]–[63] (Wheeler J, Wallwork J agreeing at [19]): (emphasis added)
62 ... The heading to a section of a statute does not form part of the statute (Interpretation Act, s 32(2)). … if a heading is not part of the written law, it may nevertheless be ‘extrinsic material’ which may be taken account of pursuant to s 19(1) of the Interpretation Act.
63 In the case of this legislation, the heading in question is to be found in the report of the Standing Committee on Legislation presented in relation to the Bill, and therefore would appear to fall under the Interpretation Act, s 19(2)(h). In those circumstances, it appears to me that it is proper to refer to the heading so as to ascertain the ‘drift’ or main idea of the section. …
25 The section heading to s 83A (at [23] above) provides that the ‘“drift” or main idea’ (City of Fremantle [63] at [24] above) of s 83A is to provide for the court to make an order to remedy the underpayment of an employee.
26 Section 83A(1) provides that where, in proceedings brought under s 83(1) against a person, it appears to the court that an employee has been underpaid, the court ‘must’ order ‘that person’ to pay ‘to that employee’ the amount of the underpayment.
27 As outlined at [13] above, the Interpretation Act applies to every written law. Section 56 of the Interpretation Act states: (original emphasis)
56. ‘May’ imports a discretion, ‘shall’ is imperative
(1) Where in a written law the word may is used in conferring a power, such word shall be interpreted to imply that the power so conferred may be exercised or not, at discretion.
(2) Where in a written law the word shall is used in conferring a function, such word shall be interpreted to mean that the function so conferred must be performed.
28 Therefore, the word ‘must’ in s 83A(1) (which replaced ‘shall’), means the function to be performed under s 83A(1) is unequivocal and mandatory – in making an order, the court must order that person to pay to that employee the amount by which the employee has been underpaid. There is no room for discretion in either the payor (namely, that person against whom the s 83(1) proceedings have been brought) or the recipient (namely, that employee who has been underpaid).
29 Section 83A(3) states that when the court makes an order under s 83A(1), ‘the amount stated in the order is taken to be a penalty imposed under this Act and may be recovered accordingly, but on recovery must be paid as stated in the order under section 83F.’
30 The claimant argues that s 83A(3) integrates s 83F fully. For the reasons to follow, I find s 83A(3)’s reference to ‘but on recovery must be paid as stated in the order under section 83F’ does not integrate s 83F fully. Rather, the reference to s 83F in s 83A(3) refers to s 83F(1), but not to s 83F(2).
Analysis of ss 83A and 83F of the Act
31 Section 83F contains three sub-sections. While s 83F(3) follows s 83F(2)(a); ss 83F(1) and (2) operate independently.
32 Section 83F(1) operates where the court ‘by an order made under section 83, 83A, 83B or 83E, imposes a penalty or costs’. In this situation, the court must state in the order: the name of the person liable to pay the penalty or costs (the payor); and the name of the person to whom the penalty is, or costs are, payable (the recipient).
33 Section s 83F(2) operates when the court is ‘imposing a penalty by order under section 83, 83A, 83B or 83E’. In this situation, ss 83F(2)(a)–(c) state that the court may order that all or part of the amount of the penalty be paid to:
(a) a person directly affected by the conduct to which the contravention relates; or
(b) the applicant; or
(c) the Treasurer.
34 Both of ss 83F(1) and (2) purport to apply where proceedings have been brought under ss 83, 83B and 83E. Relevantly, while ss 83F(1) and (2) refer to s 83A, proceedings cannot be brought under s 83A. Orders under s 83A(1) can only be made if proceedings are brought under s 83(1).
35 Section 83(1) provides that any of the following may apply to the court for the enforcement of an entitlement provision: (emphasis added)
(a) the Registrar or a deputy registrar;
(b) an industrial inspector;
(c) in the case of an award or industrial agreement, any organisation or association named as a party to it;
(d) in the case of an award, industrial agreement or order, an employer bound by it;
(e) a person –
(i) who is a party to the award, agreement or order or to whom the award, agreement or order applies; or
(ii) to whom the entitlement provision applies under the LSL Act, the MCE Act or a local government long service leave provision;
(f) if an employee under an employer-employee agreement is a represented person, a representative acting on the employee’s behalf.
36 Section 83(4)(a) provides that on a hearing of an application brought under s 83(1), if the contravention is proved, the court may, by order, impose a pecuniary penalty under s 83(4A). Section 83(4A) outlines the amounts of the pecuniary penalty in the case of a body corporate and in the case of an individual, and when the contravention is a serious contravention and when it is not a serious contravention.
37 Section 83(5) provides that, if a contravention of an entitlement provision is proved, the court may, in addition to imposing a penalty under s 83(4)(a), make an order for the purpose of preventing any further contravention of the entitlement provision, which order may be made subject to any terms and conditions the court thinks appropriate (s 83(6)(a)), and may be revoked at any time (s 83(6)(b)). Furthermore, the s 83(5) order may be an interim order, made pending final determination of the s 83(1) application: s 83(7).
38 Section 83(8) provides that a person must comply with a s 83(5) order. The penalty for noncompliance is a fine of $13,000, and a daily penalty of a fine of $1,000 for each day or part of a day during which the offence continues.
39 Section 83B(1) provides that any of the following may apply to the court for the enforcement of a s 23A unfair dismissal order: (emphasis added)
(a) the Registrar or a deputy registrar; and
(b) an industrial inspector; and
(c) an organisation of employees in which the employee in relation to whim the order is made is eligible to be enrolled as a member or an association that represents such an organisation; and
(d) the employee in relation to whom the order is made.
40 Sections 83B(3)(a) and (4)(a) provide that on an application brought under s 83B(1), if the contravention is proved, the court may:
(a) Pursuant to s 83B(3)(a)(ii): revoke the s 23A order, and order the employer to pay the employee an amount to be decided by the court in accordance with s 83B(7), which requires the amount to not be less than six months’ remuneration and not to exceed 12 months’ remuneration.
(b) Pursuant to s 83B(4)(a): order the person to do any specified thing, or to cease any specified activity, for the purpose of preventing any further contravention of the s 23A order.
41 Section 83B(5) provides that, in addition to any ss 83B(3)(a) or (4)(a) order, the court may impose such penalty as the court thinks just not exceeding $13,000; and in the case of a s 83B(3)(a) order, order the employer to pay to the employee the remuneration lost, or likely to have been lost, by the employee because of the contravention of the s 23A order.
42 Section 83B(10) provides that a person must comply with a ss 83B(3)(a) or (4)(a) order. The penalty for noncompliance is a fine of $13,000, and a daily penalty of a fine of $1,000 for each day or part of a day during which the offence continues.
43 Sections 83E(1) and (6) provide that any of the following may apply to the court for the enforcement of a civil penalty provision: (emphasis added)
(a) a person directly affected by the contravention or, if that person is a represented person, the person’s representative; or
(b) an organisation or association of which a person who comes within paragraph (a) is a member; or
(ba) in the case of a contravention of section 100(1) – any organisation or association; or
(c) the Registrar or a deputy registrar; or
(d) an industrial inspector.
44 Section 83E(2) provides that, if a person contravenes a civil penalty provision, the court may, instead of or in addition to imposing a pecuniary penalty under s 83E(1), make an order for the purpose of preventing any further contravention of the civil penalty provision, which order may be made subject to any terms and conditions the court thinks appropriate (s 83E(4)(a)), and may be revoked at any time (s 83E(4)(b)). Furthermore, the s 83E(2) order may be an interim order, made pending final determination of the s 83E(1) application: s 83E(5).
45 Section 83E(9) provides that a person must comply with a s 83E(2) order. The penalty for noncompliance is a fine of $13,000, and a daily penalty of a fine of $1,000 for each day or part of a day during which the offence continues.
46 Section 83E(11) provides that the court may make orders under ss 83E(1), (2) or (10) (which provides that the court may dismiss the application) with or without costs, but in no case can any costs be given against the Registrar, a deputy registrar or an industrial inspector.
47 Section 83C(1) provides that the court may make orders under ss 83, 83A and 83B with or without costs, but in no case can any costs be given against the Registrar, a deputy registrar or an industrial inspector.
48 The upshot of [35]–[47] above, is that s 83F(1) operates where the court imposes penalty or costs by an order made under ss 83, 83A, 83B or 83E; specifically, by an order:
(a) Imposing penalties under ss 83, 83B or 83E.
(b) Remedying an underpayment under s 83A(1), by virtue of s 83A(3) deeming the underpaid amount a penalty imposed under the Act.
(c) Imposing costs under ss 83C(1) or 83E(11).
49 Contrary to s 83F(1), s 83F(2) only operates when the court imposes ‘a penalty by order’. The court may impose a ‘penalty by order’ under ss 83, 83B or 83E. While s 83A(3) deems the underpaid amount under a s 83A(1) order to be a penalty imposed under the Act, the court does not impose ‘a penalty by order’ in issuing a s 83A(1) order.
50 Accordingly, s 83F(1) has wider operation than s 83F(2). Section 83F(1) operates where the court imposes penalty or costs orders, however, s 83F(2) only operates when the court imposes ‘a penalty by order’. Therefore, ss 83F(1) and (2) operate independently, with s 83F(2) operating in a narrower set of circumstances than s 83F(1).
51 Under s 83A(1), the court must order the person (against whom s 83(1) proceedings have been brought) to pay the employee the amount that the employee has been underpaid under an entitlement provision. When the court makes a s 83A(1) order, s 83A(3) operates to deem the amount stated in the s 83A(1) order to be a penalty to which s 83F applies. As outlined at [48]–‍[50] above, only s 83F(1) applies, which requires the court to state the name of the person liable to pay the penalty, and to state the name of the employee to whom the penalty is payable.
52 Contrary to the claimant’s submissions at [11] above, I find that properly construed, s 83A operates only with s 83F(1) and not s 83F(2).
53 This construction is consistent with the language and purpose of s 83A, which is to remedy the underpayment of an employee, by requiring the underpaid amount to be paid to the employee.
54 This construction gives meaning to every word in s 83A(1) that the ‘court must, subject to subsection (2), order that person to pay to that employee the amount by which the employee has been underpaid.’
55 If s 83F(2) applies to a s 83A(1) order, to provide a discretion to the court to order the underpaid amount to be paid to either the applicant or the Treasurer, this would result in all of the words that the ‘court must, subject to subsection (2), order that person to pay to that employee the amount by which the employee has been underpaid’ in s 83A(1) being superfluous, void, or insignificant: Project Blue Sky [71] at [12(c)] above.
56 Furthermore, this construction gives meaning to each word in the phrase, ‘[a]n industrial magistrate’s court imposing a penalty by order’ in s 83F(2): Project Blue Sky [71] at [12(c)] above.
57 This construction is also consistent with the maxim of generalia specialibus non derogant requiring the discretion in s 83F(2) to give priority to the specific and mandatory requirement in s 83F(1). This construction is consistent with s 83F(1) being the leading provision, to which s 83F(2) must ‘give way’: Project Blue Sky [70] at [12(c)] above.
58 Contrary to the claimant’s submission at [11(m)(ii)] above, this construction does not result in s 83F(1)(b) having no work to do. In this matter, s 83F(1)(b) would operate to require the court to state in the s 83A(1) orders that:
(a) The amount that Mitchell Hosking was underpaid under an entitlement provision, is to be paid to Mitchell Hosking; and
(b) The amount that Justin Hosking was underpaid under an entitlement provision, is to be paid to Justin Hosking.
59 As outlined at [23]–[58] above, this construction is consistent with the language and purpose of the provisions of ss 83, 83A, 83B, 83C, 83E and 83F, and gives effect to these provisions operating harmoniously: Project Blue Sky [70] at [12(c)] above.
60 This construction does, however, mean the reference to ‘83A’ in s 83F(2) has no work to do. This is addressed in the section ‘Extrinsic material’ below.
61 There are likely sound policy reasons to allow an industrial inspector, union, the Registrar and deputy registrar to institute proceedings under ss 83, 83B and 83E, but that only grant the court a discretion to order the amount of the penalty, or part of that amount, be paid to them under s 83F(2) where the court is imposing a penalty by order under ss 83, 83B or 83E. An order under s 83A(1) is intended to be remedial. However, if s 83F(2) operates with s 83A(1) to allow the amount that an employee has been underpaid under an entitlement provision to be paid to a nonemployee applicant, there is a risk that the remedial intention of s 83A(1) is defeated by either the nonemployee applicant not transferring the underpaid amount in full to the underpaid employee, or by any delays in the transfer of the underpaid amount to the employee.
62 A construction of s 83A(1) that defeats its remedial intention, of remedying the underpayment of an employee under an entitlement provision by requiring the underpaid amount to be paid to the employee, would be inconsistent with the objects of the Act (see s 6(d) at [11(g)] above).
63 On the claimant’s construction, not only could s 83F(2)(b) operate, but s 83F(2)(c) could operate to provide the court with a discretion to order the amount of the underpayment to be paid to the Treasurer. Furthermore, on the claimant’s construction, the payment could be payable to the Treasurer even if the employee has brought the s 83(1) proceedings, or if an applicant has brought the s 83(1) proceedings on an employee’s behalf. In my view, this would be wholly inconsistent with the remedial purpose of a s 83A(1) order of ensuring the underpaid employee receives the amount they are entitled to under an entitlement provision. This speaks against s 83F(2) applying to a s 83A(1) order.
64 The construction that only s 83F(1) and not s 83F(2) operates with s 83A, aligns with the objects in s 6(d) of the Act, prioritising direct payment of entitlements to employees, while allowing industrial inspectors to assist with enforcement proceedings.
Enforcement of a s 83A order
65 As outlined at [36] above, s 83(4) provides that the court may impose a pecuniary penalty if the contravention of an entitlement provision under s 83(1) is proved.
66 As outlined at [37] above, ss 83(5) and (6) operate to provide the court with a broad power, where a contravention of an entitlement provision is proved, to make any order for the purpose of preventing any further contravention of the entitlement provision, which order may be made subject to any terms and conditions the court thinks appropriate.
67 It does not appear on the face of ss 83(5) and (6) that the court would be prevented from making separate orders: one set of orders under s 83A(1) requiring the respondent to remedy the underpayments by making payment of the underpaid amounts to the employees, and another set of orders under s 83(5) providing for the respondent to provide proof of compliance with the s 83A(1) orders to the claimant. Such orders could require the respondent to confirm proof of compliance to the claimant via affidavit; facilitating the claimant’s oversight with compliance without altering s 83A(1)’s remedial focus. This would be consistent with s 83A(4), which states that nothing in s 83A limits the operation of s 83.
68 I am not persuaded by the claimant’s argument that s 83A(1) orders requiring the respondent to pay the underpaid amounts directly to the employees, defeats the claimant’s ability to enforce the s 83A(1) orders under s 81CB.
69 Penalty or costs orders are orders requiring the payment of money. Therefore, they are orders that may be enforced, in a court of competent jurisdiction, under s 81CB: (emphasis added)
81CB. Industrial magistrate’s court judgments, enforcement of
(1) In this section –
judgment includes an order, direction or decision.
(2) A person to whom money is to be paid under a judgment of an industrial magistrate’s court made in the exercise of general jurisdiction may enforce it by lodging a copy of it, certified by a clerk of the court, and an affidavit stating to what extent it has not been complied with, with a court of competent jurisdiction.
(3) If, or to the extent that, a judgment of an industrial magistrate’s court made in the exercise of general jurisdiction does not require the payment of money, a person entitled to the benefit of the judgment may enforce it by lodging a copy of it, certified by a clerk of the court, and an affidavit stating to what extent it has not been complied with, with the Magistrates Court.
(4) A judgment that is lodged with a court under subsection (2) or (3) is to be taken to be a judgment of that court and may be enforced accordingly.
[Section 81CB inserted: No. 5 of 2008 s. 62; No. 43 of 2024 s. 62.]
70 Section 81CB provides that the employees named under s 83F(1) as the recipients to the s 83A(1) orders requiring the respondent to remedy the underpayments by paying the underpaid amounts to them, may directly enforce the s 83A(1) orders in a court of competent jurisdiction. I am not persuaded that there is any prohibition on the claimant assisting the employees in enforcing the s 83A(1) orders.
71 Furthermore, and as outlined at [67] above, I am not persuaded that there is any prohibition on the claimant applying for orders under s 83(5) of the Act. As outlined at [38] above, a person must comply with a s 38(5) order; failure to comply would constitute an offence under the Act, which would be enforceable under s 83D of the Act.
Extrinsic material
72 Sections 83, 83A, 83B, 83C, 83E and 83F were introduced by the Amending Act No. 20 of 2002 and, as outlined at [59] above, the construction that s 83F(2) does not apply to s 83A(1), gives effect to harmonious goals.
73 As outlined at [22] above, the following extrinsic material confirms the construction of s 83F(2) as not applying to s 83A(1).
74 As outlined at [21(b)] above, the Ministerial Outline of the Bill notes that where the court fines an employer for failing to comply with a s 23A(3) reinstatement order, the court can determine to whomever the fine is paid, including the affected party. This confirms the intention for s 83F(2) to operate when the court imposes a penalty under s 83B.
75 The following confirms the intention for s 83F(2) to operate when the court imposes a penalty under s 83E:
(a) The Explanatory Memorandum to the Bill [49] (at [21(c)] above), which states that pecuniary penalties for contravention of civil penalty provisions ‘may in turn be payable to the aggrieved party’.
(b) The Second Reading speech of the Bill (at [21(d)] above), which states that industrial inspectors can institute proceedings for contravention of civil penalty provisions, which if proved, attract pecuniary penalties, ‘which may in turn be payable to the aggrieved party.’
76 As outlined at [21(c)] above, the Explanatory Memorandum to the Bill [174]–[176] refers to the new enforcement regime and the penalties that can be applied in relation to breaches under ss 83, 83B and 83E, and states that ‘[w]here penalties are imposed by order, the penalties may be made payable to the affected party.’ This confirms the intention for s 83F(2) to operate when the court imposes a penalty by order under ss 83, 83B and 83E.
77 As outlined at [21(a) and (e)] above:
(a) Section 83F(2) of the Bill as at 19 February 2002, stated:
(2) An industrial magistrate’s court imposing a penalty under section 83, 83A, 83B or 83E may order that the amount of the penalty, or part of that amount, be paid to –
(a) a person directly affected by the conduct to which the contravention relates;
(b) the applicant; or
(c) the Treasurer.
(b) During the parliamentary debate of the Bill in the Assembly on 28 March 2002 (at [21(e)] above), the Minister moved a motion for s 83F(2) to be amended by the addition of the words ‘by order’: (emphasis added)
(2) An industrial magistrate’s court imposing a penalty by order under section 83, 83A, 83B or 83E may order that the amount of the penalty, or part of that amount, be paid to –
(a) a person directly affected by the conduct to which the contravention relates; or.
(b) the applicant; or
(c) the Treasurer.
(c) The addition of the words ‘by order’ to s 83F(2) was to clarify that penalties imposed for orders under proposed ss 83A, 83B(10) and 83E(9) are not payable to an affected party; and to clarify that only penalties imposed by order will be subject to proposed s 83F(2), allowing the magistrate the discretion to award the penalties to the affected parties.
78 Sections 83B(10) and 83E(9) of the Act, as introduced by the Amending Act No. 20 of 2002 and amended by the Amending Act No. 30 of 2021, state: Ibid.

Sections 83B(10) and 83E(9) of the Act (as introduced by the Amending Act No. 20 of 2002)
Sections 83B(10) and 83E(9) of the Act (as amended by the Amending Act No. 30 of 2021)
83B. Enforcement of unfair dismissal order
…
(10) A person shall comply with an order made against that person under subsection (3)(a) or (4)(a).
Penalty: $5 000 and a daily penalty of $500.
83B. Unfair dismissal, enforcing s.23A order as to
…
(10) A person must comply with an order made against that person under subsection (3)(a) or (4)(a).
Penalty for this subsection:
(a) a fine of $13 000;
(b) a daily penalty of a fine of $1 000 for each day or part of a day during which the offence continues.
83E. Contravention of a civil penalty provision
…
(9) A person must comply with an order made against him or her under subsection (2).
Penalty: $5 000 and a daily penalty of $500.

83E. Proceedings for contravening civil penalty provisions
…
(9) A person must comply with an order made against the person under subsection (2).
Penalty for this subsection:
(a) a fine of $13 000;
(b) a daily penalty of a fine of $1 000 for each day or part of a day during which the offence continues.
79 The matters at [77]–[78] above, confirms the intention for s 83F(2), allowing the court the discretion to award penalties to the affected parties, to only apply to ‘penalties imposed by order’. Penalties imposed under ss 83A, 83B(10) and 83E(9) are not ‘penalties imposed by order’, such that s 83F(2) does not apply to orders under ss 83A, 83B(10) and 83E(9).
80 As outlined at [77]–[79] above, the words ‘by order’ were inserted into s 83F(2) to clarify that s 83F(2) only applies to ‘penalties imposed by order’; s 83F(2) does not apply to offence provisions (specifically, ss 83B(10) and 83E(9)), As outlined at [42], [45] and in the table at [78] above, ss 83B(10) and 83E(9) where amended by the Amending Act No. 30 of 2021 to refer to the penalty as a fine and to provide for a daily penalty of a fine for ‘each day or part of a day during which the offence continues.’
nor to provisions deemed to be penalty provisions (specifically, s 83A(1)).
81 Having clarified the intention of s 83F(2) by moving for the insertion of the words ‘by order’, the concurrent nonremoval of the reference to s 83A means the reference to s 83A in s 83F(2) has no work to do. This may indicate a drafting oversight, as the amendment clarified the intent of s 83F(2) as not applying to s 83A.
82 Alternatively, and applying the generalia specialibus non derogant principle, s 83A is the specific provision, which may operate with the general provisions of s 83F where applicable, but if inapplicable, or conflicting, s 83F(2) ‘must give way to’ s 83A(1): Project Blue Sky [70] at [12(c)] above.
83 As outlined at [21(f)] above, the Explanatory Memorandum to the 2021 Bill [734] states that where there is a contravention of an entitlement provision under s 83, the court ‘may then, under s 83A, also order that the employer pay the employee the amount that has been underpaid.’ This confirms the construction that s 83A orders are for the employer to pay the employee the amount that has been underpaid.
Conclusion
84 For the preceding reasons, I find that on a proper construction of ss 83A(1), 83A(3) and 83F(2) of the Act, that s 83A(1) has an ordinary meaning, requiring the court to issue orders for the respondent to remedy the underpayment of the employees by paying the underpaid amounts to the employees.
85 I find the court is not permitted to issue orders under s 83A(1) for the respondent to remedy the underpayment of the employees by paying the underpaid amounts to the claimant.
86 While the parties consented to the court issuing orders for the underpaid amounts to be paid to the claimant, the court’s jurisdiction under s 83A(1) mandates payment to the employees, which overrides the parties’ consent.
87 Given the mandatory nature of s 83A(1) and the matters at [8] above, the following orders should be issued:
(a) An order pursuant to s 83A(1) of the Act that the respondent pay to Mitchell Hosking $6,501.38 for outstanding annual leave and annual leave loading entitlements under the Award; and
(b) An order pursuant to s 83A(1) of the Act that the respondent pay to Justin Hosking $4,837.63 for outstanding annual leave and annual leave loading entitlements under the Award.
88 I will list this matter for a Directions Hearing to hear from the parties on these and any other orders to be issued to give effect to these reasons.




C. TSANG
INDUSTRIAL MAGISTRATE