Industrial Magistrates Court of Western Australia

The Construction, Forestry and Maritime Employees Union  (claimant) lodged an originating claim in the Industrial Magistrates Court (Court) alleging Qube Ports Pty Ltd (respondent) contravened a clause in two enterprise agreements – the Qube Ports Pty Ltd Port of Port Hedland Enterprise Agreement 2016 (EA 2016) and the Qube Ports Pty Ltd Port of Port Hedland Enterprise Agreement 2020 (EA 2020) (the Agreements) – by failing to pay an employee overtime rates in hourly increments for work exceeding 12 hours in a shift. In doing so, the claimant alleged that the respondent committed two contraventions of ss 50 and 323 of the Fair Work Act 2009 (Cth) (FWA) due to its non-compliance with the Agreements, each constituting a breach of a civil remedy provision. The claimant sought orders for payment of $15,007.70 owing under the Agreements, pre-judgment interest, and the imposition of civil penalties for the contraventions totalling $131,460 – being 35% of the maximum penalty for each contravention – with any penalties payable to the claimant.

The respondent conceded that it had inadvertently failed to pay the Employee overtime rates in accordance with clause 7.3 of the Agreements between 12 April 2019 and 5 August 2024 thereby contravening ss 50 and 323 of the FWA. Following an internal review, the respondent calculated the shortfall to be $16,569.95 (gross) which it paid, going beyond what was sought in the claim.  The respondent contended that the error arose due to an inadvertent payroll system misconfiguration rather than deliberate conduct and submitted that it only became aware of the issue upon receipt of the claim, as it had not been raised through the Agreements’ dispute resolution process. The respondent denied that any further orders were necessary. The key issue for the Court was the appropriate penalty for the admitted contraventions.

In support of an order for a pecuniary penalty the claimant submitted that the penalty sought was necessary for deterrence in circumstances where the contraventions were not an isolated oversight but a sustained, systemic failure to properly remunerate the employee, the respondent was a persistent offender with a history of non-compliance with ss 50 and 323, and, as a large multinational, ought to have adequate systems and resources to ensure compliance. The claimant further contended that meeting its legal obligation after the claim was lodged was not mitigatory, and that any materially lower penalty would be ineffective for a company of the respondent’s size and would, in effect, disadvantage compliant employers.

The respondent submitted that a nominal penalty was appropriate, emphasising that it had rectified the underpayment, was unaware of the inadvertent system configuration error, and that neither the claimant nor the employee had raised the issue through the dispute resolution procedure. It further contended that there was no intention to contravene the FWA, and that it had taken corrective action to update and enhance its workplace management system through automation and more rigorous consistency checks. In those circumstances, it submitted that a higher penalty was not warranted.

The Court found that the four contraventions arose from a single course of conduct namely an unintended payroll misconfiguration involving the same employee at the same port and under the same clause of the Agreements. Applying the common law course of conduct principles, it held that the contraventions stemmed from a single underlying failure, such that any penalty should avoid “double punishment” for what was, in substance, the same conduct.

The Court found that the imposition of a civil penalty would do little to advance deterrence, as the contraventions were not deliberate or designed to avoid statutory obligations. While the respondent had a prior history of contraventions of ss 50 and 323 of the FWA, those matters involved different factual circumstances. While the Court noted the respondent’s size and complex operations, it gave weight to the absence of senior management involvement and its strong cooperation, prompt rectification (including payment exceeding the claimed amount), contrition, and system improvements. The Court acknowledged that the employee suffered no loss beyond delayed payment (which was remedied), however, emphasised that responsibility for accurate payroll systems rests with the employer, and that some penalty remained necessary for deterrence, albeit significantly below the penalty sought by the applicant.

The Court emphasised the need for both specific and general deterrence, noting that even inadvertent contraventions arising from carelessness or system deficiencies warrant sanction to promote compliance and proper payroll governance. The Court characterised the respondent’s conduct at the lower end of seriousness and, applying established penalty principles (including totality and avoidance of double punishment), imposed a reduced aggregate penalty of $9,600 (significantly below the theoretical maximum of $375,600) payable to the claimant. Although no further compensation order was required given the underpayment had been remedied, the Court awarded $2,982 in pre-judgment interest to reflect the delay in payment.

The full decision can be read here.

The Industrial Magistrates Court of Western Australia (Court) has dismissed a claim brought by an employee (the claimant) engaged by a beekeeping and honey production business, who alleged he was entitled to unpaid annual leave and sick leave.

The claimant was employed by the respondent between October 2020 and January 2025, performing a range of duties including extracting honey, cleaning, maintenance, deliveries and general assistance with production. After his employment ended, the claimant sought over $13,000 for unpaid annual and sick leave, arguing that he was, and had always been, a part-time employee covered by the Food, Beverage and Tobacco Manufacturing Award 2010 (Food and Beverage Award).

The respondent denied the claim, maintaining that the claimant was at all times employed as a casual employee (and therefore not entitled to paid annual and sick leave) and that his employment was covered by the Pastoral Award 2020. On reviewing the claim, the respondent accepted that it had underpaid the claimant under the Pastoral Award, as a casual employee, and calculated a shortfall of $2,379.44 in wages and $256.69 in superannuation. Having regard to this admission, the Court made orders for payment of those amounts, with the balance of the claim proceeding to a hearing. The remaining issues for determination were: 1) which modern award applied to the claimant’s employment, and 2) whether the claimant was employed as a casual or part-time employee.

Award coverage 

The Court rejected the respondent’s position that the Pastoral Award (which covers farming and livestock work) applied. While the business involved beekeeping and the definition of “livestock” in that Award includes insects, the Court found that none of the relevant classifications for farm or livestock workers matched the work performed by the claimant. Instead, the claimant’s duties (such as extracting, handling, processing and packaging honey) were more closely aligned with food production activities. On that basis, the Court determined that the Food and Beverage Award was the most appropriate, classifying the claimant at the lowest level under that award.

Part time or casual employment 

The claimant argued that he worked regular hours, typically on Mondays, Wednesdays and Fridays, and that there was an agreement he would work at least 30 hours per fortnight. However, after reviewing the timesheets, payroll records, text message exchanges and witness evidence, the Court found that this was not supported by the evidence and that the claimant’s account was not reliable.

Instead, the Court found that the claimant’s hours were highly variable, with differing start and finish times and no consistent pattern of work. While he often worked particular days, he also worked on other days or did not work at all. The evidence showed that he frequently informed the employer when he would not attend work, and that the employer either asked whether he was available for work or advised him when no work was required.

In these circumstances, the Court concluded that there was no firm commitment to ongoing or regular work. Rather, the arrangement operated on an “as needed” basis, in which work was offered based on the respondent’s requirements, and the claimant could choose whether to accept it. The Court also found that the employment was described by the parties as casual and that the hourly rate paid was consistent with casual employment, including a casual loading.

Accordingly, the Court determined that the claimant was a casual employee. As a result, he was not entitled to paid annual leave or paid personal (sick) leave under the National Employment Standards or the Food and Beverage Award, those entitlements being compensated by the casual loading.
While the Court observed that the respondent may have further underpaid the claimant by approximately $155.51 due to applying a casual rate under the incorrect award, the claim was ultimately dismissed. This was because the claimant’s case proceeded on the basis that he was a part-time employee entitled to paid leave, which the Court did not accept.

The full decision can be read here.

The Construction, Forestry and Maritime Employees Union (the claimant) brought a claim in the Industrial Magistrates Court of Western Australia (Court) alleging that Bhagwan Marine Limited (the respondent) contravened s 50 of the Fair Work Act 2009 (Cth) (FW Act) by failing to comply with a clause in its Enterprise Agreement requiring the conversion of eight casual positions to permanent within four weeks of registration (the conversion clause), being by 16 October 2024. The claimant sought the imposition of a civil penalty payable to itself. 

The respondent initially denied the contravention but, in its amended response, admitted that it had failed to comply with the conversion clause within the prescribed timeframe. Nonetheless, the respondent contended that a penalty was not warranted, relying on its belief that there was an informal understanding with the claimant permitting delayed compliance, the complexity of its industrial operations, its 27 year history with no prior contraventions, and the fact that the delay was not deliberate and resulted in employees receiving a financial benefit of $125,967.69, as permanent entitlements were backdated and the casual loading was not recovered.

As the respondent admitted to the contravention, the sole issue for determination was the appropriate penalty, if any. The Court found that the conversion clause was clear and unambiguous, and that the four-week timeframe was a product of a negotiated agreement between the parties and not “arbitrary” as contended by the respondent. The Court rejected the existence of any agreed deferral of compliance, noting the absence of supporting evidence and preferring the claimant’s evidence of repeated follow-up requests for compliance. The Court held that, having agreed to the clause, the respondent was required to comply with it once the agreement acquired statutory force under s 50 of the FW Act.

In assessing the contravention, the Court found that the respondent was aware of its obligations but knowingly deferred compliance, with the conversion process commencing approximately two months after the deadline and concluding over four months late. While the delay was not motivated by any intention to secure a financial or industrial advantage and, in fact, resulted in a financial detriment, the Court characterised the breach as not inadvertent. The involvement of multiple levels of management, coupled with a lack of evidence explaining inaction during the initial compliance period, weighed against the respondent.

The Court accepted that the employees did not suffer financial loss, having received both backdated entitlements and ongoing casual loading, and that the respondent had no prior contraventions and acted in circumstances involving a one-off obligation. It also accepted evidence of contrition, cooperation, and steps taken to reinforce compliance. However, the Court emphasised that the financial consequences of the delay were a product of the respondent’s own decision-making and did not replace the need for a civil penalty. 

The Court held that both specific and general deterrence warranted the imposition of a penalty. While specific deterrence was moderated by the respondent’s history and the one-off nature of the obligation, general deterrence was significant in ensuring adherence to negotiated timeframes and maintaining confidence in and the integrity of the collective bargaining process.

Having regard to all relevant factors, the Court imposed a pecuniary penalty of $5,634 (being 6% of the maximum penalty of $93,900), reflecting the lower end of seriousness, in recognition of the absence of a deliberate attempt to gain financial or industrial advantage, the respondent’s contrition, the lack of financial loss suffered by employees and the fact it was the respondent’s first contravention. The Court ordered that the penalty be paid to the claimant.

The full decision can be read here.