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.

The claimant, an Industrial Inspector with the Department of Local Government, Industry Regulation and Safety, brought a claim in the Industrial Magistrates Court of Western Australia (Court) against Downings Pty Ltd (first respondent) and its sole director (second respondent). The claimant alleged that the first respondent failed to comply with a compliance notice issued under s 84Q of the Industrial Relations Act 1979 (WA) (IR Act) requiring payment of $7,251.52 in outstanding long service leave entitlements (LSL entitlement) to a former employee (the employee), thereby contravening s 84T(1) of the IR Act. The claimant also alleged that the second respondent was knowingly involved in the contravention and sought civil penalties under s 83E(1)(a) and (b) of the IR Act against both respondents, as well as an order that the outstanding LSL entitlement be paid, with the respondents jointly and severally liable.

The respondents did not file formal responses to the claim within the specified time, and a default judgment was entered, requiring the respondents to pay the outstanding LSL entitlement and costs. The claim continued to a final hearing where the Court was required to determine the appropriate civil penalty. The evidence established the employee had been employed by the first respondent from 2011 to 2023 and, upon resignation, was owed LSL entitlements. Although the respondents initially made partial payments totalling $10,000, a balance of $7,251.52 remained unpaid despite repeated requests and the subsequent issuance of a compliance notice.

The Court accepted that the respondents’ failure to comply with the compliance notice arose from financial incapacity, noting the business had ceased trading following its sale and had no assets or income. While the respondents’ engagement with the Industrial Inspector was limited after September 2023, they had made partial payments, and the second respondent expressed contrition. The Court also gave limited weight to the respondents’ failure to comply with a compliance notice in the federal jurisdiction (for the non-payment of annual leave), as it arose from the same factual background. Further, the Court held that in the circumstances, specific deterrence was of lesser significance given that the first respondent had ceased trading and the second respondent was unlikely to resume business operations.

Notwithstanding this, the Court emphasised the importance of compliance notices as an enforcement mechanism under the IR Act and the need for general deterrence to ensure compliance with statutory obligations. The Court also noted the ongoing loss suffered by the employee, including financial and personal impacts arising from the prolonged non-payment of LSL entitlements.

Having regard to all relevant factors, including the seriousness of the contravention, the respondents’ circumstances, and the need for general deterrence, the Court ordered the first respondent to pay a penalty of $30,000 and the second respondent a penalty of $4,000, both payable to the claimant.

The full decision can be read here.

The claimant brought a claim in the Industrial Magistrates Court (Court) using the small claims procedure under section 548 of the Fair Work Act 2009 (Cth) (FWA).

The claimant contended that

1. he was employed as a chef at the Hong Kong Tea Café, operated by Cheung Brothers (WA) Pty Ltd (the respondent), for four hours on 17 July 2025,
2. the Restaurant Industry Award 2020 [MA000119] (the Award) applied to his employment, and
3. the respondent failed to pay him $146.22 for work performed in contravention of the FWA.

The respondent denied the claim, contending that the claimant was not employed but instead participated in a work trial on the relevant date. The central issue for determination was therefore whether the claimant was employed by the respondent as a casual employee (as opposed to undertaking a work trial) and, if so, whether the Award applied to and covered his employment.

The claimant relied on his witness statement and oral evidence, asserting that he had responded to a WeChat advertisement for a grill chef position, had a brief face-to-face conversation with the respondent’s director and was told to work at the Café on 17 July 2025, for which he would be paid. The claimant gave evidence that during the shift he performed the duties of a grill chef, cooking orders independently with minimal supervision, other than initial guidance from the Head Chef regarding the location of ingredients and plating requirements. 

The respondent relied on the evidence of its Manager, Accounts and Operations (Managing Director). The Managing Director stated that the claimant attended a work trial to assess his suitability for the role and that he was supervised by the Head Chef. She further claimed that the Head Chef reported to her that the claimant could not handle the work independently or be classified as a chef. 

The Court found the claimant’s evidence to be more direct and persuasive, noting that the Managing Director’s evidence was largely based on what others had told her, rather than her own observations or direct involvement. The Court also noted that the respondent did not call its director or the Head Chef to give evidence about their conversations or interactions with the claimant. 

The Court found that the claimant attended the Café on 17 July for four hours in response to a WeChat advertisement for chefs and kitchen hands posted by the respondent’s director. While the conversation between the claimant and the director lacked detail, it included an understanding that the claimant would be paid for the work performed while being assessed. Other than some preliminary guidance, the claimant cooked orders without supervision, including from the Head Chef. In all the circumstances the Court found that the ‘objective reality of the relationship’ was one of casual employment, rather than participation in a bona fide paid or unpaid work trial. The Court also found that the Award applied to the claimant’s employment and that the respondent was required to pay him in accordance with its terms. By failing to do so, the respondent breached s 45 of the FWA. 

The Court, accepting the claimant’s claimed Award hourly rate of $32.31, determined that for four hours of work, the claimant was entitled to $129.24 plus pre-judgment interest of $4.21 pursuant to s 547(2) of the FWA. Accordingly, the respondent was ordered to pay the claimant a total of $133.45. 

The full decision can be read here. 

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The Industrial Magistrates Court (IMC or Court) has dismissed a Damaging Action Claim because it found the ‘complaints’ made by the former employee were not employment-related inquiries or complaints and further found that no damaging action took place.

The claim was brought by a former employee of the Department of Education (Department) who was employed by the Department under a series of fixed‑term contracts between February 2022 and October 2023. During her final contract period, she engaged in various workplace communications which, in her claim at the IMC, she characterised and relied on as employment‑related inquiries or complaints for the purposes of section 97A of the Industrial Relations Act 1979 (WA) (Industrial Relations Act).

She alleged that, because of her complaints, the Department took the following damaging actions against her:

1. Reassigned her duties
2. Required her to interview for certain roles
3. Transferred her to another work area
4. Did not extend her contract
5. Placed her on a performance management plan

The Court highlighted that section 97(a) of the Industrial Relations Act defines damaging action, in the case of an employee, to mean the following actions:

• Dismissing the employee
• Altering the employee’s position to the employee’s disadvantage
• Refusing to promote or transfer the employee
• Otherwise injuring the employee in relation to the employee’s employment with the employer or another person
• Threatening to do any of the above

The Court found that the matters the claimant put forward as ‘damaging actions’ were in fact ordinary operational and performance‑management decisions that did not alter the claimant’s position to her disadvantage, injure her employment, or constitute damaging action within the meaning of section 97(a) of the Industrial Relations Act. Further, the Court noted that the Department was under no obligation to extend a fixed‑term contract or offer the claimant any ongoing employment.

The claimant put forward to the Court a series of nine work-related emails and interactions which she characterised as complaints. She claimed these ‘complaints’ were the reasons the Department made the above five decisions about her employment which she viewed to be detrimental to her career growth, mental health, and ongoing employment with the Department.

The Court found that while some of those communications might qualify as employment-related enquiries, some were not complaints or enquiries as defined by section 97A of the Industrial Relations Act.

The Court found that four of those communications did not amount to employment‑related inquiries or complaints because they:

• did not clearly express a grievance;
• did not seek redress; and
• were not communicated to a relevant decision‑maker.

The remaining five communications were capable of being characterised as employment‑related complaints, as they contained:

• allegations about bullying and requests for a change in supervision;
• concerns about workload;
• requests for clarification on work processes; and
• pay‑related matters.

While some of the complaints met the requirements under section 97A of the Industrial Relations Act, the Court accepted the Department’s evidence that its decisions (which the Court found were not damaging action in any event) were made for legitimate operational, performance management and contractual reasons. And not because the claimant had made any inquiries or complaints. 

The decision also examines the legislative framework of damaging action claims, drawing comparisons with general protections applications under the Fair Work Act 2009 (Cth) and relevant case law. In this analysis, Her Honour stated that, “A claim for damaging action does not entitle [the claimant] to ‘a broad inquiry as to whether [she] has been subjected to a procedurally or substantively unfair outcome’”.

The Court identified various issues and evidence that the claimant sought to litigate in her damaging action claim that were not relevant to the Court in determining if any damaging action had occurred. The Court focused on the explicit enquiries, the alleged damaging actions and if those decisions she viewed as damaging actions were made because an employment-related enquiry or complaint had or could be made. The issues Her Honour ruled as irrelevant in the claim included:

• whether specific incidents of alleged bullying had occurred;
• the validity of a recruitment process by the Department;
• the manner in which a job interview outcome was delivered;
• whether the claimant performed specific job tasks satisfactorily or introduced improvement processes;
• an assessment of training that was provided or should have been provided in the claimant’s view;
• the validity of any performance improvement plans the Department implemented.

In addition to finding no damaging action occurred, the Court also determined that the claimant had not suffered any loss or injury as a result of the matters she said she had complained about. Her employment ended due to the expiry of her contract, and she did not suffer compensable injury beyond ordinary workplace disappointment. Accordingly, the Court dismissed the claim.

The decision can be read here.

On 26 April 2023, an electrical technician (the claimant) lodged a claim against Auscor Pty Ltd (respondent) and its sole director (former second respondent), alleging breaches of both the Fair Work Act 2009 (Cth) (FWA) and the Long Service Leave Act 1958 (WA). The claimant claimed he was an employee entitled to annual leave, public holiday pay, leave loading, and long service leave, which he had not received from the respondent during the period 8 October 2012 to 9 September 2021, totalling $86,674.24. The claimant also sought interest and penalties. Throughout the proceedings, the respondents maintained the claimant was an independent contractor and not entitled to the amounts sought in the claim. On 14 March 2025, after proceedings had continued for almost two years, the claimant discontinued the claim.

On 28 March 2025 the respondent filed an application with the Court (Costs Application) which sought that the claimant pay both the respondent’s and former second respondent’s costs on an indemnity basis from 26 April 2023, to be taxed if not agreed. The respondent also sought their costs on the Costs Application. The respondent sought the order for costs under s 570(2)(a), and alternatively s 570(2)(b), of the FWA. Section 570(2)(a) allows the Court to issue costs where claims are instituted vexatiously or without reasonable cause, while s 570(2)(b) allows costs orders when an unreasonable act or omission by a party has caused the other party to incur costs. The Costs Application was heard on 21 July 2025 before the Industrial Magistrate.

The respondent contended that the claimant instituted the proceedings vexatiously without reasonable cause, stating that the claim was legally hopeless from its inception and that the claimant knew at all times that he had only ever worked for the respondent as a contractor, not an employee. Evidence of this working relationship included the claimant’s own business records, his registration as a sole trader with an Australian Business Number, issuance of tax invoices (charging GST), and tax returns or Business Activity Statement filings declaring business income and claiming significant business expense deductions. The respondent referred to an affidavit, filed by the claimant on 28 February 2024, which they said explained repeated declarations made by the claimant to the Australian Tax Office that the claimant was running his own business for personal services, the business expense tax deductions claimed by the claimant over numerous years, and that the case, contradicted by the claimant’s own documents, had no reasonable prospect of succeeding. Further, the respondent argued the claimant engaged in unreasonable acts and omissions and caused the respondents to incur costs by repeatedly failing to comply with Court orders, made false statements in affidavits and ignored a reasonable walkaway offer of settlement. The respondent said these actions significantly extended the time and costs incurred by the respondents in the proceedings.

The claimant contested that there was no evidence his motive in commencing the claim was anything other than having a genuine belief his contract with the respondent was one of employment and that he was entitled to payment of his claimed entitlements. Although self-represented at the time of the Application, the claimant raised that he had been represented through the proceedings by an industrial agent, and it could be inferred that prior to commencing the claim, he had received advice that his claim had chances of success. He further contested that it could not be said his claim was instituted without reasonable cause. The claimant submitted he had left it to his industrial agent to set out his claim and was not responsible for its content.

After considering the parties’ respective cases and applying principles from the decisions that each party relied upon, the Industrial Magistrate found that the claimant instituted the proceedings without reasonable cause. Her Honour found it was difficult to comprehend how the claimant or his advisors could conclude he had reasonable prospects of success given the evidence overwhelmingly pointed to the claimant being a contractor. Her Honour determined that pursuant to s 570(2)(a) of the FWA, an order requiring the claimant to pay the respondent’s costs in the proceedings from 26 April 2023, on a party and party basis, to be taxed if not agreed, should be issued. Her Honour was satisfied that this should include the respondent’s costs on the Costs Application, however, was not inclined to make an order that the claimant pay the former second respondent’s costs.

The full decision can be read here.

The Industrial Magistrates Court of Western Australia (IMC or Court) has dismissed a claim brought by an aqua aerobics instructor who alleged she was misclassified as an independent contractor rather than an employee during her engagement with the Town of Cambridge.

Between 2017 to 2018, the Town of Cambridge (respondent) employed the claimant as a casual aqua aerobics instructor at Bold Park Aquatic Centre. In October 2018, the respondent terminated its casual employment arrangements with all instructors engaged as employees and invited them to continue as independent contractors. Instructors were asked to supply an ABN and professional indemnity and public liability insurance. The claimant continued to teach at Bold Park until 23 August 2024.

The claim had a federal and state component, each dependent on the claimant being an employee between 2018 and 2024. 

The federal claim alleged the respondent breached the Fair Work Act 2009 (Cth) (Fair Work Act) by making false or misleading representations regarding her employment status as a contractor; breaching the National Employment Standards; underpaying her minimum wages according to the Town of Cambridge Employees’ Collective Agreements; failing to provide a Casual Employment Information Statement; and failing to keep and supply employment records. 

The respondent was a national system employer to which the Fair Work Act applied up until 31 December 2022. On 1 January 2023, the respondent transitioned to the Western Australian industrial relations system under the Industrial Relations Act 1979 (WA) (Industrial Relations Act). The state claim made similar allegations to the federal claim.  

The IMC is an “eligible State or Territory court”, with jurisdiction limited to civil remedy provisions listed in section 539 of the Fair Work Act. Allegations of false statements or misrepresentations, and the failure to provide a Casual Employment Information Statement fall outside the jurisdiction that an ‘eligible State or Territory court’ can hear. Since the IMC had no jurisdiction to determine these parts of the federal claim, they were dismissed.

For the remainder of the federal claim, the Court was required to consider whether the claimant was an employee and in doing so applied the relevant case law applicable at the time. Referring to principles from High Court cases Personnel Contracting ([2022] HCA 1) and Jamsek ([2022] HCA 2), the Court examined the working relationship and terms of the contract taking into account the following factors: 

1. 1. the extent to which the worker has the right to control how, where and when they perform their work; and
   2. the extent to which the worker can be seen to work in their own business, distinct to the supposed employer.

The respondent controlled what classes were offered, the timetable, the rate of pay and provided class equipment. However, the claimant controlled their class content and, provided she sourced a replacement, could choose not to attend and teach a class. She was not required to explain why she could not attend a class, and was free to advertise and work elsewhere. The claimant’s tax records also showed she operated as her own business, claiming business‑related expenses. In weighing up these factors, the Industrial Magistrate determined the claimant was not an employee, and instead, worked in her own business. 

Having concluded the claimant was not an employee, the Fair Work Act and federal enterprise agreements did not apply, and the Court dismissed the federal claim. 

The state claim was also dismissed because, on the same circumstances, the claimant did not show that the real substance, practical reality, and true nature of the relationship between the parties was one of employment. Rather, upon considering the totality of the relationship, including how the parties performed the contract, the relationship was one of independent contracting. 

The full decision can be read here.

The Industrial Magistrates Court has held that no civil penalties would be imposed on Qube Ports Pty Ltd (respondent) for breaching an industrial agreement and contravening the Fair Work Act 2009 (Cth) (Fair Work Act). In exercising its discretion, the Court found that to impose a penalty would be doubly punishing Qube and unsuitable to specifically or generally deter further conduct. 

The circumstances of this matter are identical to another claim heard by the Court with the same parties (M 137 of 2024), save for the affected employee. The respondent did not pay an employee for 13 ‘normal public holidays’ or ‘closed port days’, when they were entitled to be paid under the Qube Ports’ Port of Port Hedland Enterprise Agreements 2016 and 2020. These clauses were identical between the 2016 and 2020 agreements. On some days, the respondent did pay the employee but incorrectly deducted a leave date. Thus, the respondent contravened section 50 of the Fair Work Act by breaching the enterprise agreements, and by not paying the employee in full, they also contravened section 323. Each contravention may be subject to the imposition of a civil penalty. 

Section 557(1) of the Fair Work Act operates so that if two or more civil remedy provisions are contravened, they can be taken to constitute a single contravention if: 

(a)    They are committed by the same person; 
(b)    the contraventions arose out of a course of conduct; and
(c)    the court has not previously imposed a penalty for any prior contraventions of the civil penalty provisions in question.

The Court found that the breaches of sections 50 and 323 satisfied these requirements. Thus, on applying section 557(1) of the Fair Work Act to the contraventions of two identical clauses in two enterprise agreements, the respondent was taken to have committed four contraventions of the Fair Work Act. 

Next, the Court considered whether these four contraventions could be grouped together and classed as a single course of conduct under common law principles. This can be done if there are multiple contraventions which have common elements between them, even if the contraventions arise from different obligations. If the contraventions are considered a single course of conduct then the Court may, if it considers appropriate in the circumstances, impose a single pecuniary penalty so as to avoid punishing the respondent twice or more for the same offending conduct. After considering Patrick Stevedores [2021] FCA 1481 and the Hutchison Ports Appeal [2019] FCAFC 69, the Court agreed that the common law course of conduct principles are not excluded by section 557. Accordingly, having already found there were common elements between each of the contraventions the Court was satisfied that, despite arising out of different obligations, they constituted a single course of conduct for which a single penalty, if any, could be issued (see [95] of the reasons). To do the opposite would result in punishing the respondent twice.  

Thus, at the hearing, the principal issue was: what penalty, if any, should the Court impose on the respondent for the breaches of sections 50 and 323 of the Fair Work Act? 

The answer was: no penalty, as deterrence is the primary aim of pecuniary penalties. Parallels were drawn to two other matters between the same parties, the published reasons for each can be found here and here. These imposed pecuniary penalties across similar date ranges, and related to the same contraventions dealt with in this matter. In addition, there was also no evidence that after the dates for which penalties were issued, the respondent continued to apply its mistaken construction of the relevant clauses. Thus, the Court found there was nothing more that could be achieved by levying further penalties for the same conduct. 

Having considered the above circumstances, the Court did not consider any pecuniary penalty was appropriate in the circumstances of the case. The full decision can be read here.