WESTERN AUSTRALIAN INDUSTRIAL MAGISTRATES COURT

PARTIES warren graham milward, department of consumer & employment protection

   CLAIMANT

-v-

melrose farm pty ltd t/as milesaway tours

  RESPONDENT

CLAIM NO. M 99 OF 2006

PARTIES warren graham milward, department of consumer & employment protection

CLAIMANT

-v-

CHRISTINE ANNE MILES AND RICHARD GLINTON MILES T/AS milesaway tours

  RESPONDENT

CLAIM NO. M 15 OF 2007

CORAM INDUSTRIAL MAGISTRATE G. CICCHINI

HEARD WEDNESDAY, 23 MAY 2007

DELIVERED Wednesday, 23 May 2007

CITATION NO. 2007 WAIRC 00505

Representation 

Claimant  Mr A Shuy (of Counsel) instructed by the State Solicitor’s Office appeared

for the Claimants.

Respondent  Mr G McCorry of Labourline – Industrial and Workplace Relations

Consulting appeared as agent for the Respondents.

SUPPLEMENTARY REASONS FOR DECISION

(Given extemporaneously at the conclusion of submissions with respect to the orders to be made,

extracted from the transcript of proceedings and edited by His Honour)

1         I will now deliver my reasons concerning the orders to be made in relation to these matters.

2         Dealing with the issue of disbursements claimed, I agree with the respondents’ representative that such should not be allowed.  Disbursements could have been avoided if service had been effected in accordance with the provisions of the Corporations Act 2001.  In my view, the disbursements incurred are simply unnecessary and will not be allowed.

3         With respect to interest, I take the view that I am bound by the decision of the Full Bench of the Western Australian Industrial Relations Commission in Foy v The Directors of Terraqua Pty Ltd (2003) 83 WAIG 3319.  I can see no way around it.  Being bound by the decision in Foy, it follows that the claim for interest is not maintainable.

4         As to penalty, I accept that there was an increase in penalty in 2002 and that this Court must have regard to the lower penalties provided with respect to that period of the claim prior to the increase. 

5         In determining the appropriate penalties, I accept that the breaches were numerous in each instance and, of course, they occurred over a lengthy period.  I also accept that there has been substantial underpayment as a consequence.  In mitigation I note that the Respondents have not previously been alleged to have breached the Award; or any other award.  I accept also that there has not been a wilful defiance of the law in this particular instance, and I also that the Respondents have co-operated with those investigating the claims.

6         In arriving at the appropriate penalties, this Court must, of course, impose penalties which are meaningful and take account of the maximum available pursuant to the legislation.  The penalty must be relative to the conduct of the Respondent in each instance and must not be out of kilter with the total underpayment.  Further it ought not in totality, be crushing and a consideration of the totality principle is entirely appropriate.  The penalties that I am about to impose, in my view, reflect those considerations yet are sufficient to impose a general and personal deterrent effect.  It is for those reasons that I make the following orders.

7         I deal initially with claim M 99 of 2006.  Firstly, there will be judgment for the Claimant against the Respondent.  Secondly, there is a finding that the Respondent has committed 88 breaches of the Transport Workers (Passenger Vehicles) Award 1978.  Thirdly, the Respondent shall pay a penalty of $45.00 for each breach, totalling an amount of $3,960.00 which will be paid, in my view appropriately, to Consolidated Revenue.  Fourthly, the Respondent shall pay to Gregory John Sladdon the amount of $15,478.01.  The claims for interest and disbursements are dismissed.

8         I now turn to claim M 15 of 2007.  There will be judgment for the Claimant against the Respondent.  Secondly there is a finding that the Respondents breached the Transport Workers (Passenger Vehicles) Award 1978 on 77 separate occasions.  Thirdly, I order that the Respondents shall pay a penalty of $30.00 per breach, amounting to $2,310 00 which shall be paid into Consolidated Revenue.  Fourthly, that the Respondent shall pay to Gregory John Sladdon the amount of $12,344.39; and, finally, the claims for interest and disbursements are dismissed.

G Cicchini

Industrial Magistrate