WESTERN AUSTRALIAN INDUSTRIAL MAGISTRATES COURT

PARTIES GLENN JAMES ROSS

CLAIMANT

-v-

Corruption and Crime Commission

RESPONDENT

CORAM INDUSTRIAL MAGISTRATE G. CICCHINI

DATE Tuesday, 31 July 2007

CLAIM NO. M 20 OF 2007

CITATION NO. 2007 WAIRC 00968

Catchwords Section 83 of the Industrial Relations Act 1979 (the IR Act); Minimum Conditions of Employment Act 1993;

Result The claim is proven; and;

 The Respondent is cautioned.

Representation 

Claimant Mr G R Ross in person

Respondent Mr M Holler (of Counsel) instructed by Talbot Olivier, Lawyers appeared for the Respondent

SUPPLEMENTARY REASONS FOR DECISION

(Given orally 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          The Respondent argues that the principal relief under section 83 of the Industrial Relations Act 1979 (the IR Act) is for the enforcement of an instrument.   The power to impose a penalty is ancillary and is a matter of discretion.  It says that this is not a claim under section 83(1) of the IR Act for the enforcement of an instrument as is required for the purpose of section 83(4).  This claim is not about enforcement but rather about the imposition of a penalty.  It is not sought to enforce the Minimum Conditions of Employment Act 1993 (the MCE Act).  There is no other legitimate purpose in bringing the claim.  It is submitted that it is a fishing exercise.

2          Enforcement of an instrument pursuant to section 83 of the IR Act includes the imposition of a sanction.  Whether or not a sanction is imposed is a discretionary matter.  Section 83(1) relates to a contravention or failure to comply with the provision of an instrument.  Where a contravention or failure is proved, the Court may caution or order the imposition of a penalty.  Enforcement, referred to in section 83(1), is the taking of proceedings in this jurisdiction alleging a failure to comply.  That is what has happened in this matter.  I reject the Respondent’s submissions concerning lack of jurisdiction.  The Claimant has, by his claim in this matter, appropriately sought to enforce section 41 of the MCE Act.

3          I now move to determine whether to impose a caution or a penalty.

4          Clearly the imposition of a sanction is appropriate having regard to the Respondent’s failure to comply with section 41 of the MCE Act.  In my view, the evidentiary materials before me indicate that the Respondent failed to comply with the requirements of section 41 of the MCE Act because it was ignorant of that provision.  There was no deliberate or wilful disobedience of the law.  The Respondent’s actions were not calculated.  It simply failed to strictly comply with section 41 of the MCE Act.  Indeed, discussions did take place with the Claimant, albeit not in a timely manner, and attempts were made to lessen or ameliorate the impact of the decision upon the Claimant.  There was a great deal of discussion in that regard, albeit not appropriately carried out in a temporal sense.

5          There is no need for a personal and/or general deterrent penalty.  The very fact that the Respondent has been involved in these proceedings will be sufficient enough to alert it and others for that matter, as to the obligations imposed by section 41 of the MCE Act.  I am further satisfied that the Respondent has either instituted or will institute measures to prevent a reoccurrence.  It will be unlikely to repeat its failure to comply with section 41 of the MCE Act.

6          In all the circumstances and taking the aforementioned factors into account, I am of the view that a caution is the appropriate sanction in this particular instance.

7          I make the following orders:

1. The claim is proven; and
2. The Respondent is cautioned.

G Cicchini

Industrial Magistrate