WESTERN AUSTRALIAN INDUSTRIAL MAGISTRATES COURT

PARTIES JEFFREY LOEL TOWNEND, DEPARTMENT OF COMMERCE

CLAIMANT

-v-

Lisa Tran

RESPONDENT

CORAM INDUSTRIAL MAGISTRATE G. CICCHINI

HEARD Wednesday, 25 August 2010

DELIVERED Wednesday, 25 August 2010

CLAIM NO. M 32 OF 2010

CITATION NO. 2010 WAIRC 00903

CatchWords Respondent required by an Industrial Inspector pursuant to Section 98(3)(e) of the Industrial Relations Act 1979 (the Act) to send him copies of employment records. Obstruction constituted by failure to produce employment records for inspection contrary to section 102 of the Act.  Imposition of a civil penalty pursuant to Section 83E of the Act.

Legislation Industrial Relations Act 1979 

Result Penalty imposed

Representation 

Claimant  Mr J. Lee appeared for the Claimant.

Respondent  The Respondent did not appear.

REASONS FOR DECISION

(Delivered orally and edited by His Honour from the transcript)

Default Judgement

1         The Claimant alleges a breach of section102 of the Industrial Relations Act 1979 (the Act).

2         As a consequence of the Respondent’s failure to respond to the Claim the Claimant, an Industrial Inspector, applies for default judgment.  The Claim was served on the Respondent on 21 June 2010.  On 5 August 2010, the Claimant brought his application for default judgment. The application for default judgment was served upon the Respondent on 17 August 2010. The Respondent has not responded to the Claim or the application.

3         Prior to the commencement of the hearing today, the Claimant indicated that some of the orders sought in the Claim were not in accordance with the provisions of the Act and consequently sought an amendment.  Accordingly the Claimant asked to withdraw his claim for the imposition of a daily penalty.  Further he sought to amend his reference in the Claim to the penalty available from $5,000 to $1,000.  I was initially concerned as to whether the Respondent should be given notice of the amendment sought, but having considered the matter I have concluded that there is no need for that to occur because the amendment operates in the Respondent's favour.  In those circumstances, to delay these proceedings in order to notify the Respondent of such amendment would not be desirable and indeed would be contrary to the aim of the Act and Regulations. Matters such as this should be dealt with expeditiously.

4         I am satisfied that it is appropriate for default judgment to be entered for the Claimant as against the Respondent and further that consequential orders be made.

5         The Claimant seeks as against the Respondent the imposition of a penalty.  The maximum penalty available is $1000.  In determining the appropriate penalty, the Court must take into account that the Respondent has not previously contravened a civil penalty provision. In those circumstances it would be inappropriate to impose the maximum penalty.   Nevertheless the Court must have regard to the Respondent's conduct which has been one of basically sticking her head in the sand.   Her conduct is a significant matter to be considered in determining the appropriate penalty. Usually where a person is facing a criminal or civil penalty, the starting point for a first offender is a penalty in the region of about twenty five per cent of the maximum. In this matter the Respondent's conduct has been such that it will be appropriate to impose a penalty set at half the maximum.  There needs to be a deterrent penalty imposed in matters of this type where the obstruction causes significant delay in the recovery of wages allegedly owed.  A $500 penalty will be imposed which shall be payable to the Claimant.

6         I will now proceed to pronounce the following primary and consequential orders:

(1) There is judgement for the Claimant as against the Respondent in default of  Response;

(2) There is a finding that the Respondent has contravened section 102 of the Industrial Relations Act 1979;

(3) The Respondent shall pursuant to section 83E (1)(b) of the Act pay to the  Claimant a civil penalty in the sum of $500.

(4)  The Respondent shall pay to the Claimant costs in the amount of $446.70, being the value of disbursements incurred by the Claimant in bringing the Claim.

(5)  Pursuant to section 83E(2) of the Act the Respondent shall, within 14 days of personal service of this order, send to the Claimant by prepaid post all records held by the partnership G.N. Lee and L. Tran relating to the employment of Mr Kuo-Seng Tseng, including, but not restricted to the following documents :

• an Australian Taxation Declaration;
• group certificates;
• any correspondence between Ms Tran and/or her representative and Mr Kuo-Seng Tseng in relation to Mr Kuo-Seng Tseng's employment;
• any record demonstrating Mr Kuo-Seng Tseng's commencement date with G.N. Lee and L. Tran, trading as Tran and Lee;
• any records demonstrating Mr Kuo-Seng Tseng's classification and employment status;
• any record demonstrating Mr Kuo-Seng Tseng's daily shift start and finish times, including meal breaks;
• records demonstrating any paid or unpaid leave taken by Mr Kuo-Seng Tseng between 27 July 2009 and 3 September 2009;
• records demonstrating wages and conditions of employment details relevant to Mr Kuo-Seng Tseng held by the Respondent, including records such as any letter of appointment, employment contract, registered agreement and similar;
• records demonstrating allowances paid for each pay period and any deductions made.

G Cicchini

Industrial Magistrate