2025 WAIRC 00398
INDUSTRIAL MAGISTRATES COURT OF WESTERN AUSTRALIA


CITATION
:
2025 WAIRC 00398



CORAM
:
INDUSTRIAL MAGISTRATE T. KUCERA



HEARD
:
TUESDAY, 11 FEBRUARY 2025



DELIVERED
:
TUESDAY, 1 JULY 2025



FILE NO.
:
M 73 OF 2023



BETWEEN
:
CONSTRUCTION, FORESTRY AND MARITIME EMPLOYEES UNION


CLAIMANT





AND





QUBE PORTS PTY LTD


RESPONDENT

CatchWords : INDUSTRIAL LAW – FAIR WORK – Imposition of pecuniary penalty – Assessment of pecuniary penalties for contraventions of the Fair Work Act 2009 (Cth) – Contravention of s 50 – Breach of enterprise agreement – Whether conduct of respondent was deliberate – s 557 Single course of conduct – Previous contraventions – Penalty to be paid to claimant
Legislation : Fair Work Act 2009 (Cth)
Crimes Act 1914 (Cth)
Instrument : Qube Ports Pty Ltd Port of Port Hedland Enterprise Agreement 2020
Case(s) referred
to in reasons: : Construction Forestry and Maritime Employees Union v Qube Ports Pty Ltd [2024] WAIRC 01041; (2025) 105 WAIG 263
Australian Building and Construction Commissioner v Pattinson [2022] HCA 13; (2022) 274 CLR 450
Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union [2017] FCAFC 113; (2017) 254 FCR 68; 271 IR 321
Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (No 2) [2018] FCA 1563
Trade Practices Commission v CSR Ltd [1990] FCA 521
Callan v Smith [2021] WAIRC 00216; (2021) 101 WAIG 1155
Fair Work Ombudsman v Blue Sky Kids Land Pty Ltd (in liq) (No 4) [2024] FCA 1475
Construction Forestry Maritime and Energy Union v Qube Ports Pty Ltd [2023] WAIRC 00976; (2024) 104 WAIG 121
Ponzio v B&P Caelli Constructions Pty Ltd [2007] FCAFC 65; (2007) 158 FCR 543
Milardovic v Vemco Services Pty Ltd (No 2) [2016] FCA 244; (2016) 242 FCR 492

Result : Pecuniary penalty to be paid

Representation:
Claimant : Mr K. Sneddon (of counsel)
Respondent : Mr R. Boothman (of counsel)




REASONS FOR DECISION
1 On Tuesday, 17 December 2024, I issued my reasons for decision in Construction Forestry and Maritime Employees Union v Qube Ports Pty Ltd [2024] WAIRC 01041; (2025) 105 WAIG 263 (liability decision).
2 In the liability decision, I concluded that Qube Ports Pty Ltd (respondent) had breached cl 46.2(b) of the Qube Ports Pty Ltd Port of Port Hedland Enterprise Agreement 2020 (agreement), by failing to train 17 of its employees (affected employees) to the minimum standard of a Certificate II in the Transport and Logistics Industry, Skills Council Stevedoring Training Package (Certificate II) as required.
3 Having decided the respondent breached the agreement, it follows the respondent contravened s 50 of the Fair Work Act 2009 (Cth) (FW Act), which is a civil remedy provision for which the Industrial Magistrates Court of Western Australia (Court) may impose a pecuniary penalty (contravention).
4 After the liability decision issued, I directed the parties to each file outlines of submissions on penalty and any other orders sought. Following this, I convened a penalty hearing that was held on 11 February 2025.
5 In the paragraphs to follow, I provide reasons on what I regard is an appropriate disposition for the contravention and the consequential orders to be made.
Principles to be applied to determine an appropriate penalty
6 The approach to be adopted when determining an appropriate penalty in civil penalty proceedings was comprehensively reviewed by the High Court in Australian Building and Construction Commissioner v Pattinson [2022] HCA 13; (2022) 274 CLR 450 (Pattinson). It involves the application of the following principles:
i. The purpose of civil penalties is in the promotion of the public interest in compliance with statutes by the deterrence of further contraventions of the statute. Australian Building and Construction Commissioner v Pattinson [2022] HCA 13; (2022) 274 CLR 450 (Pattinson)
at [9].

ii. Civil penalties are imposed primarily if not solely for the purposes of deterrence. Pattinson at [9] and [15].

iii. The objective when imposing a penalty, is to attempt to put a price on a contravention that is sufficiently high to deter repetition by the contravenor and by others, who might be tempted to contravene a statute. Pattinson at [15] citing Commonwealth v Director, Fair Work Building Industry Inspectorate [2015] HCA 46; (2015) 258 CLR 482 at 506 [55].

iv. An ‘appropriate’ civil penalty will not exceed what is reasonably necessary to achieve the deterrence of future contraventions of a like kind by the contravenor and others. Pattinson at [9].

v. For general deterrence, it is important for to send a message that the relevant contraventions are serious and not acceptable. Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union [2017] FCAFC 113; (2017) 254 FCR 68; 271 IR 321, at [98].

vi. An appropriate penalty must strike a reasonable balance between oppressive severity and the need for deterrence in respect of the particular case. Pattinson at [41] and [46]  [47] citing Australian Competition and Consumer Commission v Reckitt Benckiser (Australia) Pty Ltd [2016] FCAFC 181; (2016) 340 ALR 25 at [156].

vii. Both the circumstances of the contravenor as well as the conduct involved in the contravention may be considered, as both may bear on the need for deterrence. Pattinson at [55].

viii. Identifying the maximum penalty that applies in a statute for the contravention is an important consideration when determining the penalty to be imposed because it serves as a ‘yardstick’ against which the assessment of penalties is generally to proceed. Pattinson at [46]  [47] also see Flick J in Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (No 2) [2018] FCA 1563 at [19].

ix. The maximum penalty is not reserved for the most serious examples of contravening conduct. What is required is that there be some reasonable relationship between the theoretical maximum and the final penalty that is imposed. Pattinson at [55].

x. When determining penalty, care must be taken to ensure the maximum penalty is not applied mechanically, instead of it being treated as, one of a number of relevant factors to be considered. Pattinson at [53].

xi. A civil penalty must be ‘fixed with a view to ensuring that [it] is not such as to be regarded by the [contravenor] or others as an acceptable cost of doing business’. Pattinson at [17], citing Singtel Optus Pty Ltd v Australian Competition and Consumer Commission [2012] FCAFC 20; (2012) 287 ALR 249 at 265 [62].

7 In addition to the principles referred to, the Court, when assessing a penalty of appropriate deterrent value, must also have regard to a further range of nonexhaustive considerations, which French J set out in Trade Practices Commission v CSR Ltd [1990] FCA 521 at [42] (CSR).
8 CSR was adopted and followed by a Full Bench of the Western Australian Industrial Relations Commission in Callan v Smith [2021] WAIRC 00216; (2021) 101 WAIG 1155. After the decision in Callan v Smith issued, CSR was accepted as binding authority in Pattinson. Pattinson at [54].

9 The range of considerations as set out in CSR and Callan v Smith include but are not limited to the following:
(a) the nature and extent of the conduct which led to the contravention/contraventions;
(b) the circumstances in which the contravening conduct took place;
(c) the nature and extent of any loss or damage sustained as a result of the contravention/contraventions;
(d) whether there had been similar previous conduct by the respondent;
(e) whether the contravention/contraventions are properly distinct or arose out of the one course of conduct;
(f) the size of the business enterprise involved;
(g) whether or not the contravention/contraventions were deliberate;
(h) whether senior management was involved in the contravention/contraventions;
(i) whether the party committing the contravention/contraventions had exhibited contrition;
(j) whether the party committing the contravention/contraventions had taken corrective action;
(k) whether the party committing the contravention/contraventions had cooperated with the enforcement authorities;
(l) the need to ensure compliance with minimum standards by provision of an effective means for investigation and enforcement of employee entitlements; and
(m) the need for specific and general deterrence.
10 These considerations are not to be regarded as a ‘rigid catalogue of matters for attention’ as if it were a legal checklist. The Court is still required to determine the appropriate penalty or penalties in the circumstances of the case before it.Callan v Smith at [91].

11 Before applying the relevant principles to determine an appropriate penalty, I will first provide a summary of the parties’ submissions on how they should be applied in the present case.
Claimant’s submissions on penalty
12 Counsel for the claimant submitted the Court should, having regard to the circumstances of this case, order that the maximum penalty be imposed.
13 The claimant contended the respondent had not shown any contrition for the contravention. It was submitted the respondent had not provided a firm commitment on when the contravention would be rectified.
14 The claimant submitted the respondent had led no evidence that it had learned a lesson from the contravention or that it had taken positive steps to ensure future compliance. It was contended that in these circumstances, there was, in the assessment and imposition of a penalty, a strong and important role for specific deterrence, to ensure future compliance.
15 In addition, the claimant’s counsel provided a list of matters in which the respondent was found to have contravened the FW Act (list of contraventions).
16 The list of contraventions included the following:
MATTER
CONTRAVENTION
Penalties Imposed
M 76 of 2022
s 50 FW Act
s 323 FW Act
$3,500
M 91 of 2022
s 50 FW Act
s 323 FW Act
$4,000
M 101 of 2022
s 50 FW Act
s 323 FW Act
$11,300
M 95 of 2023
s 50 FW Act
$936
M 119 of 2023
s 50 FW Act
$6,000
M 149 of 2023
s 50 FW Act
$1,500
17 The claimant submitted the outcome of the matters in the list of contraventions demonstrated the respondent had a record of previous non-compliance.
18 The claimant submitted that it did not matter whether the contravention was deliberate or not as the result for the affected employees is the same; since 2011 they had been denied the training they were entitled to receive under the agreement.
19 The claimant submitted the respondent is a large multinational employer. Having regard to the size of the company and its record of recent contraventions, the claimant said a penalty less than the maximum would not act as a deterrent in ensuring compliance.
Witness Statement of Daniel Ortiz
20 For the penalty hearing, Daniel Ortiz, who is the respondent’s General Manager for Industrial Relations (Mr Ortiz) provided a witness statement.
21 Mr Ortiz stated the respondent has 1,460 employees who work in 19 ports across Australia. He said a separate enterprise agreement applies in each of these ports.
22 In his evidence, Mr Ortiz described how work is allocated to stevedores in Port Hedland. He said that each day, the port’s planner feeds information about the nature of each vessel that is scheduled to arrive, the skills required to load / unload it, as well as the number of stevedores required.
23 He said that work is allocated to stevedores with the required skill sets according to the ‘allocation priorities’ that are contained in cl 3 of the agreement. Mr Ortiz said the ‘skills required’ are listed in Schedule 2 of the agreement – ‘Job classifications’ (Schedule 2).
24 Mr Ortiz said that based on his experience, stevedores, as part of their work, are trained in all the core and elective units that make up the course for a Certificate II. He said stevedores receive training in line with their job classifications, during their employment with the respondent.
25 Mr Ortiz described a series of criteria under the agreement that affect whether a stevedore is allocated a shift or is promoted to a higher classification. He said the selection criteria and process are set out in Part A, Schedule 1 of the agreement, with a selection process that includes an assessment and selection panel, comprised of foremen (who are themselves stevedores) and managers.
26 Mr Ortiz said the promotion criteria involves an allocation of points to the following categories:
a. whether an employee is fit to perform the role (100 points if fit);
b. whether an employee has received a final warning (100 points if no warning);
c. whether the employee has any disciplinary matters on file (20 points if no disciplinary matter, 5 point deduction for each disciplinary matter);
d. feedback on an employee’s performance (up to 20 points);
e. attendance (5 point deduction (up to 20 points) for each unauthorised absence);
f. extent to which an employee has made themselves available for allocated shifts (up to 100 points);
g. skills required for the role (up to 13 points);
h. performance of skills (up to 12 points); and
i. years of service (up to 15 points per year of service).
27 Mr Ortiz said that if an employee receives the maximum number of points (other than for service) and there are no deductions for unauthorised absences, an employee could receive 366 points. Of these, the maximum number of points that can be obtained for the ‘skills required’ category, even where an employee has all the skills that are necessary for the promotion is 13.
28 He said that being fully trained in the ‘skills required’, only equates to approximately 3.5% of the points available. Mr Ortiz suggested there will be no effect on an employee’s promotional opportunities, where an employee has not attained a Certificate II. He said this is because a Certificate II is not a ‘job classification’ under Schedule 2 of the agreement and it is not a requirement for any other job classification to have one either.
29 In his statement, Mr Ortiz provided his view on the list of contraventions. He said they each involved underpayments or contraventions which were relatively minor and the respondent was not found to have intentionally disadvantaged employees or maliciously breached enterprise agreements.
30 Mr Ortiz said that while disputes between the respondent and its stevedores are not uncommon, very few reach a court or a tribunal. He suggested this happened because workplace issues can be raised through the port’s Employee Representatives Committee (ERC), where matters are discussed between the stevedores and managers in that forum and then resolved.
31 Mr Ortiz said the respondent would prefer to deal directly with employees on issues like the provision of training within relevant timeframes, rather than addressing the matter after the fact, as part of litigation.
32 He said he knows the respondent wants its stevedores to be trained in every skill that is relevant to the port where they are employed. Mr Ortiz said that having stevedores trained in as many skills as possible means the respondent can allocate shifts to a broader pool of stevedores, which in turn means there are more employees available to cover periods of leave, there are reduced fatigue risks and the respondent can tender for more work because it has a highly skilled workforce capable of servicing its clients’ vessels.
33 In his statement, Mr Ortiz accepted that upskilling and training its workforce is in the respondent’s interests as much as it is in the interests of each individual stevedore. Mr Ortiz said the respondent had worked hard to train all its stevedores in as many skills as possible.
34 He described the proceedings as evidence the respondent had not yet done enough and said the respondent will continue to look at ways it can improve its systems to ensure that training is carried out in a timely way.
35 Mr Ortiz stated that it was deeply regrettable to him personally, that the respondent had not been able to train the stevedores at its Port Hedland operations to a Certificate II in a timely manner. Mr Ortiz said the respondent was working hard to ensure this never happens again.
36 He said it was in the respondent’s interest for its stevedores to be as well trained as possible. Mr Ortiz also acknowledged the respondent has a responsibility to comply with the agreements which the respondent has entered into.
Respondent’s submissions on penalty
37 The respondent submitted that if the Court decides to impose a penalty, it should be nominal. It was contended there is no evidence that the affected employees have suffered any financial loss, which reduces the need for general or specific deterrence.
38 In relation to this argument, the respondent says that at all relevant times, the employment of stevedores at its Port Hedland Operations, in the various classifications under the agreement, did not require them to hold a Certificate II.
39 Referring to the evidence from Mr Ortiz, the respondent submitted that although the respondent did not train its stevedoring employees to the level of a Certificate II during the life of the agreement, other forms of training were provided, to ensure employees would not miss out on allocated shifts or promotional opportunities.
40 It was submitted that despite the deregistration of the respondent’s Registered Training Organisation (RTO), which occurred in August 2023, the respondent has continued to provide training to its employees. The respondent contended the deregistration of the respondent’s RTO gave rise to an unusual confluence of events which justifies a lower penalty.
41 Counsel for the respondent argued the provision of training under the agreement is something that accrues for its benefit, because it improves the efficiency, reliability and competitiveness of the respondent’s operations. It was also submitted there is no evidence that the respondent’s failure to train its employees to the level of a Certificate II was deliberate or malicious.
42 The respondent submitted that upon becoming aware its RTO was deregistered, steps were taken to obtain its re-accreditation. It was submitted that the respondent has been attempting to arrange training for the employees who have not yet received it. On this basis, the respondent says that it has taken corrective action that will allow the Court to conclude there is no risk the contravening conduct will be repeated.
43 The respondent submitted that it is in a group of companies that has more than 10,000 employees. Within its stevedoring operations, the respondent has 1,800 employees, of which 75 are employed in Port Hedland. It was suggested that the comparatively small number of employees in the context of the respondent’s operations when viewed as a whole, belies the need for general deterrence to any appreciable degree.
44 It was submitted that the contravention has a low degree of objective seriousness because:
a. it involves only a small proportion of the respondent’s overall operations;
b. there is no evidence that the affected employees suffered any prejudice or loss because of the failure to provide training to the level of a Certificate II;
c. there is no evidence and nor could it be objectively inferred the contravention was deliberate; and
d. the respondent has taken and continues to take steps to remediate the contravention.
45 Referring to the penalty Industrial Magistrate Coleman imposed against the respondent in the M 95 of 2023, Construction, Forestry, Maritime, Mining and Energy Union v Qube Ports Pty Ltd (first-aid contravention) counsel for the respondent submitted that if a fine is imposed, the respondent should only be ordered to pay 1% of the maximum penalty that applies under the FW Act.
46 The respondent submitted the first aid contravention involved a failure by the respondent to comply with Part B cl 14 of the agreement, which required the respondent to provide first aid training to all new foreman and leading hands at the Port of Port Hedland within six months of being appointed to their roles.
47 The respondent submitted the facts in the present case are apposite with those in the first aid contravention because both matters;
a. deal with the failure to comply with a training requirement;
b. both contraventions occurred at the respondent’s Port Hedland operations; and
c. no stevedore missed out on any promotions or other employment benefits because they did not receive training.
48 It was submitted that consistency requires that there not be a significant difference between the penalty imposed in the first aid contravention and the disposition in the present case.
Consideration
49 Having reviewed the parties’ submissions, I now provide my reasons for imposing what I consider to be an appropriate penalty in the circumstances of this case.
50 In determining an appropriate disposition, I have had regard to the findings I made in the liability decision as well as the further evidence Mr Ortiz provided for the penalty hearing, which was not challenged.
51 I have also considered the list of contraventions, the circumstances in which those contraventions were committed and the penalties that were imposed.
52 I have not attached any weight to the respondent’s evidence regarding its disappointment the claimant had not raised the matter of its non-compliance with cl 46.2(b) of the agreement through the ERC.
53 As s 50 of the FW Act makes clear, compliance with the terms of an enterprise agreement is not optional. It is my view the claimant was, when it became apparent the respondent was in breach of cl 46.2(b), within its rights to bring this claim to the Court and should not face criticism for lawfully representing its members’ industrial interests.
Nature and extent of the respondent’s conduct
54 Evidence of the respondent’s failure to train the affected employees in accordance with cl 46.2(b) of the agreement was confirmed by a survey that was compiled by Joel O’Brien who works as an industrial organizer for the claimant (members’ survey). Liability Decision at [24]  [31].

55 Despite the number of employees who were affected by the respondent’s conduct, counsel for the claimant and for the respondent, noting s 557 of the FW Act, agreed that I should treat the matter as though the respondent had engaged in a sole contravention, rather than committing a breach for each employee who was not trained to the level of a Certificate II.
56 In Fair Work Ombudsman v Blue Sky Kids Land Pty Ltd (in liq) (No 4) [2024] FCA 1475 at [24] Katzmann J, when dealing with the imposition of a penalty for multiple contraventions of an award and s 45 of the FW Act observed;
The object of s 557 is to ensure that a contravener is not penalised twice for what is essentially the same wrongdoing: Rocky Holdings Pty Ltd v Fair Work Ombudsman (2014) 221 FCR 153 (North, Flick and Jagot JJ). Its effect is that, save in relation to a contravention for which a court has previously imposed a pecuniary penalty for an earlier contravention of the same provision, two or more contraventions of any of these provisions are taken to be a single contravention if they were committed by the same person and arose out of a course of conduct in which that person engaged. As the Full Court confirmed in Rocky Holdings, when the section speaks of two or more contraventions of s 44 (which deals with contraventions of the National Employment Standards (NES)) or s 45 (which deals with contraventions of an award), it is referring to multiple contraventions of a particular provision of the NES and multiple contraventions of a particular clause in an award.
57 It follows from the parties’ acknowledgement that because the contravention involved a single course of conduct, as contemplated by s 557 of the FW Act, the maximum penalty that may be imposed for a contravention of a civil penalty provision, applies in the present case.
Maximum potential penalty
58 The maximum pecuniary penalty that may be imposed for the contravention of a civil penalty provision by a natural person is expressed in penalty units, as set out in the table under s 539(2) of the FW Act.
59 Where (as in this case) a contravenor is a body corporate, the maximum penalty the Court may impose under s 546(2)(b) is five times higher than the civil penalty that applies to a natural person.
60 The rate of a penalty unit is determined by s 4AA of the Crimes Act 1914 (Cth). On the date the proceedings were commenced, and the contravention was alleged, the quantum of a penalty unit was $275.
61 Accordingly, the maximum penalties that apply for a contravention of s 50 of the FW Act are;
i. for a natural person - $16,500 (60 penalty units); and
ii. for a body corporate - $82,500 (5 × 60 penalty units).
62 For the avoidance of any doubt, the maximum pecuniary penalty that may be imposed in the present case is a fine of $82,500.
Extent of the conduct and the circumstances in which the breach occurred
63 In the liability decision, I held that the respondent’s failure to train the affected employees to the level of a Certificate II had occurred;
i. before 23 August 2023 when the respondent had access to its own RTO; and
ii. had continued after the respondent’s RTO was deregistered.
64 I was able to reach this finding from the responses the affected employees provided in the members’ survey, which included information on their length of service with the respondent. Liability Decision at [113]  [119].

65 The affected employees’ length of service, as revealed by the members’ survey, was such that it is likely most of them would have been able to complete a Certificate II before the respondent lost its RTO registration. Liability Decision at [115].

66 Following the loss of its RTO’s registration, the respondent’s capacity to both train and assess employees for a Certificate II was removed. While the affected employees may have continued to receive some training at the workplace level, as result of the deregistration of the respondent’s RTO, no employee could be assessed on their competence to attain the respective modules that are required to complete a Certificate II.
67 I accept that the capacity of the respondent to deliver training and assessments for a Certificate II was adversely affected following the loss of its RTO’s registration. I also accept that without an RTO or the involvement of an external assessor (which the respondent has declined to use because it is conducted by a commercial competitor), the respondent was unable to comply with the requirement under cl 46.2(b) to train employees to the level of a Certificate II.
68 Having said this, there are however, at least two problems with this explanation for the contravention. Firstly, the obligation under cl 46.2(b) of the agreement to train its employees to the level of a Certificate II is not conditional upon the respondent having its own RTO.
69 Secondly and more importantly, the respondent has not explained, despite its obligation under cl 46.2(b) of the agreement, why the affected employees were not trained to the level of a Certificate II or enrolled in courses to attain a Certificate II, before the RTO was deregistered in August 2023, which was after these proceedings were commenced.
70 In other words, the evidence establishes the respondent did not comply with its obligation to train the affected employees to the level of a Certificate II when it had the means and resources at its disposal to do so.
71 The difficulty I have with the loss of the respondent’s RTO’s registration as providing an excuse for the respondent’s conduct, particularly prior to 23 August 2023 is that it weighs against a finding the contravention was inadvertent, the result of an honest but mistaken belief or was completely beyond the respondent’s control.
Nature and extent of any loss or damage sustained
72 I accept that there is no direct evidence the affected employees have suffered any quantifiable financial loss or a denial of promotional opportunities. That is not to say the affected employees have not suffered a detriment.
73 The affected employees have sustained a loss in that they have not received the requisite qualification they were entitled to receive, which the respondent agreed to provide under cl 46.2(b) of the agreement.
74 While the respondent may view its failure to provide the affected employees with a Certificate II as more inimical to its interests, the agreement contains a clear commitment the respondent will train its workforce to a specified industry standard. In much the same way a trade certificate provides an employee with a tangible benefit: proof of a qualification, a Certificate II provides a stevedore with a similar outcome.
75 It would therefore be an error to conclude the affected employees have not sustained any loss at all. Such a finding would have the effect of diminishing the significance of a qualification the respondent had agreed to provide, under an enforceable term, in an enterprise agreement. It would also give license to the respondent to pick and choose those parts of the agreement it wants to comply with and to ignore the provisions it deems unnecessary.
Conduct was deliberate
76 Having regard to the matters described in the preceding paragraphs [63]  [71], I do not accept the respondent’s submission that the contravention was not intentional.
77 Moreover, it is clear from Mr Ortiz’s evidence that the respondent had made a commercial decision that it would not train the affected employees to the level required, because it did not regard a Certificate II as a ‘classification’, that it was necessary for the allocation of work or required for the promotion of employees into higher classifications.
78 In my view the contravention in this matter is distinguishable from the first-aid contravention. The first-aid contravention involved the respondent’s failure to provide first-aid training just outside the required timeframe by which the training had to be provided. It also only involved two employees and was rectified prior to the imposition of the penalty that followed.
79 In the present case, the respondent simply failed to train the affected employees to the standard required under cl 46.2(b) of the agreement. The explanation Mr Ortiz provided in his evidence confirmed the respondent did not view the requirement to train the affected employees to the level of a Certificate II as critical or was something it needed to do.
80 By stating the affected employees have not suffered any loss because of the contravention and explaining that a Certificate II was not needed for promotion or the allocation of work, Mr Ortiz has in effect confirmed the respondent had made a choice not to train the affected employees to the level of a Certificate II.
81 In the circumstances it cannot be said the contravention was inadvertent, an oversight or that it was not intended. Rather the evidence discloses that the contravention involves a case where the respondent had decided to ‘take the odds’. Construction, Forestry, Mining and Energy Union v Hail Creek Coal Pty Ltd (No 2) [2018] FCA 480 at [17].
It is my view that despite there being a risk it would contravene s 50 of the FW Act with its failure to train its stevedores to the level of a Certificate II, the respondent decided to take that chance.
Scale and size of the business
82 The respondent is a large corporation, with operations throughout Australia. While the size of the respondent’s workforce in Port Hedland might be small when compared with the respondent’s business nationally, I respectfully disagree that it reduces the respondent’s culpability to a significant degree.
83 In my view, the size of the respondent’s business is such that it has both the means and the resources to ensure the affected employees were trained to the level of a Certificate II. I also note the Court has previously concluded the respondent is a large business that can reasonably be expected to have systems in place to reduce the risk of underpayments to employees. Construction Forestry and Maritime Employees Union v Qube Ports Pty Ltd 2024 WAIRC 00792 at [54].

84 Noting the Court’s previous finding regarding the size of its business, it is not unreasonable to expect the respondent could also implement systems, to ensure it complies with the requirement to provide training to a specified standard.
Financial position of the respondent
85 The financial position of the respondent in this matter, as in most cases involving the imposition of pecuniary penalty, will not carry any great weight in the assessment of an appropriate disposition.
86 However, as a wellresourced employer, it is expected the respondent will at the very least, have the means to pay a fine and to ensure that corrective action is taken (which includes ensuring the affected employees attain their Certificate IIs).
Previous contraventions
87 This is not the first time the respondent has contravened the FW Act or appeared in a penalty proceeding before this Court.
88 The respondent’s most serious recent contravention is that for which a combined fine of $11,300 was imposed by Industrial Magistrate Cosentino in M 101 of 2022 Construction Forestry Maritime and Energy Union v Qube Ports Pty Ltd [2023] WAIRC 00976; (2024) 104 WAIG 121 (Qube Dampier contravention).
89 The conduct at issue in the Qube Dampier contravention involved two contraventions of the FW Act (one of which was a breach of an enterprise agreement) that gave rise to an underpayment of wages during a single pay period in the amount of $159.25.
90 I accept the respondent’s submission that the balance of the matters referred to in the list of contraventions involved individual underpayments at the lower end of the scale of contravening behavior. They did not involve serious and systematic underpayments across the respondent’s work force. They were instead breaches involving individual employees and confined to particular ports.
91 I have noted that some of the matters on the list of prior contraventions were admitted without the need for the matter to proceed to a contested hearing and that in each case, corrective action followed. Due to the nature and the extent of the respondent’s conduct at issue in the matters on the list of contraventions, the pecuniary penalties the Court imposed were nominal fines, well below the applicable maximum penalties.
92 The contravention in the present case is however quite different to the respondent’s previous conduct. Although the contravention in the present case was confined to one regional port and may not have resulted in any direct financial loss or the denial of promotional opportunities, the contravention was deliberate and the number of affected employees is much larger.
93 The circumstances of the contravention are such that while I am inclined to accept a stiffer pecuniary penalty in the present case is justified, I am not having regard to the list of prior contraventions, convinced the respondent has at this stage, plumbed to the depths of serious industrial recidivism.
94 That is not to say the respondent does not have to get it’s house in order on the provision of training.
Corrective action, contrition and co-operation
95 This is not a case where the contravention was admitted at an early stage, thereby saving the parties and the Court the costs of a contested hearing. On the contrary, the hearing on liability followed a change in the respondent’s plea.
96 The case did however proceed efficiently to the extent that much of the evidence upon which the matter had to be decided was either agreed or not disputed. The issues I was required to decide in the liability decision, were confined to matters of construction.
97 I also note the claimant was unable to establish the respondent had breached cl 46.2(c) of the agreement regarding the requirement for the employer to pay employees for undertaking Certificate II training. Liability Decision at [89]  [92].

98 I accept the respondent’s decision to defend the action is not an aggravating factor when determining an appropriate penalty. However, by contesting the proceedings, the respondent is unable to claim anything in mitigation that would otherwise have been available if it had admitted the contravention prior to the liability hearing.
99 Although the respondent has (with the evidence from Mr Ortiz that was submitted for the penalty hearing) stated that it is taking corrective action and expressed regret for the contravention, there is no evidence as to when the affected employees will likely undergo their training and assessment for a Certificate II.
100 While the expression of regret Mr Ortiz has sought to convey on the respondent’s behalf may present as contrition, until such time as the affected employees have received a Certificate II, it is difficult to conclude this gesture is anything but functionary.
101 Scheduling training and/or assessments after I issued the liability decision is corrective action that could have been taken. Evidence of when the affected employees would likely be undergoing this training and/or assessment, including an update on when the respondent’s RTO will likely be re-registered, is something I consider would have bolstered the respondent’s arguments in mitigation.
102 Without clearer evidence on when the respondent will take the corrective action that Mr Ortiz says the respondent is committed to delivering, it is difficult to conclude the respondent is prioritising the rectification of its contravention to the level for which a nominal fine is the appropriate response.
Specific and general deterrence
103 In view of the matters noted in the preceding paragraphs [96]  [99], it should be clear that I consider there is a need for specific deterrence in this case. In my view, a pecuniary penalty needs to be imposed that will prompt the respondent to complete the corrective action Mr Ortiz says the respondent is committed to take.
104 I am not satisfied there is evidence which demonstrates the respondent has taken sufficient steps to rectify the contravention. As I have found the contravention was deliberate, even though the affected employees may not have suffered any direct financial loss or been denied promotional opportunities, there is in my view a risk the respondent may again decide to take the odds if a penalty with deterrent effect is not imposed.
105 On the issue of general deterrence, the authorities make it clear that if a penalty is to be imposed, it must be set at a level that will not only deter the respondent from engaging in further contravening conduct, but others who may be contemplating taking a similar path.
106 The penalty cannot be so low that it will be viewed by the respondent or others as an acceptable cost of doing business Pattinson at [98].
and should be of a kind that it would be likely to act as a deterrent in preventing similar contraventions by likeminded persons or organisations.’ Ponzio v B&P Caelli Constructions Pty Ltd [2007] FCAFC 65; (2007) 158 FCR 543 at [93].

107 I am mindful the penalty to be imposed cannot be so high as to be oppressive. It is my view that a pecuniary penalty that operates as a deterrent to the respondent engaging in further contraventions, and which strikes a balance by not being greater than what is necessary to achieve this outcome, can and should be imposed in the present case.
Penalty to be imposed
108 I have already indicated that it would not be appropriate to impose a nominal fine for the contravention. I accept that a larger fine is necessary for specific and general deterrence.
109 In view of the respondent’s prior contraventions, it would be inappropriate to impose a nominal fine, particularly when the respondent’s conduct in comparison with the list of prior contraventions, was intentional, objectively more serious, affected a greater number of employees and as at the time of the penalty hearing, had not been rectified.
110 In view of the circumstances relevant to determining an appropriate disposition, which I have set out, I consider the fine that should be imposed is one third of the maximum penalty, which is the sum of $27,500.
Penalty to be paid to the claimant
111 The claimant, in its originating application, asked the Court to make an order that any penalty be paid to the claimant. In relation to this, s 546(3) of the FW Act provides:
Payment of penalty.
(3) The court may order that the pecuniary penalty, or a part of the penalty be paid to:
(a) the Commonwealth; or
(b) a particular organisation; or
(c) a particular person.
112 The matter of how the Court is to exercise its discretion under s 546(3), on who is to receive the penalty in an underpayment of wages claim, was considered by Her Honour Mortimer J (as she then was) in Milardovic v Vemco Services Pty Ltd (No 2) [2016] FCA 244; (2016) 242 FCR 492.
113 At [40]  [44] Her Honour made the following observations:
Were I free to do so, I would, in the exercise of the Court's discretion under s 546(3), order that the penalty be payable to the Commonwealth rather than to [the applicant]. However that course is not open to me following the Full Court's decision in Sayed v Construction, Forestry, Mining and Energy Union [2016] FCAFC 4. The Full Court's decision requires the Court to make an order that [the respondent] pay the penalty the Court has imposed on it to [the applicant].
That the Full Court's decision in Sayed requires me to make such an order arises from several aspects of the Full Court's reasons. First, at [72] their Honours identified ‘a certain symmetry between the person or entity authorised to prosecute an enforcement proceeding and the person or entity to whom the penalty, if imposed, might be paid’.
[A]t [101] the Full Court [in Sayed] held:
[T]he power conveyed by s 546(3) is ordinarily to be exercised by awarding any penalty to the successful applicant. We accept that there may be cases … where the penalty, or a part of the penalty, should be paid to another person in the circumstances described by Gray J in Plancor at [44].
The reference to Gray J in Plancor is a reference to the following passage of his Honour’s reasons in Plancor Pty Ltd v Liquor, Hospitality and Miscellaneous Union [2008] FCAFC 170; 171 FCR 357 at [44]:
[T]he initiating party is normally the proper recipient of the penalty as part of a system of recognising particular interests in certain classes of persons… in upholding the integrity of awards and agreements the subject of penal proceedings. Where a public official vindicates the law by suing for and obtaining a penalty, it is appropriate that the penalty be paid to the Consolidated Revenue Fund. Otherwise, the general rule remains appropriate, that the penalty is to be paid to the party initiating the proceeding, with the Gibbs … exception that the penalty may be ordered to be paid to the organisation on whose behalf the initiating party has acted.
Subject then to the ‘Gibbs exception’ [Gibbs v The Mayor, Councillors and Citizens of City of Altona [1992] FCA 553; 37 FCR 216 AT 223-4], the Full Court’s decision in Sayed is authority for the proposition that where a proceeding is brought by an applicant on his or her own behalf, the discretion in s 546(3) is to be exercised to make any penalty the Court orders payable to that applicant. Aside from the identity of the person who brings the proceedings, and taking into account the ‘Gibbs exception’, the Full Court’s judgment does not appear to provide for any other basis upon which a penalty should be made payable to another person or entity set out in s 546(3).
114 The reasoning in the authorities I have referred to lays out the path I am required to take in exercising this discretion. For this reason, I will order the penalty be paid to the claimant under s 546(3) of the FW Act.
Conclusion
115 For the reasons set out, I have determined that a fine of $27,500 is an appropriate penalty in this case.
116 The quantum of the pecuniary penalty is in my view, appropriate having regard to all the circumstances of this matter including the following:
i. the respondent has previously contravened the FW Act;
ii. while, because of the contravention, the affected employees may not have suffered any direct financial loss or denial of promotional opportunities, they have been deprived of an entitlement to be trained and assessed to the level of a Certificate II, which they were entitled to receive under cl 46.2(b) of the agreement;
iii. noting the size and scale of its business, the respondent ought to have taken greater care to ensure it complied with its obligations under cl 46.2(b) of the agreement;
iv. as at the date of the penalty hearing, the affected employees were still not trained to the level of a Certificate II as required;
v. as the respondent made a deliberate choice to engage in the contravention, it should be deterred from repeating conduct of this kind.
117 Noting the statutory maximum penalty for the contravention, I do not consider the quantum of the fine to be imposed is an oppressive response to the contravention.
118 It is also appropriate that an order be made requiring the respondent to pay the fine to the claimant.



T. KUCERA
INDUSTRIAL MAGISTRATE