2026 WAIRC 00021
INDUSTRIAL MAGISTRATES COURT OF WESTERN AUSTRALIA


CITATION
:
2026 WAIRC 00021



CORAM
:
INDUSTRIAL MAGISTRATE D. SCADDAN



HEARD
:
ON THE PAPERS



DELIVERED
:
FRIDAY, 16 JANUARY 2026



FILE NO.
:
M 15 OF 2025



BETWEEN
:
CONSTRUCTION, FORESTRY AND MARITIME EMPLOYEES UNION


CLAIMANT





AND





JETWAVE MARINE SERVICES PTY LTD


RESPONDENT

CatchWords : INDUSTRIAL LAW – FAIR WORK – quantum of underpayment under industrial instrument – pecuniary penalty assessment under Fair Work Act 2009 (Cth) – pre-judgment interest – contravention of enterprise agreement
Legislation : Fair Work Act 2009 (Cth)
Industrial Magistrate’s Court (General Jurisdiction) Regulations 2005 (WA)
Civil Judgments Enforcement Act 2004 (WA)
Civil Judgments Enforcement Regulations 2005 (WA)
Instrument : Jetwave Marine and Maritime Union North West Inshore Agreement (2022)
Cases referred
to in reasons: : Construction, Forestry and Maritime Employees Union v Jetwave Marine Services Pty Ltd [2025] WAIRC 00699; (2025) WAIG 2201
APG Aus No 3 Pty Ltd v Quasar Resources Pty Ltd [2022] WASC 123
Batchelor v Burke [1981] HCA 30; (1981) 148 CLR 448
Australian Building and Construction Commissioner v Pattinson [2022] HCA 13; (2022) 274 CLR 450
Fair Work Ombudsman v NoBrace Centre Pty Ltd [2019] FCCA 2970
Fair Work Ombudsman v Grouped Property Services Pty Ltd (No 2) [2017] FCA 557
Heal v Sydney Flames Basketball Pty Ltd (No 2) [2024] FCA 794
Fair Work Ombudsman v Priority Matters Pty Ltd (No 5) [2020] FCCA 901
Patrick Stevedores Holdings Pty Limited v Construction, Forestry, Maritime, Mining and Energy Union (No 4) [2021] FCA 1481
Fair Work Ombudsman v Construction, Forestry, Maritime, Mining and Energy Union [2019] FCAFC 69
Construction, Forestry, Mining and Energy Union v Hail Creek Coal Pty Ltd (No 2) [2018] FCA 480
Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (No 2) [2018] FCA 1211; (2018) 70 AILR 102-975
Construction, Forestry and Maritime Employees Union v Qube Ports Pty Ltd [2025] FCA 208
Australian Building and Construction Commissioner v Powell (No 2) [2019] FCA 972
Auimatagi v Australian Building and Construction Commissioner [2018] FCAFC 191
Result : Quantum determined; penalty imposed
Representation:
Claimant : Mr K. Sneddon (of counsel)
Respondent : Mr M. Diamond (of counsel)



REASONS FOR DECISION
Introduction
1 On 15 August 2025 the Industrial Magistrates Court (IMC or, the Court) published Construction, Forestry and Maritime Employees Union v Jetwave Marine Services Pty Ltd [2025] WAIRC 699; (2025) WAIG 2201 (Liability Decision) regarding the preferred construction of cl 10.6 of the Jetwave Marine and Maritime Union North West Inshore Agreement 2022 (the Agreement).
2 In the Liability Decision, the Court found that Jetwave Marine Services Pty Ltd (Jetwave), breached cl 10.6 of the Agreement in failing to pay Leon Goldsword (Mr Goldsword) the whole of the relevant Day Rate for working on an off-duty day. Liability Decision at [44]-[62].

3 The Liability Decision also found that, having breached cl 10.6 of the Agreement, Jetwave failed to comply with s 50 of the Fair Work Act 2009 (Cth) (FWA). Further, by failing to fully pay the affected worker the under cl 10.6, Jetwave also contravened s 323 of the FWA. Liability Decision at [69]-[70].

4 A consequential issue to the underpayment was how superannuation contributions are calculated with respect to cl 29.2 of the Agreement in light of the Liability Decision.
5 These are the reasons with respect to the quantum of the underpayment, including superannuation and pre-judgment interest, and the imposition of a civil penalty.
Quantum
6 The Court directed that it would hear further from the parties regarding:
(a) final orders in terms of the amount sought by the Construction, Foresty and Maritime Employees Union (claimant) on behalf of Mr Goldsword, relevant to cl 10.6 of the Agreement and pre-judgment interest on any amount; and
(b) programming orders in respect of the imposition of a civil penalty and the issue identified with respect to superannuation.
7 Following the Liability Decision, Jetwave acknowledged the Claim and accepted the claimant’s figures calculating the underpayment to Mr Goldsword.
8 To this end, Jetwave accepts that Mr Goldsword worked on seven off-duty days and was only paid around half of the amounts he was owed under cl 10.6 and Schedule 2 of the Agreement.
9 I accept this joint position and find that this resulted in an underpayment of $2,938.02 to Mr Goldsword. Pursuant to s 545(3) of the FWA, I find Jetwave was required to pay this amount under cl 10.6 of the Agreement.
Pre-Judgment Interest
10 The claimant applied for pre-judgment interest under s 547(2) of the FWA. On application, the Court must include an amount of interest on orders made under s 545(3) ‘unless good cause is shown to the contrary’. Jetwave did not dispute this and I accept no cause is shown that denies an order for pre-judgment interest to be issued.
11 The claimant submitted that, in calculating the amount of pre-judgment interest to be issued, the Court should have regard to the Federal Court’s general practice note by Allsop CJ (as he was then) dated 18 September 2017 (Practice Note).
12 At the time of the Liability Decision, the latest interest rate applicable was 7.85%. The claimant submits that this results in $230.63. I do not accept this for the following reasons.
13 Pre-judgment interest in the IMC is awarded pursuant to regulation 12 of the Industrial Magistrate’s Court (General Jurisdiction) Regulations 2005 (WA) (IMC Regulations). Subregulation (1) states that the Court may order a party to pay interest ‘from the date when the cause of case arose to the date when the order is made’ IMC Regulations reg 12(1)(a).
and at the rate prescribed by s 8(1)(a) of the Civil Judgments Enforcement Act 2004 (WA) (CJEA). IMC Regulations reg 12(1)(b).

14 Regulation 4 of the Civil Judgments Enforcement Regulations 2005 (WA) prescribes an interest rate of 6% per annum.
15 Further, regulation 12(2) of the IMC Regulations states:
When the court orders a party to pay the total of the amounts that another party was entitled to be paid on different dates, the court may order interest to be paid on the total and if it does so it may calculate the interest as the court thinks fit.
16 Subject to s 547(2), the Court has a discretion to award interest at such a rate it thinks fit on the whole or any part of the judgment.
17 In exercising this discretion, the Court should consider that ‘interest is awarded to compensate the plaintiff for the detriment that he has suffered by being kept out of his money, and not to punish the defendant for having been dilatory in settling the plaintiff's claim.’ APG Aus No 3 Pty Ltd v Quasar Resources Pty Ltd [2022] WASC 123 at [8] (Tottle J) referring to Batchelor v Burke [1981] HCA 30; (1981) 148 CLR 448, 455.

18 For this reason, I would calculate interest from the last contravening date up to the date on which the Liability Decision issued.
19 There appears to be three approaches the Court could take. The first is the approach taken by the claimant which is to calculate the interest by applying the interest rate as at the date of judgment to the ordered amount. I am not minded to adopt this approach since it does not calculate interest from the last date the cause of action arose to the date the Liability Decision was issued.
20 The second, and the ordinary approach the Court takes, is pursuant to regulation 12(1) of the IMC Regulations. This involves working out the daily rate by multiplying the judgment amount with the CJEA rate and dividing that by 365. An application of this approach is found in the table below.
Days
CJEA Interest Rate
Amount
Daily Rate
Total
602
6%
$2,938.02
$0.483
$290.74
21 The third approach is the application of the Practice Note. In summary, the Federal Court has, pursuant to s 51A of the Federal Court of Australia Act 1976 (Cth) and s 547(2) of the FWA, discretion to refer to the rates agreed upon by the Discount and Interest Rate Harmonisation Committee (DIRH Committee). Interest is calculated with regard to the rate 4% above the cash rate published by the Reserve Bank of Australia before the commencement of each of the sixmonthly periods between 1 January to 30 June, and 1 July to 1 December in a given year. Practice Note [2.2(a)(b)]. For example, since the cash rate last published by the Reserve Bank prior to 1 January 2024 is 4.35%, the applicable interest rate for the period 1 January 2024 to 30 June 2024 is 8.35%.
Like the above approach, the ‘court must take into account the period between the day the relevant cause of action arose and the day the order is made’. FWA s 547(3).
Applying the Practice Note and DIRH Committee rates results in the table below.
Starting Date
Ending Date
Days
Interest Rate
Daily Interest
Subtotal
23/12/2023
31/12/2023
9
8.10%
$0.6520
$5.87
1/01/2024
30/06/2024
182
8.35%
$0.6703
$121.99
1/07/2024
31/12/2024
184
8.35%
$0.6703
$123.33
1/01/2025
30/06/2025
181
8.35%
$0.6721
$121.65
1/07/2025
15/08/2025
46
7.85%
$0.6319
$29.07
Total
$401.91
22 As the claimant submits, the Practice Note ‘provides guidance’ regarding interest up to judgment. But it does not, in and of itself, have application to this Court. Further, unless the claimant otherwise shows that a different approach better compensates the ‘detriment’ the affected worker has suffered from being kept out of their money, there is no reason to depart from the statutory interest rate under the CJEA.
23 Thus, notwithstanding Jetwave’s acceptance of the claimant’s approach, I would apply the statutory 6% per annum interest rate and calculate it from 23 December 2023 to the date the Liability Decision was issued on 15 August 2025 resulting in $290.74. I believe this to be a balanced approach, noting that this amount is higher than the amount originally sought, yet lower than the total provided by the DIRH Committee rates.
Superannuation
24 Clause 29.2 of the Agreement says that superannuation contributions for casual and full-time employees will be calculated on the employee’s ‘gross earnings for actual hours worked.’
25 At [63][65] of the Liability Decision, I gave the parties a further opportunity to be heard regarding whether cl 29.2 means Mr Goldsword’s superannuation contributions are calculated with reference to the hours he worked on an off-duty day, or the amount he should have earned on that off-duty day.
26 Based on the principles of construction I summarised at [17] of the Liability Decision, I accept the claimant’s submission that superannuation is payable on the amount earned on those off-duty days, not the ‘hours per se’. Claimant’s penalty submissions dated 3 October 2025 at [10].

27 Jetwave accepted this position and the claimant’s calculations. Notwithstanding the claimant’s approach to interest, there is no reason not to give effect to this joint position and I will make an order Jetwave pay to a superannuation fund for the benefit of Mr Goldsword the amount of $348.55 plus interest on this amount of $34.49, totalling $383.04.
Parties’ Submissions on Penalty
28 The parties also referred to the law for an appropriate penalty for contraventions in their submissions. These principles are well-settled, and I do not intend to recite them. Schedule I to these reasons sets out a summary of those principles.
Claimant
29 In summary, the claimant submits that:
(a) the purpose of a civil penalty is ‘primarily if not wholly, that of promoting the public interest in compliance with the laws that have been contravened’; Fair Work Ombudsman v NoBrace Centre Pty Ltd [2019] FCCA 2970.

(b) this purpose was confirmed in Australian Building and Construction Commissioner v Pattinson [2022] HCA 13; (2022) 274 CLR 450 (Pattinson);
(c) a penalty is warranted considering that Jetwave did not admit the claim; and
(d) of the maximum penalty, the appropriate amount would be at the lower end of the scale.
Respondent
30 Jetwave submits that the appropriate penalty in this case should be at the lowest end of the scale. It provides the following submissions in support of this:
(a) the contraventions subject to a penalty relate only to a single employee;
(b) there is no evidence that the respondent has previously engaged in like contravening conduct;
(c) the respondent is not a large, well-resourced, and sophisticated employer and does not have a human resources department;
(d) notwithstanding its size, the respondent attempts to ensure that it complies with the Agreement.
(e) the contraventions were a result of a misinterpretation of the provisions of the Agreement and the respondent did not deliberately contravene it;
(f) the contravention is ‘a “one-off” result of inadvertence’ rather than ‘the latest instance of the contravenor’s pursuit of a strategy of deliberate recalcitrance’. Pattinson at [46].

Course of Conduct
31 The claimant submitted that 15% of the maximum penalty is appropriate for each contravention.
32 Jetwave refers to identifying each separate contravention and considering whether each contravention should be dealt with independently or with some degree of aggregation for contraventions arising out of the course of conduct, referring to s 557 of the FWA. Thereafter, consideration may be given to a further adjustment to ensure there is no double punishment, and the penalty is appropriate for the contravening conduct.
33 The effect of s 557 of the FWA is that if the same person commits two or more contraventions of the provisions in subsection (2), then they can be taken to constitute a single contravention if it arose out of the same course of conduct. Section 50 and s 323 are included in s 557(2).
34 Section 557 does not preclude operation of common law course of conduct principles. Patrick Stevedores Holdings Pty Limited v Construction, Forestry, Maritime, Mining and Energy Union (No 4) [2021] FCA 1481 at [152], referring to Fair Work Ombudsman v Construction, Forestry, Maritime, Mining and Energy Union [2019] FCAFC 69 at [183][184].
In Fair Work Ombudsman v Priority Matters Pty Ltd (No 5) [2020] FCCA 901, Driver J explained at [27]:
In addition to the statutory course of conduct provision, it is open to the Court to consider the application of common law course of conduct principles where the contraventions contain common elements or can be said to overlap with each other. The courts have confirmed a broad discretion in approach to ensuring that penalties applied are appropriate to the conduct in a particular case. Commonly this is achieved by grouping contraventions together for the purpose of determining penalty, although other approaches are available. It may be appropriate for the Court to group contraventions where, if they were treated separately, this would potentially penalise a respondent twice for the same or substantially similar conduct. (footnotes omitted)
35 I am satisfied that Jetwave’s contraventions of s 50 and s 323 each constitute a contravention of a civil penalty provision, which arose from the respondent’s failure to pay Mr Goldsword the correct day rate pursuant to cl 10.6 of the Agreement. However, within each of the contraventions the failure to pay the correct day rate on more than one day constitutes a course of conduct to which s 557 applies.
36 That is, for the purposes of s 557 of the FWA and the imposition of an appropriate penalty, notwithstanding Jetwave failed to pay the appropriate day rate on seven off-duty days, there is a single contravention of s 50 of the FWA and a single contravention of s 323 of the FWA.
Penalty
37 The maximum penalty with respect to a contravention of s 50 and s 323 of the FWA by the respondent is 300 penalty units, given the respondent is a body corporate. Save for one date in December 2022, the applicable penalty unit at the time was $313. That is, on one date in December 2022 where the appropriate day rate was not paid, the applicable penalty unit was $222.
38 Where a contravention spans two or more penalty periods, the Court will generally apply the higher penalty unit for the purpose of determining the maximum penalty, but, when assessing the penalty, take into account whether the contravening conduct had occurred during a period or periods in which the value of the penalty unit was lower. Fair Work Ombudsman v Grouped Property Services Pty Ltd (No 2) [2017] FCA 557 (Grouped Property Services) at [396] – [401] (Katzmann J) and also referred to in Heal v Sydney Flames Basketball Pty Ltd (No 2) [2024] FCA 794.

39 Therefore, the theoretical maximum is $93,900 for each contravention, albeit the Court notes the December 2022 date which results in a theoretical maximum of $66,600.
The Nature, Extent and Circumstances of the Conduct
40 The Court relied on and accepted a statement of agreed facts lodged by the parties on 30 May 2025.
41 In essence, Mr Goldsword worked on seven off-duty days between December 2022 and 2023 for which he was only paid at 50% of the correct day rate specified in Schedule 2 of the Agreement.
42 While operating under this erroneous construction, Jetwave did not pay Mr Goldsword in full for those seven dates.
43 The claimant did not provide any evidence of extent of the impact that Jetwave’s misinterpretation of cl 10.6 on its business, or employees subject to the Agreement. Further, there is no evidence that in not making the payments to Mr Goldsword, Jetwave obtained or sought to obtain a financial benefit.
Deliberateness of the Contravention
44 The respondent submitted that it did not deliberately contravene the Agreement and instead, it arose out of a misinterpretation of its provisions.
45 No further evidence or submissions was provided as to whether the construction of cl 10.6 was ‘far from certain’ or whether the respondent had ‘taken the odds’ in contravening s 50 and s 323 of the FWA. Construction, Forestry, Mining and Energy Union v Hail Creek Coal Pty Ltd (No 2) [2018] FCA 480 (Hail Creek) at [17].
That is, there was no evidence that, prior to being served with the claim, Jetwave should have been on notice or have had a heightened awareness of the risk of implementing an erroneous construction of the Agreement by either having the issue put to them, or by having found to have previously contravened the Agreement. Hail Creek at [18].

46 On the other hand, where a contravention of a civil penalty provision has arisen from the respondent’s honest and reasonable, but erroneous, construction of an industrial instrument, the Court may exercise its discretion to decline imposing or limit the amount of any penalty. Hail Creek at [15].

47 Unlike in Hail Creek, there is no evidence that this issue was put to Jetwave prior to lodging the claim. Thus, it is unclear whether Jetwave should have been on alert that its remuneration to fulltime employees on off-duty days was in contravention of the Agreement.
Loss or Damage
48 The sum of the contravention, including superannuation and pre-judgment interest, is $3,611.80. There is no evidence before the Court as to the financial distress or loss this underpayment has caused the affected worker.
49 For this reason, I regard the underpayment to be a modest amount and consider this to be a neutral factor in the determination of a penalty.
Prior Contraventions, Corrective Action, Cooperation and Contrition
50 There is no evidence before the Court that the respondent has previously contravened the FWA.
51 Notwithstanding that Jetwave contested the claim, they have cooperated with the claimant in the conduct of these proceedings, including requests for consent orders which have allowed the Court to determine this and the Liability Decision on the papers.
52 The respondent did not dispute the Liability Decision. It has accepted the claimant’s calculations of the underpayment including superannuation. Notwithstanding my findings above regarding pre-judgment interest, Jetwave will pay those amounts to Mr Goldsword if it has not done so already.
53 The respondent has also apologised to Mr Goldsword for the underpayment, as well as to the claimant and the Court for contravening the Agreement and FWA. To this end the respondent relies on their written submissions. Respondent’s Outline of Submissions on Penalty dated 23 October 2025 at [3](c)-(d).
While Jetwave initially contested cl 10.6 of the Agreement, I accept that this apology is relevant in considering the respondent’s contrition and, in light of their cooperation, may be a relevant factor towards the likelihood of future contraventions.
Size of the Respondent and Involvement of Senior Management
54 Jetwave submits it is not a large, well-resourced or sophisticated employer with a human resource department. Jetwave also says that it ‘does try to ensure that it pays in accordance with its obligations under the Agreement.’ Respondent’s submissions at [13].

55 Ultimately, there was no evidence before the Court about the size of the respondent, including but not limited to its number of employees and how many of those are covered by the Agreement; Jetwave’s available resources such as its gross or net revenue in previous financial years or current assets; the number of its clients; or any other evidence from which the Court could infer that the imposition of a maximum penalty would not result in financial hardship for the respondent.
56 Regardless of its size, the respondent has an obligation to comply with its corporate responsibilities under the law, including but not limited to fulfilling employees’ entitlements, and is expected to have sufficient structures in place to ensure compliance with the FWA and the Agreement.
Deterrence
57 The claimant says the purpose of a civil penalty is to promote the public interest in compliance with laws which have been contravened. In Pattinson, the High Court said that deterring further contraventions of the FWA promotes the public interest in ensuring compliance with the Act. Pattinson at [9].

58 As stated in Pattinson, the Court’s ‘real task under s 546’ is ‘fixing the penalty which it considers fairly and reasonably to be appropriate to protect the public interest from future contraventions of the Act’ Pattinson at [71].
where ‘the maximum penalty is intended by the Act to be imposed in respect of a contravention warranting the strongest deterrence within the prescribed cap’. Pattinson at [58].
To this end, I have had regard to the above factors which may be relevant to the assessment as to whether the maximum level of deterrence is appropriate to this case.
59 In Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (No 2) [2018] FCA 1211; (2018) 70 AILR 102-975 (also referred to in Pattinson at [26]), Tracey J stated at [20]:
[T]he maximum penalty may be appropriate for a person who has repeatedly contravened the same or similar legislative provisions despite having been penalised regularly over a period of time for such misconduct. The gravity of the offending, in such cases, is to be assessed by reference to the nature and the quality of the recidivism rather than by comparison of individual instances of offending: see Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union (No 2) [2015] FCA 1462 at [8] (Jessup J). Relevant matters will include the number of contraventions which have occurred over a period, whether the ongoing misconduct is the result of conscious decisions, whether the repeated contravenor has treated the payment of penalties as a cost of doing business and whether any attempt has been made to comply with the law as declared by the Court.
Determination
60 Specific deterrence has a minor, but not no, role to play with respect to Jetwave’s contravention. The contravention arose out of a dispute about the interpretation and application of a term of an enterprise agreement which was in place when the proceedings commenced. As noted by their acquiescence following the Liability Decision, the likelihood of a similar contravention occurring in the future is minimal. The breaches themselves also took place over a short period of time (one year), with the last known underpayment being in December 2023.
61 This leaves the issue of general deterrence.
62 Despite the following comments by Feutrill J in CFMEU v Qube Ports Pty Ltd [2025] FCA 208 being directed towards specific deterrence, the tenure of these comments is applicable to any employer so as to ensure compliance with industrial laws:
Contraventions are not only the consequence of intentional or deliberate conduct but carelessness, oversight and inadvertence. Part of deterrence involves encouraging employers to implement and maintain systems, policies, procedures and a culture aimed at preventing careless, unintentional or ignorant contraventions of the Act. Therefore, the size and spread of an employer’s operation is not a reason for diminishing corporate responsibility for historical contraventions as these may be indicative of systemic or underlying failings in corporate systems, policies, procedures and culture and, therefore, of an ongoing and enhanced risk of future contraventions.
63 Guidance may also be derived from Bromberg J in Australian Building and Construction Commissioner v Powell (No 2) [2019] FCA 972 at [28] to [30], referring to Auimatagi v Australian Building and Construction Commissioner [2018] FCAFC 191 (at [176]):
It is a fundamental principle, at the core of the judicial power to impose a penalty, that the imposition is for the contravention in question. Prior contraventions, even so many and often so serious as the Union may have engaged in in the past, is a factor which may be taken into account in determining the appropriate quantum for the contravention; it cannot be taken to lead to a penalty that is disproportionate to the gravity of the instant contravention. The maximum is for the worst category of cases.
64 His Honour later agreed with the applicant’s contention and stated, at [34] and [35]:
[T]here is no general principle that, if a person contravenes a civil penalty provision on a genuine but mistaken view on an arguable question of law, there should be no penalty. Whether or not a penalty should be imposed will always depend on all of the circumstances considered principally by reference to the need for specific and general deterrence.
It is well settled and not in contest that an honest and reasonable belief may be a relevant mitigating or ameliorating factor in determining whether or not a penalty is to be imposed and, if so, the extent of the penalty imposed. (citations omitted)
65 I am not satisfied that this is an occasion where imposing no penalty is appropriate. However, I am satisfied that given all of the factors referred to above, this is a contravention for which a penalty at the lower end of the scale is appropriate.
Penalty to be Imposed
66 Taking all of these factors into account, the penalty aimed to secure compliance by deterring repeat contraventions, if not of this type, then of future different contraventions, is:
(1) Section 50 of the FWA: $3,000;
(2) Section 323 of the FWA: $3,000.
67 However, in this case, the totality of the penalty must be re-assessed where a further reduction is warranted to account for the fact that while there are two contraventions of the FWA, the contraventions arose because of the misapplication of the same clause of the Agreement. That is, without a reduction, Jetwave would, in essence, be penalised twice for the same conduct.
68 Therefore, a reduction of 33.3% on each contravention is appropriate to ensure an appropriate penalty is imposed having regard to the offending behaviour.
69 The effect of the reduction is that the appropriate penalty imposed for each contravention is $2,000 with the resultant total penalty imposed being $4,000.
70 Pursuant to s 546(3)(b) of the FWA the penalty is to be paid to the claimant.
Conclusion and Orders
71 The following orders are made:
1. Subject to any liability to the Commissioner of Taxation under the Taxation Administration Act 1953 (Cth), and pursuant to s 545(3) of the FWA, the respondent is required to pay to Mr Goldsword the amount of $2,938.02.
2. Pursuant to s 545(3) of the FWA, the respondent is to pay to a superannuation fund for the benefit of Mr Goldsword the amount of $383.04.
3. Pursuant to regulation 12 of the IMC Regulations, the respondent is to pay pre-judgment interest on the amount referred to in order 1 at 6% per annum from 21 December 2023 to 15 August 2025 in the amount of $290.74.
4. Pursuant to s 546(1) of the FWA, where the Court is satisfied that the respondent has contravened a civil penalty provision, the respondent is to pay a pecuniary penalty in the amount of $4,000.
5. Pursuant to s 546(3)(b) of the FWA, the pecuniary penalty is to be paid to the claimant.
D. SCADDAN
INDUSTRIAL MAGISTRATE


Schedule: Pecuniary Penalty Orders Under the Fair Work Act 2009 (Cth)
Pecuniary Penalty Orders
[1] The FWA provides that the Court may order a person to pay an appropriate pecuniary penalty if the Court is satisfied that the person has contravened a civil remedy provision: s 546(1) of FWA. The maximum penalty for each contravention by a natural person, expressed as a number of penalty units, set out in a table found in s 539(2) of the FWA: s 546(2) of the FWA. If the contravener is a body corporate, the maximum penalty is five times the maximum number of penalty units proscribed for a natural person: s 546(2) of the FWA.
[2] The rate of a penalty unit is set by s 4AA of the Crimes Act 1914 (Cth): s 12 of the FWA. The relevant rate is that applicable at the date of the contravening conduct:
Date(s) of Contravening Conduct
Penalty Unit
5 December 2022
$222
Between 1 July 2023 to 21 December 2023
$313
[3] The purpose served by penalties was described by Katzmann J in Grouped Property Services at [388] in the following terms (omitting citations):
In contrast to the criminal law, however, where, in sentencing, retribution and rehabilitation are also relevant, the primary, if not the only, purpose of a civil penalty is to promote the public interest in compliance with the law. This is achieved by imposing penalties that are sufficiently high to deter the wrongdoer from engaging in similar conduct in the future (specific deterrence) and to deter others who might be tempted to contravene (general deterrence). The penalty for each contravention or course of conduct is to be no more and no less than is necessary for that purpose.
[4] In Pattinson [42], the plurality confirmed that civil penalties ‘are not retributive, but rather are protective of the public interest in that they aim to secure compliance by deterring repeat contraventions’. However, ‘insistence upon the deterrent quality of a penalty should be balanced by insistence that it “not be so high as to be oppressive”’: [40], citing NW Frozen Foods Pty Ltd v Australian Competition and Consumer Commission [1996] FCA 1134; (1996) 71 FCR 285.
[5] In Kelly v Fitzpatrick [2007] FCA 1080; 166 IR 14 [14], Tracey J adopted the following ‘non‑exhaustive range of considerations to which regard may be had in determining whether particular conduct calls for the imposition of a penalty, and if it does the amount of the penalty’ which had been set out by Mowbray FM in Mason v Harrington Corporation Pty Ltd [2007] FMCA 7:
(a) The nature and extent of the conduct which led to the breaches.
(b) The circumstances in which that conduct took place.
(c) The nature and extent of any loss or damage sustained as a result of the breaches.
(d) Whether there had been similar previous conduct by the respondent.
(e) Whether the breaches were properly distinct or arose out of the one course of conduct.
(f) The size of the business enterprise involved.
(g) Whether or not the breaches were deliberate.
(h) Whether senior management was involved in the breaches.
(i) Whether the party committing the breach had exhibited contrition.
(j) Whether the party committing the breach had taken corrective action.
(k) Whether the party committing the breach 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.
[6] The list is not ‘a rigid catalogue of matters for attention. At the end of the day the task of the Court is to fix a penalty which pays appropriate regard to the circumstances in which the contraventions have occurred and the need to sustain public confidence in the statutory regime which imposes the obligations.’ (Buchanan J in Australian Ophthalmic Supplies Pty Ltd v McAlary-Smith [2008] FCAFC 8; (2008) 165 FCR 560 (Australian Ophthalmic Supplies) [91]).
[7] Although these factors provide useful guidance, the task of assessing the appropriate penalty is not an exact science: Commonwealth v Director, Fair Work Building Inspectorate [2015] HCA 46; (2015) 258 CLR 482 [47]. The Court must ultimately fix a penalty that pays appropriate regard to the contraventions that have occurred: Pattinson [19]. ‘[A] court empowered by s 546 to impose an “appropriate” penalty must act fairly and reasonably for the purpose of protecting the public interest by deterring future contraventions of the Act:’ Pattinson [48].
[8] ‘Multiple contraventions’ may occur because the contravening conduct done by an employer:
(a) resulted in a contravention of a single civil penalty provision or resulted in the contravention of multiple civil penalty provisions;
(b) was done once only or was repeated; and
(c) was done with respect to a single employee or was done with respect to multiple employees.
[9] The fixing of a pecuniary penalty for multiple contraventions is subject to s 557 of the FWA. It provides that two or more contraventions of specified civil remedy provisions by an employer are taken be a single contravention if the contraventions arose out of a course of conduct by the employer. Subject to proof of a ‘course of conduct’, the section applies to contravening conduct that results in multiple contraventions of a single civil penalty provision whether by reason of the same conduct done on multiple occasions or conduct done once with respect to multiple employees: Rocky Holdings Pty Ltd v Fair Work Ombudsman [2014] FCAFC 62; (2014) 221 FCR 153; Fair Work Ombudsman v South Jin Pty Ltd (No 2) [2016] FCA 832 [22] (White J) The section does not apply to cases where the contravening conduct results in the contravention of multiple civil penalty provisions (example (a) above): Grouped Property Services [411] (Katzmann J).
[10] The totality of the penalty must be re-assessed in light of the totality of the offending behaviour. If the resulting penalty is disproportionately harsh, it may be necessary to reduce the penalty for individual contraventions. Australian Ophthalmic Supplies [2008] FCAFC 8 (2008); 165 FCR 560 [47] - [52].
[11] Section 546(3) of the FWA also 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.
[12] In Milardovic v Vemco Services Pty Ltd (No 2) [2016] FCA 244 [40] - [44], Mortimer J, in light of Sayed v Construction, Forestry, Mining and Energy Union [2016] FCAFC 4; 239 FCR 336, summarised the law: (omitting citations)
[T]he power conveyed by s 546(3) is ordinarily to be exercised by awarding any penalty to the successful applicant. … [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 v The Mayor, Councillors and Citizens of City of Altona [1992] FCA 553; 37 FCR 216] … exception that the penalty may be ordered to be paid to the organisation on whose behalf the initiating party has acted. (original emphasis)