2026 WAIRC 00064
INDUSTRIAL MAGISTRATES COURT OF WESTERN AUSTRALIA


CITATION
:
2026 WAIRC 00064



CORAM
:
INDUSTRIAL MAGISTRATE D. SCADDAN



HEARD
:
FRIDAY, 19 DECEMBER 2025



DELIVERED
:
THURSDAY, 5 FEBRUARY 2026



FILE NO.
:
M 43 OF 2025



BETWEEN
:
CONSTRUCTION, FORESTRY AND MARITIME EMPLOYEES UNION


CLAIMANT





AND





QUBE PORTS PTY LTD


RESPONDENT

CatchWords : INDUSTRIAL LAW – FAIR WORK – Assessment of pecuniary penalties for contraventions of Fair Work Act 2009 (Cth) – Contravention of an enterprise agreement – Failure to pay overtime in hourly increments for work over 12 hours in any one shift
Legislation : Fair Work Act 2009 (Cth)
Industrial Relations Act 1979 (WA)
Crimes Act 1914 (Cth)
Instrument : Qube Ports Pty Ltd Port of Port Hedland Enterprise Agreement 2016
Qube Ports Pty Ltd Port of Port Hedland Enterprise Agreement 2020
Cases referred
to in reasons: : Australian Building and Construction Commissioner v Pattinson [2022] HCA 13; (2022) 274 CLR 450
Patrick Stevedores Holdings Pty Ltd 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
Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union [2019] FCAFC 59; (2019) 269 FCR 262
Construction, Forestry, Mining and Energy Union v Hail Creek Coal Pty Ltd (No 2) [2018] FCA 480
Construction, Forestry and Maritime Employees Union v Qube Ports Pty Ltd [2025] WAIRC 00722; 105 WAIG 2207
Construction, Forestry and Maritime Employees Union v Qube Ports Pty Ltd [2025] WAIRC 00724; 105 WAIG 2223
Construction, Forestry and Maritime Employees Union v Qube Ports Pty Ltd [2025] FCA 208
Construction, Forestry and Maritime Employees Union v Qube Ports Pty Ltd [2023] WAIRC 00976; (2024) 104 WAIG 121
Construction, Forestry and Maritime Employees Union v Qube Ports Pty Ltd [2024] WAIRC 00220; (2024) 104 WAIG 660
Construction, Forestry and Maritime Employees Union v Qube Ports Pty Ltd (Industrial Magistrates Court of Western Australia, Magistrate Coleman, 23 November 2023)
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
Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (No 2) [2018] FCA 1211; (2018) 70 AILR 102-975
Australian Building and Construction Commissioner v Powell (No 2) [2019] FCA 972
Auimatagi v Australian Building and Construction Commissioner [2018] FCAFC 191
APG Aus No 3 Pty Ltd v Quasar Resources Pty Ltd [2022] WASC 123
Batchelor v Burke [1981] HCA 30; (1981) 148 CLR 448
Result : Penalty imposed
Representation:
Claimant : Mr L. Edmonds (of counsel)
Respondent : Mr J. McLean (of counsel) and with him, Ms A. Rastogi (of counsel)



REASONS FOR DECISION
1 On 11 April 2025, the Construction, Forestry and Maritime Employees Union (CFMEU, or the claimant) lodged an originating claim alleging that Qube Ports Pty Ltd (the respondent) contravened cl 7.3, Part B of two enterprise agreements, the Qube Ports Pty Ltd Port of Port Hedland Enterprise Agreement 2016 (EA 2016) and the Qube Ports Pty Ltd Port of Port Hedland Enterprise Agreement 2020 (EA 2020) by failing to pay an employee at the Port of Port Hedland, Aroha Panga (Ms Panga), overtime rates in hourly increments for work over 12 hours in any one shift (the Claim).
2 In failing to pay Ms Panga as alleged, the claimant alleges the respondent has contravened s 50 and s 323 of the Fair Work Act 2009 (Cth) (FWA).
3 The claimant sought orders for Ms Panga to be paid an amount required to be paid under EA 2016 and EA 2020 of $15,007.70, interest on the amount and the payment of a civil penalty for the contravention with the civil penalty to be paid to the claimant.
4 On 12 June 2025, the respondent partially admitted the Claim and conceded that it had ‘inadvertently failed to pay Ms Panga at overtime rates in hourly increments where she worked over 12 hours.’ Response at [8.a.].
However, upon undertaking its own review of the amount owed, the respondent said it owed $16,569.95 (gross) to Ms Panga and has paid the amount owed.
5 The respondent denied (for reasons given below) that the remaining orders sought by the claimant were necessary.
6 Schedule I of these reasons outlines the provisions of the FWA and principles relevant in determining an appropriate pecuniary penalty (if any) for the respondent’s contraventions.
Agreed Facts
7 The parties lodged an agreed statement of facts, Exhibit 1 – Statement of Agreed Facts lodged 12 September 2025.
where they agreed:
(a) the claimant is a registered organisation under the Fair Work (Registered Organisations) Act 2009 (Cth), an employee organisation as defined in s 12 of the FWA, and an employee organisation to which EA 2016 and EA 2020 applied within the meaning of s 52 of the FWA;
(b) the respondent is a ‘constitutional corporation’ within the meaning of that term in s 12 of the FWA, a ‘national system employer’ within the meaning of that term in s 14 of the FWA, and an employer to which EA 2020 and EA 2016 applied within the meaning of s 52 of the FWA; and
(c) Ms Panga was employed as a Variable Salary Employee by the respondent at the Port of Port Hedland, is a national system employee covered by EA 2016 and, subsequently, EA 2020, and is a member of the claimant.
8 Relevant to the contraventions, the parties also agreed:
(a) pursuant to cl 7.3, Part B of EA 2016 and EA 2020, Ms Panga was entitled to be paid overtime rates in hourly increments for work over 12 hours in any one shift. Between 12 April 2019 and 5 August 2024, on those occasions where Ms Panga worked more than 12 hours on a given shift, Ms Panga was paid for the time worked at the overtime rate pursuant to cl 30, Part A of EA 2016 and EA 2020;
(b) however, she was entitled to be paid in hourly increments for that overtime, rounded up to the nearest hour;
(c) on or around 11 June 2025, the respondent filed a response admitting that it had contravened s 50 and s 323 of the FWA. On review of the claim, the respondent calculated the shortfall owing to Ms Panga to be $16,569.95, rather than the amount sought by the claimant in the originating claim (which was $15,007.70); and
(d) the respondent subsequently paid Ms Panga the amount of $16,569.95 (gross).
Other Evidence
9 The respondent relied upon a witness statement of Anthony James Stone (Mr Stone), signed 23 October 2025, which was tendered into evidence.
10 Mr Stone is the respondent’s National Labour and Systems Manager, as part of the respondent’s National Labour Centre (NLC). The NLC is responsible for rostering employees across the respondent’s sites in Australia and New Zealand, and he is responsible for managing the NLC team. Exhibit 2 – Witness Statement of Mr Stone signed on 23 October 2025 at [2] and [6].

11 The respondent uses the Microster Workplace Management System (Microster) to allocate shifts to stevedores and to integrate rostering and associated employee wage information into its payroll system. Exhibit 2 at [8].

12 Mr Stone’s role involves ensuring that rostering and allocation complies with the terms of the respondent’s various enterprise agreements, including EA 2016 and EA 2020, as well as ensuring Microster is correctly configured with payment rules. Exhibit 2 at [9].

13 In addition to stevedoring operations at the Port of Port Hedland, the respondent has stevedoring operations at 19 other ports in Australia, where the employees are covered by port-specific enterprise agreements containing similar terms to EA 2016 and EA 2020. Exhibit 2 at [27] and [28].

14 Mr Stone explains that in understanding the error made with respect to Ms Panga, he is now aware that, during the relevant period, while Microster was set up to reflect the computation in cl 7.3, Part B of EA 2016 and EA 2020 for employees to be paid overtime rates in hourly increments for work over 12 hours in any one shift, Ms Panga did not receive overtime payments during the relevant period because her employee profile in Microster was not linked to the correct payment rules configuration for the Port of Port Hedland provisions which enabled the system to recognise and round up the payment for any time worked beyond 12 hours to the nearest hour. As a result, the payment rules for her overtime settings were not correctly aligned in Microster in accordance with cl 7.3. Exhibit 2 at [13] and [14].

15 Due to the variance in enterprise agreements at the ports operated by the respondent, there are several different ways in which time worked in excess of 12 hours is treated. Mr Stone gives examples of how these differences result in the implementation of distinct payment rule configurations within Microster, enabling the system to recognise and apply the appropriate payment entitlements based on the applicable enterprise agreement at each port. Exhibit 2 at [15].

16 Mr Stone says that before the Claim was filed, neither the claimant nor Ms Panga informed the respondent that Ms Panga had not been paid in accordance with cl 7.3, Part B of EA 2016 and EA 2020. No steps were taken by either party to raise or resolve the matter through the Dispute Resolution Procedure outlined at cl 49.1 of EA 2016 and EA 2020. The respondent first became aware of the issue upon receiving the Claim on 22 April 2025. Exhibit 2 at [16].

17 Once the respondent became aware of the alleged underpayment, it swiftly initiated an internal investigation to evaluate the Claim and determine whether any remediation was required, and if so, the appropriate amount to be paid. Exhibit 2 at [18]

18 While the claimant sought an amount of $15,007.70 to be paid to Ms Panga, Mr Stone conducted an independent calculation of the shortfall. Through this process, the respondent identified that the correct amount owed to Ms Panga was $16,569.65. Exhibit 2 at [19].

19 Rather than simply accepting the claimant’s calculation, the respondent conducted its own analysis and, upon identifying a greater shortfall than had been claimed, elected to pay the higher, correct amount, thereby going beyond what was sought in the Claim. Exhibit 2 at [20].

20 On 12 June 2025, the respondent paid Ms Panga the sum total of $16,569.95 (gross). Exhibit 2 at [21].

21 In terms of corrective action, Mr Stone states the respondent has reviewed and updated the overtime configuration in Microster to reflect the relevant clause in the Qube Ports Pty Ltd Port of Port Hedland Enterprise Agreement 2024. This change in Microster was necessary because the new clause now requires payment at the supplementary hourly rate for work exceeding 12 hours, rather than at the overtime rate (as contained in cl 7.3, Part B of EA 2016 and EA 2020). Exhibit 2 at [22].

22 Mr Stone also states that as part of a broader initiative to improve its rostering systems, the respondent has recently signed a contract with the Microster’s vendor, Tambla WFM, for a dedicated environment, being a ‘SaaS Hosted Solution’. The migration from an onpremises system to a dedicated environment will involve a full review of all current configurations, associated payment rules, and validation of all data into this new solution. A detailed project has been initiated between the respondent and Tambla WFM for the full migration to this new SaaS Hosted Solution to be completed by 30 June 2026. Exhibit 2 at [24] to [26].

23 The respondent accepts that some of its systems and processes need to be improved. It is actively working towards enhancing its processes and systems through automation and the implementation of more rigorous consistency checks. Exhibit 2 at [29].

24 The respondent is committed to making sure all employees are paid what they are owed, on time and correctly. On behalf of the respondent, Mr Stone apologises to Ms Panga. Exhibit 2 at [30] to [31].

Submissions
25 Both parties refer to the law in respect of the determination of an appropriate pecuniary penalty for contraventions of the FWA. I do not intend to recite the parties’ references to the applicable law. Schedule I to these reasons sets out a summary of those principles.
Claimant
26 In summary, the claimant submits that:
(a) the Industrial Magistrates Court of Western Australia (IMC) is empowered to order a person to pay a pecuniary penalty the Court considers appropriate if the Court is satisfied the person has contravened a civil remedy provision: s 546(1) of the FWA;
(b) there are two contraventions of s 50 and two contraventions of s 323 of the FWA, arising from non-compliance with cl 7.3, Part B of each of EA 2016 and EA 2020. These contraventions are contraventions of a civil remedy provision: s 539(2) of the FWA;
(c) the applicable rate of the penalty unit is $313, and the maximum penalty applicable is $93,900 for each contravention (given the respondent is a corporation);
(d) 35% of the maximum current penalty should be awarded for each contravention so as to meet the single objective of deterrence mandated in Australian Building and Construction Commissioner v Pattinson [2022] HCA 13; (2022) 274 CLR 450 (Pattinson), where the contraventions date back to 2019. The contraventions were not a one-off oversight and constitute a long-term systemic failure to properly pay an employee;
(e) the respondent has a history of non-compliance; and
(f) the respondent is a large, multi-national company, who should be expected to have sufficient resources in place to ensure compliance with the legislation.
27 The claimant tabulates the prior claims where the respondent has contravened s 50 (and s 323) of the FWA. The claimant’s table is extracted below.
MATTER
CONTRAVENTION
M 76 of 2022
s. 50 FWA
s. 323 FWA
M 91 of 2022
s. 50 FWA
s. 323 FWA
M 101 of 2022
s. 50 FWA
s. 323 FWA
M 73 of 2023
s. 50 FWA
M 95 of 2023
s. 50 FWA
M 119 of 2023
s. 50 FWA
M 149 of 2023
s. 50 FWA
M 2 of 2024
s. 50 FWA
M 137 of 2024
s. 50 FWA
M 161 of 2024
s. 50 FWA
s. 323 FWA
28 The claimant submits that anything less than the suggested penalty will go unnoticed for an organisation of the respondent’s size and resources.
29 A failure to sanction contraventions ‘adequately’ de facto punishes all those who do the right thing.
30 The claimant expanded its submission orally, in response to the respondent’s submissions. The claimant says the respondent met its obligation only after the Claim was lodged. It is not mitigatory for the respondent to meet its legal obligation. Similarly, it is not mitigating for the employer to pay an obligation for more than is claimed. Again, the respondent is merely meeting its lawful obligation. These factors may only suggest an absence of aggravating factors.
31 Further, the respondent’s suggested complicated industrial arrangements are within its control and this should not decrease any penalty. The claimant says this is not a claim suitable for the Dispute Resolution Process under EA 2016 and EA 2020, and this factor should not be taken into account by the Court. From the claimant’s perspective, the claimant continues to police the respondent’s payroll to ensure the correct payments are being made to the respondent’s employees.
Respondent
32 The respondent submits that 35% of the maximum penalty for each of the (presumably four) contraventions with a total penalty of $131,460 is an entirely inappropriate proposal. When regard is had to common law principles of totality and course of conduct are applied, the appropriate penalty is for a nominal amount at the lower end of the range. In summary:
(a) the circumstances of the contraventions do not warrant the imposition of a greater penalty where the respondent paid Ms Panga for time worked in excess of 12 hours at overtime rates but failed to pay that time in hourly increments (rounded up to the nearest hour);
(b) the failure was a result of an inadvertent system configuration error, and one which the respondent was not aware of;
(c) neither claimant nor Ms Panga raised the issue of the entitlements with the respondent at any stage prior to the claimant filing the Claim;
(d) the respondent not only admitted the contraventions, but identified that the shortfall was more than the amount claimed, and promptly rectified the underpayment; and
(e) given the purpose of civil penalties is specific and general deterrence, and having regard to all the relevant circumstances, particularly in a case in which there was no intention to contravene the FWA; the contraventions were a product of a systems error; and the respondent is contrite; a greater penalty is not appropriate.
33 The claimant’s reliance on other proceedings is misplaced. The number of proceedings is a consequence of the claimant’s disaggregate claims concerning the same issue and does not support a submission that the respondent is not committed to its industrial obligations.
The Nature, Extent and Circumstances of the Conduct
34 The claimant submits that the respondent is a ‘persistent offender’ and only a significant penalty might deter the respondent from engaging in the same or similar conduct.
35 The respondent submits that the claimant’s suggestion that the respondent treats its industrial obligations with disdain is an entirely unfair characterisation of the manner in which the respondent conducts its business.
36 The respondent contends that its industrial arrangements are extensive and complex. While the claimant cites a number of proceedings in which the respondent has either admitted to having, or has been found to have, contravened the FWA, the respondent says the passages selectively extracted from decisions are inapposite, and what the claimant fails to mention is that a not insignificant number of those proceedings have centred on contraventions arising out of the same constructional contest or systems error, with the claimant electing to disaggregate its claims to the employee level, presumably so as to increase the total of any civil penalties.
37 The respondent submits that it does not seek to diminish the seriousness of other instances of non-compliance, the claimant’s decision to pursue claims through separate proceedings, and then to rely on the resulting multiplicity of proceedings to support the imposition of a greater penalty, artificially overstates the extent of the respondent’s shortcomings.
38 This is not a case where Ms Panga was not paid to work overtime, however, she was paid incorrectly and not in accordance with the same clause that extended over two enterprise agreements. It cannot be said the respondent was trying to escape its obligation to pay employees under cl 7.3, Part B of EA 2016 and EA 2020 where, on Mr Stone’s unchallenged evidence, Microster was configured to make the payment but Ms Panga’s employee profile in Microster was not linked to the correct payment rules configuration for the Port of Port Hedland provisions.
39 Balanced against this, is the respondent being responsible for ensuring its own payroll systems are accurate and the incorrect payment extended over a period of time.
40 There is no evidence before the Court suggesting the issue is widespread.
Course of Conduct
41 Each of the contraventions are attributable to the same unintended configuration of the respondent’s payroll system resulting in the one employee being paid incorrectly according to the same clause in two enterprise agreements. It appears both parties accept that while there were multiple dates upon which the payments were not made, the multiple dates should be aggregated within each of the four contraventions.
42 However, the respondent submits the common law course of conduct principles are applicable to the contraventions in the Claim. Where there are multiple contraventions arising from the same act or omission, it is appropriate to approach those contraventions in such a way so as to avoid a situation where the respondent is penalised twice for the same act or omission. Further, once the various considerations have been taken into account, the totality principle is to be applied, where the Court reflects on whether the aggregate of any penalty(s) to be imposed is appropriate.
43 Section 557 of the FWA does not otherwise exclude the operation of the common law. Patrick Stevedores Holdings Pty Ltd v Construction, Forestry, Maritime, Mining and Energy Union (No 4) [2021] FCA 1481 (Patricks) at [152].
In Patricks, Lee J referred to comments made by the Full Court in the Fair Work Ombudsman v Construction, Forestry, Maritime, Mining and Energy Union [2019] FCAFC 69 (the Hutchison Ports Appeal) at [183] to [184] (per Rangiah J):
As I have said, s 557(1) of the [FWA] was regarded in [Rocky Holdings Pty Ltd v Fair Work Ombudsman [2014] FCAFC 62] at [18] as a protection against double punishment. Seen in that context, s 557(3) withholds from a contravener a protection that would otherwise be conferred by s 557(1). However, s 557(3) does not remove the protection against double punishment conferred under the course of conduct principle. The primary judge held that where s 557(1) does not apply because of s 557(3), the course of conduct principle would apply, and I respectfully agree. If s 557(1) does not apply, a court is left with the instruction of s 546(1) to impose a pecuniary penalty that ‘the court considers is appropriate’. Where there are multiple contraventions, assessment of an appropriate penalty must take into account whether the factual or legal circumstances overlap to an extent that there is a risk of multiple punishments for what is essentially the same contravention. In other words, the course of conduct principle must be considered.
Section 557(3) of the [FWA], having withheld the absolute protection against more than one penalty conferred by s 557(1), leaves the contravener with the same protection as a person who commits, within a single course of conduct, multiple contraventions of a civil penalty provision not set out in s 557(2). That protection is the course of conduct principle. That does not automatically or necessarily mean that a single penalty must be imposed, but, rather, that the sentencing court is left to decide what penalty is, or penalties are, appropriate.
44 Further comments by Lee J in Patricks, at [153], are apposite to the Claim:
This is a case that engages the broad discretion to ensure penalties are appropriate to the conduct in a given case and to ensure that the respondents are not penalised twice for the same or substantially similar conduct.
45 As is the following reference by Lee J, at [155], to Rangiah J’s statement in Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union [2019] FCAFC 59; (2019) 269 FCR 262:
The course of conduct principle exists to ensure that where that conduct results in more than one contravention, an offender is not punished more than once for what is effectively the same offending conduct. A finding that multiple contraventions are connected by a single course of conduct raises a question as to what is the appropriate penalty for those contraventions that avoids double punishment, but does not answer that question. The question is answered by evaluating the conduct and its course and assessing what penalty is, or what penalties are, appropriate for the contraventions. (emphasis added)
46 I am satisfied that while there are four contraventions, a single course of conduct lead to the four contraventions where it arose out of the same conduct at the same port involving the same employee because of the same failure.
47 Accordingly, an appropriate penalty for the four contraventions should avoid ‘double punishment’ for this same conduct.
Deliberate Conduct
48 There is no evidence the respondent engaged in deliberate conduct to circumvent industrial laws or to deprive Ms Panga of her entitlements.
49 The respondent submits that, as stated by Mr Stone, Microster was set up to reflect the requirement in cl 7.3, Part B of EA 2016 and EA 2020, but as a result of an unintended configuration error, Ms Panga’s profile was not linked to the correct payment rule. Therefore, while Ms Panga was paid the correct overtime rate for time worked beyond 12 hours, the system did not round up that time to the nearest hour as required under EA 2016 and EA 2020. The imposition of a civil penalty would do little to serve the goal of deterrence in this circumstance.
50 Unlike in Construction, Forestry, Mining and Energy Union v Hail Creek Coal Pty Ltd (No 2) [2018] FCA 480 (Hail Creek) there is no evidence the respondent should have been on notice or have had a heightened awareness of the risk. Mr Stone’s evidence about the configuration was not challenged and payments, albeit erroneous, were made to Ms Panga.
51 Unlike in other claims, there is no evidence that the claimant had invoked the dispute resolution process in EA 2016 and EA 2020 and attempted to resolve the underpayment. In that sense, the respondent cannot have been said to have taken the risk that its conduct, if not would, then might, contravene s 50 and s 323 of the FWA.
52 In those circumstances, I am not satisfied the respondent engaged in any deliberate conduct in underpaying Ms Panga overtime rates in hourly increments for work over 12 hours.
Similar Previous Conduct of the Respondents
53 In two recent decisions, CFMEU v Qube Ports Pty Ltd [2025] WAIRC 722; 105 WAIG 2207; CFMEU v Qube Ports Pty Ltd [2025] WAIRC 724; 105 WAIG 2223.
the Court summarised the claims where a civil penalty was imposed on the respondent for contraventions of s 50 and s 323 of the FWA.
54 The Court adopts the relevant paragraphs as follows:
In [CFMEU v Qube Ports Pty Ltd [2025] FCA 208 (CFMEU v Qube)], at [68], Feutrill J [in imposing a pecuniary penalty on 18 March 2025] summarises the respondent’s other contraventions of s 50 of the FWA.
The dates a penalty was imposed in relation to those contraventions are:
(a) 6 December 2023 in CFMEU v Qube Ports Pty Ltd [2023] WAIRC 976; (2024) 104 WAIG 121 (M 101 of 2022) (referred to at [68b]) for failing to pay an allowance to one employee at the Port of Dampier;
(b) 17 May 2024 in CFMEU v Qube Ports Pty Ltd [2024] WAIRC 220; (2024) 104 WAIG 660 (M 149 of 2023) (referred to at [68(c)]) for failing to pay an allowance to one employee at the Port of Tasmania; and
(c) 23 November 2023 in CFMEU v Qube Ports Pty Ltd (Industrial Magistrates Court of Western Australia, Magistrate Coleman, 23 November 2023) (M 95 of 2023) (referred to at [68(d)]) for failing to train employees to the level required at the Port of Port Hedland.
55 Of the tabulated claims referred to by the claimant at [27] above, five of the claims relate to the erroneous construction of the same clause of two enterprise agreements (M 76 and M 91 of 2022, which were consolidated, M 119 of 2023, M 137 of 2024 and M 161 of 2024).
56 For these five claims, the Court imposed a pecuniary penalty on 30 August 2024 (M 76 and M 91 of 2022 and M 119 of 2023) and 27 August 2025 (M 137 of 2024 only as no penalty was imposed in M 161 of 2024).
57 Pecuniary penalties for contraventions of s 50 of the FWA were imposed on the respondent on 23 November 2023, 6 December 2023, 17 May 2024, 30 August 2024, 18 March 2025 and, more recently, on 27 August 2025.
58 While the respondent has previously contravened s 50 and s 323 of the FWA, the conduct did not involve the unintended configuration of Microster where the employee was not paid overtime correctly although was paid overtime for time worked. However, Microster has featured in previous penalty decisions.
Applicable Maxima
59 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.
60 The dates of the contraventions cut across different penalty unit values as follows: See s 4AA of the Crimes Act 1914 (Cth) and s 12 of the FWA.

Date(s) of Contravening Conduct
Penalty Unit
April 2019 - January 2020
$ 210
July 2020 - July 2022
$ 222
July 2022 - January 2023
$ 275
July 2023 - August 2025
$ 313
61 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.
62 The theoretical maximum is $93,900 for each contravention with the total theoretical maximum being $375,600.
63 I would reduce any penalty by 5% to account for the date range of the contravening conduct across the penalty unit amounts.
Size of the Respondent and Involvement of Senior Management
64 Comments made by Feutrill J, at [71] and [95], in CFMEU v Qube are relevant to the Claim, save that Mr Stone’s evidence is that the respondent employs approximately 2,245 employees of which many are covered by one of 19 different enterprise agreements.
65 For the same reason expressed in other penalty decisions involving the same parties, I adopt His Honour’s comments.
66 There is no evidence of the involvement of senior management in the contravention.
Cooperation, Contrition and Corrective Action
67 The respondent cooperated in the legal proceedings, admitted the underpayment and paid Ms Panga after completing its own investigation identifying a larger underpayment than that claimed. The parties also prepared a statement of agreed facts.
68 The respondent describes this as representing the ‘gold standard’ of cooperation. ts 12.

69 Unlike in Hail Creek, and as stated above, there is no evidence the respondent elected to take the risk its conduct would contravene s 50 and s 323 of the FWA and could have mitigated the risk by seeking some other form of dispute resolution.
70 The respondent has apologised for the underpayment.
71 The respondent is improving its rostering systems, which will involve a full review of all current configurations, associated payment rules, and validation of all data into this new solution.
72 I would reduce any penalty by 25% for the cooperation and efforts made to mitigate future risk.
Loss or Damage Suffered
73 Ms Panga’s consequential ‘loss’, being her entitlements, is reasonable. There is no evidence that she otherwise suffered loss or damage, or prejudice. She was paid her full entitlement (more than alleged in the Claim) within eight to nine weeks of the Claim being served.
74 I observe though, that Ms Panga may have received her entitlements sooner had the respondent been aware of the issue before 11 April 2025 when the Claim was lodged with the Court. This would not have deprived the claimant of applying for a civil penalty, but its member may have had the benefit of her entitlements earlier.
Deterrence
75 The claimant calls for a penalty of 35% of the maximum penalty for each contravention.
76 The respondent says, consistent with comments made by the High Court in Pattinson at [55], the conduct the subject of the contraventions does not bear a reasonable relationship to the suggested penalty where the conduct arose out of inadvertence and the contraventions were not deliberate.
77 In Pattinson, at [71], the majority judgment concluded that a 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’ where, at [58], ‘the maximum penalty is intended by the Act to be imposed in respect of a contravention warranting the strongest deterrence within the prescribed cap’. To that end, both the circumstances of the contravention(s) and the respondent’s circumstances may be relevant to the assessment as to whether the maximum level of deterrence is required. I note that the maximum penalty is not sought by the claimant, but the claimant seeks a significant penalty, and, therefore, consideration of whether a significant penalty is an appropriate penalty is warranted, by reference to guiding cases.
78 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:
[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.
The Respondent’s Circumstances
79 There is no discernible policy by the respondent to not pay overtime in compliance with cl 7.3, Part B of EA 2016 and EA 2020. To the contrary, the respondent paid overtime to Ms Panga and had configured its payroll system for the payment of cl 7.3, but Ms Panga’s profile in Microster was not linked to the correct payment rules configuration for the Port of Port Hedland provisions that enabled the system to recognise and round up the payment for any time worked beyond 12 hours to the nearest hour.
80 At worst this may be a case of carelessness by the respondent.
The Circumstances of the Contraventions
81 There is overlap between the circumstances of the contraventions and the respondent’s circumstances.
82 That is, there is no evidence the contravention was an industrial strategy pursued without regard for the law.
83 The consequence of considering the above factors is that I am not satisfied in relation to the contravention that a penalty the equivalent of 35% of the maximum penalty ‘is reasonably necessary to deter further contraventions of a like kind.’ Pattinson at [9].

Determination
84 There is a role for specific deterrence in this case, although the overall need to ensure compliance with industrial laws more generally is significant.
85 The respondent promptly paid Ms Panga the outstanding amount that she was entitled to be paid and has taken further steps to ensure its processes are reliable. However, employees should be confident that they and the claimant do not have to ‘police’ the respondent’s own systems to identify underpayments and contraventions. The respondent’s systems are within its control.
86 Comments made by Feutrill J, at [94], in CFMEU v Qube remain relevant:
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.
87 However, while his Honour’s comments may have been directed to specific deterrence, the tenure of these comments is applicable to any employer so as to ensure compliance with industrial laws and ensuring employees are fairly and correctly paid.
88 Further guidance may be derived from Australian Building and Construction Commissioner v Powell (No 2) [2019] FCA 972 at [28] to [30] in which Bromberg J refers to Allsop CJ, Collier and Rangiah JJ in 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.
89 Further, his Honour stated, at [30]:
The well settled principles most recently expressed in [Parker v Australian Building and Construction Commissioner [2019] FCAFC 56] call for a structured approach to the imposition of a penalty on a contravener with a history of contraventions, the object of which is to ensure that the contravener does not ‘suffer the fate of being sanctioned anew for past contraventions’ (at [341]). First, the Court must identify the applicable range of penalties for that contravention without regard to the contravener’s prior history of contraventions. Having done that, the Court should then take into account that history in assessing where, within the applicable range, the penalty should fall. (original emphasis)
90 I am satisfied that given all the factors referred to the Claim involves contraventions towards the lower end of the scale.
Penalty to be Imposed
91 Taking all of these factors into account, including the percentage reductions referred to, the appropriate penalty aimed to secure compliance by deterring repeat contraventions, if not of this type, then of future different contraventions is as follows:
(a) Section 50 of the FWA relevant to cl 7.3, Part B of EA 2016 - $4,000;
(b) Section 50 of the FWA relevant to cl 7.3, Part B of EA 2020 - $4,000;
(c) Section 323 of the FWA relevant to cl 7.3, Part B of EA 2016 - $4,000;
(d) Section 323 of the FWA relevant to cl 7.3, Part B of EA 2020 - $4,000.
92 I would reduce the pecuniary penalty to account for totality and to avoid ‘double punishment’ where the same error gave rise to the same contraventions involving the same employer and employee. The reduction is 40%.
93 Therefore, the total of the penalties is $9,600 where the maximum potential penalty is $375,600. I do not consider any further reduction to be warranted to account for an imbalance between oppression and deterrence.
94 I do not consider that there is anything before the Court which suggests it should award a penalty other than in accordance with that ordinarily to be exercised by awarding any penalty to the successful applicant. Accordingly, the payment of the pecuniary penalty should be paid to the claimant.
Pre-Judgment Interest
95 The claimant applied for pre-judgment interest under s 547(2) of the FWA. On application, the IMC must include an amount of interest in the sum ordered on an amount that a person was required to pay under s 545(3) ‘unless good cause is shown to the contrary’.
96 The respondent did not oppose the payment of an amount of interest, albeit I note no order is made under s 545(3) of the FWA where the respondent has already paid the amount required to be paid under EA 2016 and EA 2020. However, the use of the word ‘was’ suggests that if the amount was outstanding and then paid, this ought not to deny a claimant interest.
97 I also note that during the course of the penalty hearing, the parties arrived at an agreed position with respect to an amount of interest to be paid based on the period of time the sum required to be paid was outstanding, being three years. Given the respondent’s agreement to pay interest in the amount of $2,982, the Court considered it might be unnecessary to make an order to that effect. However, upon reflection, it is prudent to do so.
98 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).

99 Regulation 4 of the Civil Judgments Enforcement Regulations 2005 (WA) prescribes an interest rate of 6% per annum. The parties agreed this rate of interest in any event.

100 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.
101 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.
102 In exercising this discretion, the Court should consider that ‘interest is awarded to compensate the plaintiff for the detriment that [she] has suffered by being kept out of [her] 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.

103 I would calculate interest based on the parties’ agreed position of three years.
104 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
1095
6%
$16,569.95
$2.724
$2,982
Conclusion
105 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 $9,600.
106 Pursuant to s 546(3)(b) of the FWA, the pecuniary penalty is to be paid to the claimant.
107 Where the respondent has paid to Ms Panga the amount owed under EA 2016 and EA 2020, I am not satisfied there is an amount required to be paid by the employer. Accordingly, I make no order under s 545(3) of the FWA.
108 Pursuant to s 547(2) of the FWA, the respondent pay $2,982 in pre-judgement interest on the amount that was required to be paid to Ms Panga.



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 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.
[3] 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.
[4] 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.
[5] 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]).
[6] 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].
[7] ‘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.
[8] 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).
[9] 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].
[10] 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.
[11] 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)