2026 WAIRC 00401
INDUSTRIAL MAGISTRATES COURT OF WESTERN AUSTRALIA


CITATION
:
2026 WAIRC 00401



CORAM
:
INDUSTRIAL MAGISTRATE D. SCADDAN



HEARD
:
WEDNESDAY, 22 APRIL 2026



DELIVERED
:
THURSDAY, 18 JUNE 2026



FILE NO.
:
M 146 OF 2025



BETWEEN
:
CFMEU


CLAIMANT





AND





TSM OFFSHORE 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 – Omission of marine leave on pay slips on two occasions – Turns on the circumstances of the case
Legislation : Fair Work Act 2009 (Cth)
Fair Work (Registered Organisations) Act 2009 (Cth)
Crimes Act 1914 (Cth)
Instrument : Tidewater Ship Management (Australia) Pty Ltd and MUA Offshore Oil and Gas Enterprise Agreement 2023
Cases referred
to in reasons: : 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
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 OSM Australia Pty Ltd [No 2] [2025] WAIRC 00924; (2025) 105 WAIG 2728
Construction, Forestry, Maritime, Mining and Energy Union v OSM Australia Pty Ltd [2022] WAIRC 00713; (2022) 102 WAIG 1298
The Australian Workers’ Union v OSM Australia Pty Ltd [2024] WAIRC 00853; (2024) 104 WAIG 2172
Construction, Forestry and Maritime Employees Union v OSM Australia Pty Ltd [2025] WAIRC 00349; (2025) 105 WAIG 1216
Australian Building and Construction Commissioner v Pattinson [2022] HCA 13; (2022) 274 CLR 450
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; (2018) 267 FCR 268
Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Telstra Corporation Ltd [2007] FCA 1607; (2007) 168 IR 368
Australian Rail, Tram and Bus Industry Union v Qube Logistics (Rail) Pty Ltd [2020] FCA 1520; (2020) 300 IR 198
Result : No penalty imposed
Representation:
Claimant : Ms S. Sayed (of counsel)
Respondent : Mr J. Parkinson (of counsel)



REASONS FOR DECISION
Background
1 On 23 October 2025, the Construction, Forestry and Maritime Employees Union lodged an originating claim alleging that Tidewater Ship Management (Australia) Pty Ltd (Tidewater) contravened cl 16.4 of the Tidewater Ship Management (Australia) Pty Ltd and MUA Offshore Oil and Gas Enterprise Agreement 2023 (the Agreement) by failing to provide pay slips showing leave accrued and taken on 1 and 15 October 2025 (the Claim).
2 During the hearing on 22 April 2026, the claimant applied to amend the respondent’s name from Tidewater to OSM Thome WA Pty Ltd (OSM). The Court granted this amendment. Orders made by the Court 22 April 2026, ts 8  9.

3 After the hearing, on 12 June 2026, by consent, the Court ordered the following:
(a) the claimant’s name is changed to ‘CFMEU’ (the claimant); and
(b) the respondent’s name is changed to ‘TSM Offshore Pty Ltd’ (the respondent). Orders made by the Court 12 June 2026.

4 In failing to provide the leave accrued on the pay slips on 1 and 15 October 2025, the claimant alleges that the respondent has contravened s 50 of the Fair Work Act 2009 (Cth) (FWA) and seeks the imposition of a civil pecuniary penalty.
5 On 10 November 2025, the respondent partially admitted the Claim and conceded that pay slips issued on 1 and 15 October 2025 did not include leave balances due to a technical issue with a third-party provider.
6 The respondent denied (for reasons given below) that the imposition of a penalty as sought by the claimant was necessary.
7 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
8 The parties lodged an agreed statement of facts, Exhibit 1 – Statement of Agreed Facts lodged on 12 January 2026.
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 the Agreement 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 the Agreement applied within the meaning of s 52 of the FWA; and
(c) the Agreement covers the claimant and applies to the respondent and applies to the respondent’s employees engaged in the classifications in the Agreement.
9 Relevant to the contraventions, the parties also agreed that:
(a) pursuant to cl 16.4 the Agreement, the respondent was required to provide to employees ‘a pay notice (pay slip) showing the full details of gross pay, deductions, net pay, superannuation, allowances and leave accrued and taken will be provided with each payment of wages’; Exhibit 1 [6].

(b) the ‘leave accrued and taken’ referred to in cl 16.4 of the Agreement includes leave provisions under cl 25.2 of the Agreement and cl 37 of the Agreement; Exhibit 1 [7].

(c) on 1 October 2015, the respondent made payment of wages to employees for the fortnight ending 28 September 2025;
(d) on 15 October 2025, the respondent made payment of wages to employees for the fortnight ending 12 October 2025;
(e) the respondent provided pay slips to those employees at the time wages were paid;
(f) the pay slips provided to employees on 1 October 2025 did not show ‘leave accrued and taken’; Exhibit 1, agreed document 2.
and
(g) the pay slips provided to employees on 15 October 2025 did not show ‘leave accrued and taken’. Exhibit 1, agreed document 3.

Other Evidence
Claimant
10 The claimant relied upon a witness statement of George Gakis (Mr Gakis), signed on 26 January 2026. Exhibit 2 – Witness Statement of George Gakis signed on 26 January 2026.
A summary of his evidence is as follows.
11 Mr Gakis is the Deputy Secretary for the Western Australian Branch of the Maritime Union of Australia Division of the CFMEU. Exhibit 2 [1].

12 Mr Gakis was involved in the bargaining negotiations for the Agreement. Exhibit 2 [3].

13 Mr Gakis states that on 1 October 2025, he was copied into an email from Andrew Stagg (Mr Stagg), one of the respondent’s employees, with the subject ‘pay slip issue’ and attached to the email a copy of Mr Stagg’s pay slip. Exhibit 2 [6], GG01.

14 The email was addressed to Ms Ilana Louise Jewson (Ms Jewson) and Ms Leona Witzig (Ms Witzig) in which Mr Stagg raises the issue of his pay slip not showing his leave balance. Exhibit 2 [7], GG01.

15 On 1 October 2025, Ms Jewson replied to the email and Mr Gakis was copied into the email. Mr Gakis states he did not receive a response from Ms Jewson ‘the next day’. Exhibit 2 [8], GG01.

16 On 16 October 2025, Mr Gakis stated he was copied into an email from Joshua Weller (Mr Weller), one of the respondent’s employees, with the subject ‘Leave Entitlements Not Reflected on Payslip’ and attached to the email was a copy of Mr Weller’s pay slip. Exhibit 2 [9], GG02.

17 On 29 October 2025, the respondent made payment of wages to its employees for the fortnight ending 26 October 2025. Exhibit 2 [11].

18 The pay slips provided to employees on 29 October 2025 did not show ‘leave accrued and taken’. Exhibit 2 [12], GG03.

Respondent
19 The respondent relied upon a witness statement of Ms Witzig, signed 23 February 2026 Exhibit 3 – Witness Statement of Leona Witzig signed on 23 February 2026.
and a witness statement of Ms Jewson, signed on 20 February 2026. Exhibit 4 – Witness Statement of Ilana Louise Jewson signed on 20 February 2026.

20 A summary of their evidence is as follows.
21 Ms Witzig is employed by the respondent, the parent entity of Tidewater, as the Payroll Manager responsible for overseeing general payroll processes and accounts receivable. Exhibit 3 [1], [5].

22 Prior to 2022, Ms Witzig was solely responsible for all payroll and accounts functions apart from those performed by the Finance Manager. From 2022, the payroll team includes five members, and she shares responsibility for checking the payroll with another payroll supervisor each fortnight. Exhibit 3 [6].

23 The respondent uses a payroll system provider, ADP, for processing its payroll. ADP is an American company with Australian operations based in Melbourne, with a payroll system that can be customised to add a ‘marine module that keeps track of marine leave entitlements.’ Ms Witzig understands that ADP is the only payroll system capable of customisation to keep track of marine leave balances. Exhibit 3 [10].

24 Under the Agreement, marine leave for seafarer employees is different to standard leave entitlements based on its calculation under the Agreement and what it is designed to compensate. ADP, and its customised marine module, tracks employees’ entitlements through various rates of pay that change when employees change position, move between vessels, or change rank. Exhibit 3 [12]  [13].

25 In 2023, the respondent acquired Tidewater and inherited their ADP payroll system account and many customisations such as the parent company’s logo appearing on pay slips (the Logo).
26 In May 2025, Ms Witzig became aware that the respondent’s pay slips continued to display Tidewater’s (incorrect) Logo and sent a service request to ADP through its web portal to fix it. According to ADP, the issue had been fixed, but this was not entirely the case. Exhibit 3 [14]  [15], LW01.

27 According to Ms Witzig, because the respondent’s pay slips could be viewed differently by payroll staff and employees, it then became apparent in September 2025 that the Logo had been changed on one medium but not on the other. That is, the version viewed by employees continued to show the old logo. Ms Witzig could not ‘re-customise’ the Logo without ADP, nor could she change the marine leave module or pay slips generally. Exhibit 3 [16]  [17].

28 On 26 September 2025, Ms Witzig submitted another request to ADP to change the Logo in both mediums. On 30 September 2025, she followed up her request with ADP as she was aware the respondent was finalising the payroll the following day. On 1 October 2025, the first contravention date, ADP informed Ms Witzig that it had been fixed. However, when Ms Witzig checked to see if the issue had been resolved by generating a preview of web pay slips prior to submitting them to the web portal, the issue had not been resolved, and she advised ADP of this. Exhibit 3 [18]  [20], LW02.

29 The respondent holds ‘master files’ for each employee, of which there are 150 to 200, which enables the respondent to make some changes to every single ‘master file’ for an employee. On 1 October 2025, Ms Witzig’s team amended the ‘master file’ to the template pay slip format where ADP added the new Logo. Upon reviewing the pay slips prior to submitting them to the web portal, it was observed that while the new Logo was displaying correctly, the marine leave balance was not displaying on the pay slips. Exhibit 3 [21]  [23], LW02.

30 Ms Witzig contacted ADP, but their office (located in Melbourne) had closed for the day. Upon contacting ADP the following day, she was informed that the reason the marine leave balance did not appear on the pay slips was that ADP did not link the marine leave module to the new pay slip format. The person at ADP who configured the new pay slip format had inadvertently failed to combine the marine leave module with the new pay slip format. The marine leave balances were never affected by this error in configuration, and no entitlements were lost. The issue was a formatting or display error on the pay slips caused by ADP’s configuration of the new Logo. Exhibit 3 [24]  [25], LW02.

31 Ms Witzig and her team discovered that pay slips displayed the old Logo at approximately 6.00 pm on 1 October 2025 and sent a request to ADP. At approximately 6.30 pm, Ms Witzig informed ADP that the respondent was in the process of changing the employees’ ‘master files’ to deal with the Logo from an updated template. Exhibit 3, LW02 (comment by Ms Witzig on 1 October 2025 at 6.31 pm).
At 7.54 pm, Ms Witzig informed ADP that the respondent had amended all active ‘master files’ to a generic pay slip ‘so that crew at least got a payslip.’ She also informed ADP that ‘most importantly it does not show a Marine leave balance.’ She also asked ‘[c]ould we please get this fixed? and [sic] if you are able to fix this, can we re-transmit the payslips so that our crew can see a version WITH the Marine Leave balance on it?’ Exhibit 3 [26], LW02 (comment by Ms Witzig on 1 October 2025 at 7.54 pm).

32 Ms Witzig explains that making further changes from 7.54 pm would have taken ‘two or three more hours’ and it was necessary to submit pay slips in a reasonable time before submitting the payroll for the pay slips to be issued, and at the time the payroll had already been submitted to the bank. Exhibit 3 [27].

33 On that basis, Ms Witzig states that they made the decision to issue the pay slips without the marine leave balance displayed so that employees still received pay slips and were notified of their pay. Exhibit 3 [28].

34 On the same night, Ms Witzig notified the crewing department of the problem so a memorandum could be sent to employees as soon as possible. Exhibit 3 [29], LW03.

35 On 2 October 2025, Matthew Chadwick, Operations Manager at OSM (Mr Chadwick), prepared a draft memorandum for review and at 9.16 am he requested the memo be sent to all employees through the respondent’s system that provides emails to employees’ private email addresses. Exhibit 3 [30]  [31], LW04.

36 Employees were invited to confirm their current marine leave balance if they wished to do so. Ms Witzig assisted two employees to retrieve their leave balances and other staff members assisted several other employees to do so as well. Exhibit 3 [32]  [34], LW03, LW05  LW20.

37 Between 1 and 15 October 2025, Ms Witzig made numerous telephone requests and service requests via the web portal to ADP to resolve the marine leave display issue, including an urgent request before the next pay cycle. On 10 October 2025, a member of the ADP team informed her there was no resolution and the issue was not resolved before the next pay cycle. On 15 October 2025, Mr Chadwick sent a further memorandum to employees informing them that they had not lost their marine leave entitlements. Exhibit 3 [35]  [40], LW22.

38 Between 15 and 24 October 2025, Ms Witzig continued to have numerous communications with ADP to resolve the marine leave balance display on the pay slips. ADP provided a solution on 21 October 2025, but it was not until 24 October 2025 that the issue was fully resolved with the pay slips correctly displaying the marine leave balance. Exhibit 3 [41]  [44].

39 Ms Witzig also liaised with Ms Jewson and on 16 October 2025, she provided Ms Jewson with three templates as part of the ADP’s suggested solution. Exhibit 3 [42], LW23.

40 Ms Witzig explains that the respondent is heavily dependent on the ADP payroll system and the respondent is unable to control what is included or excluded on pay slips beyond the options made available to the respondent by ADP. The respondent can send service requests to ADP, but is dependent on ADP to process the requests and provide solutions. Making changes is complex because of the extensive customisations that were in place when the respondent took over the existing payroll system from Tidewater. Exhibit 3 [46]  [48].

41 In cross-examination, Ms Witzig confirmed that she could not contact ADP late on 1 October 2025 and had assumed the marine leave balance would transit through onto the pay slip. She made the decision to proceed with the pay slips without the marine leave balance and informed her manager resulting in the memorandum being sent to employees the next day. ADP did not ‘marry up’ the marine leave when the Logo changed. ts 14  15.

42 Ms Witzig clarified that what was not shown was the marine leave balance, but other leave (such as leave taken) was shown. ts 18.

43 She maintained that the whole of the issue (the Logo and marine leave balance) took from 22 September 2025 to 24 October 20225 to resolve. She denied that she could reissue the pay slips and manually correct the marine leave balance. She denied that this was an easy issue to fix. ts 19.

44 Ms Jewson is employed by the respondent in the position of Human Resources, Industrial Relations and Engagement Manager. In this role, amongst other things, she engages with employees and union representatives, including liaising with Ms Witzig and Mr Gakis over various employment issues. Exhibit 4 [1]  [8].

45 Ms Jewson became aware of an issue with the omission of marine leave on the pay slips in early October 2025 via members of the payroll team. Ms Witzig discussed the issue with her and told her that it required the involvement of ADP and there was no straightforward solution. Exhibit 4 [9].

46 On 16 October 2025, Ms Jewson received a telephone call from Mr Gakis and she discussed with him the reason for marine leave not being displayed on the pay slips. At 5.22 pm, she sent Mr Gakis an email confirming their discussion and advised Mr Gakis that leave accruals continued to be processed correctly and remained fully available to employees at any time. Exhibit 4 [11]  [12], IJ01.

47 Ms Jewson also attached to this email a template pay slip for his review with marine leave accruals at the bottom rather than the top of the pay slip and asked him to advise her of any major issues by midday on 17 October 2025. Exhibit 4 [13], IJ01.

48 Ms Jewson continued to correspond with Mr Gakis concerning the new pay slip format with a final email sent on 20 October 2025 confirming the new pay slip captured the required information. Exhibit 4 [14]  [17], IJ02  IJ05.

49 Ms Jewson refers to an additional issue between the parties regarding the display of long service leave on pay slips, which is recorded separately. This issue is the subject of ongoing negotiations with the claimant and does not form part of the Claim, although Ms Jewson notes that at no point in her communications with Mr Gakis in October 2025 about the marine leave display on pay slips did Mr Gakis raise the long service leave display on pay slips. The respondent continues to consult with the claimant on this. Exhibit 4 [18]  [26], IJ06  IJ07.

Submissions
50 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
51 In summary, the claimant submits that:
(a) the object of a civil penalty is to promote the public interest in compliance with the provisions of the FWA by securing future compliance;
(b) there are two contraventions of s 50, arising from the non-compliance with cl 16.4 of the Agreement on 1 and 15 October 2025. These contraventions are contraventions of a civil remedy provision: s 539(2) of the FWA;
(c) the maximum penalty applicable is five times the maximum number of penalty units proscribed for a natural person (given the respondent is a corporation);
(d) a failure by a person to whom an enterprise agreement applies to comply with their obligations has the potential to undermine the regime for establishing the rights and entitlements of industrial parties. The seriousness of the contravening conduct or the involvement of senior management will generally suggest a higher penalty is necessary to achieve specific and general deterrence;
(e) Ms Jewson ought to have set an example and, therefore, there is a need for substantial deterrent penalties;
(f) the respondent is ‘a sizeable entity with substantial resources’, including an in-house payroll team, and it outsources to ADP;
(g) the respondent was aware at the time of issuing the 1 October 2025 pay slips that there was not compliance with the Agreement, and cognisant of the risk, proceeded to issue the pay slips and ‘take the odds’;
(h) the respondent took no corrective action to rectify the first contravention;
(i) the second contravention was ‘subjectively reckless in the sense that the respondent was aware of their obligations and corrective action could have been easily implemented’;
(j) for that reason, the Court should find the respondent intentionally contravened s 50 of the FWA;
(k) the respondent has failed to exhibit contrition; and
(l) the respondent has a history of non-compliance of the FWA and enterprise agreements and a ‘habit of treating their obligations with no small measure of disdain’. Claimant’s outline of submissions [40].

52 In oral submissions, the claimant further contended the respondent could or should have issued manual pay slips to 90 of the 150 employees (who may be the claimant’s members) and that this would not have been difficult taking three hours to manually amend the ‘master file’. ts 31  33.
I place little weight on the claimant’s suggestion that a particular cohort of employees should have been prioritised over other employees – there is nothing that remotely demonstrates a requirement for the respondent to prioritise its employees in this way. I also reject the submission that some form of immediate remediation of the pay slips was ‘easy’. The evidence does not bear out that submission.
Respondent
53 The respondent submits that it is not appropriate to impose a penalty where the respondent’s contraventions fall within the lower end of possible conduct contravening s 50 of the FWA. Alternatively, if the Court considers the imposition of a penalty is appropriate, any penalty should be at the lower end of the spectrum. In summary:
(a) it is not alleged, nor is there evidence to suggest, that the respondent’s conduct amounts to a serious contravention pursuant to s 557A of the FWA;
(b) the maximum penalty is but one factor in a number of relevant factors and does not constrain the exercise of discretion under s 546 of the FWA other than requiring a reasonable relationship between the theoretical maximum and the final penalty imposed;
(c) the purpose of civil penalties is specific and general deterrence, with concepts such as retribution, denunciation and rehabilitation having no role to play; and
(d) proportionality should be considered by the Court, where the penalty imposed strikes a reasonable balance between deterrence and oppressive severity.
54 The respondent points to the contraventions not being deliberate, intentional, or reckless as it was caused by a third-party provider, resulting in no loss to employees, and the steps taken to remediate the contraventions indicate that primarily no penalty should be imposed.
The Nature, Extent and Circumstances of the Conduct
55 The claimant submits that the respondent has a record of non-compliance and treats their obligations with disdain.
56 The respondent submits that the contraventions were the result of a technical error by the respondent’s third-party payroll system, ADP, where the respondent acquired Tidewater and it was already using the ADP payroll system.
57 The marine leave balances were omitted from employee pay slips on two occasions. However, there is no evidence this resulted in the employees’ entitlements being altered or effected.
58 The conduct was not underpinned on the part of the respondent to in any way contravene industrial laws or entitlements. To the contrary, Ms Witzig identified the omission by reviewing the pay slips before they were issued because she was aware of an issue with the Logo and was trying to fix the Logo issue. She then took immediate steps to try and correct the issue with the marine leave balances but could not do so because of the time difference between Western Australia and Victoria and the time the issue was identified.
59 She then had a decision to make about whether to continue to issue the pay slips given that payroll had already been provided to the bank. In those circumstances, at 8.00 pm, Ms Witzig was caught between the proverbial rock and hard place and decided the better course of action was to issue the pay slips to employees and address the omission of the marine leave balance with her manager(s). This resulted in a memorandum being issued to employees the next morning explaining what had happened and inviting them to liaise directly with the respondent to check their marine leave balances.
60 Unless something else happens with the ADP payroll system, it seems unlikely this particular issue would occur again.
Course of Conduct
61 Each of the contraventions are attributable to the same unintended configuration of the respondent’s payroll system by ADP resulting in the omission of marine leave balances on employee pay slips dated 1 and 15 October 2025.
62 However, the respondent submits that common law course of conduct principles is 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.
63 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 [152].
In Patrick Stevedores Holdings Pty Ltd v Construction, Forestry, Maritime, Mining and Energy Union [No 4] [2021] FCA 1481 (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.
64 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.
65 As is the following reference by Lee J, in Patricks 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)
66 I am satisfied that while there are two contraventions, a single course of conduct lead to the two contraventions where it arose out of the same pay slip configuration issue when ADP, after changing the Logo on the pay slips, did not configure the pay slip format correctly by failing to link it with the marine leave module.
67 Accordingly, an appropriate penalty (if any) for the two contraventions should avoid ‘double punishment’ for this same conduct.
Deliberate Conduct
68 There is no evidence the respondent engaged in deliberate conduct to circumvent industrial laws or to deprive employees of their entitlements.
69 The contraventions were borne of a third-party configuration of pay slips when there was a change of company logo.
70 The respondent promptly informed employees about what happened and took steps to address the issue with employees.
71 I would also add that, to her credit, Ms Witzig acted diligently in trying to resolve the issue. She had prompt and ongoing contact with ADP, informed her manager to facilitate a memorandum being sent to employees on 2 October 2025, and ensured through other team members that employees who wanted information about marine leave balances were given that information.
72 Unlike in Construction, Forestry, Mining and Energy Union v Hail Creek Coal Pty Ltd [No 2] [2018] FCA 480 there is no evidence the respondent should have been on notice or have had a heightened awareness of the risk that if ADP changed a company logo it would reconfigure pay slips to omit marine leave.
Similar Previous Conduct of the Respondent
73 The parties did not refer to any similar previous conduct by the respondent (including when it was Tidewater).
74 However, the relevance of ‘similar previous conduct’ by OSM was raised. This previous conduct was referred to in Construction, Forestry and Maritime Employees Union v OSM Australia Pty Ltd [No 2] [2025] WAIRC 00924; (2025) 105 WAIG 2728 (OSM Australia [No 2]) at [27] to [30], noting this case also involved the imposition of a pecuniary penalty.
75 In 2022, the Court, constituted by a different Industrial Magistrate, imposed a $1 penalty where the same claimant conceded that OSM’s contravention was the result of an inadvertent error on the part of an inexperienced payroll employee, which was not brought to OSM’s attention until the claimant lodged the claim in the Court. Upon the claim being lodged, OSM immediately rectified the error. Construction, Forestry, Maritime, Mining and Energy Union v OSM Australia Pty Ltd [2022] WAIRC 00713; (2022) 102 WAIG 1298.

76 In 2024, the Court imposed a total penalty of $1,700 for the failure to pay over cycle payments for four employees where the parties were in prior dispute about the interpretation of the relevant term of an enterprise agreement. After the commencement of proceedings, OSM admitted the contravention and rectified the contravention by paying the relevant amount to the four employees. The Australian Workers’ Union v OSM Australia Pty Ltd [2024] WAIRC 00853; (2024) 104 WAIG 2172.

77 In OSM Australia [No 2], the Court imposed a penalty of $2,000 following a contested hearing about the timing of offers to convert to permanent employment five casual employees. The Court found that OSM had failed to provide the five casual employees with offers to convert to permanent employment within four weeks of registration of the relevant enterprise agreement. Construction, Forestry and Maritime Employees Union v OSM Australia Pty Ltd [2025] WAIRC 00349; (2025) 105 WAIG 1216.

However, the Court also found OSM had called for expressions of interest within the timeframe provided for in the enterprise agreement and the Court was not satisfied that the claimant had proven the whole of the claim the subject of the litigation. Notably in OSM Australia [No 2], at [18] to [21], the Court, in referring to the liability decision, made findings about the nature of the conduct, and why the contravening conduct was unlikely to occur again in the future.
78 As can be seen, none of the ‘similar previous conduct’ involved the entity purchased by the respondent, albeit the respondent assumed responsibility for Tidewater’s payroll system. Notwithstanding this, it is still difficult to draw a bow supporting a finding that the respondent disregards its industrial obligations.
79 The circumstances of this case were atypical, and the respondent took immediate responsibility and steps to reduce the impact of the omission of marine leave that the two pay slips might have upon its employees. It did so without any need for the Court to become involved.
80 Thus, to the extent the ‘previous similar conduct’ by the respondent is relevant, it is of little weight in determining an appropriate penalty in this case.
Applicable Maxima
81 The maximum penalty with respect to a contravention of s 50 of the FWA by the respondent is 300 penalty units, given the respondent is a body corporate.
82 At the date of the contraventions the penalty unit value was as follows: See s 4AA of the Crimes Act 1914 (Cth) and s 12 of the FWA.

Dates of Contravening Conduct
Penalty Unit
October 2025
$ 330
83 The theoretical maximum is $99,000 for each contravention with the total theoretical maximum being $198,000.
Size of the Respondent and Involvement of Senior Management
84 Contrary to the claimant’s assertion that senior management were involved in the contravention, there is no evidence of the involvement of senior management in the contravention.
85 The evidence demonstrates that the omission of marine leave on the pay slips occurred as a result of an issue with ADP, a third-party provider, and not because of any act or omission by any of the respondent’s employees or anything the respondent did. That is, in the course of changing a company logo, ADP’s configuration of pay slips resulted in marine leave being inadvertently omitted from the pay slips.
86 Nothing the respondent or any of its employees did had caused the contraventions beyond a desire to alter a company logo to reflect a change of name from a client name.
87 Thereafter, the respondent and its employees took steps to respond to the issue.
88 There was some complaint by Mr Gakis that Ms Jewson did not respond to him or one of the employees the ‘next day’ or quickly enough. However, the contravention is not about Ms Jewson. Further, it is apparent the respondent, via Ms Witzig and Mr Chadwick, acted immediately on the issue and sent a memorandum to all employees the next day to inform them what had happened and provided employees with their marine leave balance upon request.
Cooperation, Contrition and Corrective Action
89 The respondent cooperated in the legal proceedings and promptly admitted the contravention. The parties also prepared a statement of agreed facts.
90 While not expressed as an apology, the email from Mr Chadwick on 2 October 2025 explained the situation and reassured employees that marine leave continues to accrue and no information had been lost. He also encouraged employees to contact the respondent if they would like confirmation of their current marine leave balance. To that end, various employees did contact the respondent and were promptly provided with their current marine leave balance via email.
Loss or Damage Suffered
91 There is no evidence of any loss or damage suffered by any employee. The employees’ entitlements related to marine leave did not change and were not affected. The respondent sent an email to all employees the following morning after the issue was identified and invited any concerned employee to request details of their marine leave. The respondent promptly provided this information to those employees who requested it.
Deterrence
92 It is often said deterrence, specific and general, is the principle (if not sole) objective in determining civil penalties. Pattinson at [16].
That is, imposing a penalty that promotes the public interest in compliance with, in this case, industrial laws.
93 The respondent says, consistent with comments made by the High Court in Australian Building and Construction Commissioner v Pattinson [2022] HCA 13; (2022) 274 CLR 450 (Pattinson) at [46], the conduct the subject of the contraventions does not bear a reasonable relationship to the imposition of a penalty where the conduct arose out of inadvertence and the contraventions were not deliberate.
94 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’.
95 In Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union [No 2] [2018] FCA 1211; (2018) 70 AILR 102-975 (and 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
96 There is limited role for specific deterrence in this case.
97 The respondent identified the issue with the omission of marine leave on the pay slips in the evening of 1 October 2025 and immediately set about trying to rectify the issue. When it could not do so, the next morning the respondent informed employees of what had happened, reassured employees that their entitlements were not affected (which they were not), and encouraged employees to contact the relevant staff members for their marine leave balance (which they did and which the respondent promptly provided).
98 ADP took some time to rectify the issue, which did not happen before the next pay cycle of 15 October 2025, although not without significant effort by Ms Witzig to have the issue fixed.
99 Against that background, there is no reason to find the respondent is failing to take its industrial obligations seriously.
100 What then is left for the role of general deterrence in this claim?
101 Comments made by Feutrill J, at [94], in Construction, Forestry and Maritime Employees Union v Qube Ports Pty Ltd [2025] FCA 208 may be relevant, albeit they were directed to specific deterrence:
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.
102 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; (2018) 267 FCR 268 (at [176]):
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)
103 No penalty was awarded in Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Telstra Corporation Ltd [2007] FCA 1607; (2007) 168 IR 368 and Australian Rail, Tram and Bus Industry Union v Qube Logistics (Rail) Pty Ltd [2020] FCA 1520; (2020) 300 IR 198. Caution needs to be exercised when considering these cases, as both were decided prior to the High Court decision in Pattinson. However, no penalty was imposed where it was determined that the issue arose from disputable breaches of an industrial instrument rather than from any deliberate or wilful contravention.
104 The contraventions arose from circumstances somewhat out of the ordinary. The respondent’s employee, Ms Witzig, faced with a decision to make, made the best decision with the information she had and at the time she had it. She chose to send out the pay slips on 1 October 2025 with the marine leave balance omitted and then sought to ensure through a manager that employees were advised of what had happened and what the respondent could do to assist. The issue with the omitted pay slips was not resolved by ADP by 15 October 2025, but not through lack of trying by Ms Witzig. The respondent again continued to advise employees.
105 No entitlements were affected. The issue was finally resolved on 24 October 2025. The genesis of the contraventions came from the need to change the Logo with ADP. There was no evidence the respondent should have been on notice that in doing so, the marine leave balance might be affected on the pay slip.
106 It could not be said the contraventions occurred through carelessness, oversight or inadvertence on the part of the respondent. There was no systemic failure in the respondent’s policies and procedures, or at least none that were identified.
107 The Court retains a discretion to order the payment of a pecuniary penalty it considers appropriate in the circumstances of the particular case.
No Penalty to be Imposed
108 With respect to the contraventions in the Claim, I do not consider the payment of any pecuniary penalty is appropriate in the circumstances of this case.
109 Having regard to all of the factors discussed above, I am not satisfied that the imposition of a penalty is what is necessary to deter the respondent from future non-compliance with industrial laws. Further, in the circumstances of this case, I am not satisfied that the principle of general deterrence warrants the imposition of a pecuniary penalty. If anything, the circumstances of this case, highlights what employers should be encouraged to do in the event something goes wrong – communicate with their employees.
Conclusion
110 Pursuant to s 546(1) of the FWA, notwithstanding the Court is satisfied that the respondent has contravened a civil penalty provision, the appropriate civil penalty to be imposed is no penalty.





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 Fair Work Ombudsman v Grouped Property Services Pty Ltd (No 2) [2017] FCA 557 (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].
[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 [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)