The Industrial Magistrates Court has held that no civil penalties would be imposed on Qube Ports Pty Ltd (respondent) for breaching an industrial agreement and contravening the Fair Work Act 2009 (Cth) (Fair Work Act). In exercising its discretion, the Court found that to impose a penalty would be doubly punishing Qube and unsuitable to specifically or generally deter further conduct. 

The circumstances of this matter are identical to another claim heard by the Court with the same parties (M 137 of 2024), save for the affected employee. The respondent did not pay an employee for 13 ‘normal public holidays’ or ‘closed port days’, when they were entitled to be paid under the Qube Ports’ Port of Port Hedland Enterprise Agreements 2016 and 2020. These clauses were identical between the 2016 and 2020 agreements. On some days, the respondent did pay the employee but incorrectly deducted a leave date. Thus, the respondent contravened section 50 of the Fair Work Act by breaching the enterprise agreements, and by not paying the employee in full, they also contravened section 323. Each contravention may be subject to the imposition of a civil penalty. 

Section 557(1) of the Fair Work Act operates so that if two or more civil remedy provisions are contravened, they can be taken to constitute a single contravention if: 

(a)    They are committed by the same person; 
(b)    the contraventions arose out of a course of conduct; and
(c)    the court has not previously imposed a penalty for any prior contraventions of the civil penalty provisions in question.

The Court found that the breaches of sections 50 and 323 satisfied these requirements. Thus, on applying section 557(1) of the Fair Work Act to the contraventions of two identical clauses in two enterprise agreements, the respondent was taken to have committed four contraventions of the Fair Work Act. 

Next, the Court considered whether these four contraventions could be grouped together and classed as a single course of conduct under common law principles. This can be done if there are multiple contraventions which have common elements between them, even if the contraventions arise from different obligations. If the contraventions are considered a single course of conduct then the Court may, if it considers appropriate in the circumstances, impose a single pecuniary penalty so as to avoid punishing the respondent twice or more for the same offending conduct. After considering Patrick Stevedores [2021] FCA 1481 and the Hutchison Ports Appeal [2019] FCAFC 69, the Court agreed that the common law course of conduct principles are not excluded by section 557. Accordingly, having already found there were common elements between each of the contraventions the Court was satisfied that, despite arising out of different obligations, they constituted a single course of conduct for which a single penalty, if any, could be issued (see [95] of the reasons). To do the opposite would result in punishing the respondent twice.  

Thus, at the hearing, the principal issue was: what penalty, if any, should the Court impose on the respondent for the breaches of sections 50 and 323 of the Fair Work Act? 

The answer was: no penalty, as deterrence is the primary aim of pecuniary penalties. Parallels were drawn to two other matters between the same parties, the published reasons for each can be found here and here. These imposed pecuniary penalties across similar date ranges, and related to the same contraventions dealt with in this matter. In addition, there was also no evidence that after the dates for which penalties were issued, the respondent continued to apply its mistaken construction of the relevant clauses. Thus, the Court found there was nothing more that could be achieved by levying further penalties for the same conduct. 

Having considered the above circumstances, the Court did not consider any pecuniary penalty was appropriate in the circumstances of the case. The full decision can be read here.