2017 WAIRC 00736

WESTERN AUSTRALIAN INDUSTRIAL MAGISTRATES COURT

CITATION : 2017 WAIRC 00736

CORAM / : INDUSTRIAL MAGISTRATE G. CICCHINI
HEARD / : / Thursday, 22 June 2017

DELIVERED : Thursday, 22 June 2017

FILE NO. : M 107 OF 2016

BETWEEN / : / The Civil Service Association of Western Australia Incorporated

CLAIMANT

AND

The Commissioner of Police in his capacity of the employing authority of the Police Department

Respondent

Catchwords : Imposition of penalties for breach of sections 49M(1) and 49M(2) of the Industrial Relations Act 1979 and clause 59 of the Public Service Award 1992; whether injunctive relief should ordered; whether costs should be ordered.

Legislation : IndustrialRelationsAct 1979 (WA)
Sentencing Act 1995(WA)
PublicServiceAward 1992

Case(s) referred to
in reasons : Australian Ophthalmic Supplies Proprietary Limited v
McAlarySmith [2008] FCAFC 8

Result : Penalties Imposed

Representation:

2017 WAIRC 00736

Claimant : Mr D Wayda and with him Mr M Finnegan (of Counsel)

Respondent : Mr A Mason (of Counsel)

REASONS FOR DECISION

This is an edited version of the reasons given extemporaneously at the conclusion of the hearing reproduced from the transcript of proceedings as edited by his Honour

1  On26April 2016, the claimant notified the respondent that its organisers intended to enter the Police Operations Centre andthe Police Assistance Centre at Midland in order to hold discussions with employees.

2  In accordance with the notification given, theclaimant’s organisers attended thesaidpremises on 28April 2016. To facilitate their entry onto the premises they showed theActingInspector of Police, then in charge of the premises, a copy of thenotice previously sent.

3  Notwithstanding that, they were not give immediate entry into the premises. After some delay they were conditionally permitted to enter the premises. They were not permitted to walk through the premises and speak to the employees but rather were accompanied to a lunchroom, where they were asked to stay at which place anyone whomight be interested in speaking to them could attend.

4  In May 2016, the respondent was again formally notified oftheclaimant’sintention to further enter the premises.

5  On 18May 2016, theclaimant’s organisers again attended the premises but were informed that access to the callcentre area, and a walk through of that area for the purpose of speaking to employees would not be permitted. They were then taken to a lunchroom and asked to remain at that place where they could speak to employees interested in speaking to them.

6  On each occasion the officer in charge of the place took the view that therewas a security risk associated with the organisers walking through the premises. However there had been previous instances where organisers had been permitted entry onto the same premises and had been permitted to walk through the premises to speak to employees.

7  It is apparent that the different approaches were taken because it was left toindividual officers to evaluate the request to enter the premises.

8  The respondent concedes that the officers dealing with the situation in April and May 2016 wrongly:

  1. Denied theclaimant’s officers timely entry onto the premises, and,
  2. Obstructed and hindered them from effecting the task which they were permitted todo pursuant to s49H of the Industrial Relations Act 1979 (the IR Act).

9  The officers’ acts were wilful and intentional.

10  Their acts arose from their misguided understanding of the law. It seems that the claimant’s rights became subservient to their concern that the security of the premises not be put at risk.

11  There were policies in existence at the time that would have prevented any security breaches but, regrettably, the officers did not avail themselves of the available processes aimed at addressing security concerns.

12  There were subsequent events of a similar nature in late August2016 and in March 2017. Those events do not form part of this claim and cannot be considered with respect to penalty. They may however be relevant as to whether the injunctive relief sought by the claimant ought to be granted.

13  This proceeding was initiated on 5August 2016 and proceeded though various interlocutory processes in this court until the respondent admitted the breaches in June 2017.

14  The respondent concedes:

  1. breaching s49M(1) of the IR Act by delaying organisers entry onto the premises on each of the material occasion, and
  2. breaching s49M (2) of the IR Act by having hindered or obstructed the claimant’s officers in their function, and
  3. breaching cl59 of the PublicServiceAward 1992 (the Award), by failing to comply with the rights given to the organisers seeking entry onto the premises.

15  There are six admitted breaches (three on each occurrence).

16  The court is called upon to impose a penalty in respect of thebreaches under s49M of the IR Act and consider whether a caution or a penalty ought to be imposed inrespect of the breach of the Award enforced under s83 of the IR Act.

17  In the past, I have indicated that it may be appropriate in the determination of theappropriatepenalty to have consideration to factors such as those contained in the Sentencing Act 1995 (WA) (Sentencing Act). However, I recognise that the Sentencing Act has noparticular application because it only applies to criminal proceedings. In appropriate circumstances, it may be used as a helpful guide.

18  I use it as a guide in this instance.

19  Section 6 of the Sentencing Act states that the starting point with respect to anysentence imposed is that the sentence must be commensurate with the seriousness of theoffending behaviour. Such consideration has equal application in the imposition of civilpenalties in this instance.

20  The seriousness of the breach must be determined by considering thestatutory penalty and any issues relating to the vulnerability of any victim. The vulnerability of the victim has littlerelevance here. The court must consider any aggravating factors and mitigating factors that exist.

21  Aggravating factors are factors that thecourt takes the view increases the culpability of the offender, and mitigatingfactors are matters that the court takes the view will decrease the culpability of theoffender.

22  In this matter, reference has been made to respondent’s “plea of guilty” and the possible application of s9AA of theSentencingAct. That provision cannot have a direct application in this matter because it relates to criminal proceedings. Further there is a decision of the Supreme Court of Western Australia which says that the provision is not applicable to fines. It is only in relation to sentences ofimprisonment. The principle nevertheless remains being that apenalty can be discounted for an acknowledgement, an admission or plea of guilty at anearlyopportunity. The earlier the plea, the more the discount.

23  The position in relation to determining the appropriate penalty to be imposed in civilproceedings has been the subject of comment in other jurisdictions. It has been held that in considering the appropriate penalty, the court needs to have regard to:

  1. the nature and extent of the conduct which led to the contraventions,
  2. thecircumstances in which the conduct took place,
  3. the nature and extent of any loss or damage that may have been sustained or caused by the contraventions,
  4. whetherthere has been any similar previous conduct by the respondent,
  5. whether thecontraventions were properly distinct or arose out of one course of action or conduct.
  6. the size of the enterprise involved,
  7. whether thecontraventions were deliberate,
  8. whether senior management was involved in the contraventions,
  9. whether a party committing the contraventions has exhibited anycontrition,
  10. whether a party committing the contraventions has taken anycorrectiveaction,
  11. whether the party committing the contraventions has cooperated with the enforcement authorities,
  12. the need to ensure that thecompliance with minimum standards are an effective means for the investigation and enforcement of employees’ entitlements where such circumstances arise, and
  13. the need for a deterrent penalty.

24  As His Honour BuchananJ said in Australian Ophthalmic Supplies Proprietary Limited v McAlarySmith [2008] FCAFC 8,thecourt’s task is to ensure that when it fixes a penalty, that appropriate regard is given to the circumstances of the contravention because it is important to have regard to the need to maintain public confidence in the statutory regime that imposes theobligations.

25  The court will need to consider the conduct which constitutes thebreach, theconduct of the respondent in committing the breach and the nature of the breach itself. Some breaches maybe more significant than others. Consequently, it is difficult to determine a tariff in relation tomatters of this type. Often, the court will be asked to compare outcomes in cases. That is difficult, if not impossible, to do because the breaches will be of adifferent nature, they will occur in different circumstances and it is not easy or appropriate that one can point to a tariff as being the appropriate penalty in each situation. Each must be determined on its own merits according to its own circumstances.

26  In determining the outcomes in these matters I note that the denied and delayed entry onto the premises together with the obstruction, were serious events. That is so particularly in light of the fact that previous entry onto the premises had not been an issue. The respondent should have known that the claimant would have been restricted in its ability to conduct itsaffairs by reason of the failure to allow it to have ready access to workers at the premises.

27  Notwithstanding that there is no demonstrated particular detriment to the claimant, I accept there was an impact, but there was no demonstrated indication of theparticularaffect, other than the inability to speak with members.

28  The change in attitude by the respondent, that is the stopping of access to the premises, would have been a matter of concern for the claimant in its ability to carry out its functions forworkers. In my view, that is an aggravating factor.

29  I am dealing with two breaches. The alleged subsequent breaches are unproven and cannot form part of mycivil penaltyconsiderations. The breaches have occurred over a lengthy period of time from April through to May.

30  In mitigation, the respondent does acknowledge itswrongdoing. The fact that there has been an admission relieves the court and the community of the need for a trial albeit the admission was not made at thefirstavailableopportunity. It denotes contrition which the court takes into account.

31  In this instance there is also evidence of rectification which is an important factor to be taken into account. The breaches have not been allowed to continue. The respondent has changed its ways so that similar events will not reoccur.

32  The court, in determining the appropriate penalty, must determine the appropriate penalty having regard to the particular circumstances. HisHonour GilmourJ delivered a paper on civil penalty contraventions to the Employment Law Symposium of the Law Society of Western Australia on 30November 2011 in which he said that the court needs to rely on an instinctive synthesis to determine theappropriate penalty.

33  The claimant in this matter submits that the appropriate penalty is fifty percent of themaximum penalty. I am not sure how that is arrivedat, but from what I understand from the submissions, the claimant’s position is that these are significant breaches needing an effective deterrent penalty to ensure that the respondent and others strictly comply with the Act and the Award. Onecan understand that submission, and that is an appropriate submission, but itdoes not necessarily mean that the court must impose fifty percent of themaximumpenalty to arrive at that particular conclusion.

34  The position is that, usually, in respect of matters that come before the court, where a person is a first offender, the starting point is that a penalty will be fixed ranging anywhere between five and about twenty percent of the maximum penalty. More often than not it is fixed at about ten per cent. However, as indicated earlier, eachcase will turn on its own particular circumstances and the court must have regard to the seriousness of the breach in determining what the appropriate starting point is in relation to penalty.

35  In respect of these matters, the claimant suggests that therespondent’s record is not unblemished. However, it has not been suggested that therespondent has committed previous breaches of this type. In my view, it is the nature of the breaches that the court must have regard to, not whether or not the respondent has come before the court previously for some other reason. It is the nature of the breaches that gives rise to the consideration of the importance of both a specific and general deterrent penalty that might be imposed in relation to the particular matter.

36  Having regard to the nature of these matters, which I agree are serious, buttaking into account the mitigating factors I have, applying instinctive synthesis, concluded that a penalty fixed at fifty percent of the maximum penalty is too high. I think the more appropriate penalty to be imposed in these circumstances, where there have been no previous breaches of thistype, is the penalty fixed at twenty five percent of the maximum penalty. I willaccordingly impose penalties which accord with that approach. In my view, thesetting of such penalty reflects the seriousness of the offending but takes intoaccount mitigating factors.

37  With respect to the respondent’s admitted breach of s49M(1) of the IR Act on 28April 2016the respondent is ordered to pay a civil penalty of $1,250.00. Such penalty shall be paid to the claimant as the enforcer of the provision. The respondent is also ordered to pay a penalty to the claimant in the sum of $1,250.00 for its admitted breach of s49M(2) ofthe IR Act which occurred on the same day. The respondent shall also pay a penalty to the claimant inthesum of $500 for its breach of cl59 oftheAward on that day.

38  As to the events that occurred on 18 May 2016 therespondent is ordered to pay to the claimant a penalty of $1,250.00 for its breach of s49M(1) of the IR Act, a penalty of $1,250.00 for its breach of s49M(2) oftheIR Act and a penalty of $500 for its breach of cl59 of theAward.

39  The next issue to be determined is whether the injunctive relief sought by the claimant should be granted.

40  I observe that subsequent to the institution of theseproceedings, the respondent has rectified his ways. Entry onto the premises has been permitted and there has not been any hindrance in that regard. Such is very significant.