Paid: $1060.40 Earned: $1,713.72 Difference: $653.32
88 Again, I observe in passing that this calculation was less than adequate, as the respondent accepted, at least in relation to the alleged breach of the Saturday penalty. On Ms Wu's evidence in cross examination before us, it was apparent that she certainly misunderstood it. Even Ms Wu's cross examination, did not clarify all aspects of this calculation.
89 The Inspector's report also noted that a Notice to Employer had been issued to the appellant, who had advised that she believed her workers were covered by the Social and Community Services (State) Award. Again I observe that statement does not appear to be consistent with the communications which are now in evidence. The Inspector referred to Ms Wu's letter of 25 August, which was to different effect, as I have noted above.
Consideration
90 The November judgment dealt with the appellant's complaint that the appellant had been denied procedural fairness by the Chief Industrial Magistrate. That complaint was made out and the penalty imposed was quashed. By majority, it was concluded that this Bench should hear the parties on penalty. Directions were given as to the filing of evidence and submissions on sentencing. It was that process which revealed to the parties that the appellant had not, in fact, committed one of the breaches which the Chief Industrial Magistrate had found proven, with the result that consent orders were made, extending time to appeal that aspect of his Honour's decision and upholding the appeal in relation to the Saturday penalty.
91 The evidence led also shed light on a further, serious difficulty with the conduct of the trial below, which led the appellant to submit that the circumstances were such, that this Appeal Bench would conclude that an exceptional case had been demonstrated, which would properly lead to the conclusion that no penalties should be imposed, for the two remaining breaches in question in these proceedings.
92 For reasons which I will explain, I am satisfied that the appellant's submission must be accepted.
93 Determination of penalty, for any award breach, must be approached in the first instance, by reference to the nature and quality of the breach in question. Given the way in which the respondent conducted the proceedings below, there was simply no evidence on which any proper assessment could have been made by the Chief Industrial Magistrate, of the nature and quality of these offences. Indeed, it came to be common ground, by the time of the sentencing hearing, that one of the offences was certainly not proven. On the evidence now before us, it would appear that the remaining offences may also not have been proven, but for the appellant's acceptance that it had applied the incorrect award.
94 These observations are important, given what was here in issue between the parties, at this stage of the proceedings. As was observed by the Full Bench in Yarramul, there is a significant public interest in employers observing their award obligations, which explains the views there expressed, that it will only be in exceptional cases, that a failure to meet such obligations, will not result in the imposition of any penalty.
95 There is, however, also a significant public interest in how the respondent, on behalf of the State, pursues and prosecutes award breaches and how judicial officers conduct hearings as to such alleged breaches. What here arises for consideration is an approach to the proof of the award breaches pursued by the respondent, which fell considerably short of its obligations as prosecutor. That problem was exacerbated by the conduct of the trial by the Chief Industrial Magistrate, where the appellant was an unrepresented litigant, who was not only denied procedural fairness, in the manner described in the November judgment, but who was found to have committed the breaches in question, without any foundation for the charges being established, on the respondent's evidentiary case. This was made clear by the respondent's tender, before us, of the annexures to the Inspector's report.
96 The consequence of that situation for the appellant, is not just the costs which have been incurred in these appeal proceedings, as a natural incidence of our adversarial legal system, as the respondent submitted. Instead, there has been a significant failure to adhere to fundamental aspects of the justice system, by both the prosecutor and the trial judge.
97 These are serious observations, which are necessary to be made, in the extraordinary circumstances of this case.
98 In the proceedings below, evidence was called by the respondent from the Inspector. His report was in evidence. There were certain difficulties appearing on the face of the report, as I earlier noted. Despite this, the annexures to the report were not tendered below. Nor was the complaint which had been made by Ms Ventura put in evidence. Nor were the statements and information she had provided to the Inspector tendered, even though the Inspector referred to her 'witness statements' in his report. Nor was Ms Ventura called to give evidence.
99 The result was that there was no evidence of the work actually performed by Ms Ventura, on the days in question, when it was claimed that the wrong award was applied. Further, precisely on what days it was, that the alleged breaches occurred, was not specified, either in the charges, or in the Inspector's report. Each charge simply specified that the three award breaches alleged to have occurred in each case, occurred on '11 October 2004 to 05 April 2005 and continuing'. The Inspector's report referred to no particular dates.
100 Despite the way in which the charges were framed, the respondent did not tender any of the appellant's records, on which the Inspector had relied, in coming to the conclusions reached in his report. Nor was the award alleged to have been breached, received by his Honour, or the rates alleged to have applied to the period in question, tendered. No reference was made to the area, incidence and duration clause of the award, or the evidence on which it was submitted to be open to his Honour to conclude that the work performed on the days in question, had been covered by that award, in the submissions which the respondent put below.
101 It was Ms Wu who tendered the appellant's time and wages records in her evidentiary case. What, in fact, was before his Honour was unclear, however. Those documents did not appear in the appeal book, not being able to be located in the Local Court file, but they were tendered before us. Despite being tendered, however, at the trial below, no reference was made by the respondent to those records, in its case, to explain how it was submitted that the alleged breaches had been made out on the evidence. Had that occurred, the error in the Inspector's report, which before us, eventually led to the appeal being upheld in relation to the Saturday penalty breach, might have been uncovered.
102 How it was, given the state of the evidence before his Honour, that his Honour could have come to the conclusion that the award applied to the work in question; that the claimed classification applied to Ms Ventura, or that the breaches alleged to have occurred, in each case on '11 October 2004 to 05 April 2005 and continuing', had been established to the requisite level, is entirely unclear. As noted in the November judgment, the Chief Industrial Magistrate abandoned giving reasons for his decision, so what view his Honour took as to these matters, is not known.
103 Given what the Inspector's report comprised, however, that it was not a sufficient basis for the findings of breach, is clear. The report certainly contained no explanation of how it was that it had been concluded that the Home Services Award applied to the work in question, given the competing awards. No evidence was led to establish that the Inspector's conclusions, or calculations were accurate. Further, on its face, the report suggested that the Inspector had reached conclusions inconsistent with the time and wages records maintained by the appellant, which Ms Wu had apparently tendered. The appellant's system required Ms Ventura and the client to sign time sheets, acknowledging that the claimed work had been performed. On 5 April for example, this did not occur. Presumably Ms Ventura claimed to have worked that day performing work to which the Home Services Award applied and the Inspector accepted her claim, given the way in which the charge was framed. No evidence was led, however, which proved that Ms Ventura had actually worked that day. The time sheet certainly was not a basis upon which it could have been concluded that any work was performed that day, if that was what Ms Ventura had claimed. It had not been signed by either Ms Ventura, or the client.
104 Despite all of the obvious difficulties with the conclusions reached at trial, as to the two remaining award breaches, the appellant did not appeal these convictions. That, in my view, is to the considerable credit of the appellant, which has also paid what the Chief Industrial Magistrate ordered, even in relation to the Saturday penalty.
105 From Ms Wu's evidence in cross examination, it was apparent that she did not understand the award breaches which the Inspector alleged the appellant had been involved in, when she appeared for the appellant at the hearing below. The transcript of the proceedings showed that she was attempting to raise with the Inspector, various problems with his report. She undoubtedly had great difficulty in undertaking that exercise, but she was certainly trying to draw the Inspector's attention to various difficulties, which she also sought to raise, albeit inadequately, in her submissions. His Honour took no account of any of these matters.