Blandy v Coverdale NT Pty Ltd ACN 102 611 423

INTRODUCTION 1 Coverdale NT Pty Ltd ('Coverdale') owns and operates an Eagle Boys pizza store and four Subway stores at various locations in Darwin in the Northern Territory. Between mid 2005 and mid 2007, it failed to pay six of its employees their various entitlements under the applicable industrial Award. 2 Sometime after these proceedings were issued on 9 August 2007, after initially refusing to accept responsibility, Coverdale reversed that position and paid the employees the underpaid amounts plus interest. Accordingly, the sole issue remaining for determination in this application is the appropriate penalty to be applied for Coverdale's breaches of the applicable industrial Award. 3 Five of the employees involved in these proceedings were young, ranging in age from 14 to 18 years. Coverdale's excuse for not paying them their proper Award entitlements was that they were all covered by Australian Workplace Agreements (AWA). Five of the six employees either denied ever signing an AWA, or could not recall having done so. When challenged to produce the duly signed AWAs, Coverdale was only able to produce one and even that one was not properly witnessed. This, and other of Coverdale's conduct detailed in these reasons, explains why I have decided to apply a significant penalty to Coverdale for its breaches.

FACTUAL BACKGROUND 4 Ms Sharon Maree Blandy, the applicant in these proceedings, is the State Director of the Northern Territory Office of the Workplace Ombudsman, previously known as the Office of Workplace Services. Ms Blandy was also an inspector appointed by the Minister pursuant to s 84(2) of the Workplace Relations Act 1996 ('the pervious WR Act'); and is a workplace inspector appointed by the Workplace Ombudsman pursuant to s 167(2) of the Workplace Relations Act 1996 as amended by the Workplace Relations Amendment (Work Choices) Act 2005 ('the Work Choices Act'). As a workplace inspector, Ms Blandy is able to bring these proceedings (see [14] below). 5 Mr Rodney Coverdale and Mrs Rita Coverdale are both directors of Coverdale and during the period to which these proceedings relate they both worked fulltime in Coverdale's Casuarina Subway store. Mr Coverdale attended to most of the paperwork for Coverdale's various stores and was responsible for making up and paying the wages of all its employees. 6 In February 2006, Ms Blandy's office began an investigation into various complaints that it had received that Coverdale had underpaid the wages of certain of its employees. The employees involved in those complaints were Ms Bourke, Ms Rety and Ms Davis. About three months after that investigation began, Mr Coverdale was asked to pay the underpayments. He initially stated he was uncertain whether he would and then, about a week later (in early June 2006), he stated that he had no intention of paying them. As a part of the investigation, Mr Coverdale was interviewed by Ms Lyn Grevsmuhl, a workplace inspector, on 9 November 2006. That interview was recorded and a transcript was subsequently prepared. 7 In about September 2007, Ms Blandy's office received a further series of complaints that Coverdale had underpaid the wages of another group of employees. Those complaints involved Ms McGough, Mr Maker and Mr Carcoba. They were each interviewed by Mr Paul O'Brien, a workplace inspector, and Mr O'Brien then conducted an interview with Mr Coverdale on 30 October 2007. That interview was also recorded and a transcript was subsequently prepared. 8 These proceedings were issued on 9 August 2007. In late January 2008, Coverdale's solicitors indicated to Ms Blandy's solicitors that it wished to admit the breaches and pay the employees the underpayments plus interest. Accordingly, on or about 8 April 2008, Coverdale's solicitors provided cheques payable to each of the six employees for the amounts of the underpayments due to them plus interest. At the same time, Coverdale submitted letters of apology addressed to each employee. The parties then prepared and filed an agreed statement of facts. At the hearing before me on 10 June 2008, the parties tendered that agreed statement of facts. 9 The six employees involved were all employed on a part time basis. Three of them worked at the Eagle Boys pizza store and the other three worked at one or other of the four Subway stores. The details of their names, ages, periods of employment and the amounts by which they were underpaid, are as follows: Employee: Age: Period of employment (total number of weeks employed): Amount paid by the respondent: Total amount of underpayment Rebecca Davis 14 20/8/05 - 31/12/05: (19) $2,672.66 $516.58 Elisca Rety 14 - 15 16/8/05 - 31/12/05: (19.5) $2,002.11 $842.22 Renee Bourke 18 1/8/05 - 25/1/06: (25.3) $12,592.17 $1,568.88 Nicole McGough 43 - 44 8/11/2006 - 30/5/07: (26) $9,700.07 $5,071.98 Francis Maker 15 23/2/2006 - 10/8/2006: (24) $3,253.21 $2,390.43 Victor Carcoba 16 - 17 29/5/07 - 9/7/2007: (6) $832.37 $812.42 Total: $11,202.51