7 In Pine v Seelite Windows & Doors Pty Ltd [2005] FCA 500, Finkelstein J considered the appropriate penalty to be imposed in the context of a contravention of s 187AA in very similar circumstances to those which currently apply. At [10] in Seelite Windows, his Honour said:
"Should I impose a penalty on the respondents? No harm has been done to anyone. The contravention was inadvertent. It is unlikely to occur again. The amount of wages involved is insignificant. In these circumstances it would be quite wrong to punish the respondents. Nothing would be achieved by the imposition of a pecuniary penalty. There is no need for a specific deterrent: it is simply not necessary. And if any penalty were imposed it would be so low that it could not act as a general deterrent."
8 Finkelstein J said at [11] that he would only declare a contravention of the Act.
9 In my opinion the same result should follow in respect of Pratt. No penalty should also apply to the breaches of the certified agreement. They were inadvertent and inextricably bound up in the admitted breach of s 187AA. In accepting that Pratt breached the certified agreement I am not to be taken as expressing any view about the conduct of the third respondent, the Union.
10 Before deciding to publish these reasons for judgment at this stage, my staff invited the solicitors for the Union to provide written submissions as to why the Court should not make orders now with respect to Pratt. The Union submitted on 9 September 2005 that it opposed the Court giving judgment concerning Pratt before dealing with the remainder of the matter.
11 In its written submissions the Union contended that judgment in the Pratt matter may result in inconsistent findings occurring in the same proceedings. It referred to a judgment of Mansfield J in Australian Competition and Consumer Commission v Woolworths (South Australia) (2003) 198 ALR 417, where his Honour refused to make orders against a respondent until the case against all other respondents had been considered.
12 The concerns of the Union are misplaced. The Court is proceeding on the basis of an agreed statement of facts which only binds the parties to it. As said at [1] above, I have no view whether or not that agreement is soundly based. I have no concern about the possibility of finding facts which are inconsistent with the agreed facts document if that is what the interests of justice require. The interests of justice also require a speedy resolution of the issues between Mr Furlong and Pratt, where the relevant facts binding only those parties have been agreed on between them. Support for such an approach, in materially identical circumstances, is found in the judgment of Merkel J in Pine v Multiplex Constructions (Vic) Pty Ltd [2005] FCA 1428.
13 It was for the above reasons that I decided to give judgment on this aspect of the matter at this time.
I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Marshall.