Hayes, Peter Robert v Locatelli, Lucy Evelyn [1983] FCA 354

No T2 of 1983 No 13 of 1983 No T4 of 1983 No T5 of 1983

PETER ROBERT HAYES Prosecutor BETWEEN : and LUCY EVELYN LOCATELLI Defendant

In these matters, heard together by consent, the defendant has pleaded guilty to each charge. The charges,in each case, allege a breach

of Section 126P(3) of the Conciliation and Arbitration Act 1904 ("the Act")

"2 person who hinders or obstructs an authorized person in the exercise of his duties, refuses or fails, without reasonable excuse, to comply with a requirement made by an authorized person in accordance with paragraph (c) of sub-section (1) or makes to an authorized person, in the course of his duties, a statement, whether orally or in writing, that 1s false or misleading in any particular, shall be guilty of an offence.

The facts relied upon by the prosecutor are as follows: On 11 November, 1982 Mr Peter Hayes, then an authorised officer pursuant

to $126Q of the Act conducted an inspection at the Penny Royal Watermill Hotel

which 1s operated by John Batman International Pty Ltd, relating to the observance of the Motels Award 1976. During the course of that inspection, he discovered that Mrs Janine Nucc1itell1, a casual receptionist employed

at the motel and an employee whose classification 1s contained in that Award, was being paid less than her Award entitlement. She was being paid at a rate for first year office employees and she was entitled to be paid at a rate for a third year office employee as she had approximately 7 years

On 18 November, 1982, Mr Hayes forwarded a letter to John Batman International Pty Ltd requesting that the company rectify certain breaches of the Award that were set out 1n the Summary of Award Non-Observance attached to that letter. Included in that Summary was the matter relating to the apparent underpayment to Mrs Nuccitell1. Also attached to that letter was an Acknowledgement of Payment form to be completed by the employer in

accordance with the information circular on the payment of monies which was

On 24 November, 1982, a letter was received in the Hobart Office of the Bureau from the defendant, a director of the company. The defendant had attached to this letter an Acknowledgement of Payment form which purporced to show that 3 employees had acknowledged receipt of certain sums which had apparently been calculated by the employer following the receipt of Mr Hayes' letter of 18 November, 1982. Entries on this Acknowledgement of Payment form indicated that Janine Nuccitelli had acknowledged payment of $252.00 by signing the form accordingly. The portion of the form relating to the certification by the employer that the amounts had been paid in accordance

with the 1nformation in the body of the form had not peen completed.

On 19 May 1983, Mr Hayes conducted a further investigation of the

company's observance of the Motels Award at the Penny Royal Watermill Motel.

Upon examination of the Acknowledgement of Payment form, it was noted that the lower portion of that form relating to the certification by the employer had not been completed. Having regard to the allegations made by Mrs Nuccitelli in the conversation she had with Mr Hayes on 19 May 1983, it was decided to write to the company seeking certification that the company had paid the monies to the three employees mentioned on that form. Accordingly a letter seeking that certification was forwarded to the company by Mr Hayes on 23 May 1983. No response was received to that letter by the Industrial

On 1 June, 1983, Mr Hayes and Mr Hooker visited the motel and spoke to the defendant. During the discussion with the defendant a file copy of Mr Hayes' letter of 23 May 1983 was shown to her. Mr Hayes asked the defendant if she had seen the original of that letter. She said she had not. The defendant was then shown the Acknowledgement of Payment form by Mr Hayes. It was pointed out to the defendant by Mr Hayes that the employer had not completed the lower portion of the form. Mr Hayes then asked the defendant whether the employees mentioned on that form had received the amounts shown. Mr Hayes then asked the defendant if she could show some record of the payment of $252.00 made to Mrs Nuccitellz. The defendant agreed and signed the Acknowle- dgement of Payment form. The defendant proceeded to look through some books which were located on a shelf behind her desk. After a short while the defendant said she could not locate the entry concerned. She then said that she thought Mrs Nuccitelli had been sick around that time and that the money had probably been paid then. Mr Hooker then asked the defendant if Mrs Nuccitelii was at work. The defendant said that she was and that she could be located

Following a discussion between Mr Hooker and Mrs Nuccztelliz, Mr Hooker and Mr Hayes returned to speak to tne defendant 1n her office. Mr Hayes asked

the defendant to produce the time and wage records for the period 1n which the

payment 1n question was made. Mr Hayes also asked for the time and wage records for the 4 week period prior to and the 2 week period after the alleged payment of the $252.00. The defendant said that those records were 2n the store and that she was not able to get them straight away.

Mr Hayes then advised the defendant that he would return at about 2.30 p.m.

On the afternoon of 1 June 1983, Mr Hayes returned to the motel and again spoke to the defendant. The defendant advised ifr Hayes that she could only locate 4 of the time sheets requested and 1 of those sheets, for the week ended 8.12.1982, showed that Mrs Nuccitell1 had been sick and that she thought the arrears of wages had been paid to her that week as sick leave (to which she was not entitled. as a casual). The ¢ time sheets given to Mr Hayes were for the weeks ended 24.11.1982, 1.12.1982, 8.12.1982 and 15.12.1982. The defendant also put to Mr Hayes that Mrs Nuccitelli had not wanted the money at the tame (i.e. at the time she had signed for it) because of taxation and that 1t had been paid to her in the week that she was sick (1.e. week ended

According to the prosecution, on 2 June 1983, Mr Hayes 1nterviewed Mrs Nuccztelli at the Department of Labour and Industry Office 1n Launceston .~ During that interview, Mrs Nuccitelli was shown the 4 time sheets that had been given to Mr Hayes by the defendant on the previous day. Mrs Nuccitelli identified each of the 4 time sheets as having been completed by her. She also told Mr Hayes during that interview that the time sheet signed by her and dated 9 December, 1982 was completed by her on 1 June, 1983 at the defendant's direction. She alleged that the defendant had @irected her to complete 2 new time sheet for the week ended 8 December 1982 showing that she was sick for the full week. She alleged she saw tne defendant destroy the original time sheet for the week ended 8 December 1982. Mrs Nuccitelli told Nr Hayes that

On 7 June 1983 in the presence of Mr Hayes, Mr Hooker conducted an interview with Mrs Nuccitelli at her home. In the course of that interview Mrs Nuccitelli stated that-

(a) she had signed the Acknowledgement of Payment form

(bd) she had received the sum of $252.00 but this was not paid to her unt1l 6 June 1983;

{c) she had completed a false time sheet on 1 June 1983 for the week ended 8 December 1982 at the direction of the defendant;

(da) she had worked during- the week ended 8 December 1982 and had completed a time sheet for that week and that that time sheet was destroyed by the defendant on

At the conclusion of that interview, Mrs Nuccitelli also produced to Mr Hooker a cheque for $252.00 which sne had received from the defendant

On 8 June 1983, 1n the presence of Mr Hayes, Mr Hooker conducted an interview with the defendant at the Penny Royal Watermill Motel. The defendant was reluctant to have an interview. However, a number of questions were put to her which she answered. However, during the course of that interview the defendant refused to answer further questions and the interview had to be abandoned. During the course of the interview the defendant did admit to having Janine Nuccitelli sign the Acknowledgement of Payment form and having forwarded 1t to Mr Hayes. The defendant also stated that the time sheet for Mrs Nuccitelli for the week ended 8 December 1982 (showing her sick} was

completed by Mrs Nuccitelli "when she came back" and that she "probably

I turn now to the charges made in each case. In the matter number T2 of 1983, the false statement alleged is the statement made on 8 June 1983 that the sum of $257.00 paid to Mrs Nuccitelli in December 1982 was a payment for wages due to her for wages underpaid by reason of non- observance of an award. In matter number T3 of 1983, the false statement alleged is that on 1 June 1983, the defendant falsely replied "yes" toa question whether the employees had been paid the amounts shown in the form entztled "Acknowledgement of Payment". In matter number T4 of 1983, it is alleged that the false statement consisted of the statement made on 8 June 1983 that a copy of the times sheet shown to Hr Hooker was a true copy of the time sheet for Mrs Nuccitelli for the week ending 8 December 1982. Finally, in the matter number T5 of 1983, the charge is that the defendant made a false statement to Mr Hayes on'24 November 1982 1n the document entitled "Acknowledgement of Payment" 1n that She falsely certified that Mrs Nuccitelli

The defendant through her counsel, put the following circumstances to the Court by way of mitigation. The defendant, as a director of John Batman International Pty Ltd, engaged Mrs Nuccitelli as a receptionist in April 1982. At that time, Mrs Nuccitellz had had no prior experience as a receptionist. Mrs Nuccitelli remained in the employment of the company until 23 June 1983. Her retirement was caused by a pregnancy. Mr Anderson, counsel for the defendant, said that when Mr Hayes came to the motel, the matter probably should have been referred to the Managing Director but was unfortun- ately dealt with by the defendant. After the visit, the defendant spoke to Hrs Nuccitellz and explained that 1t would be necessary to report the matter to management. Mrs Nuccitellz expressed concern that this may lead management to form the view that she should be replaced by a younger person whose wages would be less than hers. In this way, Mr Anderson submitted, the defendant was placed in a position where she felt she should endeavour to look after

It was submstted that Louth the defendant and Mrs Nuccitell1 were involved

in the matter and that 1t would be wrong to attribute blame to the defendant exciusively. In particular, the defendant says that the new time sheet was written by lrs Nuccitellz although it was presented by the defendant. In summary, 1t was put that the defendant tried to deal with a matter beyond

her capability and in an attempt to protect Mrs Nuccitelli. Mr Anderson pointed out that on 6 June 1983 a cheque was drawn 2n favour of Mrs Nuccitelli an the sum of $252.00, that is, payment was made before the interview on

The defendant is aged 64 years. She is married with 3 adult children.

She has been employed by John Batman International Pty Ltd since 1971. She ' -

commenced her employment there as a stenographer and secretary to the

Managing Director. Although she 1s a director of the company she holds no Shares 1n 1ts capital. Her salary 1s in a f1zxed amount and she has no entitlement to the profits of the business. She came to Australia in 1969 from the United Kingdom upon her husband's retirement from the Royal Air Force.

She has no prior convictions and character evidence has been given that she

In assessing the appropriate penalty 12n this case, I take into account the situation 1n which the defendant found herself once she determined tnat she should endeavour to protect the interests of Mrs Nuccateliiz. I also take into account her good character and absence of any prior convictions. On the other hand, in enacting sub-s 126P(3), Parliament has attached considerable importance to theneed to deter members of the community from misleading officers of the Department charged with the administration of the Act.

I also take into account the circumstance that it may be said that although four distinct charges are levelled against the defendant, they derive from

a single incident. At the same time, I must have regard to the fact that,

although on notice that the Department was investigating the matter, the defendant elected to mislead its officers on a number of occasions in

On the whole, I am of the opinion that an appropriate penalty in

the case of each of the charges is the sum of $100.00.

I propose to make the following findings and orders:

(I) Upon her own admission in each matter, I find the defendant guilty of an offence against sub-section 126P(3) of the Concijiation and Arbitration Act 1904.

{2} In each case I order that the defendant pay a monetary Penalty of $100 to consolidated revenue at or before

I certify that this and the seven preceding Pages are a true copy of the Reasons for Judgment