Independent Education Union of Australia v The Anglican Church of Australia Collegiate School of St Peter [2025] SAET 53

On the first anniversary of appointment and biennially thereafter, or at another mutually agreed time, consultation will occur between the School and the Employee to ensure that the duty statement is accurate and conforms with the classification levels set out in Schedule 5.

1. In general terms, this provision required objective steps of consultation with employees, at certain times, to ensure duty statements are accurate and conform with classification levels. The obligation is directed towards a proactive system for checking that duty statements and classifications are accurate, so that employees are paid the correct rates. Of significance for present purposes, there is no subjective element to compliance with the obligation, and no underpayment amounts could result from non-compliance.
2. Under a heading of Remedies, the applicant sought a declaration that the respondent contravened s 50 in respect of each alleged contravention. It also sought a declaration that the respondent's contravention from breaching cl 56.2 in relation to Mr Juckers and the 90 other employees "was a serious contravention" under s 557A. Orders are then sought under s 546 for the respondent to pay pecuniary penalties to the applicant in respect of each alleged contravention.
3. The significance of an allegation of a 'serious contravention' is that, if proven, a much higher maximum penalty is prescribed than for an ordinary contravention. If a serious contravention is applied for, but not proven, a court may impose a penalty based on an ordinary contravention: s557A(7). However, the penalty regimes are not punitive, do not create scales, and are not to be applied proportionately to an underpayment amount or to the type of contravention. Whether or not the higher maximum penalty is at all relevant, in the event a serious contravention is proven, will depend at least on evidence about rectification and future compliance.
4. At the time of the alleged contraventions s 557A provided that a contravention of a civil remedy provision was a 'serious contravention' if a person knowingly contravened a civil remedy provision, and the contravening conduct "was part of a systematic pattern of conduct relating to one or more persons": s 557A(1)(b). Subsection 557A(2) then set out a non-exclusive list of considerations relevant to whether there was a systematic pattern of conduct.
5. Substantial amendments were subsequently made to s 557A.[1] These have omitted the existing additional requirement for a systematic pattern of conduct relating to more than one employee and have added an alternate element of recklessness to the existing element of knowingly committing a contravention.[2]
6. Subsection 557A(6) required that a person who is applying for an order in relation to a serious contravention, "must specify the relevant serious contravention."
7. Orders for payment of compensation to Mr Juckers for resulting unpaid entitlements are then sought. None of the remedies sought by the applicant include any declaration of, or order for, any entitlement or benefit due to any employee other than Mr Juckers. The applicant sought any pecuniary penalties to be paid to it, per s 546(3).
8. The respondent's formal Response admitted Mr Juckers was covered by the Agreements and did not deny the 90 general staff employees were covered by the 2020 Agreement, but denied there had been any contraventions. It contends cl 66.5 of the 2015 Agreement did not apply "retrospectively" to Mr Juckers and that cl 56.2 of the 2020 Agreement did not require it to consult "its employees" about their duty statements. It says the applications should be dismissed.
9. The respondent asserted in later correspondence to the applicant that both applications are limited to allegations concerning Mr Juckers only, as he is the "applicant".
10. The applicant replied to the respondent on 29 October 2024 by pointing out the union was the applicant, not Mr Juckers. The applicant maintained it had standing to bring the penalty proceedings based on the 'serious contravention' allegation in relation to about 91 general staff employees. The applicant's lawyers then requested disclosure of all documents relevant to this disputed allegation, as none had been provided.
11. The respondent replied on 5 November 2024 by acknowledging the union was the applicant, not Mr Juckers, and that the union had standing to bring claims "on behalf of" employees covered by the Agreement. But the respondent maintained its objection to providing disclosure in respect of the approximately 90 general staff employees on two grounds. First, the allegation was said to not be sufficiently specific. Second, the applicant had pleaded in para 2 that the proceedings affected Mr Juckers, and in para 3 it had only stated it was entitled to represent Mr Juckers' industrial interests. By implication, the applications did not affect any other employees, and the union had not asserted any right to file applications that allege contraventions involving anyone else covered by the Agreements. The respondent maintained its opposition to providing any relevant documents.
12. The respondent's reply of 5 November 2024 was overlooked until late March 2025. By then, the applicant had sought the respondent's attitude to making some further amendments to its application. The proposed further amendments: included more particulars of the allegation of breach of cl 66.5 of the 2015 Agreement in respect of Mr Juckers; withdrew one allegation of breach of cl 54.1 of the 2020 Agreement regarding Mr Juckers; and corrected some typographical and numbering errors. These amendments were not opposed.
13. On 14 March 2025, the applicant replied to the respondent's 5 November email. To satisfy the respondent's standing objection, and to avoid delay over the disputed pleadings' technicalities, the applicant proposed further amendments. These did not change Mr Juckers being nominated as the affected employee in paragraph 2, but did expand on paragraph 3 about the applicant. A new 3.5 has been proposed as follows:

3.5 entitled to represent the industrial interests of all workers of the respondent covered by the St Peter's College Enterprise Agreement 2015 and St Peter's College Enterprise Agreement 2020.

1. The applicant also proposed to amend paragraphs 4 and 5 to include an allegation that both Agreements applied to the respondent's general staff falling within the respective classification structures.
2. The applicant provided the respondent a copy of its own document apparently filed with the Fair Work Commission in 2022 that indicates it had identified all the 91 affected employees. That document informs the FWC that, by way of rectification, the respondent had taken action to review 91 position descriptions by consultation between HR, the Line Manager and staff members involved. The applicant reiterated its request for disclosure of documents relevant to the duty statement and classification consultations with its general staff employees.
3. The respondent declined to provide its consent to the proposed further amendment, and it declined to provide any of the requested documents. This formal application was then filed.

1. The applicant submits its proposed amendments should be permitted. They are intended to overcome the respondent's objections and ensure that the real or underlying controversy can be heard and determined. It seeks to have the allegations determined on the evidence, and not by reference to technical pleading arguments.
2. The amendments are not controversial. The applicant was a party to both Agreements, and the respondent has correctly acknowledged it has standing under the Agreements to represent the industrial interests of their employees who are covered by the Agreements.
3. There is no prejudice to the respondent. The same factual case is being advanced, the proceedings are at an early stage and the respondent has not yet been required to file any evidentiary material.
4. The disclosure order should be made. The applicant submits that based on the respondent's own formal communication with the FWC in November 2020, its claim to not know the names of the 90 general staff is disingenuous. Based on the respondent's advice to the FWC, it is inconceivable that it cannot now identify the employees it identified in November 2022, or any of its internal documents about its review and staff consultations. Such documents are directly relevant to the factual issue of whether the respondent failed to consult with 90 general staff other than Mr Juckers.

1. The respondent complains of the proceedings being broadened to change their nature to something "entirely different" from the initial proceedings.[3] It asserts the proceedings were confined to one employee, and by implication the proceedings should continue to be so confined, with the 'serious contravention' allegation dismissed. It asserts the amendments are not necessary to facilitate determination of the existing claims for Mr Juckers.
2. The respondent asserts the proposed penalty application is a fishing expedition to identify who each of the allegedly affected employees are. The respondent asserts it should not be required to "incriminate itself" by complying with court rules to provide disclosure of documents relevant to its alleged non-compliance with its own enterprise agreement.[4]
3. The respondent goes so far as to submit the allegation of 'serious contravention' of the cl 56.2 2020 Agreement obligation, in relation to Mr Juckers and about 90 other general staff employees, is an abuse of process, and the existing allegation should be struck out.
4. The respondent cited Australian Federation of Air Pilots v Regional Express Holdings Limited[5] to support its submissions.

1. I commence with the observation that contravention and penalty proceedings are commenced in this court by application with particulars of claims and allegations. The Court had then prescribed forms A38 and A39 for these respective applications.[6] Applications are not commenced by summons or application and formal pleadings. While particulars of claims and allegations made by application may be helpfully set out in formal pleadings, they should be understood in this context. Reliance on formal pleadings also risks overcomplication, as has happened here. In my view, routine use of formal pleadings is not consistent with the court's objectives of efficiency and cost effectiveness.
2. Thus, there is no need to technically plead a right to appear. The forms do not require that to be specified. Any substantive challenge to that right must be raised by a respondent or the Court. Similarly, there is no need to attach a pleading of coverage to the A38 because the form requires any relevant instrument to be specified. Here, both Agreements were specified on the A38. Correction of typographical errors of particulars should be clarified by correspondence, without troubling the Court with unnecessary formal and costly applications. An allegation can be unambiguously withdrawn by correspondence. In my view, SAET Rule 25 does not require formal interlocutory applications for making minor changes to particulars of applications and responses in predominantly no-costs jurisdictions.
3. I disagree with the respondent's submissions that the applicant does not have standing under the FW Act to file the serious contravention penalty application. In my view it has a right under s 539(2) Item 4(c) to bring applications for orders for declarations, compensation of underpayment amounts, and payment of penalties in respect of the alleged contraventions because it was a party to the Agreements. The applicant is an employee organisation to which the enterprise agreement concerned applies. The respondent has not disputed this right exists but has objected to it not being spelled out in the attachment to the A38.
4. Section 540(6) permits an employee association to apply for orders if, relevantly, a contravention is in relation to a person who is affected by the contravention, and the association is entitled to represent the industrial interests of the person. There is no allegation from the respondent that its general staff are not covered by the agreements, or that they are not entitled to be members of the applicant.
5. A similar objection to the standing of a union to seek penalties in respect of contraventions that affected individual employees was rejected by the Full Court of the Federal Court in Australian Federation of Air Pilots v Regional Express Holdings Limited.[7] The respondent had submitted the court lacked jurisdiction because the union had failed to "bring with it" a cadet who was a "person affected" by the alleged contraventions so as to engage the standing provisions in s 540(6) of the FW Act.[8] That was said to be because only one of the three affected cadets gave evidence in relation to the employer's threat. The court concluded:[9]

We do not accept REX's contention that the Federation was required to "bring with it" a cadet who was a "person affected" by the contraventions. The standing afforded to an industrial association by s 540(6)(b) of the FW Act to apply for an order is not derivative. In bringing an application the industrial association does not stand in the shoes of, or act as agent of a person affected by a contravention. Rather, an industrial association is given standing as a principal in an independent capacity to apply for an order in relation to a contravention if the condition in s 540(6)(b), that the industrial association is entitled to represent the industrial interests of the person affected by the contravention, is engaged. That condition equates with the Dunlop Rubber principle: R v Dunlop Rubber Australia Ltd; Ex parte Federated Miscellaneous Workers Union [1957] HCA 19; (1957) 97 CLR 71; Regional Express Holdings Limited v Australian Federation of Air Pilots [2017] HCA 55; 262 CLR 456 at [29] (Kiefel CJ, Keane, Nettle, Gordon and Edelman JJ).

1. Contrary to the respondent's submission, the applicant has standing in its own right to apply for pecuniary penalties for alleged contraventions of a civil remedy provision. That is because the applicant union is a party to the Agreements and is entitled to represent the industrial interests of persons covered by them and who are affected by an alleged contravention. The union has standing in its independent capacity to apply for orders about contraventions and serious contraventions. The union's right to do so is not derived from an individual employee's complaint.
2. Here the applicant is partly representing Mr Juckers' industrial interests under the Agreements as his agent regarding underpayment amounts associated with alleged contraventions, and partly acting as principal in seeking penalties for what it alleges were breaches of its 2020 Agreement with the respondent.
3. The respondent's opposition to the amendment, and to having to answer the allegation of a breach involving Mr Juckers and 90 other employees, misconceives the nature of the current and proposed applications. It is not a simple contravention claim for unpaid entitlements by one employee, with a penalty sought for that employee.
4. The amended penalty application alleged a serious contravention involving Mr Juckers, and a systematic pattern of similar omissions in relation to about 90 other general staff. The proposed further amendments do not change or broaden that allegation. The amended application was not confined to Mr Juckers.
5. The respondent's submissions are not consistent with the more stringent statutory construct of a 'serious contravention' that applied at the time of the allegation. This required proof that the employer knowingly contravened a civil remedy provision, and that more than one employee was subjected to a systematic pattern of the same contravening conduct. The respondent's attempt to individualise the penalty application to one employee disregards this significant context.
6. Furthermore, the applicable legal principles for determining whether it is appropriate to impose a penalty for a proven contravention, and if so, how much, usually requires consideration of evidence of rectification and of how the obligations will be complied with in respect of other employees into the future.
7. The respondent has also not addressed an obvious alternate procedural option that was, and remains, available to the applicant. That was to omit the cl 56.2 'serious contravention' allegations from the original application, and to file an entirely separate pecuniary penalty application alleging a breach of cl 56.2 in relation to the 90'odd general staff employees plus Mr Juckers, with a 'serious contravention' specified in the application. In that event, none of the respondent's current procedural complaints could arise. If the cl 56.2 breaches and resulting contraventions had been separately filed, there would have been pressure for the closely related applications to be consolidated or heard together. I am not aware of any legal principle that limits penalty proceedings to one affected person.
8. Instead, the applicant raised all related issues in the one proceeding. I accept the applicant's amendments are an attempt to ensure the real questions in controversy between the parties are decided, including whether the respondent complied with its cl 56.2 obligation regarding its approximately 91 general staff employees at the specified time. The pleaded issue has always been broader than whether the respondent complied with its cl 56.2 obligation regarding only Mr Juckers. The applicant's approach of initiating the one set of proceedings is consistent with the efficiency objectives of this court.
9. The respondent also complains about the time taken for the above processes. It submits the application should be refused due to the further delay that will result from the amendment being made and the disclosure being required.
10. I reject this ground. The additional time taken to reach this point is unfortunate but is largely due to the respondent's erroneous objections to the form and content of the applications and its refusal to provide discovery.
11. I reject the respondent's reliance on a privilege against self-incrimination (or self-exposure to a penalty). Only an individual person has the benefit of the penalty privilege to not be required to take any steps in penalty proceedings to assist their prosecutor. This procedural principle does not apply to a corporate entity.[10]
12. Secondly, there is unchallenged prima facie evidence received for the purpose of this application, of the respondent asserting it knows who each of the 90 other employees are. In the document filed by the respondent with the Fair Work Commission on 17 November 2022 about enterprise bargaining, the respondent stated:

The recent focus of our negotiations has been the General Staff Claim. Exploration of this claim has identified that our position descriptions require a biannual review and were not being kept up to date.

St Peter's College took immediate action to review 91 position descriptions throughout the School by consultation between HR, Line Manager and the Staff Member.

1. While this material is incomplete and the evidence to be admitted at the hearing may well be quite different, there does not appear to be any current impediment to the respondent identifying or ascertaining which general staff members were affected, or to it providing disclosure of all relevant documents.
2. I add that the personal identity of the 90 general staff employees is not a material issue, as no claim has been made on their behalf in relation to this alleged contravention. The material issue is whether cl 56.2 was breached in respect of Mr Juckers and one or more of about 90 other general staff employees as part of a systematic pattern of conduct.
3. I conclude that once the material issue of whether the respondent breached cl 56.2 in relation to 90 general staff employees in addition to Mr Juckers, is accepted as being relevant to the 'serious contravention' claim, the respondent is legally obliged to provide at least all directly relevant documents.

1. The applicant seeks an order for its costs of and incidental to the interlocutory application in accordance with s 570(2)(b). The applicant submits the respondent's continued opposition to further uncontroversial amendments, and the respondent's claim it could not identify the 90 general staff employees or any of its internal documents about the issue, were both unreasonable actions which unnecessarily caused it to incur legal costs.
2. The respondent denies any unreasonable actions. The respondent says the applicant is responsible for these steps because it did not initially properly plead its case.
3. I have concluded the respondent unreasonably opposed the further amendment, which its own complaints about the applications had prompted. The factual allegations relevant to the 'serious contravention' allegation align with the relevant statutory considerations in s 557A, and the respondent's opposition was contrary to authority.
4. I have concluded the respondent's persistent refusal to provide disclosure in relation to an existing material issue unreasonably caused the applicant to seek formal orders for disclosure.
5. I conclude the respondent should be required to pay the legal costs it unreasonably caused the applicant to incur. They are the costs of and incidental to the disputed interlocutory application.

1. I grant leave to the applicant to file and serve within seven days the further amended pecuniary penalty Application.

1. I order the respondent to file and serve an amended Response within 14 days of service.

1. I order the respondent to make disclosure of all documents directly relevant to the allegation of contraventions regarding 90 general staff employees in addition to Mr Juckers, within a further 7 days.

1. I order the respondent to pay the costs of and incidental to this application in accordance with the court's Rules.

1. A telephone directions hearing will be listed in five weeks for the purpose of making further procedural orders.

[1] Fair Work Legislation Amendment (Closing Loopholes No. 2) Act 2024.

[2] Fair Work Legislation (Closing Loopholes) Bill 2023, Revised Explanatory Memorandum, paras 916

[3] Respondent's written submission, para 11.

[5] [2021] FCAFC 226.

[6] Form A38 is now used for both contravention and pecuniary penalty applications.

[7] [2021] FCAFC 226.

[10] Meneses v Directed Electronics OE Pty Ltd [2019] FCAFC 190, at [88].