Pine v Seelite Windows & Doors Pty Ltd

REASONS FOR JUDGMENT 1 A judge has no role to play in deciding what action should, and what action should not, be prosecuted: Regina v Sang [1980] AC 402, 454. In addition, a judge does not have a discretion whether or not to hear a case which has been brought to court: Director of Public Prosecutions v Humphrys [1977] AC 1, 46 per Lord Salmon: ("[A] judge has not and should not appear to have any responsibility for the institution of proceedings; nor has he any power to refuse to allow a prosecution to proceed merely because he considers that, as a matter of policy, it ought not to have been brought"). If an action has been regularly commenced in a court of competent jurisdiction, the judge to whom the case has been assigned must dispose of it according to its merits. On the other hand, a judge does have the right, which he can exercise only in limited circumstances, to stay an action whose commencement or prosecution is in abuse of the court's processes: Mills v Cooper [1967] 2 QB 459, 467. 2 Contrary to popular belief, a prosecuting authority does not have to take action on every occasion that an offence has been committed. Indeed it has never been doubted that the power of the Attorney General or Director of Public Prosecutions (as the case may be) to initiate criminal prosecutions is purely discretionary. As a former Attorney General in England, Sir Hartley Shawcross, declared in 1951 in a debate in the House of Commons: "It has never been the rule in this country - I hope it never will be - that suspected criminal offences must automatically be the subject of prosecution. Indeed, the very first Regulations under which the Director of Public Prosecutions worked provided that he should … prosecute 'wherever it appears that the offence or the circumstances of its commission is or are of such a character that a prosecution in respect thereof is required in the public interest.' This is still the dominant consideration." (United Kingdom, House of Commons, Debates, Vol 483, col 681, 29 January 1951). Put another way, every system needs a safety valve for cases where the law has been breached but commonsense demands that no prosecution be pursued. See generally: J Vorenberg, "Decent Restraint of Prosecutorial Power" 94 Harvard Law Review 1521 (1981); R Daw, "The 'Public Interest' Criterion in the Decision to Prosecute" (1989) 53 Journal of Criminal Law 485. 3 In Australia prosecuting authorities have prosecutorial guidelines which deal with, among other things, the matters to be taken into account when deciding whether to initiate a prosecution. Two major factors are considered: the sufficiency of the evidence and whether the public interest requires that a prosecution be pursued. The guidelines list a number of factors that should be taken into account when evaluating the public interest. They include: the seriousness or triviality of the alleged offence; whether the prosecution would be perceived as counter-productive, for example by bringing the law into disrepute; the degree that the offence is of public concern; the likely sentencing result; the necessity of maintaining public confidence in the courts; and the offender's degree of culpability. There is no reason why these factors should be confined to the institution of criminal prosecutions; they have equal applicability to contraventions of quasi-criminal statutes such as the Workplace Relations Act 1996 (Cth). If these factors had been considered here in all likelihood the action would not have been brought. That is not, however, a matter about which complaint can be made; the discretion whether or not to prosecute a case is not amenable to judicial review: Barton v The Queen (1980) 147 CLR 75, 94; R v Jewitt [1985] 2 SCR 128, 139-140. 4 The application is for the imposition of a pecuniary penalty under s 187AD(1) of the Workplace Relations Act for a contravention of s 187AA of the Act. The sections are found in Part VIIIA and were introduced in 1996. They are concerned with the payment of wages to an employee during a period when the employee is engaged in industrial action. Section 187AA proscribes the payment of wages in those circumstances if the employer or employee is a member of an organisation or the employer is bound by an award, a certified agreement or an AWA or the industrial action is taken in connection with work regulated by an award or certified agreement or an AWA or the industrial action is taken in relation to an industrial dispute. A contravention of the section is not an offence. The court may, however, make an order imposing on the person who has contravened the section a monetary penalty, at the relevant time not more than $10,000 but now not more than 300 penalty units ($33,000). The court may also require the person to pay compensation, make such injunctions or grant any other orders as may be necessary to stop the contravention or remedy its effects or make any other consequential order: s 187AD. 5 The facts in this case are not in dispute. In August 2003 the respondent was engaged by Multiplex Limited to perform work at a block of apartments that were being constructed in Melbourne. On 5 August 2003 and again on 6 August 2003 a number of the respondent's employees engaged in industrial action at the worksite. Their action followed the death of a labourer on a farm in Shepparton. There was no connection between the accident in Shepparton and the work being performed on the site in Melbourne. Nevertheless it led to a stop work, while a site safety audit was conducted by union officials. 6 In breach of s 187AA four workers who had engaged in the industrial action were paid their wages. For the two days their wages totalled $656.72. About half that amount covered the period of the industrial action. 7 The respondent's foreman did not inform the managing director that the employees had not worked on 5 and 6 August. The failure to inform the managing director was in breach of the foreman's instructions. Had the managing director been told he would have instructed the pay office to dock their pay to ensure that s 187AA was complied with. 8 To rectify the situation, the managing director held discussions with the respondent's site managers and site foremen. He has made it clear that any industrial action or work stoppage must immediately be reported to him. The site managers and site foremen were also instructed that all employees are required to complete their time sheets correctly and record any loss of time and the reasons for it. The managing director informed the Building Industry Taskforce that he would take steps to ensure that all of the respondent's employees are aware of their responsibilities and the consequences of industrial action and strike pay. Accordingly, the respondent wrote to all of its employees advising them that they would not be paid for any lost time arising out of industrial action other than in circumstances where they were exposed to an immediate safety risk. The letter advised that the employees must correctly complete their time sheets and specify any lost time or work stoppage on those timesheets, irrespective of its duration. 9 In these circumstances this action is much ado about nothing. True it is that the laws of the land must be obeyed. It is also true that the Building Industry Taskforce is entitled to take all reasonable steps to ensure that the laws, for which it has some responsibility in enforcing, are complied with. As I have said, not every contravention of every law needs to be punished. Often a caution will suffice. But, as it has been decided that there should be an action, I must deal with it. 10 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. 11 All I am prepared to do is declare that there has been a contravention of the Act. I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Finkelstein.