The relevant parts of s. 119 of the Act are as follows:

"119. (1) Where any organization or person bound by an order or award has committed a breach or non-observance of a term of the order or award, a penalty may be imposed by the Court. . .

"(1A) Subject to the next two succeeding sub-sections, where a Court finds that two or more breaches by the same organization or person of a term of an order or award have been committed and those breaches appear to that Court to have arisen out of a course of conduct by that organization or person, those breaches shall, for the purposes of this section, be treated as constituting a single breach of that term.

(1B) A breach by an organization or person of a term of an order or award committed after a Court has imposed a penalty in respect of an earlier breach by that organization or person of that term shall not be taken to have arisen out of the same course of conduct as the earlier breach. . .

"(3) Where, in any proceedings against an employer before a Court specified in sub-section (1), it appears to the Court that an employee of that employer has not been paid an amount to which he is entitled under an order or award, the Court may order that the employer shall pay to the employee the amount of the underpayment but no order shall be made in respect of so much of the underpayment as relates to any period more than six years prior to the commencement of the proceedings."

Held: (1) The intention of the legislature in inserting sub-s. (1A) into s. 119 was to ensure that, subject to certain exceptions under sub-ss. (1B) and (1C), only one penalty could be imposed in respect of any number of breaches by the one respondent of a term of an award where those breaches arose "out of a course of conduct by" that respondent.

(2) The words used in s. 119 (1A) are wide and require the court to consider any evidence before it as to "the course of conduct" of the respondent including evidence that breaches already dealt with by a court arose out of the same course of conduct as that alleged in respect of the breaches before the court.

(3) The dividing line between breaches which are the subject of s. 119 (1A) and are "to be treated as a single breach" and those which are not, is the fact and date of the imposition of the penalty. Those breaches committed before the imposition of such a penalty are "to be treated as a single breach".

(4) The breaches alleged in the current proceedings and those before the court in 1975 had to "be treated as a single breach" for the purposes of s. 119 and as a penalty in respect of that breach had already been imposed by a court, no further penalty could be imposed.

(5) The jurisdiction conferred by s. 119 (3) to order an employer to pay an employee the amount of an underpayment is not an incident to the imposition of a penalty. It is conditional only upon it properly appearing to a court in a proceeding pursuant to s. 119 (1), or possibly some other proceeding, that underpayments have occurred in breach of an award.

(6) Any payments occurring in a situation in which the employer, having intimated to his employees that he cannot afford award wages and must terminate their employment unless they agree to work for less, and they had so agreed, are breaches arising out of a course of action within the meaning of s. 119 (1A).

SUMMONS.

The claimant, an inspector appointed pursuant to s. 125 of the Conciliation

and Arbitration Act 1904-1976, sought orders under s. 119 of the Act imposing penalties upon the respondent for breaches of the Professional Divers' Award 1974, and further orders under s. 119 (3) of the Act that the respondent pay to certain of his employees amounts of underpayments to which they were entitled under the award. The material facts appear from the judgment of the court.

P. L. Sharp Q.C. and P. B. Kirby, for the claimant.

L. A. Jackson, for the respondent.

Cur. adv. vult.

Solicitor for the claimant: A. R. Neaves (Commonwealth Crown Solicitor).

Solicitors for the respondent: Jackson McDonald & Co.

THE COURT delivered the following judgment.

In six summonses (Nos. W.A. 1-6 of 1977) the claimant, John Richard Quinn,

an inspector appointed pursuant to s. 125 of the Conciliation and Arbitration Act 1904-1976 (the Act) seeks orders under s. 119 imposing upon Barry Martin, the respondent, for breaches of cl. 26 (wages), cl. 28 (overtime) and cl. 29 (special allowances) of the Professional Divers' Award 1974 (the award) in respect of moneys due to two employees of the respondent, namely, Lester Herbert Mayes and John Stuart Shepherd, for various periods set out in the respective summonses. The court was asked to make further orders pursuant to s. 119 (3) that the respondent pay to such employees amounts of particularized underpayments to which they were entitled under the award, totalling, in respect of Mr. Mayes, $3,314.71 and in respect of Mr. Shepherd, $1,804.94. (at p27)

2. Clause 26 of the award came into operation as from the first pay period on and after 1st February, 1974. Clauses 28 and 29 of the award operated as from the first pay period on and after 26th February, 1974. Pursuant to s. 61 of the Act the respondent was thereafter bound by the award and variations thereto, and the said two employees were entitled to the benefits provided for therein during the period of their employment with the respondent. (at p27)

3. The three summonses before the court concerning the employment by the respondent of Mr. Mayes allege in regard to cl. 26 of the award that the respondent failed to pay him the award rates for the pay week ending 7th February, 1974; in regard to cl. 28 of the award, that he failed to pay him overtime at the rate provided for during forty-five pay weeks between February 1974, and 16th January, 1975; and in regard to cl. 29 of the award, that he failed to pay him the special allowances provided for in respect of ninety-four days on and between 1st March, 1974, and 4th January, 1975. (at p27)

4. The three summonses before the court concerning the employment by the respondent of Mr. Shepherd allege in regard to cl. 26 that the respondent failed to pay him the award rates in respect of three pay weeks ending 20th June, 1974, 6th February, 1975, and 13th February, 1975; in regard to cl. 28 of the award, that he failed to pay him overtime at the rates provided for during forty-seven pay weeks between February 1974, and 13th February, 1975; and in regard to cl. 29 of the award, that he failed to pay him the special allowances provided for in respect of forty-three days on and between 20th March, 1974, and 6th February, 1975. (at p27)

5. As stated, the amounts of the alleged underpayments in respect of Mr. Mayes totalled $3,314.71, and in respect of Mr. Shepherd totalled $1,804.94. (at p27)

6. It was conceded by counsel for the respondent that the breaches alleged had been committed by the respondent and that the employees in question had been underpaid accordingly. However the respondent contended that by reason of the provisions of s. 119 (1A) these proceedings were incompetent. (at p28)

"119. (1) Where any organization or person bound by an order or award has committed a breach or non-observance of a term of the order or award, a penalty may be imposed by the Court or, except in the case of a breach or non-observance of a term of an order or award of the kind referred to in sub-section (1) of section 33, by any District, County or Local Court or Court of summary jurisdiction that is constituted by a Judge, by a Police, Stipendiary or Special Magistrate or by an Industrial Magistrate appointed under any State Act who is also a Police, Stipendiary or Special Magistrate. (at p28)

8. "(1A) Subject to the next two succeeding sub-sections, where a Court finds that two or more breaches by the same organization or person of a term of an order or award have been committed and those breaches appear to that Court to have arisen out of a course of conduct by that organization or person, those breaches shall, for the purposes of this section, be treated as constituting a single breach of that term. (at p28)

9. "(1B) A breach by an organization or person of a term of an order or award committed after a Court has imposed a penalty in respect of an earlier breach by that organization or person of that term shall not be taken to have arisen out of the same course of conduct as the earlier breach . . . (at p28)

10. "(3) Where, in any proceedings against an employer before a Court specified in sub-section (1), it appears to the Court that an employee of that employer has not been paid an amount to which he is entitled under an order or award, that Court may order that the employer shall pay to the employee the amount of the underpayment but no order shall be made in respect of so much of the underpayment as relates to any period more than six years prior to the commencement of the proceedings." (at p28)

11. Six summonses (numbered B 367-372 of 1975) were issued under the Act in 1975 against the respondent, claiming penalties pursuant to s. 119 for alleged breaches of the award in respect of the same clauses thereof as are mentioned above and relating to underpayments thereunder in respect of the same two employees. Those summonses were heard by the Australian Industrial Court on 20th and 21st August, 1975. The claimant in those proceedings was Terence Anthony Lemmon, an inspector appointed pursuant to s. 125 of the Act. (at p28)

12. Summonses B 367, 368 and 369 of 1975 related to alleged breaches by the respondent of cll. 26, 28 and 29 of the award respectively in respect of the employee Mr. Shepherd committed between 7th February, 1974, and 26th December, 1974. The affidavit of the claimant filed in support of the summonses showed that he had been underpaid by reason of such breaches amounts totalling $423.21. (at p29)

13. Summonses B 370, 371 and 372 of 1975 related to alleged breaches by the respondent of cll. 26, 28 and 29 of the award respectively in respect of the employee Mr. Mayes committed between 14th May, 1974, and 3rd April, 1975. The affidavit of the claimant filed in support of the summonses showed that he had been underpaid by reason of such breaches amounts totalling $686.78. (at p29)

14. On 21st August, 1975, the Australian Industrial Court found that the breaches referred to in each of the three summonses in respect of the employment by the respondent of Mr. Shepherd had been committed and arose out of a course of conduct by the respondent within the meaning of s. 119 (1A) and treated the breaches of each particular clause of the award as constituting a single breach of each respective clause, and imposed the following penalties: in matter B 367 of 1975, a penalty of $350; in matter B 368 of 1975, a penalty of $150; and in matter B 369 of 1975, a penalty of $100. That court further found that the course of conduct by the respondent referred to also applied to those breaches in respect of the employment by the respondent of Mr. Mayes and imposed no penalty in respect of those breaches referred to in matters B 370, 371 and 372 of 1975. Further, the Australian Industrial Court made orders pursuant to s. 119 (3) that the respondent pay to the two employees the amounts of underpayments actually proved, namely, $423.21 in the case of Mr. Shepherd and $686.78 in the case of Mr. Mayes. (at p29)

15. There was presented to the court what was called an "agreed statement" signed by counsel in the following terms: (1) Breaches of award as claimed and amounts are correct. (2) Actions in 1975 were part of total breaches of award and these actions are the balance. (3) All evidence available in 1975. This statement was interpreted by the parties and the court as meaning, first, that the breaches of the award alleged in each of the summonses presently before the court had been committed as alleged and that the underpayments set out in the affidavits of the claimant filed in respect of such summonses had occurred as alleged. Secondly, that the breaches dealt with by the Australian Industrial Court pursuant to the summonses heard by it in August 1975, were part of a total number of breaches of the award committed by the respondent in relation to the two employees mentioned above and the breaches outlined in the summonses presently before the court were the balance of such breaches. Thirdly, that the evidence relating to all breaches of the award by the respondent in respect of the said two employees was available to the claimant in the summonses heard by the Australian Industrial Court in August 1975. (at p29)

16. The respondent and the two employees in question gave oral evidence in the present proceedings. On the evidence and admissions before the court we find that each breach alleged in the proceedings before this Court in respect of cl. 26 of the award (matters No. W.A. 1 of 1977 and W.A. 4 of 1977) occurred, that each such breach arose out of a course of conduct by the respondent, and that the breaches of cl. 26 of the award which led to the imposition of a penalty under s. 119 of the Act by the Australian Industrial Court on 21st August, 1975, arose out of the same course of conduct. (at p30)

17. The course of conduct was that the respondent having decided that he would pay to the employees not amounts of money in accordance with the award but such amounts, having some relation to the provisions of the award, but not exceeding what the respondent considered he could afford in prevailing conditions, intimated to the employees in question the amounts he was willing to pay and informed them that unless they accepted such amounts their employment would be terminated and upon their agreement to accept such amounts the respondent paid the same for the work done by the employees. (at p30)

18. Relying upon s. 119 (1A) Mr. Jackson, who appeared for the respondent, argued that all of the breaches of cl. 26 of the award (viz., those already dealt with by the Australian Industrial Court and those presently before this Court) "shall, for the purposes of this section, be treated as constituting a single breach of" cl. 26 of the award. Accordingly, it was argued that this Court has no power to impose a penalty in respect of the breaches of cl. 26 presently before it. Indeed Mr. Jackson contended that the breaches of cl. 26 alleged in the summonses before this Court had merged in the breach of cl. 26 dealt with by the Australian Industrial Court and could not now be the subject of any proceedings under s.119 (1) or the foundation for any relief under s. 119 (3). The same argument was advanced by Mr. Jackson in respect of the alleged breaches of cll. 28 and 29 of the award respectively, in matters Nos. W.A. 2 and 5 (cl.28) and matters Nos. W.A. 3 and 6 (cl.29). (at p30)

19. On the evidence and admissions we find that the alleged breaches of cl. 28 of the award occurred, that they arose out of a course of conduct by the respondent, and that the breaches of cl. 28 which led to the imposition of penalties under s. 119 of the Act by the Australian Industrial Court on 21st August, 1975, arose out of the same course of conduct. We make the same finding in respect of the alleged breaches of cl. 29. Accordingly, as to the questions of law our decision in relation to the breaches of cll. 28 and 29 will be the same as our decision in respect of the breaches of cl. 26. (at p30)

20. Mr. Sharp Q.C., who appeared with Mr. P. B. Kirby for the claimant, argued that, upon the proper interpretation of s. 119 (1A), the breaches therein referred to do not include breaches other than those which are before the court in the particular proceedings in which it is sought to rely upon that subsection. Accordingly he said that this Court cannot consider any breaches other than those alleged by the claimant in the proceedings before it and more specifically, that breaches already dealt with in the decision of the Australian Industrial Court on 21st August, 1975, are irrelevant. We do not accept this argument for two reasons. (at p31)

21. First, in our view the intention of the legislature in inserting sub-s. (1A) into s. 119 in the amending Act in 1970 was to ensure that, subject to certain exceptions under sub-ss. (1B) and (1C) not presently material, only one penalty could be imposed in respect of any number of breaches by the one respondent of a term of an award where those breaches arose "out of a course of conduct by" that respondent. (at p31)

22. If the argument of Mr. Sharp were correct, that legislative intention could be frustrated by a claimant or separate claimants seeking and obtaining separate summonses in respect of each alleged breach of a particular term of an award. (at p31)

23. Secondly, if the argument of Mr. Sharp were correct, then s. 119 (1B) would have been quite unnecessary. In our view in adopting the material 1970 amendments which include sub-ss. (1A) and (1B) the legislature clearly contemplated that but for the express terms of s. 119 (1B) breaches of a term of an award by a respondent occurring after the imposition of a penalty in respect of earlier breaches of that term of the award and arising out of the same course of conduct as that out of which the earlier breaches arose together with those earlier breaches would pursuant to sub-s. (1A) all be required to be treated as a single breach. In other words, the dividing line between breaches which are the subject of sub-s. (1A) and are to be treated as a single breach, and those which are not, is the fact and date of the imposition of a penalty in respect of a breach of the relevant award term. Those breaches committed before such penalty is imposed are to be treated as a single breach. (at p31)

24. In our view the words used in s. 119 (1A) are wide and require this Court to consider any evidence before it as to the course of conduct of the respondent including evidence that breaches of the term of the award already dealt with by a court arose out of the same course of conduct as that alleged in respect of the breaches now before this Court. (at p31)

25. Accordingly in view of the findings of this Court the breaches alleged in these proceedings and those the subject of the proceedings before the Australian Industrial Court must for the purposes of s. 119 "be treated" as a single breach. The question is, what is the effect of so doing. (at p31)

26. It is clear that in respect of that single breach a penalty has already been imposed by a competent court. Accordingly no further penalty should or could be imposed by this Court. (at p32)

27. The remaining question is whether s. 119 (3) empowers the court to make an order for payment to the employees of the underpayments resulting from the breaches which together with those dealt with by the Australian Industrial Court are to be treated as a single breach. (at p32)

28. Mr. Jackson argued that the power conferred by s. 119 (3) upon the court to order an employer to pay to an employee the amount of an underpayment only exists where in the proceedings before the court in which the order is sought, a penalty might be imposed. He submitted that the court had no such power where it is unable to impose a penalty. (at p32)

29. We do not accept this argument for the following reasons. Section 119 (3) does not expressly state that the power there conferred is so limited. On the contrary, it confers the power in clear terms by providing: "Where, in any proceedings against an employer before a Court specified in sub-section (1) it appears to the Court that an employee . . . has not been paid . . . " In these proceedings it does so appear and inevitably in pursuing the benefits of s. 119 (1A) the respondent made it appear that such underpayments had been made. Assuming that for the claimant to succeed on this issue, the proceedings must have been brought under s. 119 (1), these proceedings have been so brought in respect of breaches of the award. Section 119 (1A) requires that the breaches with all other breaches arising out of the same course of conduct "be treated as constituting a single breach". The subsection does not provide that the breaches to which it refers shall be "deemed" to be one breach, nor does it say that the breaches such as are proved in this Court to have occurred are to be regarded as never having occurred. (at p32)

30. That the breaches proved in this case are, together with the breaches proved before the Australian Industrial Court, to be treated as a single breach is pertinent to the imposition of a penalty pursuant to s. 119 (1) and (1D). But the jurisdiction conferred by s. 119 (3) does not appear to us to be conferred as an incident to the imposition of a penalty. It is conditional only on its properly appearing to a court in a proceeding pursuant to s. 119 (1) or possibly in some other proceeding that underpayments have occurred in breach of an award. In the interpretation of sub-ss. (1A) and (1B) an intention is discernible to protect a respondent from multiple penalties in respect of breaches arising out of a particular course of conduct. This can be seen as a provision to avoid excessive sanctions. But such an intention has nothing to do with a procedure for ensuring that moneys due to employees pursuant to an award are actually paid. It would in our view require clear words to disclose an intention to make the exercise of the jurisdiction, designed to that end as conferred by s. 119 (3), subject to a condition that it could only be exercised if a penalty could be imposed in the relevant proceedings under s. 119 notwithstanding that the relevant breaches have been proved. (at p33)

31. Accordingly the finding of the court is that the breaches alleged by the claimant in these proceedings were committed by the respondent and that those breaches together with the breaches the subject of the proceedings against the respondent in the Australian Industrial Court on 21st August, 1975, all arose out of the same course of conduct by the respondent. (at p33)

32. The finding of the court also is that the underpayments alleged by the claimant in payments due to the employees Lester Herbert Mayes and John Stuart Shepherd occurred as alleged. (at p33)

33. The order of the court is that the respondent pay to Lester Herbert Mayes the sum $3,314.71, and to John Stuart Shepherd the sum of $1,804.94. (at p33)